2011 Bar Examinations

BERT – NOTES in REMEDIAL LAW
1
Victory gos to t!os "it! !omici#a$ instinct to s%cc#&&& t!
m%r#ro%s mania to xc$&&&
Dan W& Riano
S'LLAB(S )OR 2011 BAR E*AMINATIONS
REMEDIAL LAW
I& +nra$ ,rinci-$s
A. Concept of Remedial Law
B. Substantive Law as Distinguished from Remedial Law
C. Rule-making ower of the Supreme Court
!. Limitations on the rule-making power of the
Supreme Court
". ower of the Supreme Court to amend and
suspend procedural rules
D. #ature of hilippine Courts
!. $eaning of a court
". Court as distinguished from a %udge
&. Classification of hilippine courts
'. Courts of original and appellate %urisdiction
(. Courts of general and special %urisdiction
). Constitutional and statutor* courts
+. Courts of law and e,uit*
-. rinciple of %udicial hierarch*
.. Doctrine of non-interference or doctrine of
%udicial stabilit*
II& .%ris#iction
A. /urisdiction over the parties
!. 0ow %urisdiction over the plaintiff is
ac,uired
". 0ow %urisdiction over the defendant is
ac,uired
B. /urisdiction over the sub%ect matter
!. $eaning of %urisdiction over the sub%ect
matter
". /urisdiction versus the e1ercise of
%urisdiction
&. 2rror of %urisdiction as distinguished from
error of %udgment
'. 0ow %urisdiction is conferred and determined
(. Doctrine of primar* %urisdiction
). Doctrine of adherence of %urisdiction
+. 3b%ections to %urisdiction over the sub%ect
matter
-. 2ffect of estoppel on ob%ections to
%urisdiction
C. /urisdiction over the issues
D. /urisdiction over the res or propert* in litigation
2. /urisdiction of Courts
!. Supreme Court
". Court of Appeals
&. Court of 4a1 Appeals
'. Sandiganba*an
(. Regional 4rial Courts
). 5amil* Courts
+. $etropolitan 4rial Courts6$unicipal 4rial
Courts
-. Shariah Courts
5. /urisdiction over small claims7 cases covered b* the
rules on Summar* rocedure and Baranga* Conciliation
8. 4otalit* Rule
III& /i0i$ ,roc#%r
A. Actions
!. $eaning of ordinar* civil actions
". $eaning of special civil actions
&. $eaning of criminal actions
'. Civil actions versus Special proceedings
(. ersonal actions and real actions
). Local and transitor* actions
+. Actions in rem7 in personam and ,uasi in
rem
B. Cause of Action
!. $eaning of cause of action
". Right of Action versus Cause of action
&. 5ailure to state a cause of action
'. 4est of the sufficienc* of a cause of action
(. Splitting a single cause of action and its
effects
). /oinder and mis%oinder of causes of action
C. arties to Civil Actions
!. Real arties in interest9 :ndispensable
parties9 Representatives as parties9 #ecessar*
parties9 :ndigent arties9 Alternative defendants
". Compulsor* and permissive %oinder of
parties
&. $is%oinder and non-%oinder of parties
'. Class Suit
(. Suits against entities without %uridical
personalit*
). 2ffect of death of part* litigant
D. ;enue
!. ;enue versus /urisdiction
". ;enue of real actions
&. ;enue of personal actions
'. ;enue of actions against non-residents
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
2
(. <hen the Rules on ;enue Do not Appl*
). 2ffects of Stipulations on ;enue
2. leadings
!. =inds of leadings
a. Complaint
b. Answer
>!? #egative defenses
>"? #egative pregnant
>&? Affirmative Defenses
c. Counterclaims
>!? Compulsor*
counterclaim
>"? ermissive
counterclaim
>&? 2ffect on the
Counterclaim when the
complaint is dismissed
d. Cross-claims
e. 4hird >fourth7 etc.? part*
complaints
f. Complaint-in-intervention
g. Repl*
". leadings allowed in small claim cases and
cases covered b* the rules on summar*
procedure
&. arts of a pleading
a. Caption
b. Signature and address
c. ;erification and certification
against forum shopping
>!? Re,uirements of a
corporation e1ecuting the
verification6certification of
non-forum shopping
d. 2ffect of the signature of counsel
in a pleading
'. Allegations in a pleading
a. $anner of making allegations
>!? Condition precedent
>"? 5raud7 mistake7 malice7
intent7 knowledge and other
condition of the mind7
%udgments7 official
documents or acts
b. leading an actionable document
c. Specific denials
>!? 2ffect of failure to
make specific denials
>"? <hen a specific denial
re,uires an oath
(. 2ffect of failure to plead
!. 5ailure to plead defenses and
ob%ections
". 5ailure to plead a compulsor*
counterclaim and cross-claim
). Default
a. <hen a declaration of default is
proper
b. 2ffect of an order of default
c. Relief from an order of default
d. 2ffect of a partial default
e. 21tent of relief
f. Actions where default are not
allowed
+. 5iling and Service of pleadings
:. a*ment of docket fees
::. 5iling versus service of pleadings
:::. eriods of filing of pleadings
:;. $anner of filing
;. $odes of service
>!? ersonal service
>"? Service b* mail
>&? Substituted service
>'? Service of %udgments7
final orders or resolutions
>(? riorities in modes of
service and filing
>)? <hen service is deemed
complete
>+? roof of filing and
service
-. Amendment
a. Amendment as a matter of right
b. Amendments b* leave of court
c. 5ormal amendment
d. Amendments to conform to or
authori@e presentation of evidence
e. Different from supplemental
pleadings
f. 2ffect of amended pleading
5. Summons
!. #ature and purpose of summons in relation
to actions in personam7 in rem and ,uasi in rem
". ;oluntar* appearance
&. ersonal service
'. Substituted service
(. Constructive service >b* publication?
a. Service upon a defendant where his
identit* is unknown or where his
whereabouts are unknown
b. Service upon residents temporaril*
outside the hilippines
). 21tra-territorial service7 when allowed
+. Service upon prisoners and minors
-. roof of service
8. $otions
!. $otions in general
a. Definition of a motion
b. $otions versus pleadings
c. Contents and form of motions
d. #otice of hearing and hearing of
motions
e. 3mnibus motion rule
f. Litigated and e1 parte motions
g. ro-forma motions
". $otions for Bill of articulars
a. urpose and when applied for
b. Actions of the court
c. Compliance with the order and
effect of noncompliance
d. 2ffect on the period to file a
responsive pleading
&. $otion to Dismiss
a. 8rounds
b. Resolution of $otion
c. Remedies of plaintiff when the
complaint is dismissed
d. Remedies of the defendant when
the motion is denied
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
1
e. 2ffect of dismissal of complaint on
certain grounds
f. <hen grounds pleaded as
affirmative defenses
g. Bar b* dismissal
h. Distinguished from demurrer to
evidence under Rule &&
0. Dismissal of Actions
!. Dismissal upon notice b* plaintiff9 4wo-
dismissal rule
". Dismissal upon motion b* plaintiff9 effect on
e1isting counterclaim
&. Dismissal due to the fault of plaintiff
'. Dismissal of counterclaim7 cross-claim or
third-part* complaint
:. re-trial
!. Concept of pre-trial
". #ature and purpose
&. #otice of pre-trial
'. Appearance of parties9 effect of failure to
appear
(. re-trial brief9 effect of failure to appear
). Distinction between pre-trial in civil case
and pre-trial in criminal case
+. Alternative Dispute Resolution >ADR?
/. :ntervention
!. Re,uisites for intervention
". 4ime to intervene
&. Remed* for the denial of motion to intervene
=. Subpoena
!. Subpoena duces tecum
". Subpoena ad testificandum
&. Service of subpoena
'. Compelling attendance of witnesses9
Contempt
(. Auashing of subpoena
L. $odes of Discover*
!. Depositions pending action9 Depositions
before action or pending appeal
a. $eaning of deposition
b. Bses9 Scope of e1amination
c. <hen ma* ob%ections to
admissibilit* be made
d. <hen ma* taking of deposition be
terminated or its scope limited
". <ritten interrogatories to adverse parties
a. Conse,uences of refusal to answer
b. 2ffect of failure to serve written
interrogatories
&. Re,uest for Admission
a. :mplied admission b* adverse
part*
b. Conse,uences of failure to answer
re,uest for admission
c. 2ffect of admission
d. 2ffect of failure to file and serve
re,uest for admission
'. roduction or inspection of documents or
things
(. h*sical and mental e1amination of persons
). Conse,uences of refusal to compl* with
modes of discover*
$. 4rial
!. Ad%ournments and postponements
". re,uisites of motion to postpone trial
a. for absence of evidence
b. for illness of part* or counsel
&. Agreed statement of facts
'. 3rder of trial9 reversal of order
(. Consolidation or Severance of hearing or
trial
). Delegation of reception of evidence
+. 4rial b* commissioners
a. Reference b* consent or ordered on
motion
b. owers of the commissioner
c. CommissionerCs report9 notice to
parties and hearing on the report
#. Demurrer to 2vidence
!. 8round
". 2ffect of denial
&. 2ffect of grant
'. <aiver of right to present evidence
(. Demurrer to evidence in a civil case versus
demurrer to evidence in a criminal case
3. /udgments and 5inal 3rders
!. /udgment without trial
". Contents of a %udgment
&. /udgment on the pleadings
'. Summar* %udgments
a. for the claimant
b. for the defendant
c. when the case not full* ad%udicated
d. affidavits and attachments
(. /udgment on the pleadings versus summar*
%udgments
). Rendition of %udgments and final orders
+. 2ntr* of %udgment and final order
. ost /udgment Remedies
!. $otion for #ew 4rial or reconsideration
a. 8rounds
b. <hen to file
c. Denial of the motion9 effect
d. 8rant of the motion9 effect
e. Remed* when motion is denied7
5resh !(-da* period rule
". Appeals in 8eneral
a. /udgments and final orders sub%ect
to appeal
b. $atters not appealable
c. Remed* against %udgments and
orders which are not appealable
d. $odes of appeal
>!? 3rdinar* appeal
>"? etition for review
>&? etition for review on
certiorari
e. :ssues to be raised on appeal
f. eriod of appeal
g. erfection of appeal
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
2
h. Appeal from %udgments or final
orders of the $4C
i. Appeal from %udgments or final
orders of the R4C
%. Appeal from %udgments or final
orders of the CA
k. Appeal from %udgments or final
orders of the C4A
l. Review of final %udgments or final
orders of the C3A
m. Review of final %udgments or final
orders of the C3$2L2C
n. Review of final %udgments or final
orders of the CSC
o. Review of final %udgments or final
orders of the 3mbudsman
p. Review of final %udgments or final
orders of the #LRC
,. Review of final %udgments or final
orders of ,uasi-%udicial agencies
&. Relief from %udgments7 orders and other
proceedings
a. 8rounds for availing of the remed*
b. 4ime to file petition
c. Contents of petition
'. Annulment of /udgments or final orders and
resolutions
a. 8rounds for annulment
b. eriod to file action
c. 2ffects of %udgment of annulment
(. Collateral attack of %udgments
A. 21ecution7 Satisfaction and 2ffect of /udgments
!. Difference between finalit* of %udgment for
purposes of appeal9 for purposes of e1ecution
". <hen e1ecution shall issue
a. 21ecution as a matter of right
b. Discretionar* e1ecution
&. 0ow a %udgment is e1ecuted
a. 21ecution b* motion or b*
independent action
b. :ssuance and contents of a writ of
e1ecution
c. 21ecution of %udgments for mone*
d. 21ecution of %udgments for
specific acts
e. 21ecution of special %udgments
f. 2ffect of lev* on third persons
'. roperties e1empt from e1ecution
(. roceedings where propert* is claimed b*
third persons
a. in relation to third part* claim in
attachment and replevin
). Rules on Redemption
+. 21amination of /udgment 3bligor <hen
/udgment is unsatisfied
-. 21amination of 3bligor of /udgment 3bligor
.. 2ffect of /udgment or 5inal 3rders
!D. 2nforcement and 2ffect of 5oreign
/udgments or 5inal 3rders
R. rovisional Remedies
!. #ature of provisional remedies
". /urisdiction over provisional remedies
&. reliminar* Attachment
a. 8rounds for issuance of writ of
attachment
b. Re,uisites
c. :ssuance and contents of order of
attachment9 affidavit and bond
d. Rule on prior or contemporaneous
service of summons
e. $anner of attaching real and
personal propert*9 when propert*
attached is claimed b* third person
f. Discharge of attachment and the
counter-bond
g. Satisfaction of %udgment out of
propert* attached
'. reliminar* :n%unction
a. Definitions and DifferencesE
reliminar* :n%unction and
4emporar* Restraining 3rder
b. Re,uisites
c. =inds of :n%unction
d. <hen writ ma* be issued
e. 8rounds for issuance of
preliminar* in%unction
f. 8rounds for ob%ection to7 or for the
dissolution of in%unction or
restraining order
g. Duration of 4R3
h. :n relation to RA -.+(7 Ban on
issuance of 4R3 or <rit of
:n%unction in cases involving
government infrastructure pro%ects
i. Rule on prior or contemporaneous
service of summons in relation to
attachment
(. Receivership
a. Cases when receiver ma* be
appointed
b. Re,uisites
c. Re,uirements before issuance of
an 3rder
d. 8eneral powers of a receiver
e. 4wo >"? kinds of bonds
f. 4ermination of receivership
). Replevin
a. <hen ma* writ be issued
b. Re,uisites
c. Affidavit and bond9 Redeliver*
Bond
d. SheriffCs dut* in the
implementation of the writ9 when
propert* is claimed b* third part*
S. Special Civil Actions
!. #ature of special civil actions
". 3rdinar* civil actions versus special civil
actions
&. /urisdiction and venue
'. :nterpleader
a. Re,uisites for interpleader
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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b. <hen to file
(. Declarator* Reliefs and Similar Remedies
a. <ho ma* file the action
b. Re,uisites of action for declarator*
relief
c. <hen court ma* refuse to make
%udicial declaration
d. Conversion to ordinar* action
e. roceedings considered as similar
remedies
A. Reformation of an
instrument
B. Consolidation of
ownership
C. Auieting of title to real
propert*
). Review of /udgments and 5inal 3rders or
Resolution of the C3$2L2C and C3A
a. Application of Rule )( under Rule
)'
b. Distinction in the application of
Rule )( to %udgments of the
C3$2L2C and C3A and the
application of Rule )( to other
tribunals7 persons and officers
+. Certiorari7 rohibition and $andamus
a. Definitions and distinctions
b. Re,uisites
c. <hen petition for certiorari7
prohibition and mandamus is proper
d. :n%unctive relief
e. Certiorari distinguished from
Appeal b* Certiorari9 rohibition and
$andamus distinguished from
:n%unction9 when and where to file
petition
f. 21ceptions to filing of motion for
reconsideration before filing petition
g. Reliefs petitioner is entitled to
h. Actions63missions of $4C6R4C
in election cases
i. <here to file petition
%. 2ffects of filing of an
unmeritorious petition
-. Auo <arranto
a. Distinguish from Auo <arranto in
the 3mnibus 2lection Code
b. <hen government commence an
action against individuals
c. <hen individual ma* commence
an action
d. /udgment in Auo <arranto action
e. Rights of a person ad%udged
entitled to public office
.. 21propriation
a. $atters to allege in complaint for
e1propriation
b. 4wo stages in ever* action for
e1propriation
c. <hen plaintiff can immediatel*
enter into possession of the real
propert*7 in relation to RA -.+'
d. #ew s*stem of immediate pa*ment
of initial %ust compensation
e. Defenses and ob%ections
f. 3rder of 21propriation
g. Ascertainment of %ust
compensation
h. Appointment of Commissioners9
CommissionerCs report9 Court action
upon commissionerCs report
i. Rights of plaintiff upon %udgment
and pa*ment
%. 2ffect of recording of %udgment
!D. 5oreclosure of Real 2state $ortgage
a. /udgment on foreclosure for
pa*ment or sale
b. Sale of mortgaged propert*9 effect
c. Disposition of proceeds of sale
d. Deficienc* %udgment
>!? :nstances when court
cannot render deficienc* %udgment
e. /udicial foreclosure versus
e1tra%udicial foreclosure
f. 2,uit* of redemption versus right
of redemption
!!. artition
a. <ho ma* file complaint9 who
should be made defendants
b. $atters to allege in the complaint
for partition
c. 4wo >"? stages in ever* action for
partition
d. 3rder of partition and partition b*
agreement
e. artition b* commissioners9
Appointment of commissioners7
CommissionerCs report9 Court action
upon commissionerCs report
f. /udgment and its effects
g. artition of personal propert*
h. rescription of action
!". 5orcible 2ntr* and Bnlawful Detainer
a. Definitions and Distinction
b. Distinguished from accion
publiciana and accion
reinvindicatoria
c. 0ow to determine %urisdiction in
accion publiciana and accion
reinvindicatoria
d. <ho ma* institute the action and
when9 against whom the action ma*
be maintained
e. leadings allowed
f. Action on the complaint
g. <hen demand is necessar*
h. reliminar* in%unction and
preliminar* mandator* in%unction
i. Resolving defense of ownership
%. 0ow to sta* the immediate
e1ecution of %udgment
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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k. Summar* procedure7 prohibited
pleadings
!&. Contempt
a. =inds of contempt
b. urpose and nature of each
c. Remed* against direct contempt9
penalt*
d. Remed* against indirect contempt9
penalt*
e. 0ow contempt proceedings are
commenced
f. Acts deemed punishable as indirect
contempt
g. <hen imprisonment shall be
imposed
h. Contempt against ,uasi-%udicial
bodies
IV& S-cia$ ,roc#ings
A. Settlement of 2state of Deceased ersons7 ;enue and
rocess
!. <hich court has %urisdiction
". ;enue in %udicial settlement of estate
&. 21tent of %urisdiction of robate Court
'. owers and Duties of robate Court
B. Summar* Settlement of 2states
!. 21tra%udicial settlement b* agreement
between heirs7 hen allowed
". 4wo-*ear prescriptive period
&. Affidavit of Self-ad%udication b* sole heir
'. Summar* settlement of estates of small
value7 when allowed
(. Remedies of aggrieved parties after e1tra-
%udicial settlement of estate
C. roduction and robate of <ill
!. #ature of probate proceeding
". <ho ma* petition for probate9 persons
entitled to notice
D. Allowance or Disallowance of <ill
!. Contents of petition for allowance of will
". 8rounds for disallowing a will
&. Reprobate9 Re,uisites before will proved
outside allowed in the hilippines9 effects of
probate
2. Letters 4estamentar* and of Administration
!. <hen and 4o whom letters of administration
granted
". 3rder of preference
&. 3pposition to issuance of letters
testamentar*9 simultaneous filing of petition for
administration
'. owers and duties of 21ecutors and
Administrators9 restrictions on the powers
(. Appointment of Special Administrator
). 8rounds for removal of administrator
5. Claims Against the 2state
!. 4ime within which claims shall be filed9
e1ceptions
". Statute of #on-claims
&. Claim of 21ecutor or administrator against
the 2state
'. a*ment of Debts
8. Actions b* and against 21ecutors and Administrators
!. Actions that ma* be brought against
e1ecutors and administrators
". Re,uisites before creditor ma* bring an
action for recover* of propert* fraudulentl*
conve*ed b* the deceased
0. Distribution and artition
!. Li,uidation
". ro%ect of artition
&. Remed* of an heir entitled to residue but not
given his share
'. :nstances when probate court ma* issue writ
of e1ecution
:. 4rustees
!. Distinguished from e1ecutor6administrator
". Conditions of the Bond
&. Re,uisites for the removal and resignation of
a trustee
'. 8rounds for removal and resignation of a
trustee
(. 21tent of authorit* of trustee
/. 2scheat
!. <hen to file
". Re,uisites for filing of petition
&. Remed* of respondent against petition9
period for filing a claim
=. 8uardianship
!. 8eneral powers and duties of guardians
". Conditions of the bond of the guardian
&. Rule on 8uardianship over minor
L. Adoption
!. Distinguish domestic adoption from inter-
countr* adoption
". Domestic Adoption Act
a. effects of adoption
b. instances when adoption ma* be
rescinded
c. effects of rescission of adoption
&. :nter-countr* Adoption
a. when allowed
b. functions of the R4C
c. Fbest interest of the minorF
standard
$. <rit of 0abeas Corpus
!. Contents of the petition
". Contents of the Return
&. Distinguish peremptor* writ from
preliminar* citation
'. <hen not proper6applicable
(. <hen writ disallowed6discharged
). Distinguish from writ of Amparo and 0abeas
Data
+. Rules on Custod* of $inors and <rit of
0abeas Corpus in Relation to Custod* of
$inors >A$ #o. D&-D'-D'-SC?
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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#. <rit of Amparo >A$ #o. D+-.-!"-SC?
!. Coverage
". Distinguish from habeas corpus and habeas
data
&. Differences between Amparo and search
warrant
'. <ho ma* file
(. Contents of return
). 2ffects of failure to file return
+. 3mnibus waiver rule
-. rocedure for hearing
.. :nstitution of separate action
!D. 2ffect of filing of a criminal action
!!. Consolidation
!". :nterim reliefs available to petitioner and
respondent
!&. Auantum of proof in application for
issuance of writ of Amparo
3. <rit of 0abeas Data >A$ #o. D--!-!)-SC?
!. Scope of writ
". Availabilit* of writ
&. Distinguish from 0abeas Corpus and
Amparo
'. <ho ma* file
(. Contents of the petition
). Contents of return
+. :nstances when petition be heard in
chambers
-. Consolidation
.. 2ffect of filing of a criminal action
!D. :nstitution of separate action
!!. Auantum of proof in application for
issuance of writ of Amparo
. Change of #ame
!. Differences under Rule !D&7 RA .D'- and
Rule !D-
". 8rounds for change of name
A. Absentees
!. urpose of the Rule
". <ho ma* file9 when to file
R. Cancellation or Correction of 2ntries in the Civil
Registr*
!. 2ntries sub%ect to cancellation or correction
under Rule !D-7 in relation to RA .D'-
S. Appeals in Special roceeding
!. /udgments and orders for which appeal ma*
be taken
". <hen to appeal
&. $odes of appeal
'. Rule on Advance Distribution
V& /rimina$ ,roc#%r
A. 8eneral $atters
!. Distinguish /urisdiction over sub%ect matter
from %urisdiction over person of the accused
". Re,uisites for e1ercise of criminal
%urisdiction
&. /urisdiction of Criminal courts
'. <hen in%unction ma* be issued to restrain
criminal prosecution
B. rosecution of 3ffenses
!. Criminal actions7 how instituted
". <ho ma* file them7 crimes that cannot be
prosecuted de officio
&. Criminal actions7 when en%oined
'. Control of prosecution
(. Sufficienc* of Complaint or :nformation
). Designation of 3ffense
+. Cause of the Accusation
-. Duplicit* of the 3ffense9 21ception
.. Amendment or Substitution of complaint or
information
!D. ;enue of criminal actions
!!. :ntervention of offended part*
C. rosecution of Civil Action
!. Rule on implied institution of civil action
with criminal action
". <hen civil action ma* proceed
independentl*
&. <hen separate civil action is suspended
'. 2ffect of the death of accused or convict on
civil action
(. re%udicial Auestion
). Rule on 5iling 5ees in civil action deemed
instituted with the criminal action
D. reliminar* :nvestigation
!. #ature of right
". urposes of preliminar* investigation
&. <ho ma* conduct determination of e1istence
of probable cause
'. Resolution of investigation prosecutor
(. Review
). <hen warrant of arrest ma* issue
+. Cases not re,uiring a preliminar*
investigation
-. Remedies of accused if there was no
preliminar* investigation
.. :n,uest
2. Arrest
!. Arrest7 how made
". Arrest without warrant7 when lawful
&. $ethod of arrest
a. b* officer with warrant
b. b* officer without warrant
c. b* private person
'. Re,uisites of a valid warrant of arrest
(. Determination of robable Cause for
issuance of warrant of arrest
). Distinguish probable cause of fiscal from
that of a %udge
5. Bail
!. #ature
". <hen a matter of right9 e1ceptions
&. <hen a matter of discretion
'. 0earing of application for bail in capital
offenses
(. 8uidelines in fi1ing amount of bail
). Bail when not re,uired
+. :ncrease or Reduction of Bail
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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-. 5orfeiture and Cancellation of bail
.. Application not a bar to ob%ections in illegal
arrest7 lack of or irregular preliminar*
investigation
!D. 0old Departure 3rder G Bureau of
:mmigration <atchlist
8. Rights of the Accused
!. Rights of accused at the trial
". Rights of persons under Custodial
:nvestigation
0. Arraignment and lea
!. Arraignment and lea7 how made
". <hen should plea of #34 8B:L4H be
entered
&. <hen ma* accused enter a plea of guilt* to a
lesser offense
'. Accused plead guilt* to capital offense7 what
the court should do
(. Searching :n,uir*
). :mprovident plea
+. 8rounds for suspension of arraignment
:. $otion to Auash
!. 8rounds
". Distinguish from demurrer to evidence
&. 2ffects of sustaining the motion to ,uash
'. 21ception to the rule that sustaining the
motion is not a bar to another prosecution
(. Double /eopard*
). rovisional Dismissal
/. re-trial
!. $atters to be considered during pre-trial
". <hat the court should do when prosecution
and offended part* agree to the plea offered b*
the accused
&. re-trial agreement
'. #on-appearance during pre-trial
(. re-trial order
). Referral of some cases for Court Anne1ed
$ediation and /udicial Dispute Resolution
=. 4rial
!. :nstances when presence of accused is
re,uired b* law
". Re,uisite before trial can be suspended on
account of absence of witness
&. 4rial in Absentia
'. Remed* when accused is not brought to trial
within the prescribed period
(. Re,uisites for discharge of accused to
become a state witness
). 2ffects of Discharge of accused as state
witness
+. Demurrer to 2vidence
L. /udgment
!. Re,uisites of a %udgment
". Contents of /udgment
&. romulgation of %udgment9 instances of
promulgation of %udgment in absentia
'. <hen does %udgment become final >four
instances?
$. #ew 4rial or Reconsideration
!. 8rounds for #ew 4rial
". 8rounds for Reconsideration
&. Re,uisites before a new trial ma* be granted
on ground of newl* discovered evidence
'. 2ffects of granting a new trial or
reconsideration
(. Application of #e*pes Doctrine in Criminal
Cases
#. Appeal
!. 2ffect of an Appeal
". <here to appeal
&. 0ow appeal taken
'. 2ffect of appeal b* an* of several accused
(. 8rounds for dismissal of appeal
3. Search and Sei@ure
!. #ature of search warrant
". Distinguish from warrant of arrest
&. Application for search warrant7 where filed
'. robable Cause
(. ersonal e1amination b* %udge of the
applicant and witnesses
). articularit* of place to be searched and
things to be sei@ed
+. ersonal propert* to be sei@ed
-. 21ceptions to search warrant re,uirement
a. Search incidental to lawful arrest
b. Consented Search
c. Search of moving vehicle
d. Check points9 bod* checks in
airport
e. lain view situation
f. Stop and 5risk situation
g. 2nforcement of Custom Laws
.. Remedies from unlawful search and sei@ure
. rovisional Remedies
!. #ature
". =inds of provisional remedies
VI& E0i#nc
A. 8eneral rinciples
!. Concept of 2vidence
". Scope of the Rules of 2vidence
&. 2vidence in Civil Cases ;ersus 2vidence in
Criminal Cases!avvphi!
'. roof ;ersus 2vidence
(. 5actum robans ;ersus 5actum robandum
). Admissibilit* of 2vidence
a. Re,uisites for admissibilit* of
evidence
b. Relevance of evidence and
collateral matters
c. $ultiple admissibilit*
d. Conditional admissibilit*
e. Curative admissibilit*
f. Direct and circumstantial evidence
g. ositive and negative evidence
h. Competent and credible evidence
+. Burden of roof and Burden of 2vidence
-. resumptions
a. Conclusive presumptions
b. Disputable presumptions
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
7
.. Liberal Construction of the Rules of
2vidence
!D. Auantum of 2vidence ><eight And
Sufficienc* of 2vidence?
a. roof be*ond reasonable doubt
b. reponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence
B. /udicial #otice and /udicial Admissions
!. <hat #eed #ot be roved
". $atters of /udicial #otice
a. $andator*
b. Discretionar*
&. /udicial Admissions
a. 2ffect of %udicial admissions
b. 0ow %udicial admissions ma* be
contradicted
'. /udicial #otice of 5oreign Laws7 Law of
#ations and $unicipal 3rdinance
C. 3b%ect >Real? 2vidence
!. #ature of 3b%ect 2vidence
". Re,uisites for Admissibilit*
&. Categories of 3b%ect 2vidence
'. Demonstrative 2vidence
(. ;iew of an 3b%ect or Scene
). Chain of Custod* in Relation to Section "!
of the Comprehensive Dangerous Drugs Act of
"DD"
+. Rule on D#A 2vidence >A.$. #o. D)-!!-(-
SC?
a. $eaning of D#A
b. Applicable for D#A testing order
c. ost-conviction D#A testing9
remed*
d. Assessment of probative value of
D#A evidence and admissibilit*
e. Rules on evaluation of reliabilit* of
the D#A testing $ethodolog*
D. Documentar* 2vidence
!. $eaning of Documentar* 2vidence
". Re,uisites for Admissibilit*
&. Best 2vidence Rule
a. $eaning of the rule
b. <hen applicable
c. $eaning of original
d. Re,uisites for introduction of
secondar* evidence
'. Rules on 2lectronic 2vidence >A.$. #o. D!-
+-D!-SC?
a. $eaning of electronic evidence9
electronic data massage
b. robative value of electronic
documents or evidentiar* weight9
method of proof
c. Authentication of electronic
documents and electronic signatures
d. 2lectronic documents and the
hearsa* rule
e. Audio7 photographic7 video and
ephemeral evidence
(. arol 2vidence Rule
a. Application of the parol evidence
rule
b. <hen parole evidence can be
introduced
c. Distinctions between the best
evidence rule and parol evidence rule
). Authentication and roof of Documents
a. $eaning of authentication
b. ublic and private documents
c. <hen a private writing re,uires
authentication9 proof of a private
writing
d. <hen evidence of authenticit* of a
private writing is not re,uired
>ancient documents?
e. 0ow to prove genuineness of a
handwriting
f. ublic documents as evidence9
proof of official record
g. Attestation of a cop*
h. ublic record of a public document
i. roof of lack of record
%. 0ow a %udicial record is impeached
k. roof of notarial documents
l. 0ow to e1plain alterations in a
document
m. Documentar* evidence in an
unofficial language
2. 4estimonial 2vidence
!. Aualifications of a <itness
". Competenc* ;ersus Credibilit* of a <itness
&. Dis,ualifications of <itnesses
a. Dis,ualification b* reason of
mental capacit* or immaturit*
b. Dis,ualification b* reason of
marriage
c. Dis,ualification b* reason of death
or insanit* of adverse part*
d. Dis,ualification b* reason of
privileged communications
>!? 0usband and wife
>"? Attorne* and client
>&? h*sician and patient
>&? and penitent
>'? ublic officers
arental and filial privilege rule
'. 21amination of a <itness
a. Rights and obligations of a witness
b. 3rder in the e1amination of an
individual witness
>!? Direct e1amination
>"? Cross e1amination
>&? Re-direct e1amination
>'? Re-cross e1amination
>(? Recalling the witness
c. Leading and misleading ,uestions
d. $ethods of impeachment of
adverse part*Cs witness
e. 0ow the witness is impeached b*
evidence of inconsistent statements
>la*ing the predicate?
f. 2vidence of the good character of a
witness
(. Admissions and Confessions
a. Res inter alios acta rule
b. Admission b* a part*
c. Admission b* a third part*
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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d. Admission b* a co-partner or agent
e. Admission b* a conspirator
f. Admission b* privies
g. Admission b* silence
h. Confessions
i. Similar acts as evidence
). 0earsa* Rule
a. $eaning of hearsa*
b. Reason for e1clusion of hearsa*
evidence
c. 21ceptions to the hearsa* rule
>!? D*ing declaration
>"? Declaration against
interest
>&? Act or declaration about
pedigree
>'? 5amil* reputation or
tradition regarding pedigree
>(? Common reputation
>)? art of the res gestae
>+? 2ntries in the course of
business
>-? 2ntries in official
records
>.? Commercial lists and
the like
>!D? Learned treaties
>!!? 4estimon* or
deposition at a former
trial!avvphi!
+. 3pinion Rule
a. 3pinion of e1pert witness
b. 3pinion of ordinar* witness
-. Character 2vidence
a. Criminal cases
b. Civil cases
.. Rule on 21amination of a Child <itness
>A.$. #o. DD'-D+-SC?
a. Applicabilit* of the rule
b. $eaning of Fchild witnessF
c. Competenc* of a child witness
d. 21amination of a child witness
e. Live-link 4; testimon* of a child
witness
f. ;ideotaped deposition of a child
witness
g. 0earsa* e1ception in child abuse
cases
h. Se1ual abuse shield rule
i. rotective orders
5. 3ffer and 3b%ection
!. 3ffer of 2vidence
". <hen to $ake an 3ffer
&. 3b%ection
'. Repetition of an 3b%ection
(. Ruling
). Striking 3ut of an Answer
+. 4ender of 21cluded 2vidence
8. Supreme Court Rulings as of December "D!D
VII& R0is# R%$s on S%mmary ,roc#%r
A. Cases covered b* the Rule
B. 2ffect of failure to answer
C. reliminar* conference and appearances of parties
VIII& 8atar%ngang ,am9arangay
A. Cases covered
B. Sub%ect matter for amicable settlement
C. ;enue
D. <hen parties ma* directl* go to court
2. 21ecution
5. Repudiation
I*& R%$ o: ,roc#%r :or Sma$$ /$aims /ass ;AM No& 06<6<5<
S/=
A. Scope and applicabilit* of the Rule
B. Commencement of small claims action9 Response
C. rohibited pleadings and motions
D. Appearances
2. 0earing9 dut* of the %udge
5. 5inalit* of %udgment
*& R%$s o: ,roc#%r :or En0ironmnta$ /ass ;AM No& 07<4<
6<S/=
A. Scope and Applicabilit* of the Rule
B. Civil rocedure
!. rohibition against 4emporar* Restraining
3rder and reliminar* :n%unction
". re-trial Conference9 Consent Decree
&. rohibited leadings and $otions
'. 4emporar* 2nvironmental rotection 3rder
>423?
(. /udgment and 21ecution9 Reliefs in a
citi@enCs suit
). ermanent 2nvironmental rotection 3rder9
<rit of continuing mandamus
+. Strategic Lawsuit against ublic
articipation
C. Special roceedings
!. <rit of =alikasan
". rohibited pleadings and motions
&. Discover* measures
'. <rit of Continuing $andamus
D. Criminal rocedure
!. <ho ma* file
". :nstitution of criminal and civil action
&. Arrest without warrant7 when valid
'. rocedure in the custod* and disposition of
sei@ed items
(. Bail
). Arraignment and lea
+. re-trial
-. Subsidiar* liabilities
2. 2vidence
!. recautionar* principle
". Documentar* evidence
:$3R4A#4 #342E 4his bar coverage description is not
intended and should not be used b* law schools as a s*llabus or
course outline in the covered sub%ects. :t has been drawn up for the
limited purpose of ensuring that candidates reviewing for the bar
e1aminations are guided on what basic and minimum amounts of
laws7 doctrines7 and principles the* need to know and be able to use
correctl* before the* can be licensed to practice law. $ore is
re,uired for e1cellent and distinguished work as members of the
Bar.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
11
/IVIL ,RO/ED(RE
R%$s 1 – 51
+ENERAL ,RIN/I,LES
/ON/E,T O) REMEDIAL LAW
Rm#ia$ La" is that branch of law which prescribes the
method of enforcing rights or obtaining redress for their
invasion.
S(BSTANTIVE LAW AS DISTIN+(IS>ED )ROM
REMEDIAL LAW
S%9stanti0 $a" creates7 defines and regulates rights and
duties regarding life7 libert* or propert* which when violated
gives rise to a cause of action.
Rm#ia$ $a" prescribes the methods of enforcing those
rights and obligations created b* substantive law b*
providing a procedural s*stem for obtaining redress for the
invasion of rights and violations of duties and b* prescribing
rules as to how suits are filed7 tried and decided b* the
courts.
As applied to criminal law7 substantive law is that which
declares what acts are crimes and prescribes the punishment
for committing them7 as distinguished from remedial law
which provides or regulates the steps b* which one who
commits a crime is to be punished.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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R(LE<MA8IN+ ,OWER O) T>E S(,REME /O(RT
Section ( >(?7 Art. ;::: of the Constitution provides that the
Supreme Court shall have the power toE
a. promulgate rules concerning the protection and
enforcement of constitutional rights7 pleading7
practice7 and procedure in all courts9
b. admission to the practice of law9
c. the :ntegrated Bar9
d. and legal assistance to the underprivileged
LIMITATIONS O) T>E R(LE<MA8IN+ ,OWER O)
T>E S(,REME /O(RT
!? 4he rules shall provide a simplified and
ine1pensive procedure for the speed* disposition of
cases
"? 4he* shall be uniform for all courts of the same
grade
&? 4he* shall not diminish7 increase7 or modif*
substantive rights.
'? 4he power to admit attorne*s to the Bar is not an
arbitrar* and despotic one but is the dut* of the
court to e1ercise and regulate it b* a sound and
%udicial discretion.
 Rules of procedure of special courts and ,uasi-
%udicial bodies shall remain effective unless
disapproved b* the Supreme Court.
,OWER O) T>E S(,REME /O(RT TO AMEND
AND S(S,END ,RO/ED(RAL R(LES
<hen compelling reasons so warrant or when the purpose of
%ustice re,uires it I discretionar* upon courts.
Reasons that would warrant the suspensionE
!? the e1istence of special or compelling
circumstances9
"? merits of the case9
&? cause not entirel* attributable to the fault or
negligence of the part* favored b* the
suspension of rules
'? a lack of showing that the review sought is
merel* frivolous and dilator*9
(? the other part* will not be un%ustl* pre%udiced
thereb*.
 <here substantial and important issues await resolution.
 <hen transcendental matters of life7 libert* or state
securit* are involved.
 4he constitutional power of the Supreme Court to
promulgate rules of practice and procedure necessaril*
carries with it the power to overturn %udicial precedents
on points of remedial law through the amendment of the
Rules of Court.
NAT(RE O) ,>ILI,,INE /O(RTS
hilippine courts are both courts of law and e,uit*. 0ence7
both legal and e,uitable %urisdiction is dispensed with in the
same tribunal.
W>AT IS A /O(RT
a. :t is an organ of government belonging to the
%udicial department the function of which is the
application of the laws to the controversies brought
before it as well as the public administration of
%ustice.
b. :t is a governmental bod* officiall* assembled
under authorit* of law at the appropriate time and
place for the administration of %ustice through
which the State enforces its sovereign rights and
powers.
c. :t is a board or tribunal which decides a litigation or
contest.
/O(RT DISTIN+(IS>ED )ROM .(D+E
a? A court is a tribunal officiall* assembled under
authorit* of law9 a %udge is simpl* an officer of such
tribunal9
b? A court is an organ of the government with a personalit*
separate and distinct from the person or %udge who sits
on it9
c? A court is a being in imagination comparable to a
corporation7 whereas a %udge is a ph*sical person9
d? A court ma* be considered an office9 a %udge is a public
officer9 and
e? 4he circumstances of the court are not affected b* the
circumstances that would affect the %udge.
/LASSI)I/ATION O) ,>ILI,,INE /O(RTS
Regular courts engaged in the administration of %ustice are
organi@ed into four >'? levelsE
>a? )irst L0$ ;MT/s? MT/s? M/T/s= J which tr* and
decide
>!? /rimina$ actions involvingE
a. violations of cit* or municipal ordinances
committed within their respective territorial
%urisdiction9 and
b. offenses punishable with imprisonment not
e1ceeding si1 >)? *ears irrespective of the
amount of fine and regardless of other
imposable accessor* or other penalties7 and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
11
>"? /i0i$ actions including 2/2C4$2#4 CAS2S
>52BD? and recover* of personal propert* with a value
of not more than ,100?000 outside $$ or does not
e1ceed ,200?000 in $$9
>b? Scon# L0$ ;RT/s? )ami$y /o%rts=
 courts of general %urisdiction
 among the civil actions assigned to them
b* law are those in which the sub%ect of
litigation is
a. actions incapable of pecuniar*
estimation
b. actions involving title to or possession
of real propert* where the assessed
value of the propert* e1ceeds ,20?000
outside $$ or e1ceeds ,30?000 in
$$.
c. where the demand e1clusive of
interest7 damages of whatever kind7
attorne*Cs fees7 litigation e1penses7
and cost7 or the value of the personal
propert* or controvers* e1ceeds
,100?000 outside $$ or e1ceeds
,200?000 in $$.
 e1ercise appellate %urisdiction
 Review cases appealed from courts of the
first level.
>c? T!ir# L0$ ;/o%rt o: A--a$s? San#igan9ayan=
CA is an appellate court
a. reviewing cases appealed to it from the R4C
on ,uestions of fact or mi1ed ,uestions of fact
and law
b. decisions of the R4C in the e1ercise of original
%urisdiction
i. as a matter of right
ii. as a matter of discretion.
3ccasionall*7 CA ma* act as a trial court7 as in
actions pra*ing for the annulment of final and
e1ecutor* %udgments of R4Cs on the ground of
e1trinsic fraud subse,uentl* discovered7 against
which no other remedies lies.
San#igan9ayan !as @%ris#iction
 over all criminal and civil cases involving
• graft and corrupt practices act
• such other offenses committed b*
public officers and emplo*ees
including those in 83CCs in relation
to their office.
 :t also has e1clusive appellate %urisdiction over
final %udgments7 resolutions7 or orders of R4Cs
whether in the e1ercise of their own original or
appellate %urisdiction over criminal and civil
cases committed b* public officers or
emplo*ees including those in 83CCs in
relation to their office.
>d? )o%rt! L0$ ;S%-rm /o%rt=
/O(RTS O) ORI+INAL AND A,,ELLATE
.(RISDI/TION
A court is one with original %urisdiction when actions or
proceedings are originall* filed with it. A court is one with
appellate %urisdiction when it has the power of review over
the decisions or orders of a lower court.
$e4Cs7 $C4Cs and $4Cs are courts of original
%urisdiction without appellate %urisdiction. R4C is likewise a
court of original %urisdiction with respect to cases originall*
filed with it9 and appellate court with respect to cases
decided b* $4Cs within its territorial %urisdiction. (Sec. 22,
BP 129).
CA is primaril* a court of appellate %urisdiction with
competence to review %udgments of the R4Cs and specified
,uasi-%udicial agencies (Sec. 9[3], BP 129). :t is also a court
of original %urisdiction with respect to cases filed before it
involving issuance of writs of certiorari7 mandamus7 ,uo
warranto7 habeas corpus7 and prohibition. CA is a court of
original and e1clusive %urisdiction over actions for
annulment of %udgments of R4Cs (Sec. 9 [1],[2], BP 129).
4he SC is fundamentall* a court of appellate %urisdiction but
it ma* also be a court of original %urisdiction over cases
affecting ambassadors7 public ministers and consuls7 and in
cases involving petitions for certiorari7 prohibition and
mandamus (Sec. 5[1], Art. VIII, Constitution). 4he Supreme
Court en banc is not an appellate court to which decisions or
resolutions of a division of the Supreme Court ma* be
appealed.
/O(RTS O) +ENERAL AND S,E/IAL
.(RISDI/TION
Courts of general %urisdiction are those with competence to
decide on their own %urisdiction and to take cogni@ance of all
cases7 civil and criminal7 of a particular nature. Courts of
special >limited? %urisdiction are those which have onl* a
special %urisdiction for a particular purpose or are clothed
with special powers for the performance of specified duties
be*ond which the* have no authorit* of an* kind.
A court ma* also be considered general if it has the
competence to e1ercise %urisdiction over cases not falling
within the %urisdiction of an* court7 tribunal7 person or bod*
e1ercising %udicial or ,uasi-%udicial functions. :t is in the
conte1t that the R4C is considered a court of general
%urisdiction.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
12
/ONSTIT(TIONAL AND STAT(TOR' /O(RTS
A constitutional court is one created b* a direct
Constitutional provision. 21ample of this court is the SC7
which owes its creation from the Constitution itself. 3nl*
the SC is a Constitutional court.
A statutor* court is one created b* law other than the
Constitution. All courts e1cept the SC are statutor* courts.
SB was not directl* created b* the Constitution but b* law
pursuant to a constitutional mandate.
/O(RTS O) LAW
A court of law decides a case according to the e1isting laws.
/O(RTS O) EA(IT'
A court of e,uit* ad%udicates a controvers* according to the
common precepts of what is right and %ust without in,uiring
into the terms of the statutes.
,RIN/I,LE O) .(DI/IAL >IERAR/>'
4his is an ordained se,uence of recourse to courts vested
with concurrent %urisdiction7 beginning from the lowest7 on
to the ne1t highest and ultimatel* to the highest. 4his
hierarch* is determinative of the venue of appeals7 and is
likewise determinative of the proper forum for petitions for
e1traordinar* writs. 4his is an established polic* necessar*
to avoid inordinate demands upon the CourtCs time and
attention which are better devoted to those matters within its
e1clusive %urisdiction7 and to preclude the further clogging
of the CourtCs docket (Sec. 9[1], BP 129; Sec. 5[1], Art.
VIII, Constitution of the Phii!!ines).
A higher court will not entertain direct resort to it unless the
redress cannot be obtained in the appropriate courts. 4he SC
is a court of last resort. :t cannot and should not be burdened
with the task of deciding cases in the first instances. :ts
%urisdiction to issue e1traordinar* writs should be e1ercised
onl* where absolutel* necessar* or where serious and
important reasons e1ist.
4he doctrine of hierarch* of courts ma* be disregarded if
warranted b* the nature and importance of the issues raised
in the interest of speed* %ustice and to avoid future
litigations7 or in cases of national interest and of serious
implications. Bnder the principle of liberal interpretations7
for e1ample7 it ma* take cogni@ance of a petition for
certiorari directl* filed before it.
DO/TRINE O) NON<INTER)EREN/E OR
DO/TRINE O) .(DI/IAL STABILIT'
Courts of e,ual and coordinate %urisdiction cannot interfere
with each otherCs orders. 4hus7 the R4C has no power to
nullif* or en%oin the enforcement of a writ of possession
issued b* another R4C. 4he principle also bars a court from
reviewing or interfering with the %udgment of a co-e,ual
court over which it has no appellate %urisdiction or power of
review.
4his doctrine applies with e,ual force to administrative
bodies. <hen the law provides for an appeal from the
decision of an administrative bod* to the SC or CA7 it means
that such bod* is co-e,ual with the R4C and logicall*
be*ond the control of the latter.
.(RISDI/TION
/urisdiction J the power and authorit* of the court to hear7
tr* and decide a case.
.(RISDI/TION OVER T>E ,ARTIES
a? 4he manner b* which the court ac,uires %urisdiction
over the parties depends on whether the part* is the
plaintiff or the defendant
b? /urisdiction over the plaintiff is ac,uired b* his filing of
the complaint or petition. B* doing so7 he submits
himself to the %urisdiction of the court.
c? /urisdiction over the person of the defendant is obtained
either b* a valid service of summons upon him or b* his
voluntar* submission to the courtCs authorit*.
d? 4he mode of ac,uisition of %urisdiction over the plaintiff
and the defendant applies to both ordinar* and special
civil actions like mandamus or unlawful detainer cases.
>OW .(RISDI/TION OVER ,LAINTI)) IS
A/A(IRED
 Ac,uired when the action is commenced b* the
filing of the complaint. 4his presupposes pa*ment
of the docket fees.
>OW .(RISDI/TION OVER DE)ENDANT IS
A/A(IRED
/urisdiction over the person of the defendant is re,uired onl*
in an action in personam9 it is not a prere,uisite in an action
in rem and ,uasi in rem. :n an action in personam7
%urisdiction over the person is necessar* for the court to
validl* tr* and decide the case7 while in a proceeding in rem
or ,uasi in rem7 %urisdiction over the person of the defendant
is not a prere,uisite to confer %urisdiction on the court7
provided the latter has %urisdiction over the res.
B* voluntar* appearance of the defendant7 without service of
summons or despite a defective service of summons. 4he
defendantCs voluntar* appearance in the action shall be
e,uivalent to service of summons.
:nstances when appearance of defendant is not tantamount to
voluntar* submission to the %urisdiction of the courtE
!? when defendant files the necessar* pleading9
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
13
"? when defendant files motion for reconsideration of
the %udgment b* default9
&? when defendant files a petition to set aside the
%udgment of default9
'? when the parties %ointl* submit a compromise
agreement for approval of the court9
(? when defendant files an answer to the contempt
charge9
)? when defendant files a petition for certiorari
without ,uestioning the courtCs %urisdiction over his
person.
.(RISDI/TION OVER T>E S(B.E/T MATTER
:t is the power to deal with the general sub%ect involved in
the action7 and means not simpl* %urisdiction of the
particular case then occup*ing the attention of the court but
%urisdiction of the class of cases to which the particular case
belongs. :t is the power or authorit* to hear and determine
cases to which the proceeding is ,uestion belongs.
<hen a complaint is filed in court7 the basic ,uestions that
i!so f"cto are to be immediatel* resolved b* the court on its
ownE
a? <hat is the sub%ect matter of their complaint filed
before the courtK
b? Does the court have %urisdiction over the said
sub%ect matter of the complaint before itK
Answering these ,uestions inevitabl* re,uires
looking into the applicable laws conferring
%urisdiction.
.(RISDI/TION VERS(S E*ER/ISE O)
.(RISDI/TION
/urisdiction is the power or authorit* of the court. 4he
e1ercise of this power or authorit* is the e1ercise of
%urisdiction.
ERROR O) .(RISDI/TION VS& ERROR O)
.(D+MENT
An 2RR3R 35 /BR:SD:C4:3# is one where the act
complained of was issued b* the court without or in e1cess
of %urisdiction. :t occurs when the court e1ercises a
%urisdiction not conferred upon it b* law7 or when the court
or tribunal although with %urisdiction7 acts in e1cess of its
%urisdiction or with grave abuse of discretion amounting to
lack or %urisdiction.
An 2RR3R 35 /BD8$2#4 is one which the court ma*
commit in the e1ercise of its %urisdiction. As long as the
court acts within its %urisdiction7 an* alleged errors
committed in the e1ercise of its discretion will amount to
nothing more than mere errors of %udgment. 2rrors of
%udgment include errors of procedure or mistakes in the
courtLs findings.
2rrors of %udgment are correctible b* appeal9 errors of
%urisdiction are correctible onl* b* the e1traordinar* writ of
certiorari. An* %udgment rendered without %urisdiction is a
total nullit* and ma* be struck down at an* time7 even on
appeal9 the onl* e1ception is when the part* raising the issue
is barred b* estoppel.
>OW .(RISDI/TION IS /ON)ERRED AND
DETERMINED
/urisdiction is a matter of substantive law because it is
conferred b* law. 4his %urisdiction which is a matter of
substantive law should be construed to refer onl* to
%urisdiction over the sub%ect matter. /urisdiction over the
parties7 the issues and the res are matters of procedure. 4he
test of %urisdiction is whether the court has the power to
enter into the in,uir* and not whether the decision is right or
wrong.
:t is the dut* of the court to consider the ,uestion of
%urisdiction before it looks at other matters involved in the
case. :f the court finds that it has %urisdiction7 it is the dut* of
the court to e1ercise the %urisdiction conferred upon it b* law
and to render a decision in a case properl* submitted to it. :t
cannot decline to e1ercise its %urisdiction. 5ailure to do so
ma* be enforced b* wa* of mandamus proceeding.
 #oteE /urisdiction over the sub%ect matter is
conferred by substantive law which ma* either be a
Constitution or statute9 while %urisdiction over the
sub%ect matter is determined by the allegations of
the complaint regardless of whether or not the
plaintiff is entitled to the claims asserted therein.
DO/TRINE O) ,RIMAR' .(RISDI/TION
Courts will not resolve a controvers* involving a ,uestion
which is within the %urisdiction of an administrative tribunal7
especiall* where the ,uestion demands the e1ercise of sound
administrative discretion re,uiring the special knowledge7
e1perience and services of the administrative tribunal to
determine technical and intricate matters of fact.
4he ob%ective is to guide a court in determining whether it
should refrain from e1ercising its %urisdiction until after an
administrative agenc* has determined some ,uestion or
some aspect of some ,uestion arising in the proceeding
before the court.
DO/TRINE O) AD>EREN/E O) .(RISDI/TION B
/ONTIN(IT' O) .(RISDI/TION
3nce a court has ac,uired %urisdiction7 that %urisdiction
continues until the court has done all that it can do in the
e1ercise of that %urisdiction. 4his principle also means that
once %urisdiction has attached7 it cannot be ousted b*
subse,uent happenings or events and retains that %urisdiction
until it finall* disposes of the case.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
14
2ven the finalit* of the %udgment does not totall* deprive the
court of %urisdiction over the case. <hat the court loses is
the power to amend7 modif* or alter the %udgment. 2ven
after the %udgment has become final7 the court retains
%urisdiction to enforce and e1ecute it.
OB.E/TION TO .(RISDI/TION OVER T>E
S(B.E/T MATTER
<hen it appears from the pleadings or evidence on record
that the court has no %urisdiction over the sub%ect matter7 the
court shall dismiss the same. >Sec. !7 Rule .?. 4he court ma*
on its 3<# :#:4:A4:;2 ob%ect to an erroneous %urisdiction
and ma* e# $ero $otu take cogni@ance of lack of
%urisdiction at an* point in the case and has a clearl*
recogni@ed right to determine its own %urisdiction.
/urisdiction over the sub%ect matter ma* be raised at an*
stage of the proceedings7 even for the first time on appeal.
<hen the court dismisses the complaint for lack of
%urisdiction over the sub%ect matter7 it is common reason that
the court cannot remand the case to another court with the
proper %urisdiction. :ts onl* power is to dismiss and not to
make an* other order.
E))E/T O) ESTO,,EL ON OB.E/TION TO
.(RISDI/TION
4he active participation of a part* in a case is tantamount to
recognition of that courtCs %urisdiction and will bar a part*
from impugning the courtCs %urisdiction. 4he general rule
remainsE a courtCs lack of %urisdiction ma* be raised at an*
stage of the proceedings even on appeal. 4he Sibonghano*
applies onl* to e1ceptional circumstances.
Doctrin o: sto--$s 9y $ac!s (in re"tion to o%&ections to
&uris'iction) I the SC barred a belated ob%ection to
%urisdiction that was raised onl* after an adverse decision
was rendered b* the court against the part* raising the issue
of %urisdiction and after seeking affirmative relief from the
court and after participating in all stages of the proceedings.
4he SC frowns upon the undesirable practice of submitting
oneCs case for decision7 and then accepting the %udgment
onl* if favorable7 but attacking it for lack of %urisdiction if it
is not.
.(RISDI/TION OVER T>E ISS(ES
:t is the power of the court to tr* and decide issues raised in
the pleadings of the parties.
An issue is a disputed point or ,uestion to which parties to
an action have narrowed down their several allegations and
upon which the* are desirous of obtaining a decision. <here
there is no disputed point7 there is no issue.
8enerall*7 %urisdiction over the issues is conferred and
determined b* the pleadings of the parties. 4he pleadings
present the issues to be tried and determine whether or not
the issues are of fact or law.
a? ma* also be determined and conferred b*
stipulation of the parties as when in the pre-trial7
the parties enter into stipulations of facts and
documents or enter into agreement simplif*ing the
issues of the case.
b? ma* also be conferred b* waiver or failure to ob%ect
to the presentation of evidence on a matter not
raised in the pleadings. 0ere the parties tr* with
their e1press or implied consent or issues not raised
b* the pleadings. 4he issues tried shall be treated in
all respects as if the* had been raised in the
pleadings.
.(RISDI/TION OVER T>E RES OR ,RO,ERT' IN
LITI+ATION
/urisdiction over the res refers to the courtCs %urisdiction over
the thing or the propert* which is the sub%ect of the action.
/urisdiction over the res ma* be ac,uired b* the court
!? b* placing the propert* or thing under its custod*
>custodia legis? >the sei@ure of the thing under legal
process whereb* it is brought into actual custod* of
law?. 21ampleE attachment of propert*.
"? through statutor* authorit* conferring upon it the
power to deal with the propert* or thing within the
courtCs territorial %urisdiction >institution of a legal
proceeding wherein the power of the court over the
thing is recogni@ed and made effective?. 21ampleE
suits involving the status of the parties or suits
involving the propert* in the hilippines of non-
resident defendants.
.(RISDI/TION O) T>E S(,REME /O(RT
/RIMINAL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
etitions for certior"ri, !rohi%ition "n' $"n'"$us
against CA and Sandiganba*an
/ON/(RRENT .(RISDI/TION
a? <ith the CA and R4CE petitions for
certior"ri, !rohi%ition "n' $"n'"$us against
the $4C
b? <ith the CAE petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the R4C
c? with Sandiganba*anE petitions for mandamus7
prohibition7 certiorari7 habeas corpus7
in%unction and ancillar* writs in aid of its
appellate %urisdiction and over petitions of
similar nature7 including ,uo warranto arising
or that ma* arise in cases filed or which ma*
be filed.
A,,ELLATE .(RISDI/TION
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
15
a? from the R4C in all criminal cases involving
offenses for which the penalt* is reclusion
perpetua or life imprisonment7 and those
involving other offenses which7 although not
so punished7 arose out of the same occurrence
or which ma* have been committed b* the
accused on the same occasion9
b? Automatic review where death penalt* is
imposed.
c? B* petition for review on Certiorari from the
CA7 Sandiganba*an and from the R4C where
onl* error or ,uestion of law is involved
 #oteE :n vs. $ateo >"DD'?7 the SC held that while the
5undamental Law re,uires a mandator* review b* the
SC of cases where the penalt* imposed is recusion
!er!etu"7 life imprisonment or death7 nowhere however7
has it proscribed an intermediate review. :f onl* to
ensure utmost circumspection before the penalt* of
recusion !er!etu"7 life imprisonment or death is
imposed7 the Court now deems it wise and compelling
to provide in these cases a review b* the CA before the
case is elevated to the SC. A prior determination b* the
CA on7 particularl*7 the factual issues7 would minimi@e
the possibilit* of an error of %udgment. :f the CA should
affirm the penalt* of recusion !er!etu" 7 life
imprisonment or death7 it could then render %udgment
imposing the corresponding penalt* as the
circumstances so warrant7 refrain from entering
%udgment and elevate the entire records of the case to
the SC for final disposition.
/IVIL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION in petitions
for certiorari7 prohibition and mandamus against the CA7
C3$2L2C7 C3A7 C4A7 Sandiganba*an
/ON/(RRENT .(RISDI/TION
!? <ith Court of Appeals in petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the R4C7 CSC7
Central Board of Assessment Appeals7 #LRC7 Auasi-
%udicial agencies7 and writ of kalikasan7 all sub%ect to
the doctrine of hierarch* of courts.
"? <ith the CA and R4C in petitions for certior"ri,
!rohi%ition "n' $"n'"$us against lower courts and
bodies and in petitions for (uo )"rr"nto, "n' )rits of
h"%e"s cor!us7 all sub%ect to the doctrine of hierarch* of
courts.
&? <ith CA7 R4C and Sandiganba*an for petitions for
)rits of "$!"ro "n' h"%e"s '"t"
'? Concurrent original %urisdiction with the R4C in cases
affecting "$%"ss"'ors, !u%ic $inisters "n' consus.
A,,ELLATE .(RISDI/TION
!? b* wa* of -tition :or r0i" on crtiorari
>appeal b* certiorari under Rule '(? against
CA7 Sandiganba*an7 R4C on pure ,uestions of
law and C4A in its decisions rendered en banc.
"? in cases involving the constitutionalit* or
validit* of a law or treat*7 international or
e1ecutive agreement7 law7 presidential decree7
proclamation7 order7 instruction7 ordinance or
regulation7 legalit* of a ta17 impost7
assessment7 toll or penalt*7 %urisdiction of a
lower court9 and
&? all cases in which the %urisdiction of an* court
is in issue9
'? all cases in which an error or ,uestion of law is
involved
Exc-tions in which factual issues ma* be resolved b* the
Supreme CourtE
a? <hen the findings are grounded entirel* on
speculation7 surmises or con%ectures9
b? <hen the inference made is manifestl* mistaken7
absurd or impossible9
c? <hen there is grave abuse of discretion9
d? <hen the %udgment is based on misapprehension of
facts9
e? <hen the findings of facts are conflicting9
f? <hen in making its findings the CA went be*ond
the issues of the case7 or its findings are contrar* to
the admissions of both the appellant and the
appellee9
g? <hen the findings are contrar* to the trial court9
h? <hen the findings are conclusions without citation
of specific evidence on which the* are based9
i? <hen the facts set forth in the petition as well as in
the petitionerLs main and repl* briefs are not
disputed b* the respondent9
%? <hen the findings of fact are premised on the
supposed absence of evidence and contradicted b*
the evidence on record9 and
k? <hen the Court of Appeals manifestl* overlooked
certain relevant facts not disputed b* the parties7
which7 if properl* considered7 could %ustif* a
different conclusion.
.(RISDI/TION O) T>E /O(RT O) A,,EALS
;47 .%stics=
/RIMINAL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
a? Actions for annulment of %udgment of the R4Cs
b? Crimes of 4errorism under 0uman Securit* Act of
"DD+
/ON/(RRENT ORI+INAL .(RISDI/TION
a? <ith the SCE petitions for certior"ri, !rohi%ition "n'
$"n'"$us against the R4C
b? <ith the SC and R4CE petitions for certior"ri,
!rohi%ition "n' $"n'"$us against the $4C
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
16
A,,ELLATE .(RISDI/TION
 Notic o: A--a$C
a? 5rom the R4C in the e1ercise of its original
%urisdiction7 e1cept those appealable to the
Sandiganba*an
b? 5rom the R4C where penalt* imposed is
recusion !er!etu" or life imprisonment or
where a lesser penalt* is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for which
the penalt* of death7 reclusion perpetua or life
imprisonment is imposed >Sec. 3, *ue 122 "s
"$en'e' %+ A, -o. ../5/.3/SC?.
 A%tomatic R0i" >i.e. no notice of appeal is
necessar*? from the R4C in cases wherein the death
penalt* is imposed.
 ,tition :or R0i" from the R4C in cases appealed
thereto from the lower courts and not appealable to the
Sandiganba*an.
/IVIL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
 in actions for the annulment of the %udgments of the
R4C.
/ON/(RRENT ORI+INAL .(RISDI/TION
!? <ith SC to issue writs of certiorari7 prohibition and
mandamus against the R4C7 CSC7 CBAA7 other
,uasi-%udicial agencies mentioned in Rule '&7 and
the #LRC >however7 this should be filed first with
the CA as per St. $artin 5uneral 0ome case?7 and
writ of kalikasan.
"? <ith the SC and R4C to issue writs of certiorari7
prohibition and mandamus >C$? against lower
courts and bodies and writs of ,uo warranto7 habeas
corpus7 whether or not in aid of its appellate
%urisdiction7 and writ of continuing mandamus on
environmental cases.
&? <ith SC7 R4C and Sandiganba*an for petitions for
writs of amparo and habeas data where the action
involves public data or government office
E*/L(SIVE A,,ELLATE .(RISDI/TION
!? b* wa* of ordinar* appeal from the R4C and the
5amil* Courts.
"? b* wa* of petition for review from the R4C
rendered b* the R4C in the e1ercise of its appellate
%urisdiction.
&? b* wa* of petition for review from the decisions7
resolutions7 orders or awards of the CSC7 CBAA
and other bodies mentioned in Rule '& and of the
3ffice of the 3mbudsman in administrative
disciplinar* cases.
'? over decisions of $4Cs in cadastral or land
registration cases pursuant to its delegated
%urisdiction9 this is because decisions of $4Cs in
these cases are appealable in the same manner as
decisions of R4Cs.
 -ote0 1here is no "ction to "nnu the 'ecision
of the CA.
.(RISDI/TION O) T>E /O(RT O) TA* A,,EALS
;(NDER RA 7262 AND R(LE 3? AM 03
11 05/TA=
E*/L(SIVE ORI+INAL OR A,,ELLATE
.(RISDI/TION TO REVIEW B' A,,EAL
!? Decisions of C:R in cases involving disputed
assessments7 refunds of internal revenue ta1es7 fees or
other charges7 penalties in relation thereto7 or other
matters arising under the #:RC or other laws
administered b* B:R9
"? :naction b* C:R in cases involving disputed
assessments7 refunds of :R ta1es7 fees or other charges7
penalties in relation thereto7 or other matters arising
under the #:RC or other laws administered b* B:R7
where the #:RC or other applicable law provides a
specific period of action7 in which case the inaction
shall be deemed an implied denial9
&? Decisions7 orders or resolutions of the R4Cs in local
ta1es originall* decided or resolved b* them in the
e1ercise of their original or appellate %urisdiction9
'? Decisions of the Commissioner of Customs
a. in cases involving liabilit* for customs duties7
fees or other charges7 sei@ure7 detention or
release of propert* affected7 fines7 forfeitures
or other penalties in relation thereto7 or
b. other matters arising under the Customs law or
other laws7 part of laws or special laws
administered b* B3C9
(? Decisions of the Central Board of Assessment Appeals
in the e1ercise of its appellate %urisdiction over cases
involving the assessment and ta1ation of real propert*
originall* decided b* the provincial or cit* board of
assessment appeals9
)? Decision of the secretar* of 5inance on customs cases
elevated to him automaticall* for review from decisions
of the Commissioner of Customs which are adverse to
the government under Sec. "&!( of the 4ariff and
Customs Code9
+? Decisions of Secretar* of 4rade and :ndustr* in the case
of non-agricultural product7 commodit* or article7 and
the Secretar* of Agriculture in the case of agricultural
product7 commodit* or article7 involving dumping
duties and counterveiling duties under Secs. &D! and
&D"7 respectivel*7 of the 4ariff and Customs Code7 and
safeguard measures under RA --DD7 where either part*
ma* appeal the decision to impose or not to impose said
duties.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
17
E*/L(SIVE ORI+INAL .(RISDI/TION
!? 3ver all criminal cases arising from violation of the
#:RC and the 4CC and other laws7 part of laws7 or
special laws administered b* the B:R or the B3C where
the principal amount of ta1es and fees7 e1clusive of
charges and penalties claimed is less than !$ or where
there is no specified amount claimed >the offenses or
penalties shall be tried b* the regular courts and the
%urisdiction of the C4A shall be appellate?9
"? :n ta1 collection cases involving final and e1ecutor*
assessments for ta1es7 fees7 charges and penalties where
the principal amount of ta1es and fees7 e1clusive of
charges and penalties claimed is less than !$ tried b*
the proper $4C7 $e4C and R4C.
E*/L(SIVE A,,ELLATE .(RISDI/TION
1= In crimina$ o::nss
a? over appeals from the %udgment7 resolutions or
orders of the R4C in ta1 cases originall* decided b*
them7 in their respective territorial %urisdiction7 and
b? over petitions for review of the %udgments7
resolutions or orders of the R4C in the e1ercise of
their appellate %urisdiction over ta1 cases originall*
decided b* the $e4Cs7 $4Cs7 and $C4Cs in their
respective %urisdiction.
2= In tax co$$ction cass
a? over appeals from the %udgments7 resolutions or
orders of the R4C in ta1 collection cases originall*
decided b* them in their respective territorial
%urisdiction9 and
b? over petitions for review of the %udgments7
resolutions or orders of the R4C in the e1ercise of
their appellate %urisdiction over ta1 collection cases
originall* decided b* the $e4Cs7 $4Cs and
$C4Cs in their respective %urisdiction.
.(RISDI/TION O) T>E SANDI+ANBA'AN
ORI+INAL .(RISDI/TION in all cases involving
!? ;iolations of RA &D!. >Anti-8raft and Corrupt
ractices Act?
"? ;iolations of RA !&+. >Anti-:ll-8otten <ealth Act?
&? Se,uestration cases >2.3. #os. !7"7!'7!'-A?
'? Briber* >Chapter ::7 Sec. "7 4itle ;::7 Book ::7 RC?
where one or more of the principal accused are
occup*ing the following positions in the government7
whether in permanent7 acting or interim capacit* at the
time of the commission of the offenseE
a? 3fficials of the e1ecutive branch occup*ing the
positions of regional director and higher7 otherwise
classified as 8rade "+ and higher7 of the
Compensation and osition Classification Act of
!.-. >RA )+(-?
b? $embers of Congress and officials thereof
classified as 8-"+ and up under RA )+(-
c? $embers of the /udiciar* without pre%udice to the
provisions of the Constitution
d? Chairmen and $embers of the Constitutional
Commissions without pre%udice to the provisions of
the Constitution
e? All other national and local officials classified as
8rade "+ and higher under RA )+(-
f? 3ther offenses or felonies committed b* the public
officials and emplo*ees mentioned in Sec. '>a? of
RA +.+( as amended b* RA -"'. in relation to
their office
g? Civil and criminal cases filed pursuant to and in
connection with 23 #os. !7 "7 !'-A >Sec. '7 RA
-"'.?
 #oteE <ithout the office7 the crime cannot be
committed.
A,,ELLATE .(RISDI/TION - from the R4C in cases
under D !)D)7 as amended b* D !-)!7 whether or not the
cases were decided b them in the e1ercise of their original or
appellate %urisdictions.
/ON/(RRENT ORI+INAL .(RISDI/TION WIT>
S/? /A AND RT/ for petitions for writs of habeas data and
amparo
 4he re,uisites that the offender the offender occupies
salar* 8rade "+ and the offense must be intimatel*
connected with the official function must concur for the
SB to have %urisdiction J 2ustice ,"3'"n3" 4e 5eon
.(RISDI/TION O) T>E RE+IONAL TRIAL
/O(RTS
/RIMINAL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
!? 3ffenses punishable with imprisonment which e1ceeds
) *ears imprisonment
"? 3ffenses not within the e1clusive %urisdiction of an*
court7 tribunal or bod*7 e1cept those falling under the
e1clusive %urisdiction of the Sandiganba*an
 #oteE :n cases where the onl* penalt* is fine7 the
amount thereof shall determine %urisdiction. :f the
amount e1ceeds '7DDD7 the R4C has %urisdiction.
&? 5amil* Court J Criminal Cases
a? 3ne or more of the accused is6are below !-
*ears old but not less than . *ears old9
b? <here one of the victims is a minor at the time
of the commission of the offense9
c? Cases against minors cogni@able under the
Dangerous Drugs Act9
d? ;iolations of RA +)!D7 otherwise known as the
MSpecial rotection of Children Against Child
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
20
Abuse7 21ploitation and Discrimination ActN
as amended b* RA +)(-9 and
e? Cases of domestic violation against women and
their children.
A,,ELLATE .(RISDI/TION
 All cases decided b* the $4C in their
respective territorial %urisdiction.
/IVIL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
!? 4he action is inca-a9$ o: -c%niary stimation (such
"s rescission of contr"ct, "ction to re6i6e &u'3$ent,
'ec"r"tor+ reief (1
st
!"rt), su!!ort, e#!ro!ri"tion)
"? Tit$ to? -ossssion o:? or intrst in? ra$ -ro-rty
with assessed value e1ceeding ,20?000 outside $etro
$anila7 or e1ceeds ,30?000 in $etro $anila
&? :f the amount involved e1ceeds ,100?000 outside $$
or e1ceeds ,200?000 in $$ in the following casesE
a? Admiralt* and maritime cases
b? $atters of robate >testate and intestate?
c? 3ther actions involving personal propert*
d? Demand for mone*
'? Cases not falling within the %urisdiction of an* court7
tribunal7 person or bod* e1ercising %udicial or ,uasi-
%udicial functions >gnra$ @%ris#iction o: RT/?
(? All actions in0o$0ing t! contract o: marriag an#
:ami$y r$ations
.(RISDI/TION O) )AMIL' /O(RTS ;RA 6147=
a? etitions for guardianship7 custod* of children and
habeas corpus involving children
b? etitions for adoption of children and the
revocation thereof
c? Complaints for annulment of marriage7 declaration
of nullit* of marriage and those relating to status
and propert* relations of husband and wife or those
living together under different status and
agreements7 and petitions for dissolution of
con%ugal partnership of gains
d? etitions for support and6or acknowledgment
e? Summar* %udicial proceedings brought under the
provisions of 23 "D. >5amil* Code?
f? etitions for declaration of status of children as
abandoned7 dependent or neglected children7
petitions for voluntar* or involuntar* commitment
of children7 the suspension7 termination or
restoration of parental authorit* and other cases
cogni@able under D )D&7 23 () >!.-)? and other
related laws
g? etitions for the constitution of the famil* home
 :n areas where there are no 5amil* Courts7
the above-enumerated cases shall be
ad%udicated b* the R4C >RA -&).?
)? 4o hear and decide intra<cor-orat contro0rsis Sec.
("7 Securities and Regulations Code?E
a? Cases involving devises or schemes emplo*ed b* or
an* acts7 of the board of directors7 business
associates7 its officers or partnership7 amounting to
fraud and misrepresentation which ma* be
detrimental to the interest of the public and6or of
the stockholders7 partners7 members of associations
or organi@ations registered with the S2C
b? Controversies arising out of intra-corporate or
partnership relations7 between and among
stockholders7 members or associates9 between an*
or all of them and the corporation7 partnership or
association of which the* are stockholders7
members or associates7 respectivel*9 and between
such corporation 7 partnership or association and
the state insofar as it concerns their individual
franchise or right to e1ist as such entit*
c? Controversies in the election or appointments of
directors7 trustees7 officers or managers of such
corporations7 partnerships or associations
d? etitions of corporations7 partnerships or
associations to be declared in the state of
suspension of pa*ments in cases where the
corporation7 partnership of association possesses
sufficient propert* to cover all its debts but foresees
the impossibilit* of meeting them when the*
respectivel* fall due or in cases where the
corporation7 partnership of association has no
sufficient assets to cover its liabilities7 but is under
the management of a Rehabilitation Receiver or
$anagement Committee.
/ON/(RRENT .(RISDI/TION
!? with the Supreme Court in actions affecting
ambassadors7 other public ministers and consuls
"? with the SC and CA in petitions for certiorari7
prohibition and mandamus against lower courts and
bodies in petitions for ,uo warranto7 habeas corpus7
and writ of continuing mandamus on environmental
cases
&? with the SC7 CA and Sandigaba*an in petitions for
writs of habeas data and amparo
'? <ith :nsurance Commissioner J claims not
e1ceeding !DD7DDD
A,,ELLATE .(RISDI/TION over cases decided b*
lower courts in their respective territorial %urisdictions
e#ce!t 'ecisions of o)er courts in the e#ercise of 'ee3"te'
&uris'iction.
S,E/IAL .(RISDI/TION J SC ma* designate certain
branches of R4C to tr* e1clusivel* criminal cases7 %uvenile
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
21
and domestic relations cases7 agrarian cases7 urban land
reform cases not falling within the %urisdiction of an* ,uasi-
%udicial bod* and other special cases in the interest of
%ustice.
.(RISDI/TION O) METRO,OLITAN TRIAL
/O(RTSBM(NI/I,AL TRIAL /O(RTS
/RIMINAL /ASES
E*/L(SIVE ORI+INAL .(RISDI/TION
!? Cases covered b* Summar* proceedings
a? ;iolations of cit* or municipal ordinances
including traffic laws
b? ;iolation of rental law
c? ;iolation of traffic laws7 rules and regulations
d? ;iolation of B "" >Bouncing Check Law?
effective April !(7 "DD&
e? All other criminal cases where the penalt* is
imprisonment not e1ceeding ) months and6or
!DD7DDD fine irrespective of other penalties arising
therefrom
"? offenses punishable with imprisonment not e1ceeding
si1 >)? *ears irrespective of the amount of fine7 and
regardless of other imposable accessor* or other
penalties7 including the civil liabilit* arising from such
offenses or predicated thereon7 irrespective of the kind7
nature7 value or amount thereof9 provided however7 that
in offenses involving damage to propert* through
criminal negligence7 the* shall have e1clusive original
%urisdiction thereof >Sec. "7 RA +).!?.
&? 3ffenses involving DA$A82 43 R32R4H through
CR:$:#AL #28L:82#C2 where the imposable fine
is not e1ceeding !D7DDD
 #oteE :n cases where the onl* penalt* is fine7
the amount thereof shall determine %urisdiction.
:f the amount does not e1ceed '7DDD7 the
$4C has %urisdiction.
'? All offenses >e1cept violations of RA &D!.7 RA !&+.
and Arts. "!D to "!"7 RC? committed b* public
officers and emplo*ees in relation to their office7
including those emplo*ed in 83CCs7 and b* private
individuals charged as co-principals7 accomplices or
accessories7 punishable with imprisonment of not more
than ) *ears 3R where none of the accused holds a
position of salar* 8rade "+ and higher.
/IVIL A/TIONS
E*/L(SIVE ORI+INAL .(RISDI/TION
!? :f the amount involved does not e1ceed ,100?000
outside $$ or does not e1ceed ,200?000 in $$ in the
following casesE
a? Actions involving personal propert*
b? robate roceeding >testate and intestate? based
on gross value of the estate
c? Admiralt* and maritime cases
d? Demand for mone*
 -ote0 Do not include :nterest7 Damages of
whatever kind7 Attorne*Cs fees7 Litigation
21penses7 and Costs >:DAL2C?. 0owever7 in
cases where the claim or damages is the main
cause of action7 or one of the causes of action7
the amount of such claim shall be considered in
determining the %urisdiction of the court.
"? Actions involving title to7 or possession of7 real
propert*7 or an* interest therein where the assessed
value of the propert* or interest therein does not e1ceed
,20?000 outside $$ or does not e1ceed ,30?000 in
$$
&? :nclusion and e1clusion of voters
'? 4hose governed b* the R%$s on S%mmary ,roc#%r
a? 5orcible entr* and unlawful detainer >52BD?
 <ith %urisdiction to resolve issue of
ownership to determine 3#LH issue of
possession (!ro6ision" on+)
 :rrespective of the amount of damages or
unpaid rentals sought to be recover
 <here attorne*Cs fees are awarded7 the
same shall not e1ceed "D7DDD
b? 3ther civil cases7 e1cept probate proceeding7 where
the total amount of the plaintiffCs claim does not
e1ceed "DD7DDD in $$7 e1clusive of interests and
costs.
S,E/IAL .(RISDI/TION over petition for writ of
habeas corpus 3R application for bail in criminal cases in
the absence of all R4C %udges in the province or cit*
DELE+ATED .(RISDI/TION to hear and decide
cadastral and land registration cases where there is no
contro6ers+ over the land or in case of contested lands7 the
value does not e1ceed !DD7 DDD I "!!e""%e to the CA
1
st
$0$ co%rtsC
a. $etropolitan 4rial Court J $etro $anila9
b. $unicipal 4rial Courts in Cities J situated in cities
c. $unicipal Circuit 4rial Court J composed of multi-
sala
d. $unicipal 4rial Courts J in one municipalit*
S>ARDIA> /O(RTS
E*/L(SIVE .(RISDI/TION
!? All cases involving custod*7 guardianship7
legitimac*7 paternit* and filiation arising under the
Code of $uslim ersonal Laws9
"? All cases involving disposition7 distribution and
settlement of estate of deceased $uslims7 probate
of wills7 issuance of letters of administration of
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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appointment administrators or e1ecutors regardless
of the nature or aggregate value of the propert*9
&? etitions for the declaration of absence and death
for the cancellation and correction of entries in the
$uslim Registries9
'? All actions arising from the customar* contracts in
which the parties are $uslims7 if the* have not
specified which law shall govern their relations9
and
(? All petitions for mandamus7 prohibition7 in%unction7
certiorari7 habeas corpus and all other au1iliar*
writs and processes in aid of its appellate
%urisdiction
/ON/(RRENT .(RISDI/TION
!? etitions of $uslim for the constitution of the
famil* home7 change of name and commitment of
an insane person to an as*lum
"? All other personal and legal actions not mentioned
in par ! >d? wherein the parties involved are
$uslims e1cept those for forcible entr* and
unlawful detainer7 which shall fall under the
e1clusive %urisdiction of the $4C.
&? All special civil actions for interpleader or
declarator* relief wherein the parties are $uslims
or the propert* involved belongs e1clusivel* to
$uslims
Cases that can be filesE
!? 3ffenses defined and punished under D !D-&
"? Disputes relating toE
a. $arriage
b. Divorce
c. Betrothal or breach of contract to marr*
d. Customar* dowr* >mahr?
e. Disposition and distribution of propert*
upon divorce
f. $aintenance and support and consolator*
gifts >mutCa?
g. Restitution of marital rights
&? Disputes relative to communal properties
.(RISDI/TION OVER SMALL /LAIMS
!? $4Cs7 $e4Cs and $C4Cs shall have %urisdiction over
actions for pa*ment of mone* where the value of the
claim does not e1ceed ,100?000 e1clusive of interest
and costs >Sec. "7 A$ D----+-SC7 3ct. "+7 "DD.?.
"? Actions covered are
a? purel* civil in nature where the claim or relief
pra*ed for b* the plaintiff is solel* for pa*ment or
reimbursement of sum of mone*7 and
b? the civil aspect of criminal actions7 either filed
before the institution of the criminal action7 or
reserved upon the filing of the criminal action in
court7 pursuant to Rule !!! >Sec. '7 A$ D----+-
SC?.
4hese claims ma* beE
a? 5or mone* owed under the contracts of lease7 loan7
services7 sale7 or mortgage9
b? 5or damages arising from fault or negligence7
,uasi-contract7 or contract9 and
c? 4he enforcement of a baranga* amicable settlement
or an arbitration award involving a mone* claim
pursuant to Sec. '!+ of RA +!)D >L8C?.
/ASES /OVERED B' R(LES ON S(MMAR'
,RO/ED(RE ;SE/& 1 RS,=
/IVIL /ASES
!? All cases of forcible entr* and unlawful detainer
>52BD?7 irres!ecti6e of the "$ount of '"$"3es or
un!"i' rent"s sought to be recovered. <here attorne*Ls
fees are awarded7 the same shall not e1ceed "D7DDD9
"? All other cases 7 e#ce!t !ro%"te !rocee'in3s )here the
tot" "$ount of the !"intiff7s c"i$ 'oes not e#cee'
P100,000 (outsi'e ,,) or P200,000 (in ,,),
e#cusi6e of interest "n' costs.
/RIMINAL /ASES
!? ;iolations of traffic law7 rules and regulations9
"? ;iolation of the rental law9
&? All other criminal cases where the penalt* prescribed is
imprisonment not e1ceeding si1 >)? months7 or fine not
e1ceeding !7DDD7 or both7 irrespective of other
imposable penalties7 accessor* or otherwise7 or of the
civil liabilit* arising therefrom7 provided7 that in
offenses involving damage to propert* through criminal
negligence7 RS shall govern where the imposable fine
does not e1ceed !D7DDD.
 RS does not appl* to a civil case where the
plaintiffLs cause of action is pleaded in the same
complaint with another cause of action sub%ect to
the ordinar* procedure9 nor to a criminal case
where the offense charged is necessaril* related to
another criminal case sub%ect to the ordinar*
procedure.
/ASES /OVERED B' T>E R(LES ON BARAN+A'
/ON/ILIATION
4he Lupon of each baranga* shall have the authorit* to
bring together the parties actuall* residing in the same
municipalit* or cit* for amicable settlement of all disputes
e1ceptE
!? <here one part* is the government or an*
subdivision or instrumentalit* thereof
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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"? <here one part* is a public officer or emplo*ee7
and the dispute relates to the performance of his
official functions
&? 3ffenses punishable b* imprisonment e1ceeding
one >!? *ear or a fine e1ceeding (7DDD
'? 3ffenses where there is no private offended part*
(? <here the dispute involves real properties located
in different cities or municipalities unless the
parties thereto agree to submit their differences to
amicable settlement b* an appropriate lupon
)? Disputes involving parties who actuall* reside in
baranga*s of different cities or municipalities7
e1cept where such baranga* units ad%oin each other
and the parties thereto agree to submit their
differences to amicable settlement b* an
appropriate lupon
+? Such other classes of disputes which the resident
ma* determine in the interest of %ustice or upon the
recommendation of the Secretar* of /ustice
-? An* complaint b* or against corporations7
partnerships7 or %uridical entities. 4he reason is that
onl* individuals shall be parties to baranga*
conciliation proceedings either as complainants or
respondents
.? Disputes where urgent legal action is necessar* to
prevent in%ustice from being committed or further
continued7 specificall*E
a? A criminal case where the accused is
under police custod* or detention
b? A petition for habeas corpus b* a person
illegall* detained or deprived of his libert*
or one acting in his behalf
c? Actions coupled with provisional
remedies7 such as preliminar* in%unction7
attachment7 replevin and su!!ort !en'ente
ite
d? <here the action ma* be barred b* statute
of limitation
!D? Labor disputes or controversies arising from
emplo*er-emplo*ee relationship
!!? <here the dispute arises from the CARL
!"? Actions to annul %udgment upon a compromise
which can be directl* filed in court.
 :t is a condition precedent under Rule !)9 can be
dismissed but without pre%udice
TOTALIT' R(LE
<here there are several claims or causes of actions between
the same or different parties7 embodied in the same
complaint7 the amount of the demand shall be the totality
of the claims in all the claims of action7 irrespective of
whether the causes of action arose out of the same or
different transactions >Sec. &&O!P7 B !".?.
/IVIL ,RO/ED(RE
A/TIONS
Action >s*non*mous with suit? is the legal and formal
demand of oneCs right from another person made and
insisted upon in a court of %ustice. 4he kinds of actions are
ordinar* and special7 civil and criminal7 e1 contractu and e1
delicto7 penal and remedial7 real7 personal7 and mi1ed action7
action in personam7 in rem7 and ,uasi in rem.
ORDINAR' /IVIL A/TIONS? S,E/IAL /IVIL
A/TIONS? /RIMINAL A/TIONS
Or#inary ci0i$ action is one b* which one part* sues
another7 based on a cause of action7 to enforce or protect a
right7 or to prevent or redress a wrong7 whereb* the
defendant has performed an act or omitted to do an act in
violation of the rights of the plaintiff. >Sec. &a? 4he purpose
is primaril* compensator*.
S-cia$ ci0i$ action J actions which while governed b* the
rules for ordinar* civil actions7 are sub%ect to special rules
provided for Special Civil Actions
/rimina$ action is one b* which the State prosecutes a
person for an act or omission punishable b* law >Sec. &ObP7
Rule !?. 4he purpose is primaril* punishment.
/IVIL A/TIONS VERS(S S,E/IAL ,RO/EEDIN+S
4he purpose of an action is either to protect a right or
prevent or redress a wrong. 4he purpose of special
proceeding is to establish a status7 a right or a particular fact.
,ERSONAL A/TIONS AND REAL A/TIONS
An action is R2AL when it affects title to or possession of
real propert*7 or an interest therein. All other actions are
personal actions.
An action is real when it is founded upon the privit* of real
estate7 which means that the realt* or an interest therein is
the sub%ect matter of the action. 4he issues involved in real
actions are title to7 ownership7 possession7 partition7
foreclosure of mortgage or condemnation of real propert*.
#ot ever* action involving real propert* is a real action
because the realt* ma* onl* be incidental to the sub%ect
matter of the suit. 21ample is an action for damages to real
propert*7 because although it involves real propert*7 it does
not involve an* of the issues mentioned.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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Real actions are based on the privit* of real estates9 while
personal actions are based on privit* of contracts or for the
recover* of sums of mone*.
4he distinction between real action and personal action is
important for the purpose of determining the venue of the
action. A real action is ML3CALN7 which means that its
venue depends upon the location of the propert* involved in
the litigation. A personal action is M4RA#S:43RHN7 which
means that its venue depends upon the residence of the
plaintiff or the defendant at the option of the plaintiff.
LO/AL AND TRANSITOR' A/TIONS
A $oca$ action is one founded on privit* of estates onl* and
there is no privit* of contracts. A real action is a local action9
its venue depends upon the location of the propert* involved
in litigation. MActions affecting title to or possession of real
propert*7 or interest therein7 shall be commenced and tried in
the proper court which has %urisdiction over the area wherein
the real propert* involved7 or a portion thereof is situatedN
(Sec. 1, *ue 8).
Transitory action is one founded on privit* of contracts
between the parties. A personal action is transitor*7 its venue
depends upon the residence of the plaintiff or the defendant
at the option of the plaintiff. A personal action Mma* be
commenced and tried where the plaintiff or an* of the
principal plaintiffs resides or where the defendant or an* of
the principal defendants resides7 or in the case of non-
resident defendant7 where he ma* be found7 at the election of
the plaintiffN. (Sec. 2, *ue 8).
Actions in rm? in -rsonam an# E%asi in rm (this is
i$!ort"nt in ser6ice of su$$ons)
 An action in rm7 one instituted and enforced against
the whole world.
 An action in -rsonam is one filed against a definite
defendant. :t is intended to sub%ect the interest of
defendant on a propert* to an obligation or lien.
/urisdiction over the person >defendant? is re,uired. :t is
a proceeding to enforce personal rights and obligations
brought against the person7 and is based on the
%urisdiction of the person7 although it ma* involve his
right to7 or the e1ercise of ownership of7 specific
propert*7 or seek to compel him to control or dispose of
it in accordance with the mandate of the court. 4he
purpose is to impose through the %udgment of a court7
some responsibilit* or liabilit* directl* upon the person
of the defendant. #o other than the defendant is liable7
not the whole world7 as in an action for a sum of mone*
or an action for damages.
 An action E%asi in rm7 also brought against the whole
world7 is one brought against persons seeking to sub%ect
the propert* of such persons to the discharge of the
claims assailed. An individual is named as defendant
and the purpose of the proceeding is to sub%ect his
interests therein to the obligation or loan burdening the
propert*. :t deals with status7 ownership or liabilit* or a
particular propert* but which are intended to operate on
these ,uestions onl* as between the particular parties to
the proceedings and not to ascertain or cut off the rights
or interests of all possible claimants. 21amples of
actions ,uasi in rem are action for partition7 action for
accounting7 attachment7 foreclosure of mortgage.
 An action in personam is not necessaril* a personal
action. #or is a real action necessaril* an action in rem.
An in personam or an in rem action is a classification of
actions according to foundation. 5or instance7 an action
to recover7 title to or possession of real propert* is a real
action7 but it is an action in personam7 not brought
against the whole world but against the person upon
whom the claim is made.
SC sums up the basic rules in Bi"co 6s. Phii!!ine
Countr+si'e *ur" B"n9 (2..:)0
!? 4he ,uestion of whether the trial court has
%urisdiction depends on the nature of the action J
whether the action is in personam7 in rem7 or ,uasi
in rem. 4he rules on service of summons under
Rule !' likewise appl* according to the nature of
the action.
"? An action in personam is an action against a person
on the basis of his personal liabilit*. And action in
rem is an action against the thing itself instead of
against the person. An action ,uasi in rem is one
wherein an individual is named as defendant and
the purpose of the proceeding is to sub%ect his
interest therein to the obligation or lien burdening
the propert*.
&? /urisdiction over the person of the defendant is
necessar* for the court to validl* tr* and decide a
case against said defendant where the action is one
in personam but not where the action is in rem or
,uasi in rem. /urisdiction over the res is ac,uired
either
a. b* the sei@ure of the propert* under legal
process7 whereb* it is brought into actual
custod* of the law9 or
b. as a result of the institution of legal
proceedings7 in which the power of the
court is recogni@ed and made effective.
 #onetheless7 summons must be served upon the
defendant not for the purpose of vesting the court
with %urisdiction but merel* for satisf*ing the due
process re,uirements.
/A(SE O) A/TION ;R%$ 2=
MEANIN+ O) /A(SE O) A/TION
A cause of action is the act or omission b* which a part*
>defendant? violates the rights of another >plaintiff?.
:t is the delict or wrong b* which the defendant violates the
right or rights of the plaintiff.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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T! $mnts arC
!? A right in favor of the plaintiff b* whatever means
and under whatever law it arises or is created9
"? An obligation on the part of the named defendant to
respect or not to violate such right9 and
&? Act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting
a breach of the obligation of the defendant to the
plaintiff for which the latter ma* maintain an action
for recover* of damages or other appropriate relief.
RI+>T O) A/TION VERS(S /A(SE O) A/TION
a? A cause of action refers to the delict or wrong
committed b* the defendants7 whereas right of action
refers to the right of the plaintiff to institute the action9
b? A cause of action is determined b* the pleadings9
whereas a right of action is determined b* the
substantive law9
a? A right of action ma* be taken awa* b* the running of
the statute of limitations7 b* estoppels or other
circumstances9 which do not at all affect the cause of
action9
b? 4here is no right of action where there is no cause of
actionQ
)AIL(RE TO STATE /A(SE O) A/TION
4he mere e1istence of a cause of action is not sufficient for a
complaint to prosper. 2ven if in realit* the plaintiff has a
cause of action against the defendant7 the complaint ma* be
dismissed if the complaint or the pleading asserting the
claim Mstates no cause of actionN. 4his means that the cause
of action must unmistakabl* be stated or alleged in the
complaint or that all the elements of the cause of action
re,uired b* substantive law must clearl* appear from the
mere reading of the complaint.
4o avoid an earl* dismissal of the complaint7 the simple
dictum to be followed isE M:f *ou have a cause of action7 then
b* all means7 state itQN <here there is a defect or an
insufficienc* in the statement of the cause of action7 a
complaint ma* be dismissed not because of an absence or a
lack of cause of action b* because the complaint states no
cause of action. 4he dismissal will therefore7 be anchored on
a Mfailure to state a cause of actionN.
:t doesnLt mean that the plaintiff has no cause of action. :t
onl* means that the plaintiffLs allegations are insufficient for
the court to know that the rights of the plaintiff were violated
b* the defendant. 4hus7 even if indeed the plaintiff suffered
in%ur*7 if the same is not set forth in the complaint7 the
pleading will state no cause of action even if in realit* the
plaintiff has a cause of action against the defendant.
TEST O) T>E S())I/IEN/' O) A /A(SE O)
A/TION
4he test is whether or not admitting the facts alleged7 the
court could render a valid verdict in accordance with the
pra*er of the complaint.
4o be taken into account are onl* the material allegations in
the complaint9 e1traneous facts and circumstances or other
matter "iun'e are not considered but the court ma* consider
in addition to the complaint the appended anne1es or
documents7 other pleadings of the plaintiff7 or admissions in
the records.
:t is error for the court to take cogni@ance of e1ternal facts or
to hold preliminar* hearings to determine its e1istence.
S,LITTIN+ A SIN+LE /A(SE O) A/TION AND ITS
E))E/TS
:t is the act of instituting two or more suits for the same
cause of action (Sec. 8, *ue 2). :t is the practice of dividing
one cause of action into different parts and making each part
the sub%ect of a separate complaint.
:n splitting a cause of action7 the pleader divides a single
cause of action7 claim or demand into two or more parts7
brings a suit for one of such parts with the intent to reserve
the rest for another separate. 4his practice is #34
ALL3<2D b* the Rules because it breeds multiplicit* of
suits7 clogs the court dockets7 leads to ve1atious litigation7
operates as an instrument of harassment7 and generates
unnecessar* e1penses to the parties.
4he filing of the first ma* be pleaded in abatement of the
other or others and a %udgment upon the merits in an* one is
available as a bar to7 or a ground for dismissal of7 the others
4he rm#y of the defendant is to file a motion to dismiss .
0ence7 if the first action is pending when the second action
is filed7 the latter ma* be dismissed based on itis !en'enci"7
there is another action pending between the same parties for
the same cause. :f a final %udgment had been rendered in the
first action when the second action is filed7 the latter ma* be
dismissed based on res &u'ic"t"7 that the cause of action is
barred b* prior %udgment. As to which action should be
dismissed would depend upon %udicial discretion and the
prevailing circumstances of the case.
.OINDER AND MIS.OINDER O) /A(SES O)
A/TIONS ;SE/S& 3 AND 4? (LE 2=
.oin#r o: ca%ss o: action is the assertion of as man*
causes of action as a part* ma* have against another in one
pleading alone (Sec. 5, *ue 2). :t is the process of uniting
two or more demands or rights of action in one action7
sub%ect to the following conditionsE
a? 4he part* %oining the causes of action shall compl*
with the rules on %oinder of parties (s"$e
tr"ns"ction "' co$$on (uestion of ") "n f"ct);
b? 4he %oinder shall not include special civil actions
governed b* special rules9
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
24
c? <here the cause of action are between the same
parties but pertain to different venues or
%urisdictions7 the %oinder ma* be allowed in the
R4C provided one of the causes of action falls
within the %urisdiction of said court and the venue
lies therein9 and
d? <here the claims in all the causes of action are
principall* for recover* of mone*7 the aggregate
amount claimed shall be the test of %urisdiction
(totality rule).
 #oteE Restrictions on %oinder of causes of
action areE %urisdiction7 venue7 and %oinder
of parties. 4he %oinder shall not include
special civil actions or actions governed b*
special rules.
<hen there is a mis@oin#r o: ca%ss o: action7 the
erroneousl* %oined cause of action can be severed or
separated from the other cause of action upon motion b* a
part* or upon the courtLs own initiative. $is%oinder of
causes of action is not a ground for the dismissal of the case.
,ARTIES IN /IVIL A/TION ;R%$ 1=
REAL ,ART'<IN<INTEREST (e.3. !"intiff "n'
'efen'"nt) is the part* who stands to be benefited or in%ured
b* the %udgment in the suit7 or the part* entitled to the avails
of the suit (Sec. 2, *ue 3).
 4he interest must be real7 which is a present substantial
interest as distinguished from a mere e1pectanc* or a
future7 contingent subordinate or conse,uential.
 :t is an interest that is material and direct7 as
distinguished from a mere incidental interest in.
 <hile ordinaril* one who is not a priv* to a contract
ma* not bring an action to enforce it7 there are
recogni@ed e1ceptions this ruleE
a? Contracts containing sti!u"tions !our "trui or
stipulations e1pressl* conferring benefits to a
non-part* ma* sue under the contract provided
such benefits have been accepted b* the
beneficiar* prior to its revocation b* the
contracting parties (Art. 1311, Ci6i Co'e).
b? 4hose who are not principall* or subsidiaril*
obligated in the contract7 in which the* had no
intervention7 ma* show their detriment that
could result from it. 5or instance7 Art. !&!&7
CC7 provides that Mcreditors are protected in
cases of contracts intended to defrauded themN.
5urther7 Art. !&!-7 CC7 provides that contracts
entered into in fraud of creditors ma* be
rescinded when the creditors cannot in an*
manner collect the claims due them. 1hus, "
cre'itor )ho is not " !"rt+ to " contr"ct c"n
sue to rescin' the contr"ct to re'ress the fr"u'
co$$itte' u!on hi$.
INDIS,ENSABLE ,ART' is a real part*-in-interest
without whom no final determination can be had of an action
(Sec. :, *ue 3).
 <ithout the presence of this part*7 the %udgment of a
court cannot attain real %udgement.
 4he presence of indispensable parties is a condition for
the e1ercise of %uridical power and when an
indispensable part* is not before the court7 the action
should be dismissed.
 4he absence of indispensable part* renders all
subse,uent actions of the court null and void for want of
authorit* to act7 not onl* to the absent parties but even
as to those present.
 A person is not an : if his interest in the controvers* or
sub%ect matter is separable from the interest of the other
parties7 so that it will not necessaril* be directl* or
in%uriousl* affected b* a decree which does complete
%ustice between them. Also7 a person is not an : if his
presence would merel* permit complete relief between
him and those alread* parties to the action7 or if he has
no interest in the sub%ect matter of the action.
 Although normall* a %oinder of action is permissive
(Sec. ;, *ue 3)7 the %oinder of a part* becomes
compulsor* when the one involved is an indispensable
part*. Clearl*7 the rule directs a compulsor* %oinder of
IP (Sec. :, *ue 3).
NE/ESSAR' ,ART' is one who is not indispensable but
ought to be %oined as a part* if complete relief is to be
accorded as to those alread* parties7 of for a complete
determination or settlement of the claim sub%ect of the
action.
 But a necessar* part* ought to be %oined as a part* if
complete relief is to be accorded as to those alread*
parties (Sec. <, *ue 3).
 4he non-inclusion of a necessar* part* does not prevent
the court from proceeding in the action7 and the
%udgment rendered therein shall be without pre%udice to
the rights of such necessar* part* (Sec. 9, *ue 3).
INDI+ENT ,ART' is one who is allowed b* the court to
litigate his claim7 action or defense upon e1 parte application
and hearing7 when the court is satisfied that such part* has
no mone* or propert* sufficient and available for food7
shelter7 basic necessities for himself and his famil* (Sec. 21,
*ue 3).
 :f one is authori@ed to litigate as an indigent7 such
authorit* shall include an e1emption from the pa*ment
of docket fee7 and of transcripts of stenographic notes7
which the court ma* order to e furnished b* him.
 0owever7 the amount of the docket and other fees7
which the indigent was e1empt from pa*ing7 shall be
lien on the %udgment rendered in the case favorable to
the indigent. A lien on the %udgment shall or arise if the
court provides otherwise.
RE,RESENTATIVES AS ,ARTIES pertains to the
parties allowed b* the court as substitute parties to an action
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whereb* the original parties become incapacitated of
incompetent (Sec. 1<, *ue 3).
 4he substitution of a part* depends on the nature of the
action. :f the action is personal7 and a part* dies !en'ent
ite 7 such action does not survive7 and such part* cannot
be substituted. :f the action is real7 death of the
defendant survives the action7 and the heirs will
substitute the dead. A favorable %udgment obtained b*
the plaintiff therein ma* be enforced against the estate
of the deceased defendant (Sec. 1, *ue <:).
 :n case a part* becomes incapacitated or incompetent
during the pendenc* of the action7 the court7 upon
motion7 ma* allow the action to be continued b* or
against the incapacitated or incompetent part* with the
assistance of his legal guardian or guardian "' ite$
(Sec. 1<, *ue 2.).
 :n case of transfer7 the action ma* be continued b* or
against the original part*7 unless the court upon motion
directs the person to whom the interest is transferred to
be substituted in the action or %oined with the original
part* (Sec. 19, *ue 3).
 An agent ma* sue or be sued without %oining his
principal e1cept when the contract involve things
belonging to the principal (=here the "ction is "o)e'
to %e !rosecute' "n' 'efen'e' %+ " re!resent"ti6e or
so$eone "ctin3 in " fi'uci"r+ c"!"cit+, the %enefici"r+
sh" %e incu'e' in the tite of the c"se "n' sh" %e
'ee$e' to %e the re" !ro!ert+ in interest, Sec. 3, *ue
3).
ALTERNATIVE DE)ENDANTS are those who ma* be
%oined as such in the alternative b* the plaintiff who is
uncertain from whom among them he is entitled to a relief7
regardless of whether or not a right to a relief against one is
inconsistent with that against the other >Sec. 13, *ue 3).
 <here the plaintiff cannot definitel* identif* who
among two or more persons should be impleaded as a
defendant7 he ma* %oin all of them as defendants in the
alternative.
 /ust as the rule allows a suit against defendants in the
alternative7 the rule also allows alternative causes of
action (Sec. 2, *ue <) and alternative defenses (Sec.
5[%], *ue ;).
/OM,(LSOR' AND ,ERMISSIVE .OINDER O)
,ARTIES
.oin#r o: -artis is com-%$sory if there are parties
without whom no final determination can be had of an action
(Sec. :, *ue 3).
.oin#r o: -artis is -rmissi0 when there is a right or
relief in favor of or against the parties %oined in respect to or
arising out of the same transaction or series of transactions7
and there is a ,uestion of law or fact common to the parties
%oined in the action (Sec. ;, *ue 3).
MIS.OINDER AND NON<.OINDER O) ,ARTIES
A part* is
a. mis@oin# when he is made a part* to the action
although he should not be impleaded
b. not @oin# when he is supposed to be %oined but is
not impleaded in the action
Bnder the rules7 neither mis%oinder nor non-%oinder of parties
is a ground for the dismissal of an action but failure to obe*
the order of the court to drop or add a part* is a ground for
the dismissal of the complaint (Sec. 3, *ue 1:). arties ma*
be dropped or added b* order of the court on motion of an*
part* or on its own initiative at an* stage of the action and
on such terms as are %ust (Sec. 11, *ue 3). $is%oinder of
parties does not involve ,uestions of %urisdiction and not a
ground for dismissal.
/LASS S(IT
A class suit is an action where one or more ma* sue for the
benefit of all if the re,uisites for said action are complied
with.
A class suit does not re,uire commonalit* of interest in the
,uestions involved in the suit. <hat is re,uired b* the Rules
is a common or general interest in the sub%ect matter of the
litigation. 4he sub%ect matter of the action means the
ph*sical7 the things real or personal7 the mone*7 lands7
chattels7 and the like7 in relation to the suit which is
prosecuted and not the direct or wrong committed b* the
defendant. :t is not also a common ,uestion of law that
sustains a class suit but a common interest in the sub%ect
matter of the controvers*.
4here is no class suit when interests are conflicting. 0ence7
for a class suit to prosper7 the following re,uisites must
concurE
a? 4he sub%ect matter of the controvers* must be of
common or general interest to man* persons9
b? 4he persons are so numerous that it is impracticable
to %oin all as parties9
c? 4he parties actuall* before the court are sufficientl*
numerous and representative as to full* protect the
interests of all concerned9 and
d? 4he representatives sue or defend for the benefit of
all (Sec.12, *ue 3).
:t shall not be dismissed or compromised without the
approval of the court.
S(ITS A+AINST ENTITIES WIT>O(T .(RIDI/AL
,ERSONALIT'
A corporation being an entit* separate and distinct from its
members has no interest in the individual propert* of its
members unless transferred to the corporation. Absent an*
showing of interests7 a corporation has no personalit* to
bring an action for the purpose of recovering the propert*7
which belongs to the members in their personal capacities.
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An entit* without %uridical personalit* ma* be sued under a
common name b* which it is commonl* known when it
represents to the plaintiff under a common name7 and the
latter relies on such representation.
ersons associated in an entit* without %uridical personalit*
ma*be sued under the name b* which the* are generall* or
commonl* known7 but the* cannot sue under such name.
E))E/T O) DEAT> O) ,ART' LITI+ANT
4he death of the client e1tinguishes the attorne*-client
relationship and divests a counsel of his authorit* to
represent the client. Accordingl*7 a dead client has no
personalit* and cannot be represented b* an attorne*.
#either does he become the counsel of the heirs of the
deceased unless his services are engaged b* said heirs.
<here the claim is not e1tinguished b* the death of the
litigant7 upon the receipt of the notice of death7 the court
shall order the legal representative or representatives of the
deceased to appear and be substituted for the deceased
within thirt* >&D? da*s from notice (Sec. 1;, *ue 3).
4he substitution of the deceased would not be ordered b* the
court in cases where the death of the part* would e1tinguish
the action because substitution is proper onl* when the
action survives.
<here the deceased has no heirs7 the court shall re,uire the
appointment of an e1ecutor or administrator. 4his
appointment is not re,uired where the deceased left an heir
because the heir under the new rule7 ma* be allowed to be
substituted for the deceased. :f there is an heir but the heir is
a minor7 the court ma* appoint a guardian "' ite$ for said
minor heir (Sec. 13, *ue 3).
4he court ma* appoint an e1ecutor or administrator whenE
a? the counsel for the deceased does not name a legal
representative9 or
b? there is a representative named but he failed to
appear within the specified period (Sec. 1;, *ue 3).
VEN(E ;R%$ 2=
;enue is the place or the geographical area where an action
is to be filed and tried. :n civil cases7 it relates onl* to the
place of the suit and not to the %urisdiction of the court.
VEN(E VERS(S .(RISDI/TION
a? /urisdiction is the authorit* to hear and determine a
case9 venue is the place where the case is to be heard or
tried9
b? /urisdiction is a matter of substantive law9 venue of
procedural law9
c? /urisdiction establishes a relation between the court and
the sub%ect matter9 venue7 a relation between plaintiff
and defendant7 or petitioner and respondent9
d? /urisdiction is fi1ed b* law and cannot be conferred b*
the parties9 venue ma* be conferred b* the act or
agreement of the parties9 and
e? Lack of %urisdiction over the sub%ect matter is a ground
for a $otu !ro!io dismissal9 venue is not a ground for a
motu propio dismissal e1cept in cases sub%ect to
summar* procedure.
VEN(E O) REAL A/TIONS
Actions affecting title to or possession of real propert*7 or
interest therein7 shall be commenced and tried in the proper
court which has %urisdiction over the area wherein the real
propert* involved or a portion thereof is situated. 5orcible
entr* and detainer actions shall be commenced and tried in
the municipal trial court of the municipalit* or cit* wherein
the real propert* involved7 or a portion thereof7 is situated
(Sec. 1, *ue 8).
VEN(E O) ,ERSONAL A/TIONS
All other actions ma* be commenced and triedE
a? where the plaintiff or an* of the principal plaintiffs
resides7 or
b? where the defendant or an* of the principal
defendants resides
 all at the option of the plaintiff (Sec. 2,
*ue 8).
VEN(E O) A/TIONS A+AINST NON<RESIDENTS
:f an* of the defendants does not reside and is not found in
the hilippines7 and the action affects the personal status of
the plaintiff7 or an* propert* of said defendant located in the
hilippines7 the action ma* be
!? commenced and tried in the court of the place
where the plaintiff resides7 or
"? where the propert* or an* portion thereof is situated
or found (Sec. 3, *ue 8?7 or
&? at the place where the defendant ma* be found
 at the option of the plaintiff (Sec. 2).
W>EN T>E R(LES ON VEN(E DO NOT A,,L'
4he Rules do not appl*
a? in those cases where a specific rule or law provides
otherwise >i.e. action for damages arising from
libel?9 or
b? where the parties have validl* agreed in writing
before the filing of the action on the e1clusive
venue thereof >Sec. '7 Rule '?.
E))E/TS O) STI,(LATIONS ON VEN(E
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4he parties ma* stipulate on the venue as long as the
agreement is
a? in writing
b? made before the filing of the action7 and
c? e1clusive as to the venue (Sec. 8[%], *ue 8).
:n interpreting stipulations as to venue7 there is a need to
in,uire as to whether or not the agreement is restrictive or
not. :f the stipulation is R2S4R:C4:;27 the suit ma* be
filed onl* in the place agreed upon b* the parties. :t must be
reiterated and made clear that under Rule '7 the general rules
on venue of actions shall not appl* where the parties7 before
the filing of the action7 have validl* agreed in writing on an
e1clusive venue. 4he mere stipulation on the venue of an
action7 however7 is not enough to preclude parties from
bringing a case in other venues. :f the intention of the parties
were to restrict venue7 there must be accompan*ing language
clearl* and categoricall* e1pressing their purpose and design
that actions between them be litigated onl* at the place
named b* them.
4he parties must be able to show that such stipulation is
2RCLBS:;2. :n the absence of ,ualif*ing or restrictive
words7 the stipulation should be deemed as merel* an
agreement on an additional forum7 not as limiting venue to
the specified place.
,LEADIN+S ;R%$s 4 < 11=
leadings are written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
%udgment (Sec. 1, *ue ;). leadings aim to define the issues
and foundation of proof to be submitted during the trial7 and
to apprise the court of the rival claims of the parties.
8INDS O) ,LEADIN+S ;R(LE 4=
A& /OM,LAINT
Complaint is the pleading alleging the plaintiffCs cause or
causes of action7 stating therein the names and residences of
the plaintiff and defendant >Sec. &7 Rule )? and should
contain a concise statement of the ultimate facts constituting
the plaintiff Cs cause of action.
B& ANSWER
An answer is a pleading in which a defending part* sets
forth his defenses (Sec. 3, *ue ;). :t ma* allege legal
provisions relied upon for defense (Sec. 1, *ue <). :t ma* be
an answer to the complaint7 counterclaim or a cross-claim7
third part* complaint or complaint-in-intervention.
T! #:n#ant may st %- t"o Fin#s o: #:nssC
1& NE+ATIVE DE)ENSES
a? #egative defenses are the specific denials of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action
(Sec. 5["], *ue ;).
b? <hen the answer sets forth negative defenses7 the
burden of proof rests upon the plaintiff7 and when
the answer alleges affirmative defenses7 the burden
of proof devolves upon the defendant.
c? 4here are three t*pes specific denialsE
!. Absolute denial - when the defend ant
specif* each material allegation of fact the
truth of which he does not admit and
whenever practicable sets forth the substance
of the matters upon which he relies to
support such denial.
". Partial denial J when the defendant does not
make a total denial of the material
allegations in a specific paragraph7 den*ing
onl* a part of the averment. :n doing so he
specifies that part of the truth of which he
admits and denies onl* the remainder.
&. enial by disavowal of !nowledge J when
the defendant alleges having no knowledge
or information sufficient to form a belief as
to the truth of a material averment made in
the complaint. Such denial must be made in
good faith.
 <hen the matter denied b* a disavowal
of knowledge is plainl* and necessaril*
within the defendantCs knowledge7 such
claim shall not be considered as a
specific denial.
 :f the denial does not fall within the
scope of the abovementioned kinds of a
specific denial7 it shall be considered a
3ener" 'eni" which is considered as
"n "'$ission of the "6er$ent not
s!ecific"+ 'enie'.
2& NE+ATIVE ,RE+NANT
 #egative pregnant is an admission in avoidance
which does not ,ualif* as a specific denial.
 :t is a form of negative e1pression which carries
with it an affirmation or at least an implication of
some kind favorable to the adverse part*. :t is a
denial pregnant with an admission of the substantial
facts alleged in the pleading.
 <here a fact is alleged with ,ualif*ing or
modif*ing language and the words of the allegation
as so ,ualified or modified are literall* denied7 the
,ualif*ing circumstances alone are denied while the
fact itself is admitted.
 :t is not a specific denial and is usuall* an
admission.
A))IRMATIVE DE)ENSES
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Affirmative defenses are allegations of new matters which7
while h*potheticall* admitting the material allegations in the
pleading of the claimant7 would nevertheless prevent or bar
recover* b* him.
Affirmative defenses includeE
a? 5raud
b? Statute of limitations
c? Release
d? a*ment
e? :llegalit*
f? Statute of frauds
g? 2stoppel
h? 5ormer recover*
i? Discharge in bankruptc*
%? An* other matter b* wa* of
confession and avoidance (Sec.
5[%], *ue ;)
/& /O(NTER/LAIM
A counterclaim is an* claim which a defending part* ma*
have against an opposing part* (Sec. ;, *ue ;). :t is in itself
a claim or cause of action interposed in an answer. :t is
either compulsor* or permissive.
1& /OM,(LSOR' /O(NTER/LAIM
A compulsor* counterclaim is one which7 being cogni@able
b* the regular courts of %ustice7 arises out of or is connected
with the transaction or occurrence constituting the sub%ect
matter of the opposing part*Cs claim and does not re,uire for
its ad%udication7 the presence of third parties of whom the
court cannot ac,uire %urisdiction. Such a counterclaim must
be within the %urisdiction of the court7 both as to the amount
and the nature thereof7 e1cept that in an original action
before the R4C7 the counterclaim ma* be considered
compulsor* regardless of the amount (Sec. :, *ue ;).
4he failure of the defendant to set up a compulsor*
counterclaim shall bar its institution7 sub%ect to the following
e1ceptionsE
a? :f the counterclaim matured or was ac,uired after
the defendant had served his answer. :n such case7
it ma* be pleaded b* filing a supplemental answer
or pleading before %udgment9 and
b? <hen a pleader fails to set up a counterclaim
through oversight7 inadvertence7 e1cusable
negligence7 or when %ustice re,uires7 he ma*7 b*
leave of court7 set up the counterclaim b*
amendment of the pleadings before %udgment.
,oints to consi#rC
a? A compulsor* counterclaim if not set up is barred
b? :t re,uires no pa*ment of the docket fee
c? #eed not be answered
d? Does not need a certificate against forum shopping
2& ,ERMISSIVE /O(NTER/LAIM
ermissive counterclaim is a counterclaim which does not
arise out of nor is it necessaril* connected with the sub%ect
matter of the opposing part*Cs claim. :t is not barred even if
not set up in the action.
T! rE%irmnts o: a -rmissi0 co%ntrc$aim arC
!? :t does not re,uire for its ad%udication the presence
of third parties of whom the court cannot ac,uire
%urisdiction9
"? :t must be within the %urisdiction of the court
wherein the case is pending and is cogni@able b*
the regular courts of %ustice9 and
&? :t does not arise out of the same transaction or
series of transactions sub%ect of the complaint.
,oints to consi#rC
a? even if not set up is not barred because it doesnCt
arise out of the same transaction as that of the
complaint
b? it can be brought as a separate action in itself
c? docket fee must be paid
d? it must be answered b* the adverse part* to prevent
default
e? it needs a certificate against forum shopping.
1& E))E/T ON T>E /O(NTER/LAIM W>EN T>E
/OM,LAINT IS DISMISSED
:f a counterclaim has alread* been pleaded b* the defendant
prior to the service upon him of the plaintiffLs motion to
dismiss7 and the court grants the said motion to dismiss7 the
dismissal shall be limited to the complaint (Sec. 2, *ue 1:).
4he dismissal upon motion of plaintiff shall be without
pre%udice to the right of the defendant to prosecute the
counterclaim.
4he defendant if he so desires ma* prosecute his
counterclaim either in a separate action or in the same
action. Should he choose to have his counterclaim resolved
in the same action7 he must notif* the court of his preference
within !( da*s from notice of the plaintiffLs motion to
dismiss. Should he opt to prosecute his counterclaim in a
separate action7 the court should render the corresponding
order granting and reserving his right to prosecute his claim
in a separate complaint.
4he dismissal of the complaint under Sec. 3 >due to fault of
plaintiff? is without pre%udice to the right of the defendant to
prosecute his counterclaim in the same action or in a
separate action. 4his dismissal shall have the effect of
ad%udication upon the merits7 unless otherwise declared b*
the court. 4he dismissal of the main action does not carr*
with it the dismissal of the counterclaim (Sec. ;, *ue 1;).
D& /ROSS</LAIMS
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BERT – NOTES in REMEDIAL LAW
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A cross-claim is an* claim b* one part* against a co-part*
arising out of the transaction or occurrence that is the sub%ect
matter either of the original action or of a counterclaim
therein. Such cross-claim ma* include a claim that the part*
against whom it is asserted is or ma* be liable to the cross-
claimant for all of part of a claim asserted in the action
against the cross-claimant (Sec. <, *ue ;).
E& T>IRD ;)O(RT><ET/&= ,ART' /OM,LAINTS
:t is a claim that a defending part* ma*7 with leave of court7
file against a person not a part* to the action7 called the third
>fourth7 etc.?Jpart* defendant7 for contribution7 indemnit*7
subrogation or an* other relief7 in respect of his opponentLs
claim.
)& /OM,LAINT<IN<INTERVENTION
Complaint-in-intervention is a pleading whereb* a third
part* asserts a claim against either or all of the original
parties. :f the pleading seeks to unite with the defending
part* in resisting a claim against the latter7 he shall file an
answer-in-intervention.
:f at an* time before %udgment7 a person not a part* to the
action believes that he has a legal interest in the matter in
litigation in a case in which he is not a part*7 he ma*7 with
leave of court7 file a complaint-in-intervention in the action
if he asserts a claim against one or all of the parties.
+& RE,L'
Repl* is a pleading7 the office or function of which is to
den*7 or allege facts in denial or avoidance of new matters
alleged b* wa* of defense in the answer and thereb* %oin or
make issue as to such matters. 2ven if a part* does not file
such repl*7 all the new matters alleged in the answer are
deemed controverted (Sec. 1., *ue ;).
But *ou need to file a repl* if there is an actionable
document den*ing the due e1ecution of such document
under oath
,LEADIN+S ALLOWED IN SMALL /LAIM /ASES
AND /ASES /OVERED B' T>E R(LES ON
S(MMAR' ,RO/ED(RE
4he onl* pleadings allowed under the Rules on Summar*
rocedure are
a? Complaint
b? C3$BLS3RH C3B#42RCLA:$ pleaded in
the answer7
c? cross-claim pleaded in the answer7
d? answers
 these pleadings must be verified.
4he onl* pleadings allowed under small claim cases areE
a? Statement of claim
b? Response
c? Counterclaim in the response
,ARTS O) A ,LEADIN+ ;R(LE 5=
4he parts of a pleading under Rule + areE the caption >Sec.
!?7 the te1t or the bod* >Sec. "?7 the signature and address
>Sec. &?7 the verification >Sec. '?7 and the certification
against forum shopping >Sec. (?.
/A,TION
4he caption must set forth the name of the court7 the title of
the action7 and the docket number if assigned.
4he title of the action indicates the names of the parties.
4he* shall all be named in the original complaint or petition9
but in subse,uent pleadings7 it shall be sufficient if the name
of the first part* on each side be stated with an appropriate
indication when there are other parties. 4heir respective
participation in the case shall be indicated.
SI+NAT(RE AND ADDRESS
2ver* pleading must be signed b* the part* or counsel
representing him7 stating in either case his address which
should not be a post office bo1.
4he signature of counsel constitutes a certificate b* him that
he has read the pleading9 that to the best of his knowledge7
information7 and belief there is good ground to support it9
and that it is not interposed for dela*.
An unsigned pleading produces no legal effect. 0owever7
the court ma*7 in its discretion7 allow such deficienc* to be
remedied if it shall appear that the same was due to mere
inadvertence and not intended for dela*. Counsel who
deliberatel* files an unsigned pleading7 or signs a pleading
in violation of the Rule7 or alleges scandalous or indecent
matter therein7 or fails to promptl* report to the court a
change of his address7 shall be sub%ect to appropriate
disciplinar* action.
:n ever* pleading7 counsel has to indicate his professional
ta1 receipt >4R? and :B receipt7 the purpose of which is to
see to it that he pa*s his ta1 and membership due regularl*.
VERI)I/ATION
A verification of a pleading is "n "ffir$"tion un'er o"th %+
the !"rt+ $"9in3 the !e"'in3 th"t he is !re!"re' to
est"%ish the truthfuness of the f"cts )hich he h"s !e"'e'
%"se' on his o)n !erson" 9no)e'3e.
4he general rule under7 Sec. '. Rule + is that7 pleading need
not be under oath. 4his means that a pleading need not be
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
12
verified. A pleading will be verified onl* when a verification
is re,uired b* a law or b* a rule.
A pleading is verified b* an affidavit7 which declares thatE
a? the affiant has read the pleading7 and
b? the allegations therein are true and correct to his
personal knowledge or based on authentic records.
4he verification re,uirement is significant7 as it is intended
to secure an assurance that the allegations in a pleading are
true and correct and not the product of the imagination or a
matter of speculation7 and that the pleading is filed in good
faith. 4he absence of proper verification is cause to treat the
pleading as unsigned and dismissible.
:t is7 however7 been held that the absence of a verification or
the non-compliance with the verification re,uirement does
not necessaril* render the pleading defective. :t is onl* a
formal and not a %urisdictional re,uirement. 4he re,uirement
is a condition affecting onl* the form of the pleading
(S"r$einto 6s. >"r"t"n, 2..:). 4he absence of verification
ma* be corrected b* re,uiring an oath. 4he court ma* order
the correction of the pleading or act on an unverified
pleading if the attending circumstances are such that strict
compliance would not full* serve substantial %ustice7 which
after all7 is the basic aim for the rules of procedure (*o%ert
4e6eo!$ent Cor!. 6s. ?uit"in, 315 SC*A 15.).
/ERTI)I/ATION A+AINST )OR(M<S>O,,IN+
 #eeded in initiator* pleadings
4he certification against forum shopping is a sworn
statement certif*ing to the following mattersE
!? 4hat the part* has #34 C3$$2#C2D or filed
an* claim involving the same issues in an* court7
tribunal7 or ,uasi-%udicial agenc* and7 to the best of
his knowledge7 no such other action or claim is
pending9
"? 4hat if there is such other pending action or claim7
a complete statement of the present S4A4BS
thereof9 and
&? 4hat if he should therefore learn that the same or
similar action or claim has been filed or is pending7
he shall R23R4 40A4 5AC4 within five >(?
da*s therefrom to the court wherein his aforesaid
complaint or initiator* pleading has been filed.
5ailure to compl* with the foregoing re,uirements shall not
be curable b* mere amendment of the complaint or other
initiator* pleading but shall be cause for the dismissal of the
case without pre%udice7 unless otherwise provided7 upon
motion and after hearing.
4he submission of a false certification or non-compliance
with an* of the undertakings therein shall constitute indirect
contempt of court7 without pre%udice to the corresponding
administrative and criminal actions. :f the acts of the part* or
his counsel clearl* constitute willful and deliberate forum
shopping7 the same shall be ground for summar* dismissal
with pre%udice and shall constitute direct contempt7 as well
as a cause for administrative sanctions (Sec. 5, *ue :).
ossible ;iolations >as per Dean Riano?E
!? Non<com-$ianc "it! t! %n#rtaFing J
dismissal without pre%udice
"? )a$s /rti:ication - indirect contempt7
administrative and criminal sanction
&? Wi$:%$ an# #$i9rat :or%m s!o--ing J ground
for summar* dismissal with pre%udice without
motion and hearing9 it has administrative but
without criminal sanctions
 So7 if the dismissal is without
pre%udice7 *our remed* is certior"ri;
if with pre%udice7 the remed* is appeal
(Sec. 1(3), *ue 81)
 4he dismissal is not a sub%ect of
appeal if the order of dismissal is
without pre%udice.
 4he certification is mandator* under
Sec. 5, *ue :, but not %urisdictional.
4here is forum shopping when
a? as a result of an adverse opinion in one forum7 a
part* seeks a favorable opinion7 other than b*
appeal or certiorari in another forum
b? a part* institutes two or more suits in different
courts7 either simultaneousl* or successivel*7 in
order to ask the courts to rule on the same or related
causes and6or to grant the same or substantiall* the
same reliefs on the supposition that one or the other
court would make a favorable disposition or
increase a part*Ls chances of obtaining a favorable
decision or action
c? the elements of litis pendentia are present or where
a final %udgment in one case will amount to res
%udicata in another.
:t is an act of malpractice7 as the litigants trifle with the
courts and abuse their processes. :t is improper conduct and
degrades the administration of %ustice. :f the act of the part*
or its counsel clearl* constitutes wilful and deliberate forum-
shopping7 the same shall constitute direct contempt7 and a
cause for administrative sanctions7 as well as a ground for
the summar* dismissal of the case with pre%udice (,ontes
6s. CA,"+ 8, 2..;)
It is t! -$ainti:: or -rinci-a$ -arty "!o xc%ts t!
crti:ication %n#r oat!? an# not t! attorny. :t must be
signed b* the part* himself and cannot be signed b* his
counsels. As a general and prevailing rule7 a certification
signed b* counsel is a defective certification and is a valid
cause for dismissal. 4his is the general and prevailing rule.
A certification b* counsel and not b* the principal part*
himself is no certification at all. 4he reason for re,uiring that
it must be signed b* the principal part* himself is that he has
actual knowledge7 or knows better than an*one else7 whether
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
11
he has initiated similar action6s in other courts7 agencies or
tribunals.
4his certification is not necessar* when what is filed is a
mere motion for e1tension7 or in criminal cases and distinct
causes of action.
REA(IREMENTS O) A /OR,ORATION
E*E/(TIN+ T>E
VERI)I/ATIONB/ERTI)I/ATION ON NON<)OR(M
S>O,,IN+
A %uridical entit*7 unlike a natural person7 can onl* perform
ph*sical acts through properl* delegated individuals. 4he
certification against forum shopping where the plaintiff or a
principal part* is a %uridical entit* like a corporation ma* be
e1ecuted b* properl* authori@ed persons. 4his person ma*
be the law*er of a corporation.
As long as he is dul* authori@ed b* the corporation and has
personal knowledge of the facts re,uired to be disclosed in
the certification against forum shopping7 the certification
ma* be signed b* the authori@ed law*er.
E))E/T O) T>E SI+NAT(RE O) /O(NSEL IN A
,LEADIN+
CounselCs signature signifies thatE
a? 0e has read the pleading9
b? 4hat to the best of his knowledge7 information
and belief there is a good ground to support it9
and
c? 4hat it is not interposed for dela*.
ALLE+ATIONS IN A ,LEADIN+
2ver* pleading shall contain in a mathematical and logical
form7 a plain7 concise and direct statement of the ultimate
facts on which the part* relies for his claim and defense7 as
the case ma* be7 containing the statement of mere
evidenciar* facts (Sec. 1, *ue <).
MANNER O) MA8IN+ ALLE+ATIONS ;R(LE 6=
,LEADIN+ /ONDITION ,RE/EDENT
Conditions precedents are matters which must be complied
with before a cause of action arises. <hen a claim is sub%ect
to a condition precedent7 the compliance of the same must be
alleged in the pleading.
5ailure to compl* with a condition precedent is an
independent ground for a motion to dismissE that a condition
precedent for filing the claim has not been complied (Sec.
1[&], *ue 1;) (i.e. %"r"n3"+ concii"tion, 'e$"n', etc)
,LEADIN+ A .(D+MENT
:n pleading a %udgment or decision of a domestic or foreign
court7 %udicial or ,uasi-%udicial tribunal7 or of a board or
officer7 it is sufficient to aver the %udgment or decision
without need of alleging matters showing the %urisdiction to
render such decision.
,LEADIN+ )RA(D? MISTA8E? MALI/E?
INTENT? 8NOWLED+E AND OT>ER /ONDITION
O) T>E MIND .(D+MENTS
O))I/IAL DO/(MENTS OR A/TS
<hen making averments of 5RABD 3R $:S4A=27 402
C:RCB$S4A#C2S C3#S4:4B4:#8 SBC0 5RABD 3R
$:S4A=2 must be stated with particularit* (Sec. 5, *ue <).
:t is not enough therefore7 for the complaint to allege that he
was defrauded b* the defendant. Bnder this provision7 the
complaint must state with AR4:CBLAR:4H the fraudulent
acts of the adverse part*. 4hese particulars would
necessaril* include the time7 place and specific acts of fraud
committed against him.
$AL:C27 :#42#47 =#3<L2D82 3R 3402R
C3#D:4:3#S 35 402 $:#D of a person ma* be averred
82#2RALLH (Sec. 5, *ue <). Bnlike in fraud or mistake7
the* need not be stated with particularit*. 4he rule is borne
out of human e1perience. :t is difficult to state the particulars
constituting these matters. 0ence7 a general averment is
sufficient.
,LEADIN+ AN A/TIONABLE DO/(MENT
An actionable document is a document relied upon b* either
the plaintiff or the defendant.
<henever an actionable document is the basis of a pleading7
the rule specificall* direct the pleader toE
a? set forth in the pleading the substance of the
instrument or the document9 or
b? to attach the original or the cop* of the document to
the pleading as an e1hibit and to be part of the
pleading9 or
c? to set forth in the pleading said cop* of the
instrument or document (Sec. :, *ue <).
4his manner of pleading a document applies onl* to one
which is the basis of action or a defense. 0ence7 if the
document does not have the character of an actionable
document7 as when it is merel* evidentiar*7 it need not be
pleaded strictl*.
S,E/I)I/ DENIALS
4here are three modes of specific denial which are
contemplated b* the Rules7 namel*E
a? B* specif*ing each material allegation of the fact in
the complaint7 the truth of which the defendant does
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
12
not admit7 and whenever practicable7 setting forth
the substance of the matter which he will rel* upon
to support his denial9
b? B* specif*ing so much of the averment in the
complaint as is true and material and den*ing onl*
the remainder9
c? B* stating that the defendant is without knowledge
or information sufficient to form a belief as to the
truth of a material averment in the complaint7 which
has the effect of denial.
4he purpose of re,uiring the defendant to make a specific
denial is to make him disclose the matters alleged in the
complaint which he succinctl* intends to disprove at the
trial7 together with the matter which he relied upon to
support the denial. 4he parties are compelled to la* their
cards on the table.
E))E/T O) )AIL(RE TO MA8E S,E/I)I/
DENIALS
$aterial allegations7 e1cept unli,uidated damages7 not
specificall* denied are deemed admitted (Sec. 11, *ue <).
:f the allegations are deemed admitted7 there is no more
triable issue between the parties and if the admissions appear
in the answer of the defendant7 the plaintiff ma* file a
motion for %udgment on the pleadings under Rule &'.
An admission in a pleading cannot be controverted b* the
part* making such admission because the admission is
conclusive as to him. All proofs submitted b* him contrar*
thereto or inconsistent therewith should be ignored whether
an ob%ection is interposed b* a part* or not. Said admission
is a %udicial admission7 having been made b* a part* in the
course of the proceedings in the same case7 and does not
re,uire proof.
A part* who desires to contradict his own %udicial admission
ma* do so onl* be either of two wa*sE
a? b* showing that the admission was made through
palpable mistake9 or
b? that no such admission was made (Sec. 8, *ue
129).
4he following are not #m# a#mitt# b* the failure to
make a specific denialE
a? 4he amount of unli,uidated damages9
b? Conclusions in a pleading which do not have to be
denied at all because onl* ultimate facts need be
alleged in a pleading9
c? #on-material allegations7 because onl* material
allegations need be denied.
W>EN A S,E/I)I/ DENIAL REA(IRES AN OAT>
Specific denials which must be under oath to be sufficient
areE
a? A denial of an actionable document (Sec. <, *ue
<);
b? A denial of allegations of usur* in a complaint to
recover usurious interest (Sec. 11, *ue <).
E))E/T O) )AIL(RE TO ,LEAD ;R(LE 7=
)AIL(RE TO ,LEAD DE)ENSES AND OB.E/TIONS
Defenses or ob%ections not pleaded either in a motion to
dismiss or in the answer are deemed waived.
21ceptionsE
a? Lack of %urisdiction over the sub%ect matter9
b? 4hat there is another action pending between the
same parties for the same cause (itis !en'enti");
c? 4hat the action is barred b* the statute of
limitations (!rescri!tion);
') *es &u'ic"t".
 :n all these cases7 the court shall dismiss the
claim.
)AIL(RE TO ,LEAD A /OM,(LSOR'
/O(NTER/LAIM AND /ROSS</LAIM
A compulsor* counterclaim or a cross-claim not set up shall
be barred >Sec. "7 Rule .?.
DE)A(LT
Default is a procedural concept that occurs when the
defending part* fails to file his answer within the
reglementar* period. :t does not occur from the failure of the
defendant to attend either the pre-trial or the trial.
W>EN A DE/LARATION O) DE)A(LT IS ,RO,ER
:f the defending part* fails to ans"r within the time
allowed therefor7 the court shall7 upon motion of the
c$aiming -arty with notic to the #:n#ing -arty7 and
-roo: o: s%c! :ai$%r7 declare the defending part* in default
(Sec. 3, *ue 9).
:n order for the court to declare the defendant in default the
following re,uisites must be presentE
!. 4he court must have validl* ACAB:R2D
/BR:SD:C4:3# over the person of the defendant
either b* service of summons or voluntar*
appearance9
". 4he defendant 5A:LS 43 A#S<2R within the
time allowed therefore9
&. 4here must be a MOTION to declare the defendant
in default9
'. 4here must be #34:C2 to the defendant b* serving
upon him a cop* of such motion9
(. 4here must be R335 of such failure to answer9
and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
13
). 4here must be a 02AR:#8 to declare the
defendant in default.
:t is not correct to declare a part* in default of the defending
part* filed an answer
E))E/T O) AN ORDER O) DE)A(LT
!? 4he part* declared in default loses his standing in court
preventing him from taking part in the trial9
"? 4he part* in default shall still be entitled to notices of
subse,uent proceedings as well as to receive notice that
he was declared in default9
&? 4he declaration of default is not an admission of the
truth or validit* of the plaintiffCs claims.
RELIE) )ROM AN ORDER O) DE)A(LT
REMED' )ROM T>E NOTI/E O) ORDER AND
BE)ORE .(D+MENTC
 MOTION TO SET ASIDE ORDER O)
DE)A(LT7 showing that
a? the failure to answer was due to fraud7
accident7 mistake7 or e1cusable negligence7 and
b? the defendant has a meritorious defenseSthere
must be an affidavit of merit (Sec. 3[%], *ue
9).
REMED' A)TER .(D+MENT B(T BE)ORE
)INALIT'C
 MOTION )OR NEW TRIAL (*ue 3:);
 MOTION )OR RE/ONSIDERATION9 or
 A,,EAL from the %udgment as being contrar* to
the evidence or the law (*ue 81).
 Hou can directl* file an appeal without passing $R
and $#49 or *ou can $R6$#4 and if denied7 then
*ou can still file an appeal and have a new Mfresh
!( da*N period of appeal >#e*pes doctrine?
 4his #e*pes doctrine on Mfresh period of appealN
applies to Rule '( and Sec. & >e? of Rule !"".
 4he purpose of the doctrine is to standardi@e the
period of appeal.
 4he appeal shall be taken within fifteen (1") days
from notice of the #udgment or final order
appealed from. <here a record on appeal is
re,uired7 the appellant shall file a notice of appeal
and a record on appeal within thirt* >&D? da*s from
notice of the %udgment or final order.
 So the period of appeal is 13 #ays :rom notic o:
@%#gmnt or 13 #ays :rom :ina$ or#r a--a$#
:rom&
 4he SC ruled in one case that this Mfresh period of
appealN is applicable in criminal cases ($udith %u
vs. $udge &amson, 'eb. (, 2011)
REMED' A)TER .(D+MENT BE/OMES )INAL
AND E*E/(TOR'C
 ,ETITION )OR RELIE) )ROM .(D+MENT
(*ue 3<);
 A/TION )OR N(LLIT' O) .(D+MENT (*ue
8:).
I: t! or#r o: #:a%$t is 0a$i#? )ertiorari is not
a0ai$a9$. :f the default order was improvidentl*
issued7 that is7 the defendant was declared in
default7 without a motion7 or without having served
with summons before the e1piration of the
reglementar* period to answer7 certior"ri is
available as a remed*.
E))E/T O) A ,ARTIAL DE)A(LT
<hen a pleading asserting a claim states a common cause of
action against several defending parties7 some of whom
answer and the others fail to do so7 the court shall tr* the
case against all upon the answers thus filed and render
%udgment upon the evidence presented (Sec. 33[c], *ue 9).
Default is onl* against those defendant who didnCt file the
answer but the* can also benefit from the answering
defendants
E*TENT O) RELIE)
A %udgment rendered against a part* in default ma* not
e1ceed the amount or be different from that pra*ed for nor
include unli,uidated damages which are not awarded (Sec.
3[c], *ue 9). :n fact7 there can be no automatic grant of
relief as the court has to weigh the evidence.
4he court ma* render %udgment before or after the
presentation of evidence. So the court ma* award
unli,uidated damages in case where the court default
defendant in default after the presentation of the evidence.
A/TIONS W>ERE DE)A(LT ARE NOT ALLOWED
!? Annulment of marriage9
"? Declaration of nullit* of marriage9
&? Legal separation
'? :n special civil actions of certiorari7 prohibition and
mandamus where comment instead of an answer is
re,uired to be filed9 and
(? Summar* procedure.
)ILIN+ AND SERVI/E O) ,LEADIN+S ;R(LE 11=
,A'MENT O) DO/8ET )EES
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
14
:t is not simpl* the filing of the complaint or appropriate
initiator* pleading but the pa*ments of the prescribed docket
fee that vests a trial court with /BR:SD:C4:3# over the
sub%ect matter or nature of the action. :n connection with the
pa*ment of docket fees7 the court re,uires that all
complaints7 petitions7 answers and similar pleadings must
specif* the amount of damages being pra*ed for both in the
bod* of the pleading and in pra*er therein and said damages
shall be considered in the assessment of the filing fees9
otherwise such pleading shall not be accepted for filing or
shall be e1punged from the record.
An* defect in the original pleading resulting in
underpa*ment of the docket fee cannot be cured b*
amendment7 such as b* the reduction of the claim as7 for all
legal purposes7 there is no original complaint over which the
court has ac,uired %urisdiction.
4he rule on pa*ment of docket fee has7 in some instances7
been sub%ect to the rule on L:B2RAL :#42RR24A4:3#.
4hus7 in a case7 it was held that while the pa*ment of the
re,uired docket fee is a %urisdictional re,uirement7 even its
nonpa*ment at the time of filing does not automaticall*
cause the dismissal of the case7 as long as the fee is paid
within the applicable prescriptive or reglementar* period.
Also7 if the amount of docket fees is insufficient considering
the amount of the claim7 the part* filing the case will be
re,uired to pa* the deficienc*7 but %urisdiction is not
automaticall* lost.
<ithin the period for taking an A2AL7 the appellant shall
pa* to the clerk of court which rendered the %udgment or
final order appealed from7 the full amount of the appellate
court docket and other lawful fees (Sec. 8, *ue 81). 0ence7
the Rule now re,uires that appellate docket and other lawful
fees must be paid within the same period for taking an
appeal. Such pa*ment of docket fee within the prescribed
period is mandator* for the perfection of an appeal.
<ithout such pa*ment7 the appellate court does not ac,uire
%urisdiction over the sub%ect matter of the action and the
decision sought to be appealed from becomes final and
e1ecutor. 0ence7 nonpa*ment is a valid ground for the
dismissal of an appeal. 0owever7 dela* in the pa*ment of the
docket fees confers upon the court a discretionar*7 not a
mandator* power to dismiss an appeal.
)ILIN+ VERS(S SERVI/E O) ,LEADIN+S
5:L:#8 is the act of presenting the pleading or other paper
to the clerk of court9
S2R;:C2 is the act of providing a part* with a cop* of the
pleading or paper concerned (Sec. 2, *ue 13).
,ERIODS O) )ILIN+ O) ,LEADIN+S
4he date of the mailing of motions7 pleadings7 or an* other
papers or pa*ments or deposits7 as shown b* the post office
stamp on the envelope or the registr* receipt7 shall be
considered as the date of their filing7 pa*ment7 or deposit in
court. 4he envelope shall be attached to the record of the
case (Sec. 3, *ue 13)
402 )ILIN+ O) RES,ONSIVE ,LEADIN+S S>ALL
>AVE T>E )OLLOWIN+ ,ERIODS
!? Answer to the complaint
 within !( da*s after service of summons unless
a different period is fi1ed b* the court.
2) Answer of a defendant foreign private #uridical entity
a. :f it has a resident agent
 within !( da*s after service of summons to
such agent.
b. :f it has no resident agent but it has an agent or
officer in the hilippines
 within !( da*s after service of summons to
said agent or officer.
c. :f it has no resident agent7 agent or officer the
service of summons shall be made on the proper
government office which will then forward it b*
registered mail within !D da*s to the corporationCs
office
 the answer must be filed within &D da*s from
the receipt of the summons b* the home office.
*) +hen the service is made by publication
 within the time specified in the order granting
leave to serve summons b* publication which
shall not be less than )Dm da*s after notice.
'? +hen the defendant is a non,resident on whom
e-traterritorial service is made
 within )D da*s from such service.
") Answer to an amended complaint
 where the amendment is a matter of right7
within !( da*s from the service of amended
complaint. :f the amendment is #34 a matter
of right7 the answer must be filed within !D
da*s from notice of the order admitting the
same.
 4he same periods shall appl* to answers filed
on an amended counterclaim 7 cross claim and
third part* complaint.
)? Answer to counterclaim or cross,claim
 within !D da*s from service
.) Answer to third,party complaint
 the period to answer shall be the same as the
periods given in answering a complaint which
shall either be !(7 &D or )D da*s as the case
ma* be.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
15
-? /eply
 within !D da*s from the service of the pleading
responded to.
() Answer to supplemental complaint
 within !D da*s from notice of the order
admitting the supplemental complaint unless a
different period is fi1ed b* the court.
MANNER O) )ILIN+
B* 2RS3#AL S2R;:C2 or b* R28:S42R2D $A:L.
4he filing of pleadings7 appearances7 motions7 notices7
orders7 %udgments and all other papers shall be made b*
presenting the original copies thereof7 plainl* indicated as
such7 personall* to the clerk of court or b* sending them b*
registered mail >Registr* Service?. :n the first case7 the clerk
of court shall endorse on the pleading the date and hour of
filing. :n the second case7 the date of the mailing of motions7
pleadings7 or an* other papers or pa*ments or deposits7 as
shown b* the post office stamp on the envelope or the
registr* receipt7 shall be considered as the date of their
filing7 pa*ment7 or deposit in court. 4he envelope shall be
attached to the record of the case (Sec. 3, *ue 13).
MODES O) SERVI/E
4here are two modes of service of pleadings7 %udgments7
motions7 notices7 orders7 %udgments and other papersE
a? personall*7 or
b? b* mail.
0owever7 if personal service and serviced b* mail cannot be
made7 service shall be done b* substituted service.
,ERSONAL SERVI/E
:t is the preferred mode of service. :f another mode of
service is used other than personal service7 the service must
be accompanied b* a written e1planation wh* the service of
filing was not done personall*. 21empt from this
e1planation are papers emanating from the court. A violation
of this e1planation re,uirement ma* be a cause for the paper
to be considered as not having been filed (Sec. 11, *ue 13).
ersonal service is made b*E
a? delivering a cop* of the papers served personall* to
the part* or his counsel7 or
b? b* leaving the papers in his office with his clerk or
a person having charge thereof7 or
c? :f no person is found in the office7 or his office is
not known or he has no office7 then b* leaving a
cop* of the papers at the part*Cs or counselLs
residence7 if known7 with a person of sufficient age
and discretion residing therein between eight in the
morning and si1 in the e6enin3 (Sec. ;, *ue 13).
SERVI/E B' MAIL
4he preferred service b* mail is b* registered mail. :t is
deemed complete upon actual receipt b* the addressee or
after ( da*s from the date he received the first notice of the
postmaster whichever is earlier. Service b* ordinar* mail
ma* be done onl* if no registr* service is available in the
localit* of either the sender or the addressee (Sec. :, *ue
13).
:t shall be done b* depositing the cop* in the post office7 in a
sealed envelope7 plainl* addressed to the part* or his counsel
at his office7 if known7 or otherwise at his residence7 if
known7 with postage full* prepaid7 and with instructions to
the postmaster to return the mail to the sender after ten >!D?
da*s if not delivered.
S(BSTIT(TED SERVI/E ;)ILIN+=
4his mode is availed of onl* when there is failure to effect
service personall* or b* mail. 4his failure occurs when the
office and residence of the part* or counsel is unknown.
:t is effected b* delivering the cop* to the clerk of court7
with proof of failure of both personal service and service b*
mail >Sec. -7 Rule !&?.
Substituted service is complete at the time of deliver* of the
cop* to the clerk of court.
SERVI/E O) .(D+MENTS? )INAL ORDERS OR
RESOL(TIONS
5inal orders or %udgments shall be served either personall*
or b* registered mail. <hen a part* summoned b*
publication has failed to appear in the action7 final orders or
%udgments against him shall be served upon him also b*
publication at the e1pense of the prevailing part* >Sec. .?.
,RIORITIES IN MODES O) SERVI/E AND )ILIN+
 ersonal service is the preferred mode of service.
 4he preferred service b* mail is b* registered mail.
 4he following papers are re,uired to be filed in court
and served upon the parties affectedE >a? /udgments9 >b?
Resolutions9 >c? 3rders9 >d? leadings subse,uent to the
complaint9 >e? <ritten motions9 >f? #otices9 >g?
Appearances9 >h? Demands9 >i? 3ffers of %udgment9 >%?
Similar papers (Sec. 8, *ue 13).
W>EN SERVI/E IS DEEMED /OM,LETE
ersonal service is deemed complete upon the actual
deliver* following the above procedure (Sec. 1., *ue 13).
Service b* ordinar* mail is deemed complete upon the
e1piration of ten >!D? da*s after mailing7 unless the court
otherwise provides. 3n the other hand7 service b* registered
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
16
mail is complete upon actual receipt b* the addressee7 or
after five >(? da*s from the date he received the first notice
of the postmaster7 whichever is earlier (Sec. <, *ue 13).
Substituted service is complete at the time of deliver* of the
cop* to the clerk of court.
,ROO) O) )ILIN+ AND SERVI/E
,ROO) O) )ILIN+
4he filing of a pleading or paper is proved b* its e1istence in
the record. :f it is not in the record
!? :f filed 2RS3#ALLHE
 roved b* the written or stamped
acknowledgement of its filing b* the clerk of
court on a cop* of the same9 or
"? :f filed b* R28:S42R2D $A:LE
 roved b* the registr* receipt A#D the
affidavit of the person who did the mailing
with a full statement ofE
a? 4he date and place of depositing the
mail in the post office in a sealed
envelope assessed to the court9
b? <ith postage full* paid9 and
c? <ith the instructions to the postmaster
to return the mail to the sender after
!D da*s if undelivered.
,ROO) O) SERVI/E
!? roof of personal service shall consist ofE
 the written admission of the part* served9 or
 4he official return of the server9 or
 4he affidavit of the part* serving >in case of refusal
to receive?7 containing full information of the date7
place and manner of service (Sec. 13, *ue 13).
"? roof of service b* registered mail
 Shall be shown b* the affidavit of the mailer
showing compliance with Sec. :, *ue 13 and the
registr* receipt issued b* the mailing office and
present the document returned or the card.
&? roof of service of ordinar* mail
 Service shall be proved b* affidavit of the mailer
showing compliance with Sec. :, *ue 13
AMENDMENT ;R(LE 10=
AMENDMENT AS A MATTER O) RI+>T
A plaintiff has the right to amend his complaint onc at an*
time 9:or a rs-onsi0 -$a#ing is sr0# b* the other
part* or in case of a repl* to which there is no responsive
pleading7 at an* time within ten >!D? da*s after it is served
(Sec. 2, *ue 1.).
4hus7 before an answer is served on the plaintiff7 the latter
ma* amend his complaint as a mattr o: rig!t :or "!at0r
rasons as it may 9? 0n to corrct t! rror o:
@%#gmnt. 4he defendant ma* also amend his answer7 also
as a matter of right7 before a repl* is served upon him. >Sec.
2 refers to "n "$en'$ent $"'e %efore the tri" court, not to
"$en'$ents %efore the CA).
4he CA is vested with %urisdiction to admit or den* amended
petitions filed before it. 0ence7 even if no responsive
pleading has *et been served7 if the amendment is
subse,uent to a previous amendment made as a matter of
right7 the subse,uent amendment must be with leave of
court.
So *ou can amend the complaint to correct the error of
%urisdiction as a matter of right >without leave of court?
before a responsive pleading is served even though there is
alread* a motion to dismiss filed for lack of %urisdiction. 4he
court should den* the motion since such motion is not a
responsive pleading. #oteE 4he amendment as a matter of
right should be filed before the order to dismiss becomes
final.
AMENDMENTS B' LEAVE O) /O(RT
Leave of court is re,uired for substantial amendment made
after service of a responsive pleading (Sec. 3, *ue 1.). 4he
plaintiff7 for e1ample7 cannot amend his complaint b*
changing his cause of action or adding a new one without
leave of court.
After a responsive pleading is filed7 an amendment to the
complaint ma* be substantial and will correspondingl*
re,uire a substantial alteration in the defenses of the adverse
part*. 4he amendment of the complaint is not onl* unfair to
the defendant but will cause unnecessar* dela* in the
proceedings. Leave of court is thus7 re,uired.
<here no responsive pleading has *et been served7 no
defenses would be altered. 4he amendment of the pleading
will not then re,uire leave of court.
)ORMAL AMENDMENT
A defect in the designation of the parties and other clearl*
clerical or t*pographical errors ma* be s%mmari$y
corrct# b* the court at an* stage of the action 7 at its
initiative or on motion7 provided no pre%udice is caused
thereb* to the adverse part* (Sec. 8, *ue 1.).
AMENDMENTS TO /ON)ORM TO OR A(T>ORIGE
,RESENTATION O) EVIDEN/E
<hen issues not raised b* the pleadings are tried with the
e1press or implied consent of the parties7 the* shall be
treated in all respects as if the* had been raised in the
pleadings. Such amendment of the pleadings as ma* be
necessar* to cause them to conform to the evidence and to
raise these issues ma* be made upon motion of an* part* at
an* time7 even after %udgment9 but failure to amend does not
affect the result of the trial of these issues.
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:f evidence is ob%ected to at the trial on the ground that it is
not within the issues made b* the pleadings7 the court ma*
allow the pleadings to be amended and shall do so with
liberalit* if the presentation of the merits of the action and
the ends of substantial %ustice will be subserved thereb*. 4he
court ma* grant a continuance to enable the amendment to
be made (Sec. 5, *ue 1.).
DI))ERENT )ROM S(,,LEMENTAL ,LEADIN+S
A supplemental pleading is one which sets forth
transactions7 occurrences7 or events which have happened
since the date of the pleading sought to be supplemented.
4he filing of supplemental pleadings re,uires leave of court.
4he court ma* allow the pleading onl* upon such terms as
are %ust. 4his leave is sought b* the filing of a motion with
notice to all parties (Sec. ;, *ue 1.).
A supplemental pleading does not e1tinguish the e1istence
of the original pleading7 while an amended pleading takes
the place of the original pleading. A supplemental pleading
e1ists side with the original9 it does not replace that which it
supplements it does not supersede the original but assumes
that the original pleading remain as the issues to be tried in
the action. A supplemental pleading supplies the deficiencies
in aid of an original pleading7 not to entirel* substitute the
latter.
E))E/T O) AMENDED ,LEADIN+
 An amended pleading supersedes the original one which
it amends (Sec. <, *ue 1.).
 4he original pleading loses its status as a pleading7 is
deemed withdrawn and disappears from the record. :t
has been held that the original complaint is deemed
superseded and abandoned b* the amendator* complaint
onl* if the latter introduces a new or different cause of
action.
 4he defenses in the original pleadings not reproduced in
the amended pleadings are waived.
 Admissions in the superseded pleading can still be
received in evidence against the pleader.
S(MMONS ;R%$ 12=
 Summons is a writ or process issued and served upon
the defendant in a civil action for the purpose of
securing his appearance therein.
 4he purpose of summons is to compl* with the
constitutional rights on due process
 4he service of summons enables the court to ac,uire
%urisdiction over the person of the defendant. :f there is
no service of summons7 an* %udgment rendered or
proceedings had in a case are null and void7 e1cept in
case of voluntar* appearance. 4he law re,uiring the
manner of service of summons is %urisdictional.
 <hen the defendant is a corporation7 partnership or
association organi@ed under the laws of the hilippines
with a %uridical personalit*7 service ma* be made on the
president7 managing partner7 general manager7 corporate
secretar*7 treasurer7 or in-house counsel (Sec 11).
 :f a part* dies and there is substitute7 there is no need
for summons but onl* an order for him tom appear.
NAT(RE AND ,(R,OSE O) S(MMONS IN
RELATION TO A/TIONS IN ,ERSONAM?
IN REM AND A(ASI IN REM
:n an action in -rsonam7 the purpose of summons is not
onl* to notif* the defendant of the action against him but
also to ac,uire %urisdiction over his person. 4he filing of the
complaint does not enable the courts to ac,uire %urisdiction
over the person of the defendant. B* the filing of the
complaint and the pa*ment of the re,uired filing and docket
fees7 the court ac,uires %urisdiction onl* over the person of
the plaintiff7 not over the person of the defendant.
Ac,uisition of %urisdiction over the latter is accomplished b*
a valid service of summons upon him. Service of summons
logicall* follows the filing of the complaint. #ote further
that the filing of the complaint tolls the running of the
prescriptive period of the cause of action in accordance with
Article !!(( of the Civil Code.
:n an action in rm or E%asi in rm7 %urisdiction over the
defendant is not re,uired and the court ac,uires %urisdiction
over an action as long as it ac,uires %urisdiction over the res.
4he purpose of summons in these actions is not the
ac,uisition of %urisdiction over the defendant but mainl* to
satisf* the constitutional re,uirement of due process.
VOL(NTAR' A,,EARAN/E
4he defendantTs voluntar* appearance in the action shall be
e,uivalent to service of summons. 4he inclusion in a motion
to dismiss of other grounds aside from lack of %urisdiction
over the person of the defendant shall not be deemed a
voluntar* appearance (Sec. 2., *ue 18).
/urisdiction over the defendant is ac,uired b*E
a? ;alid service of summons9 or
b? B* his voluntar* appearance or submission to the
%urisdiction of the court.
4he defendantCs voluntar* appearance in the action shall be
e,uivalent to service of summons. Lack of %urisdiction over
oneCs person ma*be invoked in a motion to dismiss alleging
such ground. :f no motion to dismiss is filed7 it ma* be
raised as an affirmative defense in the answer.
4he inclusion in a motion to dismiss of other grounds aside
from lack of %urisdiction over the person of the defendant
shall not be deemed a voluntar* appearance.
,ERSONAL SERVI/E
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:t shall be served b* 0A#DL:#8 a cop* to the defendant in
person7 or if he refuses it7 b* 42#D2R:#8 it to him >Sec. )7
Rule !'?.
S(BSTIT(TED SERVI/E ;S(MMONS=
:f the defendant cannot be served within a reasonable time7
service ma* be effectedE
!? B* leaving copies of the summons at the
defendantCs dwelling house or residence with some
person of suitable age and discretion then residing
therein9 or
"? B* leaving copies at defendantCs office or regular
place of business with some competent person in
charge thereof (Sec. :).
4he following facts must first be shown for the service to be
validE
!? 4he impossibilit* of the personal service within a
reasonable time
"? 4he effort e1erted to locate the person to be served
&? Service upon a person of sufficient age and
discretion residing in the same place or some
competent person in charge of his office or regular
place of business
'? 4here should be at least & attempts in " da*s.
:t ma* be resorted to if there are %ustifiable causes7 where the
defendant cannot be served within a R2AS3#ABL2 4:$2
(for !"intiff @ : '"+s; sheriff @ 15 A 3. '"+s). An e1ample
is when the defendant is in hiding and resorted to it
intentionall* to avoid service of summons7 or when the
defendant refuses without %ustifiable reason to receive the
summons.
:n substituted service of summons7 actual receipt of the
summons b* the defendant through the person served must
be shown. :t further re,uires that where there is substituted
service7 there should be a report indicating that the person
who received the summons in defendantCs behalf was one
with whom petitioner had a relation of confidence ensuring
that the latter would receive or would be notified of the
summons issued in his name.
Substituted service is not allowed in service of summons on
domestic corporations.
/ONSTR(/TIVE SERVI/E ;B' ,(BLI/ATION=
As a rule7 summons b* publication is available onl* in
actions in rem or ,uasi in rem. :t is not available as a means
of ac,uiring %urisdiction over the person of the defendant in
an action in personam.
Against a resident7 the recogni@ed mode of service is service
in person on the defendant under Sec. ; *ue 18. :n a case
where the defendant cannot be served within a reasonable
time7 substituted service will "!!+ (Sec. :, *ue 18)7 but no
summons b* publication which is permissible however7
under the conditions set forth in Sec. 18, *ue 18.
Against a non-resident7 %urisdiction is ac,uired over the
defendant b* service upon his person while said defendant is
within the hilippines. As once held7 when the defendant is a
nonresident7 personal service of summons in the state is
essential to the ac,uisition of %urisdiction over him. 4his is
in fact the onl* wa* of ac,uiring %urisdiction over his person
if he does not voluntaril* appear in the action. Summons b*
publication against a nonresident in an action in personam is
not a proper mode of service.
ublication is notice to the whole world that the proceeding
has for its ob%ect to bar indefinitel* all who might be minded
to make an ob%ection of an* sort against the right sought to
be established. :t is the publication of such notice that brings
the whole world as a part* in the case and vests the court
with %urisdiction to hear and decide it.
SERVI/E (,ON A DE)ENDANT W>ERE >IS
IDENTIT' IS (N8NOWN OR W>ERE >IS
W>EREABO(TS ARE (N8NOWN
<here the defendant is designated as unknown7 or whenever
his whereabouts are unknown and cannot be ascertained
despite a diligent in,uir*7 service ma*7 with prior leave of
court7 be effected upon the defendant7 b* publication in a
newspaper of general circulation. 4he place and the
fre,uenc* of the publication is a matter for the court to
determine (Sec. 18, *ue 18).
4he rule does not distinguish whether the action is in
personam7 in rem or ,uasi in rem. 4he tenor of the rule
authori@es summons b* publication whatever the action ma*
be as long as the identit* of the defendant is unknown or his
whereabouts are unknown.
R(LES ON S(MMONS ON DE)ENDANT
;1= Rsi#nt
>a? ,rsnt in the hilippines
!? ersonal service >Rule !'7 Sec. )?
"? Substituted service >Rule !'7 Sec. +?
&? ublication7 but onl* if
a? his identit* or whereabouts is
unknown >Rule !'7 Sec. !'?9 and
b? the action is in rem or ,uasi in rem
>b? A9snt from the hilippines
!? Substituted service >Rule !'7 Sec. +?
"? 21traterritorial service >Rule !'7 Sec. !)
and !(?9 action need not be in rem or ,uasi
in rem
;2= Non<rsi#nt
!. resent in the hilippines
a? ersonal service >Sec. )7 Rule !'?
b? Substituted service >Sec. +7 Rule !'?
". Absent from the hilippines
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BERT – NOTES in REMEDIAL LAW
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a? Action in rem or ,uasi in rem J onl*
21traterritorial service >Rule !'7 Sec. !(?
b? Action in personam7 and %udgment cannot
be secured b* attachment >e.g. action for
in%unction?
!? <ait for the defendant to come to
the hilippines and to serve
summons then
"? <ait the defendant to voluntaril*
appear in court >Rule !'7 Sec. "D?
&? laintiff cannot resort to
e1traterritorial service of
summons
SERVI/E (,ON RESIDENTS TEM,ORARIL'
O(TSIDE T>E ,>ILI,,INES
Service of summons upon a resident of the hilippines who
is temporaril* out of the countr*7 ma*7 b* leave of court be
effected out of the hilippines as under the rules on
e1traterritorial service in Sec. 15, *ue 18 b* an* of the
following modesE
!? b* personal service as in Sec. ;7
"? b* publication in a news paper of general
circulation together with a registered mailing of a
cop* of the summons and the order of the court to
the last known address of the defendant7 or
&? b* an* manner the court ma* deem sufficient under
Sec. 1;.
Like in the case of an unknown defendant or one whose
whereabouts are unknown7 the rule affecting residents who
are temporaril* out of the hilippines applies in an* action.
#ote also7 that summons b* publication ma* be effected
against the defendant.
4he defendant ma* however7 also be served b* substituted
service. 4his is because even if he is abroad7 he has a
residence in the hilippines or a place of business and
surel*7 because of his absence7 he cannot be served in person
within a reasonable time.
E*TRA<TERRITORIAL SERVI/E? W>EN
ALLOWED
Bnder Sec. 15, *ue 187 e1traterritorial service of summons
is proper onl* in four >'? instances namel*E
!? <hen the action affects the personal status of the
plaintiffs9
"? <hen the action relates to7 or the sub%ect of which
is7 propert* within the hilippines7 in which the
defendant has or claims a lien or interest7 actual or
contingent9
&? <hen the relief demanded in such action consists7
wholl* or in part7 in e1cluding the defendant from
an* interest in propert* located in the hilippines9
and
'? <hen the defendant non-residentCs propert* has
been attached within the hilippines.
21traterritorial service of summons applies when the
following re,uisites concurE
!? 4he defendant is nonresident9
"? 0e is not found in the hilippines9 and
&? 4he action against him is either in rem or ,uasi in
rem.
:f the action is in personam7 this mode of service will not be
available. 4here is no e1traterritorial service of summons in
an action in personam. 0ence7 e1traterritorial service upon a
nonresident in an action for in%unction which is in personam
is not proper (B"nco 4o Br"si 6s. CA, 333 SC*A 585).
<hen the action is in personam7 %urisdiction over the person
of the defendant is necessar* for the court to validl* tr* and
decide the case. 0owever7 when the defendant is a
nonresident7 personal service of summons in the state is
essential to the ac,uisition of %urisdiction over him.
SERVI/E (,ON ,RISONERS AND MINORS
On a minor. Service shall be made on him personall* and
on his legal guardian if he has one7 or if none7 upon his
guardian "' ite$ whose appointment shall be applied for b*
the plaintiff7 or upon a person e1ercising parental authorit*
over him7 but the court ma* order that service made on a
minor of !( or more *ears of age shall be sufficient (Sec.
1.);
On -risonrs& :t shall be made upon him > !risoner ? b*
serving on the officer > %eco$es the 'e!ut+ sheriff ? having
the management of the %ail or institution who is deemed
deputi@ed as a special sheriff for said purpose (Sec. 9).
:f served b* the sheriff7 his deput*7 or other proper court
officer7 there is no need to be sworn but this is needed if
served b* other persons.
,ROO) O) SERVI/E
<hen the service has been completed7 the server shall7
within five >(? da*s therefrom7 serve a cop* of the return7
personall* or b* registered mail7 to the plaintiffLs counsel7
and shall return the summons to the clerk who issued it7
accompanied b* proof of service (Sec. 8, *ue 18).
4he proof of service of summons shall be made in writing b*
the server and shall set forth the manner7 place and date of
service9 shall specif* an* papers which have been served
with the process and the name of the person who received
the same9 and shall be sworn to when made b* a person
other than a sheriff or his deput* (Sec. 1<).
:f the service has been made b* publication7 service ma* be
proved b* the affidavit of the printer7 his foreman or
principal clerk7 or of the editor7 business or advertising
manager7 to which affidavit a cop* of the publication shall
be attached and b* an affidavit showing the deposit of a
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BERT – NOTES in REMEDIAL LAW
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cop* of the summons and order for publication in the post
office7 postage prepaid7 directed to the defendant b*
registered mail to his last known address (Sec. 19).
MOTIONS ;R%$ 13=
MOTIONS IN +ENERAL? DE)INITION O) MOTION
A motion is an application for relief other than b* a pleading
(Sec. 1, *ue 15).
MOTIONS VERS(S ,LEADIN+S
A pleading is a written statement of the respective claims
and defenses of the parties submitted to the court for
appropriate %udgment (Sec. 1, *ue ;). :t ma* be in the form
of a complaint7 counterclaim7 cross-claim7 third-part*
complaint7 or complaint-in-intervention7 answer or repl*
(Sec. 2, *ue ;).
A motion on the other hand is an application for relief other
than a pleading (Sec. 1, *ue 15).
A motion is not a pleading7 even when reduced to writing9 it
relates generall* to procedural matters7 unlike pleadings
which generall* states substantial ,uestions. $oreover7 a
motion is not an independent remed*7 and thus cannot
replace an action to enforce a legal right.
/ONTENTS AND )ORM O) MOTIONS
A motion shall state the order sought to be obtained7 and the
grounds which it is based7 and if necessar* shall be
accompanied b* supporting affidavits and other papers (Sec.
3).
All motions must be in writing e1cept those made in open
court or in the course of a hearing or trial (Sec. 2).
NOTI/E O) >EARIN+ AND >EARIN+ O)
MOTIONS
21cept for motions which the court ma* act upon without
pre%udicing the rights of the adverse part*7 ever* written
motion shall be set for hearing b* the applicant.
4he motion which contains the notice of hearing shall be
served as to ensure its receipt b* the other part* at least three
>&? da*s before the date of hearing7 unless the court for good
cause sets the hearing on shorter notice. :t shall be addressed
to all parties concerned7 and shall specif* the time and date
of the hearing which must not be later than ten >!D? da*s
after the filing of the motion (Sec. 8, *ue 15).
OMNIB(S MOTION R(LE
4he rule is a procedural principle which re,uires that ever*
motion that attacks a pleading7 %udgment7 order or
proceeding shall include all grounds then available7 and all
ob%ections not so included shall be deemed waived (Sec. <).
Since the rule is sub%ect to the provisions of Sec. 1, *ue 9,
the ob%ections mentioned therein are not deemed waived
even if not included in the motion. 4hese ob%ections areE
a? that the court has no %urisdiction over the sub%ect
matter7
b? that there is another action pending between the
same parties for the same cause >litis pendencia?7
c? that the action is barred b* a prior %udgment >res
%udicata?7 and
d? that the action is barred b* the statute of limitations
>prescription? (Sec. 1, !"r. 2, *ue 9).
2ven if a motion to dismiss was filed and the issue of
%urisdiction was not raised therein7 a part* ma*7 when he
files an answer7 raise the lack of %urisdiction as an
affirmative defense because this defense is not barred under
the omnibus motion rule.
A motion to dismiss is a t*pical e1ample of a motion sub%ect
to omnibus motion rule7 since a motion to dismiss attacks a
complaint which is a pleading.
Bnder the o$ni%us $otion rue 7 a motion attacking a
pleading like a motion to dismiss shall include all grounds
then available and all ob%ections not so included shall be
deemed waived. :t can no longer be invoked as affirmative
defense in the answer which the movant ma* file following
the denial of his motion to dismiss. 4he defense of lack of
%urisdiction over the sub%ect matter is however7 a defense not
barred b* the failure to invoke the same in a motion to
dismiss alread* filed.
LITI+ATED AND E* ,ARTE MOTIONS
A $itigat# motion is one which re,uires the parties to be
heard before a ruling on the motion is made b* the court.
Sec. 8 establishes the general rule that ever* written motion
is deemed a litigated motion. A motion to dismiss (*ue 1;),
a motion for %udgment for the pleadings (*ue 38)7 and a
summar* %udgment (*ue 35), are litigated motions.
An x -art motion is one which does not re,uire that the
parties be heard7 and which the court ma* act upon without
pre%udicing the rights of the other part*. 4his kind of motion
is not covered b* the hearing re,uirement of the Rules (Sec.
2). An e1ample of an e1 parte motion is that one filed b* the
plaintiff pursuant to Sec. 1, *ue 1<7 in which he moves
promptl* that the case be set for !re/tri". A $otion for
e#tension of time is an e1 parte motion made to the court in
behalf of one or the other of the parties to the action7 in the
absence and usuall* without the knowledge of the other
part* or parties. 21 parte motions are fre,uentl* permissible
in procedural matters7 and also in situations and under
circumstances of emergenc*9 and an e1ception to the rule
re,uiring notice is sometimes made where notice or the
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BERT – NOTES in REMEDIAL LAW
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resulting dela* might tend to defeat the ob%ective of the
motion.
Motion o: co%rs J a motion for a certain kind of relief or
remed* to which the movant is entitled as a matter of right7
and not as a matter of discretion on the part of the court.
$oreover7 the allegations contained in such a motion do not
have to be investigated or verified. An e1ample would be a
$otion fie' out of ti$e7 because this motion ma* be
disposed of the court on its own initiative. Another e1ample
would be a $otion to se cert"in !ro!ert+ "fter the !erio'
3i6en %+ the court to the 'e%tor to !"+ h"s e"!se'7 and such
previous order had specified that the propert* be sold in case
of default.
S-cia$ motion J the opposite of a motion of course7 here
the discretion of the court is involved9 usuall* an
investigation of the facts alleged is re,uired.
,RO<)ORMA MOTIONS
4he Court has consistentl* held that a motion which does
not meet the re,uirements of Sections 8 "n' 5 of *ue 15 on
hearing and notice of the hearing is a mere scrap of paper7
which the clerk of court has no right to receive and the trial
court has no authorit* to act upon and one which will be
treated as a motion intended to dela* the proceedings.
Service of a cop* of a motion containing a notice of the time
and the place of hearing of that motion is a mandator*
re,uirement7 and the failure of movants to compl* with these
re,uirements renders their motions fatall* defective.
MOTIONS )OR BILL O) ,ARTI/(LARS
;R(LE 12=
,(R,OSE AND W>EN A,,LIED )OR
4he purpose of the motion is to seek an order from the court
directing the pleader to submit a bill of particulars which
avers matters with sufficient definitiveness or particularit* to
enable the movant to prepare his responsive pleading (Sec.
1, *ue 12), not to enable the movant to prepare for trial. 4he
latter purpose is the ultimate ob%ective of the discover*
procedures from *ues 23 to 29 and ever of a pre-trial under
*ue 1<.
:n other words7 the function of a bill of particulars is to
clarif* the allegations in the pleading so an adverse part*
ma* be informed with certaint* of the e1act character of a
cause of action or a defense. <ithout the clarifications
sought b* the motion7 the movant ma* be deprived of the
opportunit* to submit an intelligent responsive pleading.
4his is to avert the danger where the opposing part* will find
difficult* in s,uarel* meeting the issues raised against him
and plead the corresponding defenses which if not timel*
raised in the answer will be deemed waived.
A motion for a bill of particulars is to be filed before7 not
after responding to a pleading (Sec. 1, *ue 12). 4hus7 where
the motion for bill of particulars is directed to a complaint7
the motion should be filed within fifteen >!(? da*s after
service of summons. :f the motion is directed to a
counterclaim7 then the same must be filed within ten >!D?
da*s from service of the counterclaim which is the period
provided for b* Sec. 8, *ue 11 to answer a counterclaim.
:n case of a repl* to which no responsive pleading is
provided for b* the Rules7 the motion for bill of particulars
must be filed within ten >!D? da*s of the service of said repl*
(Sec. 1, *ue 12).
A/TIONS O) T>E /O(RT
Bpon receipt of the motion which the clerk of court must
immediatel* bring to the attention of the court7 the latter has
three possible options7 namel*E
!? to den* the motion outright7
"? to grant the motion outright or
&? to hold a hearing on the motion.
/OM,LIAN/E WIT> T>E ORDER AND E))E/T O)
NON</OM,LIAN/E
:f a motion for bill of particulars is granted7 the court shall
order the pleader to submit a bill of particulars to the
pleading to which the motion is directed. 4he compliance
shall be effected within ten >!D? da*s from notice of the
order7 or within the period fi1ed b* the court (Sec. 3, *ue
12).
:n compl*ing with the order7 the pleader ma* file the bill of
particulars either in a separate pleading or in the form or an
amended pleading (Sec. 3, *ue 12). 4he bill of particulars
submitted becomes part of the pleading for which it is
intended (Sec. ;, *ue 12).
I: t! or#r to :i$ a 9i$$ o: -artic%$ars is not o9y#7 or in
case of insufficient compliance therewith7 the court ma*E
a? order the striking out of the pleading9 or
b? the portions thereof to which the order was
directed9 or
c? make such other order as it deems %ust (Sec. 8).
E))E/T ON T>E ,ERIOD TO )ILE A RES,ONSIVE
,LEADIN+
A motion for bill of particulars is not a pleading hence7 not a
responsive pleading. <hether or not his motion is granted7
the movant ma* file his responsive pleading. <hen he files a
motion for B37 the period to file the responsive pleading is
sta*ed or interrupted.
After service of the bill of particulars upon him or after
notice of the denial of his motion7 he ma* file his responsive
pleading within the period to which he is entitled to at the
time the motion for bill of particulars is filed. :f he has still
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
22
eleven >!!? da*s to file his pleading at the time the motion
for B3 is filed7 then he has the same number of da*s to file
his responsive pleading from the service upon him of the
B3.
:f the motion is denied7 then he has the same number of da*s
within which to file his pleading counted from his receipt of
the notice of the order den*ing his motion. :f the movant has
less than five >(? da*s to file his responsive pleading after
service of the bill of particulars or after notice of the denial
of his motion7 he nevertheless has five >(? da*s within which
to file his responsive pleading. (Sec.5, *ue 12).
A seasonable motion for a bill of particulars interrupts the
period within which to answer. After service of the bill of
particulars or of a more definite pleading7 or after notice of
denial of his motion7 the moving part* shall have the same
time to serve his responsive pleading7 if an* is permitted b*
the rules7 as that to which he was entitled at the time of
serving his motion7 but no less than five >(? da*s in an*
event.
MOTION TO DISMISS ;R(LE 14=
 A motion to dismiss is not a pleading . :t is merel* a
motion. :t is an application for relief other than b* a
pleading (Sec. 1, *ue 15).
 4he pleadings allowed under the Rules areE
a? complaint7 >b? answer7 >c? counterclaim7 >d?
cross-claim7 >e? third >fourth7 etc.? Jpart*
complaint7 >f? complaint in intervention (Sec.
2, *ue ;), and repl* (Sec. 1., *ue ;). A
motion is not one of those specificall*
designated as a pleading.
 5ailure to state a cause of action
+RO(NDS
Bnder Sec. 1, *ue 1;, a motion to dismiss ma* be filed on
an* of the following groundsE
a? Lack of %urisdiction over the person of the
defending part*9
b? Lack of %urisdiction over the sub%ect matter of the
claim9
c? 4he venue is improperl* laid9
d? 4he plaintiff has no legal capacit* to sue9
e? 4here is another action pending between the same
parties and for the same cause (is !en'ens );
f? 4he cause of action is barred b* a prior %udgment
(res &u'ic"t") or b* the statute of limitations
>prescription?9
g? 4he -$a#ing assrting t! c$aim stats no ca%s
o: action9
h? 4he claim or demand has been paid7 waived7
abandoned7 or otherwise e1tinguished9
i? 4he claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds9 and
%? A condition precedent for filing the action has not
been complied with.
4he language of the rule7 particularl* on the relation of the
words MabandonedN and Motherwise e1tinguishedN to the
phrase Mclaim or demand deemed set forth in the plaintiffCs
pleadingN is broad enough to include within its ambit the
defense of bar b* laches.
0owever7 when a part* moves for the dismissal of the
complaint based on laches7 the trial court must set a hearing
on the motion where the parties shall submit not onl* their
arguments on the ,uestions of law but also their evidence on
the ,uestions of fact involved. 4hus7 being factual in nature7
the elements of laches must be proved or disproved through
the presentation of evidence b* the parties.
RESOL(TION O) MOTION
After the hearing7 the court ma* dismiss the action or claim7
den* the motion7 or order the amendment of the pleading.
4he court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable. :n
ever* case7 the resolution shall state clearl* and distinctl*
the reasons therefor (Sec. 3).
REMEDIES O) ,LAINTI)) W>EN T>E
/OM,LAINT IS DISMISSED
<here the dismissal is final but is without pre%udice
>interlocutor*?7 the plaintiff ma* simpl* r<:i$ the action
depending upon the ground for the dismissal of the action.
5or instance7 if the ground for dismissal was anchored on
improper venue7 the plaintiff ma* file the action in the
proper venue.
<here the dismissal is final and it bars the re-filing of the
case7 he ma* a--a$ from the order of dismissal where the
ground relied upon is one which bars the refiling of the
complaint like res &u'ic"t" 7 prescription7 e1tinguishment of
the obligation or violation of the statute of frauds (Sec. 5,
*ue 1;).
Since the complaint cannot be refiled7 the dismissal is with
pre%udice. Bn'er Sec. 1[h], *ue 817 it is an order dismissing
an action without pre%udice which cannot be appealed from.
Conversel*7 where the dismissal is with pre%udice7 an appeal
from the order of dismissal is not precluded.
<here the dismissal is without pre%udice and the court
gravel* abused its discretion in doing so7 the plaintiff ma*
resort to certiorari (Sec. 1, *ue 81).
REMEDIES O) T>E DE)ENDANT W>EN T>E
MOTION IS DENIED
!? )i$ ans"r "it!in t! 9a$anc o: t! -rio#
prescribed b* *ue 11 to which he was entitled at the
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
23
time of serving his motion7 but not less than five >(?
da*s in an* event (Sec. 8, *ue 1;).
• As a rule7 the filing of an answer7 going
through the usual trial process7 and the filing of
a timel* appeal from an adverse %udgment are
the proper remedies against a denial of a
motion to dismiss.
• 4he filing of an appeal from an order den*ing a
motion to dismiss is not the remed* prescribed
b* e1isting rules.
• 4he order of denial7 being interlocutor* is not
appealable (Sec 1[c], *ue 8).
2= /i0i$ action %n#r R%$ 43 ()ertiorari)
• :n order to %ustif* the grant of the e1traordinar*
remed* of certiorari7 the must be a showing
that the denial of the motion was tainted with
grave abuse of discretion amounting to lack of
%urisdiction. <ithout such showing7 Rule )(
cannot be availed of as a remed*.
• 4he general rule is that the denial of a motion
to dismiss cannot be ,uestioned in a special
civil action for certiorari which is a remed*
designed to correct errors of %urisdiction and
not errors of %udgment. #either can a denial of
a motion to dismiss be the sub%ect of an appeal
unless and until a final %udgment or order is
rendered.
• A writ of certiorari is not intended to correct
ever* controversial interlocutor* ruling. :t is
resorted to onl* to correct a grave abuse of
discretion or a whimsical e1ercise of %udgment
e,uivalent to lack of %urisdiction. :ts function is
limited to keeping an inferior court within its
%urisdiction and to relieve persons from
arbitrar* acts7 acts which courts or %udges have
no power or authorit* in law to perform. :t is
not designed to correct erroneous findings and
conclusions made b* the courts.
1= )i$ an a--a$
• 4his remed* is appropriate in the instances where
the defendant is barred from refiling the same
action of claim if the dismissal is based on the
following groundsE
a? 4he cause of action is barred b* a prior
%udgment
b? 4he cause of action is barred b* the statute
of limitations
c? 4he claim or demand has been paid7
waived7 abandoned or otherwise
e1tinguished
d? 4he claim on which the action is founded
is unenforceable under the provisions of
the statute of frauds.
'? 4he denial of a motion to dismiss is interlocutor*7
hence7 the remed* is to file an answer7 proceed to trial7
and await %udgment before interposing an appeal.
• 4he denial should be raised as an error of the
trial court on appeal.
E))E/T O) DISMISSAL O) /OM,LAINT ON
/ERTAIN +RO(NDS
<hen the complaint is dismissed on the grounds ofE
a? prior %udgment
b? b* the statute of limitations
c? pa*ment7 waiver7 abandonment or e1tinguishment
of the claim
d? unenforceabilit* of the cause of action under the
statute of frauds
 the dismissal shall bar the refiling of the same
action or claim7 but this is without pre%udice to
the right of the other part* to appeal from the
order of dismissal because such dismissal is a
final order7 not merel* interlocutor* (Sec. 5).
W>EN +RO(NDS ,LEADED AS A))IRMATIVE
DE)ENSES
:f no motion to dismiss has been filed7 an* of the grounds
provided for dismissal ma* be pleaded as an affirmative
defense in the answer and7 in the discretion of the court7 a
preliminar* hearing ma* be had thereon as if a motion to
dismiss has been filed (Sec. ;, *ue 1;).
:mplied under Sec. ;, *ue 1; is that the grounds for a
motion to dismiss are not waived even if the defendant fails
to file a motion to dismiss because he ma* still avail of the
defenses under *ue 1; as affirmative defenses in his
answer.
As a rule7 a preliminar* hearing is not authori@ed when a
motion to dismiss has been filed. An e1ception previousl*
carved out as if the trial court had not categoricall* resolved
the motion to dismiss. Another e1ception would be %ustified
under the liberal construction rule as when it is evident that
the action is barred b* res %udicata. A strict application of
Sec. ; would accordingl* lead to absurdit* when an
obviousl* barred complaint continues to be litigated. 4he
denial of a motion to dismiss does not preclude an* future
reliance on the grounds relied thereupon.
BAR B' DISMISSAL
Res %udicata as a ground for dismissal is based on two
grounds7 namel*E
!? public polic* and necessit*7 which makes it to the
interest of the State that there should be an end to
litigation >re!u%ic"e ut sit itiu$?9 and
"? the hardship on the individual of being ve1ed twice
for the same cause (ne$o 'e%et %is 6e#"ri et e"'e$
c"us").
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BERT – NOTES in REMEDIAL LAW
24
Accordingl*7 courts will simpl* refuse to reopen what has
been decided. 4he* will not allow the same parties or their
privies to litigate anew a ,uestion once it has been
considered and decided with finalit*. Litigations must end
and terminate sometime and somewhere. 4he effective and
efficient administration of %ustice re,uires that once a
%udgment has become final7 the prevailing part* should not
be deprived of the fruits of the verdict b* subse,uent suits on
the same issues filed b* the same parties.
Rs @%#icata com-r!n#s t"o #istinct conc-tsC
a= 9ar 9y a :ormr @%#gmnt
 bars the prosecution of a second action upon
the same claim7 demand or cause of action.
9= conc$%si0nss o: @%#gmnt
 a fact or ,uestion which was in issue in a
former suit and was there %udiciall* passed
upon and determined b* a court of competent
%urisdiction7 is conclusivel* settled b* the
%udgment therein as far as the parties to that
action and persons in privit* with them are
concerned and cannot be again litigated in an*
future action between such parties or their
privies7 in the same court or an* other court of
concurrent %urisdiction on either the same or
different cause of action7 while the %udgment
remains unreversed b* proper authorit*.
DISTIN+(IS>ED )ROM DEM(RRER TO
EVIDEN/E ;R(LE 11=
Demurrer to evidence is a motion to dismiss filed b* the
defendant after the plaintiff had rested his case on the
ground of insufficienc* of evidence. :t ma* be filed after the
plaintiff has completed the presentation of his evidence. :t is
an aid or instrument for the e1peditious termination of an
action similar to a motion to dismiss7 which the court or
tribunal ma* either grant or den*.
DistinctionsC
a? A motion to dismiss should be filed within the time
for but prior to the filing of the answer of the
defending part* to the pleading asserting the claim
against him9 a demurrer to evidence ma* be filed
onl* after the plaintiff has completed the
presentation of his evidence.
b? A motion to dismiss is anchored on preliminar*
ob%ections9 a demurrer is anchored on one groundS
insufficienc* of evidence9 and
c? :f a motion to dismiss is denied7 the defendant ma*
file his responsive pleading >answer? or else he ma*
declared in default and if granted7 plaintiff ma*
appeal or if subse,uent case is not barred7 he ma*
re-file the case.
d? :n a demurrer7 if denied7 the defendant ma* present
his evidence and if granted7 plaintiff appeals and
the order of dismissal is reversed7 the defendant
loses his right to present evidence.
Rule !+ is based on allegations9 while Rule && is based on
evidence
DISMISSAL O) A/TIONS ;R%$ 15=
1= DISMISSAL (,ON NOTI/E B' ,LAINTI))
• At an* time before the service of an answer or the
service of a motion for summar* %udgment7 a
complaint ma* be dismissed b* the plaintiff b*
filing a notice of dismissal. Bpon the filing of the
notice of dismissal7 the court shall issue an order
confirming the dismissal (Sec. 1, *ue 1:). 4his
dismissal shall be without pre%udice to the re-filing
of the complaint7 e1cept whenE
!? 4he notice of dismissal provides that the
dismissal is with pre%udice9 or
"? 4he plaintiff has previousl* dismissed the
same case in a court of competent
%urisdiction.

• :t is not the order confirming the dismissal which
operates to dismiss the complaint. As the name of
the order implies7 said order merel* confirms a
dismissal alread* effected b* the filing of the notice
of dismissal. 4he court does not have to approve
the dismissal because it has no discretion on the
matter. Before an answer or a motion for summar*
%udgment has been served upon the plaintiff7 the
dismissal b* the plaintiff b* the filing of the notice
is a matter of right. 4he dismissal occurs as of the
date of the notice is filed b* the plaintiff and not the
date the court issues the order confirming the
dismissal.
• 4he dismissal as a matter of right ceases when an
answer or a motion for summar* %udgment is
served on the plaintiff and not when the answer or
the motion is filed with the court. 4hus7 if a notice
of dismissal is filed b* the plaintiff even after an
answer has been filed in court but before the
responsive pleading has been served on the
plaintiff7 the notice of dismissal is still a matter of
right.
TWO<DISMISSAL R(LE
4he two-dismissal rule applies when the plaintiff hasE
a? twice dismissed actions9
b? based on or including the same claim9 and
c? in a court of competent %urisdiction.
 4he second notice of dismissal will bar the
refiling of the action because it will operate as
an ad%udication of the claim upon the merits.
2= DISMISSAL (,ON MOTION B' ,LAINTI))
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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• 3nce either an answer or motion for summar*
%udgment has been served on the plaintiff7 the
dismissal is no longer a matter of right and will
re,uire the filing of a motion to dismiss7 not a mere
notice of dismissal.
• 4he motion to dismiss will now be sub%ect to the
approval of the court which will decide on the
motion upon such terms and conditions as are %ust
(Sec. 2, *ue 1:) unless otherwise specified in the
order7 the dismissal shall be without pre%udice. .
4he dismissal under Sec. 2 is no longer a matter of
right on the part of the plaintiff but a matter of
discretion upon the court.
E))E/T O) DISMISSAL (,ON E*ISTIN+
/O(NTER/LAIM
:f a counterclaim has alread* been pleaded b* the defendant
prior to the service upon him of the plaintiffCs motion to
dismiss7 and the court grants said motion to dismiss7 the
dismissal Mshall be limited to the complaintN (Sec. 2, *ue
1:).
4he dismissal of the complaint does not carr* with it the
dismissal of the counterclaim7 whether it is a compulsor* or
a permissive counterclaim because the rule makes no
distinction. 4he defendant7 if he so desires ma* prosecute his
counterclaim either in a separate action or in the same
action. Should he choose to have his counterclaim resolved
in the same action7 he must notif* the court of his preference
within fifteen >!(? da*s from the notice of the plaintiffLs
motion to dismiss. Should he opt to prosecute his
counterclaim in a separate action7 the court should render the
corresponding order granting and reserving his right to
prosecute his claim in a separate complaint.
DISMISSAL D(E TO T>E )A(LT O) ,LAINTI))
A complaint ma* be dismissed b* the court $otu !ro!rio or
upon a motion filed b* the defendant. 4he dismissal is this
case will be through reasons attributed to his fault.
Sec. 2, *ue 1: provides the following grounds for dismissalE
a? 5ailure of the plaintiff7 without %ustifiable reasons7
to appear on the date on the date of the presentation
of his evidence in chief9
b? 5ailure of the plaintiff to prosecute his action for an
unreasonable length of time9
c? 5ailure of the plaintiff to compl* with the Rules of
Court9
d? 5ailure of the plaintiff to obe* an* order of the
court9
e? 5ailure to appear at the trial9 or
f? Lack of %urisdiction.
4he dismissal shall have the effect of an ad%udication upon
the merits and is thus with pre%udice to the re-filing of the
action7 unless the court declares otherwise.
DISMISSAL O) /O(NTER/LAIM? /ROSS</LAIM
OR T>IRD<,ART' /OM,LAINT
4he rule on the dismissal of a complaint applies to the
dismissal of an* counterclaim7 cross-claim7 or third-part*
claim.
A voluntar* dismissal b* the claimant alone b* notice
pursuant to Sec. 1, *ue 1: shall be made before a responsive
pleading or a motion for summar* %udgment is served or7 if
there is none7 before the introduction of evidence at the trial
or hearing (Sec. 8).
,RE<TRIAL ;R%$16=
/ON/E,T O) ,RE<TRIAL
re-trial is a mandator* conference and personal
confrontation before the %udge between the parties and their
respective counsel.
:t is conducted after the last pleading has been served and
filed7 it shall be the dut* of the plaintiff to promptl* move e1
parte that the case be set for pre-trial ()ithin 5 '"+s fro$ the
"st !e"'in3 h"s %een fie').
NAT(RE AND ,(R,OSE
4he conduct of a pre-trial is mandator*. re-trial is a
procedural device intended to clarif* and limit the basic
issues between the parties. :t thus paves the wa* for a less
cluttered trial and resolution of the case. :ts main ob%ective is
to simplif*7 abbreviate and e1pedite trial7 or totall* dispense
with it.
:t is a basic precept that the parties are bound to honor the
stipulations made during the pre-trial.
4he court shall consider the following maters in the pre-trialE
!? 4he possibilit* of an amicable settlement or a
submission to alternative modes of dispute
resolution9
"? Simplification of issues9
&? #ecessit* or desirabilit* of amendments to the
pleadings9
'? ossibilit* of obtaining stipulations or admissions
of facts and of documents to avoid unnecessar*
proof9
(? Limitation of the number of witnesses9
)? Advisabilit* of a preliminar* reference of issues to
a commissioner9
+? ropriet* of rendering %udgment on the pleadings7
or summar* %udgment7 or of dismissing the action
should a valid ground therefor be found to e1ist9
-? Advisabilit* or necessit* of suspending the
proceedings9 and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
26
.? 3ther matters as ma* aid in the prompt disposition
of the action (Sec. 2, *ue 1<).
NOTI/E O) ,RE<TRIAL
4he notice of pre-trial shall be served on the counsel of the
part* if the latter is represented b* counsel. 3therwise7 the
notice shall be served on the part* himself. 4he counsel is
charged with the dut* of notif*ing his client of the date7 time
and place of the pre-trial (Sec. 3, *ue 1<).
#otice of pre-trial is so important that it would be grave
abuse of discretion for the court for e1ample7 to allow the
plaintiff to present his evidence e1 parte for failure of the
defendant to appear before the pre-trial who did not receive
through his counsel a notice of pre-trial.
:n one case7 the SC said that there is no legal basis for a
court to consider a part* notified of the pre-trial and to
consider that there is no longer a need to send notice of pre-
trial merel* because it was his counsel who suggested the
date of pre-trial.
:f the plaintiff failed to move for pre-trial7 the clerk of court
shall do so.
A,,EARAN/E O) ,ARTIESH E))E/T O) )AIL(RE
TO A,,EAR
:t shall be the dut* of both the parties and their counsels to
appear at the pre-trial (Sec. 8, *ue 1<).
T! :ai$%r o: t! -$ainti:: to a--ar s!a$$ 9 ca%s :or
t! #ismissa$ o: t! action. 4his dismissal shall be with
pre%udice e1cept when the court orders otherwise (Sec. 5,
*ue 1<). Since the dismissal of the action shall be with
pre%udice7 unless otherwise provided7 the same shall have the
effect of an ad%udication on the merits thus7 final. 4he
remed* of the plaintiff is to appeal from the order of
dismissal. An order dismissing an action with pre%udice is
appealable. Bnder the Rules7 it is onl* when the order of
dismissal is without pre%udice7 that appeal cannot be availed
of (Sec. 1[h], *ue 81). Since appeal is available7 certiorari is
not the remed* because the application of a petition for
certiorari under *ue ;5 is conditioned upon the absence of
appeal or an* plain7 speed* and ade,uate remed* (Sec. 1,
*ue ;5).
T! :ai$%r o: t! #:n#ant to a--ar s!a$$ 9 ca%s to
a$$o" t! -$ainti:: to -rsnt !is 0i#nc x -art an#
:or t! co%rt to rn#r @%#gmnt on t! 9asis o: t!
0i#nc -rsnt# 9y t! -$ainti:: (Sec. 5, *ue 1<). 4he
order of the court allowing the plaintiff to present his
evidence e1 parte does not dispose of the case with finalit*.
4he order is therefore7 merel* interlocutor*9 hence7 not
appealable. Bnder Sec. 1(c) of *ue 817 no appeal ma* be
taken from an interlocutor* order. 4he defendant who feels
aggrieved b* the order ma* move for the reconsideration of
the order and if the denial is tainted with grave abuse of
discretion7 he ma* file a petition for certiorari.
,RE<TRIAL BRIE)H E))E/T O) )AIL(RE TO )ILE
4he parties shall file with the court their respective pre-trial
briefs which shall be received at least three >&? da*s before
the date of the pre-trial. 4his pre-trial brief shall be served
on the adverse part* (Sec. ;, *ue 1<).
4he pre-trial brief shall contain the following mattersE
!? A statement of their willingness to enter into an
amicable settlement or alternative modes of dispute
resolution7 indicating the desired terms thereof9
"? A summar* of admitted facts and proposed
stipulation of facts9
&? 4he issues to be tried or resolved9
'? 4he documents or e1hibits to be presented7 stating
the purposes thereof9
(? A manifestation of their having availed of or their
intention to avail of discover* procedures or
referral to commissioners9 and
)? 4he number and names of the witnesses7 and the
substance of their respective testimonies (Sec.;,
*ue 1<).
 5ailure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial.
a. :f it is the plaintiff who fails to file a pre-trial
brief7 such failure shall be cause for dismissal
of the action.
b. :f it is the defendant who fails to do so7 such
failure shall be cause to allow the plaintiff to
present his evidence e1 parte.
 A pre-trial brief is not re,uired in a criminal case .
DISTIN/TION BETWEEN ,RE<TRIAL IN /IVIL
/ASE AND ,RE<TRIAL IN /RIMINAL /ASE
4he pre-trial in a civil case is set when the plaintiff moves e1
parte to set the case for pre-trial (Sec.1, *ue 1<). 4he pre-
trial in criminal case is ordered b* the court and no motion
to set the case for pre-trial is re,uired from either the
prosecution or the defense (Sec. 1, *ue 11<).
4he motion to set the case for pre-trial in a civil case is made
after the last pleading has been served and. :n a criminal
case7 the pre-trial is ordered b* the court after arraignment
and within thirt* >&D? da*s from the date the court ac,uires
%urisdiction over the person of the accused.
4he pre-trial in a civil case considers the possibilit* of an
amicable settlement as an important ob%ective. 4he pre-trial
in a criminal case does not include the considering of the
possibilit* of amicable settlement of criminal liabilit* as one
of its purposes.
:n a civil case7 the agreements and admissions made in the
pre-trial are not re,uired to be signed b* the parties and their
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
27
counsels. 4he* are to be contained in the record of pre-trial
and the pre-trial order (Sec. :, *ue 1<). :n a criminal case7
all agreements or admissions made or entered during the pre-
trial conference shall be reduced in writing and signed b* the
accused and counsel9 otherwise7 the* cannot be used against
the accuse (Sec. 2, *ue 11<).
4he sanctions for non-appearance in a pre-trial are imposed
upon the plaintiff or the defendant in a civil case. 4he
sanctions in a criminal case are imposed upon the counsel
for the accused or the prosecutor.
/IVIL ,RE<TRIAL /RIMINAL ,RE<TRIAL
$andator* $andator*
resence of defendant and
counsel mandator*
Accused need not be present7
but his counsel must be
present7 otherwise he ma* be
sanctioned
Amicable settlement is
discussed
Amicable settlement is not
discussed7 unless the
criminal case is covered b*
summar* procedure
Agreement included in pre-
trial order need not be in
writing
Agreements or admissions
must be written and signed
b* the accused and counsel
to be admissible against him.
ALTERNATIVE DIS,(TE RESOL(TION ;ADR=
!? :f the case has alread* filed a complaint with the
trial court without prior recourse to arbitration7 the
proper procedure to enable an arbitration panel to
resolve the parties dispute pursuant to the contract
is for the trial court to sta* the proceedings. After
the arbitration proceeding has alread* been pursued
and completed7 then the trial court ma* confirm the
award made b* the arbitration panel.
A part* has several %udicial remedies available at its disposal
after the Arbitration Committee denied its $otion for
ReconsiderationE
!? :t ma* petition the proper R4C to issue an order
vacating the award on the grounds provided for
under Sec. 28 of the Ar%itr"tion 5");
"? 5ile a petition for review under *ue 83 with the
Court of Appeals on ,uestions of fact7 of law7 or
mi1ed ,uestions of fact and law (Sec. 81, A4*);
&? 5ile a petition for certiorari under *ue ;5 on the
ground that the Arbitration Committee acted
without or in e1cess of its %urisdiction or with grave
abuse of discretion amounting to lack or e1cess of
%urisdiction.
INTERVENTION ;R%$ 17=
:ntervention is a legal proceeding b* which a person who is
not a part* to the action is permitted b* the court to become
a part* b* intervening in a pending action after meeting the
conditions and re,uirements set b* the Rules. 4his third
person who intervenes is one who is not originall*
impleaded in the action.
:ntervention is merel* a collateral or accessor* or ancillar*
to the principal action ad not an independent proceeding.
<ith the final dismissal of the original action7 the complaint
in intervention can no longer be acted upon.
REA(ISITES )OR INTERVENTION
!? 4here must be a motion for intervention filed before
rendition of %udgment b* the trial court. A motion is
necessar* because leave of court is re,uired before a
person ma* be allowed to intervene.
"? 4he movant must show in his motion that he hasE
a? A legal interest in the matter in litigation7 the
success of either of the parties in the action7 or
against both parties9
b? 4hat the movant is so situated as to be adversel*
affected b* a distribution or other disposition of
propert* in the custod* of the court or of an officer
thereof9 and
c? 4hat the intervention must not onl* undul* dela* or
pre%udice the ad%udication of the rights of the
original parties and that the intervenorCs rights ma*
not be full* protected in a separate proceeding.
d? 4he intervenorCs rights ma* not be full* protected
in a separate proceeding.
TIME TO INTERVENE
4he motion to intervene ma* be filed at an* time before the
rendition of %udgment b* the trial court (Sec. 2, *ue 1<) .
:ntervention after trial and decision can no longer be
permitted.
REMED' )OR T>E DENIAL O) MOTION TO
INTERVENTION
!? 4he appellate court ma* e1ercise sound %udicial
discretion
"? An indispensable part* can intervene even after the
rendition of %udgment
&? 4he remed* of the aggrieved part* is appeal. $andamus
will not lie e1cept in case of grave abuse of discretion
and if there is no other plain7 speed* and ade,uate
remed*.
S(B,OENA ;R%$ 21=
Court cannot issue subpoena absent an* action
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BERT – NOTES in REMEDIAL LAW
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Subpoena is a process directed to a person re,uiring him to
attend and to testif* at the hearing or the trial of an action7 or
at an* investigation conducted under the laws of the
hilippines7 or for taking of his deposition (Sec. 1, *ue 21).
S(B,OENA D(/ES TE/(M - is a process directed
to a person re,uiring him to bring with him at the
hearing or trial of an action an* books7 documents7 or
other things under his control.
S(B,OENA AD TESTI)I/AND(M J is a process
directed to a person re,uiring him to attend and testif*
at the hearing or the trial of the action7 or at an*
investigation conducted b* the competent authorit*7 or
for the taking of his deposition.
SERVI/E O) S(B,OENA
:t shall be made in the same manner as personal or
substituted service of summons.
!? 4he original shall be e1hibited and a cop* thereof
delivered to the person on whom it is served.
"? 4endering to him the fees for one da*Ls attendance
and the kilometrage allowed b* the Rules7 e1cept
that when a subpoena is issued b* or on behalf of
the Republic7 or an officer or agenc* thereof7 the
tender need not be made.
&? 4he service must be made so as to allow the
witness a reasonable time for preparation and travel
to the place of attendance.
'? :f the subpoena is 'uces tecu$7 the reasonable cost
of producing the books7 documents or things
demanded shall also be tendered.
Service of a subpoena shall be made b* the sheriff7 b* his
deput*7 or b* an* other person speciall* authori@ed7 who is
not a part* and is not less than eighteen >!-? *ears of age
(Sec. ;, *ue 21).
/OM,ELLIN+ ATTENDAN/E O) WITNESSESH
/ONTEM,T
:n case of failure of a witness to attend7 the court or %udge
issuing the subpoena7 upon proof of the service thereof and
of the failure of the witness7 ma* issue a warrant to the
sheriff of the province7 or his deput*7 to arrest the witness
and bring him before the court or officer where his
attendance is re,uired7 and the cost of such warrant and
sei@ure of such witness shall be paid b* the witness if the
court issuing it shall determine that his failure to answer the
subpoena was wilful and without %ust cause (Sec. <).
5ailure b* an* person without ade,uate cause to obe* a
subpoena served upon him shall be deemed a contempt of
the court from which the subpoena is issued. :f the subpoena
was not issued b* a court7 the disobedience thereto shall be
punished in accordance with the applicable law or Rule (Sec.
9).
21ceptionsE
a? <here the witness resides more than one hundred
>!DD? kilometers from his residence to the place
where he is to testif* b* the ordinar* course of
travel (Vi"tor+ *i3ht)7 or
b? <here the permission of the court in which the
detained prisonerCs case is pending was not
obtained.
A(AS>IN+ O) S(B,OENA
4he court ma* ,uash a subpoena duces tecum upon motion
promptl* made and7 in an* event7 at or before the time
specified thereinE
a? if it is unreasonable and oppressive7 or
b? the relevanc* of the books7 documents or things
does not appear7 or
c? if the person is whose behalf the subpoena is issued
fails to advance the reasonable cost of the
production thereof.
&ubpoena ad testificandum ma* be ,uashed on the ground
that the witness is #34 B3B#D 402R2BH. :n either case7
the subpoena ma* be ,uashed on the ground that the witness
fees and kilometrage ()ithin 1.. 9io$etr"3e uness the
)itness $"+%e cite' in'irect conte$!t) allowed b* the Rules
were not tendered when the subpoena was served.
MODES O) DIS/OVER' ;R%$s 21 <26=
 Hou can use this at an* stage of the proceeding9
applicable also in special proceedings
 <ritten interrogatories to parties is used onl* for the
purpose of calling the defendant to the witness stand
MODES O) DIS/OVER'
!? Depositions pending action (*ue 23);
"? Depositions before action or pending appeal (*ue
28);
&? :nterrogatories to parties (*ue 25)
'? Admission b* adverse part* (*ue 2;);
(? roduction or inspection of documents and things
(*ue 2:); and
)? h*sical and mental e1amination of persons (*ue
2<).
4he importance of the rules of discover* is that the* shorten
the period of litigation and speed up ad%udication. 4he
evident purpose is to enable the parties7 consistent with
recogni@ed principles7 to obtain the fullest possible
knowledge of the facts and issues before civil trials and thus
prevent said trials from being carried on in the dark. 4he
rules of discover* serve as >a? devices7 along with the pre-
trial hearing under Rule !-7 to narrow and clarif* the basis
issues between the parties9 and >b? devices for ascertaining
the facts relative to those issues.
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BERT – NOTES in REMEDIAL LAW
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4he basic purposes of the rules of discover* areE
a? 4o enable a part* to obtain knowledge of material
facts within the knowledge of the adverse part* or
of third parties through depositions9
b? 4o obtain knowledge of material facts or
admissions from the adverse part* through written
interrogatories9
c? 4o obtain admissions from the adverse part*
regarding the genuineness of relevant documents or
relevant matters of fact through re,uests for
admissions9
d? 4o inspect relevant documents or ob%ects7 and lands
or other propert* in the possession and control of
the adverse part*9 and
e? 4o determine the ph*sical or mental condition of a
part* when such is in controvers*.
DE,OSITIONS ,ENDIN+ A/TION ;R(LE 21=H
DE,OSITIONS BE)ORE A/TION OR ,ENDIN+
A,,EAL
MEANIN+ O) DE,OSITION
A deposition is the taking of the testimon* of an* person7
whether he be a part* or not7 but at the instance of a part* to
the action. 4his testimon* is taken out of court. :t ma* be
either b* oral e1amination7 or b* a written interrogator*
(Sec. 1, *ue 23).
(SES O) DE,OSITIONS ,ENDIN+ A/TION
At the trial or upon the hearing of a motion or an
interlocutor* proceeding7 an* part or all of a deposition7 so
far as admissible under the rules of evidence7 ma* be used
against an* part* who was present or represented at the
taking of the deposition or who had due notice thereof.
A deposition ma* be sought for use in a future action (*ue
28), during a pending action (*ue 23), or for use in a
pending appeal (*ue 28).
 deposition benne esse J taken for use during a
pending action (*ue 23).
 deposition in perpetuam rei memoriam J taken to
perpetuate a testimon* for use in future proceedings
as when it is sought before the e1istence of an
action7 or for cases on appeal.
An* or all of the deposition7 so far as admissible under the
rules of evidence7 ma* be used >a? against an* part* who
was present or represented at the taking of the deposition7 or
>b? against one who had due notice of the deposition (Sec. 8,
*ue 23).
4he deposition ma* be used for the following purposesE
!? 5or contradicting or impeaching the testimon* of
the deponent as a witness9
"? 4he deposition of a part* or of an* one who at the
time of taking the deposition was an officer7
director7 or managing agent of a public or private
corporation7 partnership7 or association which is a
part* ma* be used b* an adverse part* for an*
purpose9
&? 5or an* purpose b* an* part*7 where the deponent
is a witness if the court finds thatE
a? 4he witness is dead9
b? 4he witness resides more than !DD
kilometers from the place of trial or
hearing7 or is out of the hilippines7 unless
it appears that his absence was procured
b* the part* offering the deposition9
c? 4hat the witness is unable to attend or
testif* because of age7 sickness7 infirmit*7
or imprisonment9 or
d? 4hat the part* offering the deposition has
been unable to procure the attendance of
witnesses b* subpoena9 or
e? <hen e1ceptional circumstances e1ist
(Sec. 8, *ue 23).
S/O,E O) E*AMINATION
Bnless otherwise ordered b* the court as provided b* Sec.
1; or 1<7 the deponent ma* be e1amined regardingE
a? an* matter not privileged
b? which is relevant to the pending action 7 whether
relating to the claim or defense of an* other part*7
including the e1istence7 description7 nature7
custod*7 condition7 and location of an* books7
documents7 or other tangible things and the identit*
and location of persons having knowledge of
relevant facts
c? #ot restricted b* a protective order .
W>EN MA' OB.E/TIONS TO ADMISSIBILIT' BE
MADE
3b%ection ma* be made at the trial or hearing to receiving in
evidence an* deposition or part thereof for an* reason which
would re,uire the e1clusion of the evidence if the witness
were then present and testif*ing (Sec. ;).
W>EN MA' TA8IN+ O) DE,OSITION BE
TERMINATED OR ITS S/O,E LIMITED
At an* time during the taking of the deposition7 an* part* or
deponent ma* ask for the termination or limiting of the
scope of the deposition upon showingE
!? that the e1amination is being conducted in bad
faith9 or
"? that it is conducted in such manner as reasonabl* to
anno*7 embarrass7 or oppress the deponent or part*.
WRITTEN INTERRO+ATORIES TO ADVERSE
,ARTIES
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BERT – NOTES in REMEDIAL LAW
32
/ONSEA(EN/ES O) RE)(SAL TO ANSWER
4he part* who fails to serve his answer to written
interrogatories ma* be the sub%ect of a %udgment b* default
E))E/T O) )AIL(RE TO SERVE WRITTEN
INTERRO+ATORIES
A part* not served with written interrogatories ma* not be
compelled b* the adverse part* to give testimon* in open
court7 or to give deposition pending appeal7 unless allowed
b* the court or to prevent a failure of %ustice (Sec. ;, *ue
25).
4his provision encourages the use of written interrogatories
although a part* is not compelled to use this discover*
procedure7 the rule imposes sanctions for his failure to serve
written interrogatories b* depriving him of the privilege to
call the adverse part* as a witness or to give a deposition
pending appeal.
REA(EST )OR ADMISSION ;R(LE 24=
A part*7 although not compelled b* the Rules7 is advised to
file and serve a written re,uest for admission on the adverse
part* of those material and relevant facts at issue and
actionable document ("s " resut, +ou nee' not "uthentic"te
it) which are7 or ought to be7 within the personal knowledge
of said adverse part*.
4he part* who fails to file and serve the re,uest shall not be
permitted to present evidence on such facts (Sec. 5, *ue
2;).
IM,LIED ADMISSION B' ADVERSE ,ART'
2ach of the matters of which an admission is re,uested shall
be deemed admitted unless7 within a period designated in the
re,uest7 which shall not be less than fifteen >!(? da*s after
service thereof7 or within such further time as the court ma*
allow on motion7 the part* to whom the re,uest is directed
files and serves upon the part* re,uesting the admission a
sworn statement either den*ing specificall* the matters of
which an admission is re,uested or setting forth in detail the
reasons wh* he cannot truthfull* either admit or den* those
matters.
3b%ections to an* re,uest for admission shall be submitted to
the court b* the part* re,uested within the period for and
prior to the filing of his sworn statement as contemplated in
the preceding paragraph and his compliance therewith shall
be deferred until such ob%ections are resolved7 which
resolution shall be made as earl* as practicable.
/ONSEA(EN/ES O) )AIL(RE TO ANSWER
REA(EST )OR ADMISSION
2ach of the matters of which an admission is re,uested
>facts or documents? shall be deemed admitted unless within
a period designated in the re,uest which shall not be less
than !( da*s after service thereof7 or within such further
time as the court ma* allow on motion7 the part* to whom
the re,uest is directed files and serves upon the part*
re,uesting the admission a sworn statement either den*ing
specificall* the matter of which an admission is re,uested or
setting forth in detail the reason wh* he cannot truthfull*
either admit or den* those matters.
E))E/T O) ADMISSION
An* admission made b* a part* pursuant to such re,uest is
for the purpose of the pending action onl* and shall not
constitute an admission b* him for an* other purpose nor
ma* the same be used against him in an* other proceeding
(Sec. 3).
E))E/T O) )AIL(RE TO )ILE AND SERVE
REA(EST )OR ADMISSION
A part* who fails to file and serve a re,uest for admission on
the adverse part* of material and relevant facts at issue
which are7 or ought to be7 within the personal knowledge of
the latter7 shall not be permitted to present evidence on such
facts (Sec. 5).
,ROD(/TION OR INS,E/TION O) DO/(MENTS
OR T>IN+S ;R(LE 25=
 4his is prelude to the presentation of secondar*
evidence.
 4his Rule applies onl* to a pending action and the
documents or things sub%ect of the motion should not be
privileged and must be those within the possession7
control or custod* of a part*. 4he petition must be
sufficientl* described and identified as well as material
to an* matter involved in the pending action.
,>'SI/AL AND MENTAL E*AMINATION O)
,ERSONS ;R(LE 26=
4his mode of discover* applies to an action in which the
mental or ph*sical condition of a part* is in controvers*.
Re,uisites to obtain 3rder for 21aminationE
a? A $34:3# must be filed for the ph*sical and
mental e1amination9
b? 4he motion showing 8ood Cause for the
e1amination9
c? #34:C2 to the part* to be e1amined and to all the
other parties
d? 4he motion shall S2C:5H the time7 place7
manner7 condition and scope of the e1amination
and the person or persons b* whom it is made.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
31
+aiver of privilege. <here the person e1amined re,uests
and obtains a report or the results of the e1amination7 the
conse,uences areE
!? 0e has to furnish the other part* a cop* of an*
previous or subse,uent e1amination of the same
ph*sical and mental condition9 and
"? 0e waives an* privilege he ma* have in that action
or an* other involving the same controvers*
regarding the testimon* of an* other person who
has so e1amined him or ma* thereafter e1amine
him.
/ONSEA(EN/ES O) RE)(SAL TO /OM,L' WIT> MODES O) DIS/OVER' ;R(LE 27=
RE)(SAL TO /OM,L'
WIT> MODES O)
DIS/OVER'
SAN/TIONS
/efusal to answer any
0uestion
 4he court ma*7 upon application7 compel a refusing deponent an answer.
 :f granted and refusal to answer is without substantial %ustification7 the court ma*
re,uire the refusing part* to pa* the proponent the amount of the reasonable
e1penses incurred in obtaining the order7 including attorne*Ts fees.
 :f denied and filed without substantial %ustification7 the court ma* re,uire the
proponent to pa* to the refusing part* or deponent the amount of the reasonable
e1penses incurred in opposing the application7 including attorne*Ts fees.
 A refusal to answer after being directed b* the court to do so ma* be considered a
contempt of that court.
/efusal to be &worn Cite the disobedient deponent in Contempt of court
/efusal to answer designated
0uestions or refusal to
produce documents or to
submit to physical or mental
e-amination
4he court ma* make the following ordersE
!? An order that the matters regarding which the ,uestions were asked7 or the
character or description of the thing or land7 or the contents of the paper7 or the
ph*sical or mental condition of the part*7 or an* other designated facts shall be
taken to be established for the purposes of the action in accordance with the
claim of the part* obtaining the order9
"? An order refusing to allow the disobedient part* to support or oppose designated
claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimon*7 or from introducing evidence of
ph*sical or mental condition9
&? An order striking out pleadings or parts thereof7 or sta*ing further proceedings
until the order is obe*ed7 or dismissing the action or proceeding or an* part
thereof7 or rendering a %udgment b* default against the disobedient part*9 and
'? :n lieu of an* of the foregoing orders or in addition thereto7 an order directing
the arrest of an* part* or agent of a part* for disobe*ing an* of such orders
e1cept an order to submit to a ph*sical or mental e1amination (Sec. 3, *ue 29).
/efusal to admit actionable
document
4he court ma*7 upon application7 issue an order to pa* the proponent the amount of the
reasonable e1penses incurred in obtaining the order7 including attorne*Ts fees.
'ailure of party to attend or
serve answers
4he court7 on motion and notice7 ma*E
!? ma* strike out all or an* part of an* pleading of that part*9
"? dismiss the action or proceeding or an* part thereof9
&? enter a %udgment b* default against disobedient part*9
'? order to pa* reasonable e1penses incurred b* the other7 including attorne*Ts
fees.
TRIAL ;R%$ 10=
A trial is the %udicial process of investigating and
determining the legal controversies7 starting with the
production of evidence b* the plaintiff and ending with his
closing arguments.
AD.O(RNMENTS AND ,OST,ONEMENTS
4he general rule is that a court ma* ad%ourn a trial from da*
to da*7 and to an* stated time7 as the e1peditious and
convenient transaction of business ma* re,uire (Sec. 2).
0owever7 the court has no power to ad%ourn a trial for a
period longer than one month from each ad%ournment7 nor
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
32
more than three >&? months in all7 e1cept when authori@ed in
writing b* the Court Administrator.
A motion for postponement should not be filed on the last
hour especiall* when there is no reason wh* it could not
have been presented earlier.
ostponement is not a matter of right. :t is addressed to the
sound discretion of the court.
REA(ISITES O) MOTION TO ,OST,ONE TRIAL
)OR ABSEN/E O) EVIDEN/E
!? A motion for postponement stating the ground relied
upon must be filed9
"? 4he motion must be supported b* an affidavit or sworn
certification showingE
a. the materialit* or relevanc* of the evidence9
and
b. that due diligence has been used to procure it
(Sec. 3).
&? :f the adverse part* admits the facts given in evidence7
the trial shall not be postponed even if he reserves the
right to ob%ect to the admissibilit* of the evidence.
REA(ISITES O) MOTION TO ,OST,ONE TRIAL
)OR ILLNESS O) ,ART' OR /O(NSEL
!? A motion for postponement stating the ground relied
upon must be filed9
"? 4he motion must be supported b* an affidavit or sworn
certification showingE
a. that the presence of the part* or counsel at the
trial is indispensable9 and
b. that the character of his illness is such as to
render his non-attendance e1cusable (Sec. 8).
A+REED STATEMENTS O) )A/TS
4he parties to an* action ma* agree in writing upon the facts
involved in litigation d submit the case for %udgment on the
facts agreed upon7 without the introduction of evidence. #o
trial shall thus be held.
:f the parties agree to onl* some facts in issue7 trial shall be
held as to the disputed facts in such order as the court shall
prescribe.
4he agreed statement of facts is conclusive on the parties7 as
well as on the court. #either of the parties ma* withdraw
from the agreement7 nor ma* the court ignore the same.
ORDER O) TRIAL
Sub%ect to the provisions of Sec. 2, *ue 31 (Se!"r"te tri"s),
and unless the court for special reasons otherwise directs7 the
trial shall be limited to the issues stated in the pre-trial order
and shall proceed as followsE
!? 4he plaintiff shall adduce evidence in support of his
complaint9
"? 4he defendant shall then adduce evidence in
support of his defense7 counterclaim7 cross-claim
and third part* complaint9
&? 4he third part* defendant7 if an*7 shall adduce
evidence of his defense7 counterclaim7 cross-claim
and fourth-part* complaint9
'? 4he fourth part*7 and so forth7 if an*7 shall adduce
evidence of the material facts pleaded b* them9
(? 4he parties against whom an* counterclaim or
cross-claim has been pleaded7 shall adduce
evidence in support of their defense7 in the order to
be prescribed b* the court9
)? 4he parties ma* then respectivel* adduce rebutting
evidence onl*7 unless the court7 for good reasons
and in the furtherance of %ustice7 permits them to
adduce evidence upon their original case9 and
+? Bpon admission of the evidence7 the case shall be
deemed submitted for decision7 unless the court
directs the parties to argue or to submit their
respective memoranda or an* further pleadings.
:f several defendants or third part* defendants and so forth
having separate defenses appear b* different counsel7 the
court shall determine the relative order of presentation of
their evidence (Sec. 5).
REVERSAL O) ORDER
<hen the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense7 the
order of trial ma* be modified (Sec. 11, *ue 119).
Since the defendant admits the plaintiffCs claim but seeks to
avoid liabilit* based on his affirmative defense7 he shall
proceed first to prove his e1emption.
/ONSOLIDATION OR SEVERAN/E O) >EARIN+
OR TRIAL ;R(LE 11=
/onso$i#ation <hen actions involving a common ,uestion
of law 3R facts are pending before the court7 it ma* order a
%oint hearing or trial of an* or all the matters in issue in the
actions9 it ma* order all the actions consolidated9 and it ma*
make such orders concerning proceedings therein as ma*
tend to avoid unnecessar* costs or dela* (Sec. 1).
$odes of consolidating casesE
a? B+ rec"stin3 the c"ses "re"'+ institute' A
reshaping of the case b* amending the pleading and
dismissing some cases and retaining onl* one case.
4here must be %oinder of causes of action and of
parties9
b? B+ consoi'"tion !ro!er or %+ consoi'"tin3 the
e#istin3 c"ses A it is a %oint trial with a %oint
decision7 the cases retaining their original docket
numbers9 and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
33
c? B+ test/c"se $etho' A b* hearing onl* the principal
case and suspending the hearing on the other cases
until %udgement has been rendered in the principal
case. 4he cases retain their original docket
numbers.
S0ranc ;S-arat= Tria$s& 4he court7 in furtherance of
convenience or to avoid pre%udice7 ma* order a separate trial
of an* claim7 cross-claim7 counterclaim7 or third part*
complaint7 or of an* separate issue or of an* number of
claims7 cross-claims7 counterclaim7 third part* complaints or
issue (Sec. 2).
 #oteE Consolidation is not a remed* in case of
forum shoppingQ
DELE+ATION O) RE/E,TION O) EVIDEN/E
As a general rule7 the %udge shall personall* receive the
evidence to be adduced b* the parties. 0owever7 the
reception of evidence ma* be delegated under the following
conditionsE
!? 4he delegation ma* be made onl* in 'ef"ut or e#
!"rte he"rin3s7 and in an* case where the parties
agree in writing9
"? 4he delegation ma* be made onl* b* the clerk of
court who is a member of the bar9
&? Said clerk of court shall have no power to rule on of
evidence ob%ections to an* ,uestion or to the
admission of e1hibits9 and
'? 0e shall submit his report and the transcripts of the
proceedings7 together with the ob%ections to be
resolved b* the court7 within ten >!D? da*s from
termination of the hearing.
TRIAL B' /OMMISSIONERS ;R(LE 12=
Commissioner includes a referee7 an auditor and an
e1aminer (Sec. 1)
RE)EREN/E B' /ONSENT
B* written consent of both parties7 the court ma* order an*
or all of the issues in a case to be referred to a commissioner
to be agreed upon b* the parties or to be appointed b* the
court.
RE)EREN/E ORDERED ON MOTION
<hen the parties do not consent7 the court ma*7 upon the
application of either or on its own motion7 direct a reference
to a commissioner in the following casesE
!? <hen the trial of an issue of fact re,uires the
e1amination of a L3#8 ACC3B#4 on either
side7 in which case the commissioner ma* be
directed to hear and report upon the whole
issue or an* specific ,uestion involved therein9
"? <hen the taking of an account is necessar* for
the information of the court before %udgment7
or for carr*ing a %udgment or order into effect9
&? <hen a ,uestion of fact7 other than upon the
pleadings7 arises upon motion or otherwise7 in
an* stage of a case7 or for carr*ing a %udgment
or order into effect (Sec. 2).
,OWERS O) /OMMISSIONER
Bnder the Rules7 the courtCs order ma* specif* or limit the
powers of the commissioner. 0ence7 the order ma* direct
him toE
a? Report onl* upon particular issues9
b? Do or perform particular acts9 or
c? Receive and report evidence onl*.
4he order ma* also fi1 the date for beginning and closing of
the hearings and for the filing of his report.
Sub%ect to such limitations stated in the order7 the
commissionerE
a? Shall e1ercise the power to regulate the proceedings
in ever* hearing before him9
b? Shall do all acts and take all measures necessar* or
proper for the efficient performance of his duties
under the order9
c? $a* issue subpoenas and subpoenas duces tecum7
and swear witnesses9 and
d? Rule upon the admissibilit* of evidence7 unless
otherwise provided in the order of reference (Sec.
3, *ue 32).
/OMMISSIONERDS RE,ORTH NOTI/E TO ,ARTIES
AND >EARIN+ ON T>E RE,ORT
4he commissionerCs report is not binding upon the court
which is free to adopt7 modif*7 or re%ect7 in whole or in part7
the report. 4he court ma* receive further evidence or
recommit the report with instructions (Sec. 11, *ue 32)
#otice of the filing of the report must be sent to the parties
for the purpose of giving them an opportunit* to present
their ob%ections. 4he failure to grant the parties7 in due form7
this opportunit* to ob%ect7 ma*7 in some instances7 constitute
a serious error in violation of their substantial rights.
4he rule7 however7 is not absolute. :n one case7 it was ruled
that although the parties were not notified of the filing of the
commissionerCs reports7 and the court failed to set said
report for hearing7 if the parties who appeared before the
commissioner were dul* represented b* counsel and given
an opportunit* to be heard7 the re,uirement of due process
has been satisfied7 and a decision on the basis of such report7
with the other evidence of the case is a decision which meets
the re,uirements of fair and open hearing.
:n the hearing to be conducted on the commissionerCs report7
the court will review onl* so much as ma* be drawn in
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
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,uestion b* proper ob%ections. :t is not e1pected to rehear the
case upon the entire record.
DEM(RRER TO EVIDEN/E ;R%$ 11=
Demurrer to evidence is a motion to dismiss filed b* the
defendant after the plaintiff had rested his case on the
ground of :#SB55:C:2#CH 35 2;:D2#C2.
4he provision of the Rules governing demurrer to evidence
does not appl* to an election case.
+RO(ND
After plaintiff has finished presenting his evidence7 the
defendant ma* move for the dismissal of the complaint on
the ground that upon the facts and the law7 the plaintiff has
shown no right to relief.
E))E/T O) DENIALH E))E/T O) +RANT
:n the event his motion is denied7 the defendant does not
waive his right to offer evidence. 4he defendant shll have
the right to present his evidence. An order den*ing a
demurrer to evidence is interlocutor* and is therefore7 not
appealable. :t can however be the sub%ect of a petition for
certiorari in case of grave abuse of discretion or an
oppressive e1ercise of %udicial authorit*.
:f the motion is granted and the order of dismissal is
reversed on appeal 7 the movants loses his right to present
the evidence on his behalf. 4he appellate court in case it
reverses the grant of the motion7 should render the %udgment
therein based on the evidence submitted b* the plaintiff.
:t is not correct for the appellate court reversing the order
granting the demurrer to remand the case to the trial court
for further proceedings. 4he appellate court should7 instead
of remanding the case7 render %udgment on the basis of the
evidence submitted b* the plaintiff.
WAIVER O) RI+>T TO ,RESENT EVIDEN/E
:f the demurrer is granted but on appeal the order of
dismissal is reversed7 the defendant is deemed to have
waived his right to present evidence.
DEM(RRER TO EVIDEN/E IN A /IVIL /ASE
VERS(S DEM(RRER TO EVIDEN/E IN A
/RIMINAL /ASE
:n a civil case7 leave of court is not re,uired before filing a
demurrer. :n a criminal case7 leave of court is filed with or
without leave of court (Sec. 23, *ue 119).
:n a civil case7 if the demurrer is granted7 the order of
dismissal is appealableSsince the motion is interlocutor*. :n
a criminal case7 the order of dismissal is not appealable
because of the constitutional polic* against double %eopard*
Sdenial is tantamount to ac,uittal7 final and e1ecutor*.
:n civil case7 if the demurrer is denied7 the defendant ma*
proceed to present his evidence. :n a criminal case7 the
accused ma* adduce his evidence onl* if the demurrer is
filed with leave of court. 0e cannot present his evidence if
he filed the demurrer without leave of court (Sec. 23, *ue
119).
:n civil case7 the plaintiff files a motion to den* motion to
demurrer to evidence. :n criminal case7 the court ma* $otu
!ro!rio den* the motion.
.(D+MENTS AND )INAL ORDERS ;R%$s 12 – 14=
.(D+MENT WIT>O(T TRIAL
4he theor* of summar* %udgment is that although an answer
ma* on its face appear to tender issuesSre,uiring trialS*et
if it is demonstrated b* affidavits7 depositions7 or admissions
that those issues are not genuine7 but sham or fictitious7 the
Court is %ustified in dispensing with the trial and rendering
summar* %udgment for plaintiff.
4he court is e1pected to act chiefl* on the basis of the
affidavits7 depositions7 admissions submitted b* the
movants7 and those of the other part* in opposition thereto.
4he hearing contemplated >with !D-da* notice? is for the
purpose of determining whether the issues are genuine or
not7 not to receive evidence on the issues set up in the
pleadings. A hearing is not thus 'e ri3uer. 4he matter ma*
be resolved7 and usuall* is7 on the basis of affidavits7
depositions7 admissions.
:n one case7 the summar* %udgment here was %ustified7
considering the absence of opposing affidavits to contradict
the affidavits.
/ONTENTS O) A .(D+MENT
/udgment has two partsE
!? the bod* of the %udgment or the r"tio 'eci'en'i,
and
"? the dispositive portion of the %udgment or f"o.
 4he bod* of the decision (r"tio 'eci'en'i) is
not the part of the %udgment that is sub%ect to
e1ecution but the f"o because it is the latter
which is the %udgment of the court.
 4he importance of fallo or dispositive portion
of a decision should state whether the
complaint or petition is granted or denied7 the
specific relief granted7 and the costs.
 :t is the dispositive part of the %udgment that
actuall* settles and declares the rights and
obligations of the parties7 finall*7 definitivel*7
and authoritativel*.
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BERT – NOTES in REMEDIAL LAW
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4he general rule is that where there is a conflict between the
fallo and the ratio decidendi7 the fallo controls. 4his rule
rests on the theor* that the fallo is the final order while the
opinion in the bod* is merel* a statement ordering nothing.
<here the inevitable conclusion from the bod* of the
decision is so clear that there was a mere mistake in the
dispositive portion7 the bod* of the decision prevails.
A %udgment must have the signature of the %udge.
.(D+MENT ON T>E ,LEADIN+S ;R(LE 12=
<here an answer fails to tender an issue7 or otherwise
admits the material allegations of the adverse part*Ls
pleading7 the court ma*7 on motion of that part*7 direct
%udgment on such pleading.
4he following actions CA##34 be the sub%ect of a
%udgment on the pleadingsE
!? declaration of nullit* of marriage
"? annulment of marriage
&? legal separation
:n cases of unli,uidated damages7 or admission of the truth
of allegation of adverse part*7 the material facts alleged in
the complaint shall alwa*s be proved.
S(MMAR' .(D+MENTS ;R(LE 13=
A summar* %udgment or accelerated %udgment is a
procedural techni,ue to promptl* dispose of cases where the
facts appear undisputed and certain from the pleadings7
depositions7 admissions and affidavits on record7 of for
weeding out sham claims or defenses at an earl* stage of the
litigation to avoid the e1pense and loss of time involved in a
trial.
$oreover7 said summar* %udgment must be premised on the
absence of an* other triable genuine issues of fact.
3therwise7 the movants cannot be allowed to obtain
immediate relief. A genuine issue is such issue of fact which
re,uires presentation of evidence as distinguished from a
sham7 fictitious7 contrived or false claim.
4he re,uisites areE
!? there must be no genuine issue as to an* material
fact7 e1cept for the amount of damages9 and
"? the part* presenting the motion for summar*
%udgment must be entitled to a %udgment as a matter
of law.
)OR T>E /LAIMANT
A part* seeking to recover upon a claim7 counterclaim7 or
cross-claim or to obtain a declarator* relief ma*7 at an* time
after the pleading in answer thereto has been served7 move
with supporting affidavits7 depositions or admissions for a
summar* %udgment in his favor upon all or an* part thereof
(Sec. 1).
)OR T>E DE)ENDANT
A part* against whom a claim7 counterclaim7 or cross-claim
is asserted or a declarator* relief is sought ma*7 "t "n+ ti$e7
move with supporting affidavits7 depositions or admissions
for a summar* %udgment in his favor as to all or an* part
thereof (Sec. 2).
W>EN T>E /ASE NOT )(LL' AD.(DI/ATED
:f %udgment is not rendered upon the whole case7 the court
shall ascertain what material facts e1ist without substantial
controvers* and those that are controverted. 4he court shall
then render a partial %udgement with trial to proceed on the
matters that remain controverted.
A))IDAVITS AND ATTA/>MENTS
Supporting and opposing affidavits shall be made on
personal knowledge7 shall set forth such facts as would be
admissible in evidence7 and shall show affirmativel* that the
affiant is competent to testif* to the matters stated therein.
Certified true copies of all papers or parts thereof referred to
in the affidavit shall be attached thereto or served therewith
(Sec. 5).
Should it appear to its satisfaction at an* time that an* of the
affidavits presented pursuant to the Rules are presented in
bad faith7 or solel* for the purpose of dela*7 the court shall
forthwith order the offending part* or counsel to pa* to the
other part* the amount of the reasonable e1penses which the
filing of the affidavits caused him to incur7 including
attorne*Ls fees. :t ma*7 after hearing7 further ad%udge the
offending part* or counsel guilt* of contempt (Sec. ;).
.(D+MENTS ON T>E ,LEADIN+S VERS(S
S(MMAR' .(D+MENTS
a? :n the %udgment on the pleadings7 the answer does not
tender an issue9 in summar* %udgment7 there is an issue
tendered in the answer7 but it is not genuine or real issue
as ma* be shown b* affidavits and depositions that there
is no real issue and that the part* is entitled to %udgment
as a matter of right9
b? :n %udgment on the pleadings7 the movants must give a
&-da* notice of hearing9 while in summar* %udgment7
the opposing part* is given !D da*s notice9
c? :n %udgment on the pleadings7 the entire case ma* be
terminated9 while in summar* %udgment7 it ma* onl* be
partial9
d? :n %udgment on the pleadings7 onl* the plaintiff or the
defendants as far as the counterclaim7 cross-claim or
third-part* complaint is concerned can file the same9
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BERT – NOTES in REMEDIAL LAW
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while in summar* %udgment7 either the plaintiff or the
defendant ma* file it.
RENDITION O) .(D+MENTS AND )INAL ORDERS
Rn#ition o: @%#gmnt is the filing of the same with the
clerk of court. :t is #34 the pronouncement of the %udgment
in open court that constitutes the rendition. 2ven if the
%udgment has alread* been put in writing and signed7 it is
still sub%ect to amendment if it has not *et been filed with
the clerk of court and before its filing does not *et constitute
the real %udgment of the court. :t is #34 the writing of the
%udgment or its signing which constitutes rendition of the
%udgment.
A @%#gmnt or :ina$ or#r determining the merits of the
case shall be in writing personall* and directl* prepared b*
the %udge7 stating clearl* and distinctl* the facts and the law
on which it is based7 signed b* him7 and filed with the clerk
of the court (Sec. 1, *ue 3;).
ENTR' O) .(D+MENT AND )INAL ORDER
:f no appeal or motion for new trial or reconsideration is
filed within the time provided in the Rules7 the %udgment or
final order shall forthwith be entered b* the clerk in the book
of entries of %udgments.
4he record shall contain the dispositive part of the %udgment
or final order and shall be signed b* the clerk7 with a
certificate that such %udgment or final order has become final
and e1ecutor* (Sec. 2).
4he entr* of %udgment refers to the ph*sical act performed
b* the clerk of court in entering the dispositive portion of the
%udgment in the book of entries of %udgment and after the
same has become final and e1ecutor*.
4he date of finalit* of the %udgment or final order shall be
deemed the date of its entr*. 4hus7 while there has been no
physical entry of #udgment in the boo! of entries, it is
deemed to have been constructively made at the time of the
finality of the #udgment or final order.
4here are some proceedings the filing of which is reckoned
from the date of the entr* of %udgmentE
!? the e1ecution of a %udgment b* motion is within
five >(? *ears from the entr* of the %udgment (Sec.
;, *ue 39);
"? the filing of a petition for relief has7 as one of its
periods7 not more than si1 >)? months from the
entr* of the %udgment or final order (Sec. 3, *ue
3<).
,OST .(D+MENT REMEDIES
;R%$s 15? 16? 20–25? 32? 31=
Rm#is 9:or a @%#gmnt 9coms :ina$ an#
xc%tory
a? $otion for reconsideration >prohibited in a case
that falls under summar* procedure? (*ues 3:, 52);
b? $otion for new trial (*ues 3:, 53); and
c? Appeal (*ues 8., 81, 82, 83, 85)
Rm#is a:tr @%#gmnt 9coms :ina$ an# xc%tory
a? etition for relief from %udgment9
b? Action to annul a %udgment9
c? Certiorari9 and
d? Collateral attack of a %udgment.
MOTION )OR NEW TRIAL OR RE/ONSIDERATION
;R(LE 15=
+RO(NDS )OR A MOTION )OR NEW TRIAL
!? 5 raud >e1trinsic?7 accident7 mistake >of fact and not of
law? or e1cusable negligence >5A$2#? which ordinar*
prudence could not have guarded against and b* reason
of which such aggrieved part* has probabl* been
impaired in his rights9
"? #ewl* discovered evidence >Berr* Rule?7 which he
could not7 with reasonable diligence7 have discovered
and produced at the trial7 and which if presented would
probabl* alter the result9 and
&? Award of e1cessive damages 7 or insufficienc* of the
evidence to %ustif* the decision7 or that the decision is
against the law (Sec. 1, *ue 3:).
+RO(NDS )OR A MOTION )OR
RE/ONSIDERATION
!? 4he damages awarded are e1cessive9
"? 4he evidence is insufficient to %ustif* the decision or
final order9
&? 4he decision or final order is contrar* to law.
 "
nd
$R is not allowed e1cept in SC
W>EN TO )ILE
 A motion for new trial should be filed within the period
for taking an appeal. 0ence7 it must be filed before the
finalit* of the %udgment.
 #o motion for e1tension of time to file a motion for
reconsideration shall be allowed.
 4he period for appeal is within !( da*s after notice to
the appellant of the @%#gmnt or :ina$ or#r appealed
from.
 <here a record on appeal is re,uired7 the appellant shall
file a notice of appeal and a record on appeal within &D
da*s from notice of the %udgment or final order. A
record on appeal shall be re,uired onl* in special
proceedings and other cases of multiple or separate
appeals (Sec. 3, *ue 8.).
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BERT – NOTES in REMEDIAL LAW
37
DENIAL O) T>E MOTIONH E))E/T
 :f the motion is denied7 the movants has a 1fresh
period2 of fifteen days from receipt or notice of the
order den*ing or dismissing the motion for
reconsideration within which to file a notice of appeal
of the %udgment or final order.
 $eaning7 the defendant is given a Mfresh periodN of !(
da*s counted from the receipt of the order dismissing
the motion for new trial or reconsideration.
 <hen the motion for new trial is denied on the ground
of fraud7 accident7 mistake of fact or law7 or e1cusable
negligence7 the aggrieved part* can no longer avail of
the remed* of petition for relief from %udgment
+RANT O) T>E MOTIONH E))E/T
 :f a new trial be granted7 the original %udgment shall be
vacated or set aside7 and the action shall stand for tri"
'e no6o9 but the recorded evidence taken upon the
former trial so far as the same is material and competent
to establish the issues7 shall be used at the new trial
without retaking the same (Sec. ;).
 4he filing of the motion for new trial or reconsideration
interrupts the period to appeal (Sec. 2, *ue 8.; Sec. 3,
*ue 81).
 :f the court grants the motion >e.g.7 it finds that
e1cessive damages have been awarded or that the
%udgment or final order is contrar* to the evidence or
law?7 it ma* amend such %udgment or final order
accordingl* (Sec. 3). 4he amended %udgment is in the
nature of a new %udgment which supersedes the original
%udgment. :t is not a mere supplemental decision which
does not supplant the original but onl* serves to add
something to it.
 :f the court finds that a motion affects the issues of the
case as to onl* a part7 or less than all of the matters in
controvers*7 or onl* one7 or less that all of the parties to
it7 the order ma* grant a reconsideration as to such
issues if severable without interfering with the %udgment
or final order upon the rest (Sec. :).
REMED' W>EN MOTION IS DENIED
 4he part* aggrieved should appeal the %udgment. 4his is
so because a second motion for reconsideration is
e1pressl* prohibited.
 An order den*ing a motion for reconsideration or new
trial is not appealable7 the remed* being an appeal from
the %udgment or final order un'er *ue 3<. 4he remed*
from an order den*ing a motion for new trial is not to
appeal from the order of denial. Again7 the order is not
appealable. 4he remed* is to appeal from the %udgment
or final order itself sub%ect of the motion for new trial
(Sec. 9, rue 3:).
)RES> 13<DA' ,ERIOD R(LE
 :f the motion is denied7 the movants has a fresh period
of !( da*s from receipt or notice of the order den*ing or
dismissing the motion for reconsideration within which
to file a notice to appeal.
 4his new period becomes significant if either a motion
for reconsideration or a motion for new trial has been
filed but was denied or dismissed.
 1his fresh !erio' rue "!!ies on+ to *ue 81 3o6ernin3
"!!e"s fro$ the *1C %ut "so to *ue 8. 3o6ernin3
"!!e"s fro$ ,1C to *1C, *ue 82 on !etitions for
re6ie) fro$ the *1C to the CA, *ue 83 on "!!e" fro$
(u"si/&u'ici" "3encies to the CA, "n' *ue 85
3o6ernin3 "!!e"s %+ certior"ri to the SC.
 Accordingl*7 this rule was adopted to standardi@e the
appeal periods provided in the Rules to afford fair
opportunit* to review the case and7 in the process7
minimi@e errors of %udgment.
 O90io%s$y? t! n" 13 #ay -rio# may 9 a0ai$# o:
on$y i: it!r motion is :i$#H otherwise7 the decision
becomes final and e1ecutor* after the lapse of the
original appeal period provided in *ue 81 (-e+!es 6s.
CA., Se!t. 18, 2..5).
 4he #e*pes ruling shall not be applied where no motion
for new trial or motion for reconsideration has been
filed in which case the !(-da* period shall run from
notice of the %udgment.
 4he fresh period rule does not refer to the period within
which to appeal from the order den*ing the motion for
new trial because the order is not appealable under Sec.
.7 Rule &+. 4he non-appealabilit* of the order of denial
is also confirmed b* Sec. !>a?7 Rule '!7 which provides
that no appeal ma* be taken from an order den*ing a
motion for new trial or a motion for reconsideration.
 4he SC ruled in one case that this Mfresh period of
appealN is also applicable in criminal cases ($udith %u
vs. $udge &amson, 'eb. (, 2011)
A,,EALS IN +ENERAL
4he right to appeal is not part of due process but a mere
statutor* privilege that has to be e1ercised onl* in the
manner and in accordance with the provisions of law
4he general rule is that the remed* to obtain reversal or
modification of %udgment on the merits is appeal. 4his is true
even if the error7 or one of the errors7 ascribed to the court
rendering the %udgment is its lack of %urisdiction over the
sub%ect matter7 or the e1ercise of power in e1cess thereof7 or
grave abuse of discretion in the findings of facts or of law
set out in the decision.
Certain rules on appealE
a? #o trial de novo an*more . 4he appellate courts
must decide the case on the basis of the record7
e1cept when the proceedings were not dul*
recorded as when there was absence of a ,ualified
stenographer.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
40
b? 4here can be no new parties.
c? 4here can be no change of theor* (-"6" 6s. CA,
8<3 SC*A 1.2).
d? 4here can be no new matters.
e? 4here can be amendments of pleadings to conform
to the evidence submitted before the trial court.
f? 4he liabilit* of solidarit* defendant who did not
appeal is not affected b* appeal of solidarit* debtor.
g? Appeal b* guarantor does not inure to the principal.
h? :n e%ectment cases7 the R4C cannot award to the
appellant on his counterclaim more than the amount
of damages be*ond the %urisdiction of the $4C.
i? 4he appellate court cannot dismiss the appealed
case for failure to prosecute because the case must
be decided on the basis of the record.
.(D+MENTS AND )INAL ORDERS S(B.E/T TO
A,,EAL
An appeal ma* be taken onl* from %udgments or final orders
that completel* dispose of the case (Sec. 1, *ue 81). An
interlocutor* order is not appealable until after the rendition
of the %udgment on the merits.
MATTERS NOT A,,EALABLE
#o appeal ma* be taken fromE
!? An order den*ing a motion for new trial or a
motion for reconsideration9
"? An order den*ing a petition for relief or an* similar
motion seeking relief from %udgment9
&? An interlocutor* order9
'? An order disallowing or dismissing an appeal9
(? An order den*ing a motion to set aside a %udgment
b* consent7 confession or compromise on the
ground of fraud7 mistake or duress7 or an* other
ground vitiating consent9
)? An order of e1ecution9
+? A %udgment or final order for or against one or
more of several parties or in separate claims7
counterclaims7 cross-claims7 and third-part*
complaints7 while the main case is pending7 unless
the court allows an appeal therefrom9 and
-? An order dismissing and action without pre%udice
(Sec. 1, *ue 81).
A ,uestion that was never raised in the courts below cannot
be allowed to be raised for the first time on appeal without
offending basic rules of fair pla*7 %ustice and due process.
5or an appellate court to consider a legal ,uestion7 it should
have been raised in the court below. :t would be unfair to the
adverse part* who would have no opportunit* to present
evidence in contra to the new theor*7 which it could have
done had it been aware of it at the time of the hearing before
the trial court. :t is true that this rule admits of e1ceptions as
in cases of lack of %urisdiction7 where the lower court
committed plain error7 where there are %urisprudential
developments affecting the issues7 or when the issues raised
present a matter of public polic*.
4he court ma* consider an error not raised on appeal
provided the same falls within an* of the following
categoriesE
!? :t is an error that affects the %urisdiction over the
sub%ect matter9
"? :t is an error that affects the validit* of the
%udgment appealed from9
&? :t is an error which affects the proceedings9
'? :t is an error closel* related to or dependent on an
assigned error and properl* argued in the brief9 or
(? :t is a plain and clerical error.
REMED' A+AINST .(D+MENTS AND ORDERS
W>I/> ARE NOT A,,EALABLE
 :n those instances where the %udgment or final order is
not appealable7 the aggrieved part* ma* file the
appropriate special civil action under *ue ;5.
 *ue ;5 refers to the special civil actions of certiorari7
prohibition and mandamus >C$?.
 racticall*7 it would be the special civil action of
certiorari that would be availed of under most
circumstances. 4he most potent remed* against those
%udgments and orders from which appeal cannot be
taken is to allege and prove that the same were issued
without %urisdiction7 with grave abuse of discretion or in
e1cess of %urisdiction7 all amounting to lack of
%urisdiction.
MODES O) A,,EAL ;SE/& 2? R(LE 21=
>a? ORDINAR' A,,EAL
4he appeal to the CA in cases decided b* the R4C
in the e1ercise of its original %urisdiction shall be
taken b* :i$ing a notic o: a--a$ with the court
which rendered the %udgment or final order
appealed from and serving a cop* thereof upon the
adverse part*.
 #o record on appeal shall be re,uired e1cept in
special proceedings and other cases of multiple
or separate appeals where the law or the Rules
so re,uire. :n such cases7 the record on appeal
shall be filed and served in like manner.
>b? ,ETITION )OR REVIEW
 4he appeal to the CA in cases decided b* the
R4C in the e1ercise of its appellate %urisdiction
shall be b* -tition :or r0i" in "ccor'"nce
)ith *ue 82.
>c? ,ETITION )OR REVIEW ON /ERTIORARI
 :n all cases where onl* ,uestions of law are raised
or involved7 the appeal shall be to the SC b*
-tition :or r0i" on crtiorari in "ccor'"nce
)ith *ue 85.
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BERT – NOTES in REMEDIAL LAW
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ISS(ES TO BE RAISED ON A,,EAL
<hether or not the appellant has filed a motion for new trial
in the court below7 he ma* include in his assignment or
errors an* ,uestion of law or fact that has been raised in the
court below and which is within the issues framed b* the
parties (Sec. 15, *ue 88).
!? :n an 3rdinary Appeal7 the appeal raises the
,uestions of fact or mi1ed ,uestions of fact and
law.
"? :n Petition for /eview7 the appeal raises ,uestions
of fact7 of law or mi1ed ,uestions of fact and law.
&? :n a Petition for /eview on )ertiorari7 the appeal
raises purel* ,uestions of law.
,ERIOD O) A,,EAL
,ERIOD O) ORDINAR' A,,EAL (NDER R(LE 20
 An appeal ma* be taken (fro$ ,1C to *1C) within
!( da*s after notice to the appellant of the %udgment
or final order appealed from. <here a record on
appeal is re,uired7 the appellant shall file a notice
of appeal and a record on appeal within &D da*s
after notice of the %udgment or final order.
 4he period of appeal shall be interrupted b* a
timel* motion for new trial or reconsideration.
 #o motion for e1tension of time to file a motion for
new trial or reconsideration shall be allowed (Sec.
2).
,ERIOD O) ORDINAR' A,,EAL (NDER R(LE 21=
 4he appeal shall be taken within !( da*s from
notice of the %udgment or final order appealed from.
<here a record on appeal is re,uired7 the appellants
shall file a notice of appeal and a record on appeal
within &D da*s from notice of the %udgment or final
order.
 0owever7 on appeal in habeas corpus cases shall be
taken within '- hours from notice of the %udgment
or final order appealed from (A, -o. .1/1/.3/SC,
2une 19, 2..1).
 4he period of appeal shall be interrupted b* a
timel* motion for new trial or reconsideration.
 #o motion for e1tension of time to file a motion for
new trial or reconsideration shall be allowed (Sec.
3).
 :f the record on appeal is not transmitted to the CA
within &D da*s after the perfection of appeal7 either
part* ma* file a motion with the trial court7 with
notice to the other7 for the transmittal of such
record or record on appeal (Sec. 3, *ue 88).
,ERIOD O) ,ETITION )OR REVIEW (NDER R(LE
22
 4he petition shall be filed and served within !(
da*s from notice of the decision sought to be
reviewed or of the denial of petitionerCs motion for
new trial or reconsideration filed in due time after
%udgment.
 4he court ma* grant and additional period of !(
da*s onl* provided the e1tension is sought
a? upon proper motion7 and
b? there is pa*ment of the full amount of the
docket and other lawful fees and the
deposit for costs before the e1piration of
the reglementar* period.
 #o further e1tension shall be granted e1cept for the
most compelling reason and in no case to e1ceed !(
da*s.
,ERIOD O) A,,EAL B' ,ETITION )OR REVIEW
(NDER R(LE 21
 4he appeal shall be taken within !( da*s from
notice of the award7 %udgment7 final order or
resolution7 or from the date of its last publication7 if
publication is re,uired b* law for its effectivit*7 or
of the denial of petitionerCs motion for new trial or
reconsideration dul* filed in accordance with the
governing law of the court or agenc* a ,uo.
 3nl* one >!? motion for reconsideration shall be
allowed. Bpon proper motion and the pa*ment of
the full amount of the docket fee before the
e1piration of the reglementar* period7 the CA ma*
grant an additional period of !( da*s onl* within
which to file the petition for review.
 #o further e1tension shall be granted e1cept for the
most compelling reason and in no case to e1ceed !(
da*s (Sec. 8).
,ERIOD O) A,,EAL B' ,ETITION )OR REVIEW
ON /ERTIORARI (NDER R(LE 23
 4he appeal which shall be in the form of a verified
petition shall be filed within !( da*s from notice of
the %udgment7 final order or resolution appealed
from7 or within !( da*s from notice of the denial of
the petitionerCs motion for new trail or motion for
reconsideration filed in due time.
 4he Supreme Court ma*7 for %ustifiable reasons7
grant an e1tension of &D da*s onl* within which to
file the petition providedE
a? there is a motion for e1tension of time
dul* filed and served9
b? there is full pa*ment of the docket and
other lawful fees and the deposit for costs9
and
c? the motion is filed and served and the
pa*ment is made before the e1piration of
the reglementar* period.
MODE O) A,,EAL ,ERIOD O) A,,EAL ,rio# o: a--a$ i: -arty :i$s M)R or N" Tria$ (4eypes
octrine)
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
42
Or#inary A--a$
(/ules 50, 51)
a= Notic o: A--a$
(/ule 50)
<ithin !( da*s from receipt of
%udgment or final order
<ithin !( da*s from receipt of order den*ing motion for
reconsideration or new trial
9= Rcor# on A--a$
(/ule 51)
<ithin &D da*s from receipt of
%udgment or final order
4he &D-da* to file the notice of appeal and record on appeal
should reckoned from the receipt of the order den*ing the
motion for new trial or motion for reconsi'er"tion (>"+co 6s.
Ci$o, A!ri 1;, 2..<)
,tition :or R0i"
(/ule 52)
<ithin !( da*s from receipt of
%udgment
<ithin !( da*s from receipt of the order den*ing motion for
reconsideration or new trial
,tition :or R0i"
(/ule 5*)
<ithin !( da*s from receipt of
%udgment or final order or of last
publication
<ithin !( da*s from receipt of the order den*ing motion for
reconsideration or new trial
A--a$ 9y /rtiorari
(/ule 5")
<ithin !( da*s from receipt of
%udgment or final order
<ithin !( da*s from receipt of the order den*ing motion for
reconsideration or new trial
,ER)E/TION O) A,,EALS
)or Or#inary A--a$s :rom MT/ to t! RT/ ;R%$ 20=
an# :rom t! RT/ to t! /A ;R%$ 21=&
 A part*Cs appeal b* notice of appeal is deemed
perfected as to him upon the filing of the notice of
appeal in due time. Bpon such perfection or the
e1piration of the same to appeal b* the other
parties7 the court loses %urisdiction over the sub%ect
matter thereof
 A part*Cs appeal b* record on appeal is deemed
perfected as to him with respect to the sub%ect
matter thereof upon the approval of the record on
appeal filed in due time. 4he court has %urisdiction
onl* over the sub%ect matter thereof upon such
approval for the e1piration of the time to appeal of
the other parties.
 :n either case7 prior to the transmittal of the original
record or the record on appeal7 the court ma* issue
orders for the protection and preservation of the
rights of the parties which do not involve an*
matter litigated b* the appeal7 approve
compromises7 permit appeals of indigent litigants7
order e1ecution pending appeal in accordance with
Sec. 2, *ue 39, and allow withdrawal of the appeal
(Sec. 9, *ue 81).
,r:ction o: A--a$ 9y ,tition :or R0i" %n#r R%$
22& ;Sc&6=
 Bpon the timel* filing of a petition for review and
the pa*ment of the corresponding docket and other
lawful fees7 the appeal is deemed perfected as to the
petitioner.
 4he R4C loses %urisdiction over the case upon the
perfection of the appeals filed in due time and the
e1piration of the time to appeal of the other parties.
 0owever7 before the CA give due course to the
petition7 the R4C ma* issue orders for the
protection and preservation of the rights of the
parties which do not involve an* matter litigated b*
the appeal7 approve compromises7 permit appeals of
indigent litigants7 order e1ecution pending appeal in
accordance with Sec. 2, *ue 39, and allow
withdrawal of the appeal.
 21cept in civil cases decided under Rules on
Summar* rocedure7 the appeal shall sta* the
%udgment or final order unless the CA7 the law7 or
the Rules provide otherwise.
A,,EAL )ROM .(D+MENTS OR )INAL ORDERS
O) T>E MT/
An appeal from a %udgment or final order of a $4C ma* be
taken to the R4C e1ercising %urisdiction over the area over
which the $4C sits. 4he title of the case shall remain as it
was in the court of origin7 but the part* appealing the case
shall be further referred to as the appellant and the adverse
part* as the appellee (Sec. 1, *ue 8.).
<here the $4C dismisses a case for lack of %urisdiction of
such dismissal is made to the R4C7 should the latter affirm
the dismissal and if it has %urisdiction over the sub%ect
matter7 the R4C is obliged to tr* the case as if it were
originall* filed with it.
4he appeal is taken b* filing a notice of appeal with the
court that rendered the %udgment or final order appealed
from. 4he notice of appeal shall indicate the parties to the
appeal7 the %udgment or final order or part thereof appealed
from7 and state the material dates showing the timeliness of
the appeal. A record on appeal shall be re,uired onl* in
special proceedings and in other cases of multiple or
separate appeals.
A,,EAL )ROM .(D+MENTS OR )INAL ORDERS
O) T>E RT/
4here are three modes of appealing a %udgment or final order
of the R4CE
!? Or#inary A--a$ (*ue 81) from the %udgment or
final order of the R4C in the e1ercise of its original
%urisdiction
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
41
"? ,tition :or R0i" (*ue 82) from the %udgment
or final order of the R4C to the CA in cases
decided b* the R4C in the e1ercise of its appellate
%urisdiction
&? ,tition :or R0i" on /rtiorari (*ue 85)
A,,EAL )ROM .(D+MENTS OR )INAL ORDERS
O) T>E /A
a? Appeal from the %udgments or final orders of the CA
concerning purel* ,uestions of law which must be
distinctl* set forth ma* be elevated to the SC b* wa* of
*ue 850 ,titions :or R0i" on /rtiorari&
b? 4he general rule is that the SC shall not entertain
,uestions of fact7 e1cept in the following casesE
a? 4he conclusion of the CA is grounded entirel*
on speculations7 surmises and con%ectures9
b? 4he inference made is manifestl* mistaken7
absurd or impossible9
c? 4here is grave abuse of discretion9
d? 4he %udgment is based on misapprehension of
facts9
e? 4he findings of facts are conflicting9
f? 4he CA in making its findings went be*ond the
issues of the case and the same is contrar* to
the admissions of both appellant and appellee9
g? 4he findings are contrar* to those of the trial
court9
h? 4he facts set forth in the petition as well as in
the petitionerLs main and repl* briefs are not
disputed b* the respondents9
i? 4he findings of fact of the CA are premised on
the supposed absence of evidence and
contradicted b* the evidence on record9 or
%? 4hose filed under <rits of amparo7 habeas
data7 or kalikasan.
A,,EAL )ROM .(D+MENTS OR )INAL ORDERS
O) T>E /TA
Bnder Sec. 11 of *A 92<2, no civil proceeding involving
matters arising under the #:RC7 the 4CC or the Local
8overnment Code shall be maintained7 e1cept as herein
provided7 until and unless an appeal has been previousl*
filed with the C4A and disposed of in accordance with the
provisions of the Act.
A part* adversel* affected b* a resolution of a Division of
C4A on a motion for reconsideration or new trial7 ma* file a
petition for review with the C4A en banc.
Sec. 11 of *A 92<2 further provides that a part* adversel*
affected b* a decision or ruling of the C4A en banc ma* file
with the SC a verified -tition :or r0i" on crtiorari
pursuant to *ue 85.
REVIEW O) )INAL .(D+MENTS OR )INAL
ORDERS O) T>E /OMELE/
A %udgment7 resolution or final order of the C3$2L2C ma*
be brought b* the aggrieved part* to the SC on certiorari
under *ue ;5 in relation to *ue ;8, b* filing the petition
within &D da*s from notice.
REVIEW O) )INAL ORDERS O) T>E /S/
A %udgment7 final order or resolution of the Civil Service
Commission ma* be taken to the CA under *ue 83. -ote
the 'ifference %et)een the $o'e of "!!e" fro$ " &u'3$ent
of the CSC "n' the $o'e of "!!e" fro$ the &u'3$ents of
other constitution" co$$issions.
REVIEW O) )INAL ORDERS O) T>E /OA
A %udgment7 resolution or final order of the Commission on
Audit ma* be brought b* the aggrieved part* to the SC on
certiorari under *ue ;5 in relation to *ue ;87 b* filing the
petition within &D da*s from notice.

REVIEW O) )INAL ORDERS O) T>E
OMB(DSMAN
Appeals from decisions of the 3mbudsman in
a#ministrati0 #isci-$inary actions should be brought to
the CA under *ue 83.
4he CA has %urisdiction over orders7 directives and decisions
of the 3ffice of the 3mbudsman in administrative cases onl*
under *ue 83.
 But in cases in which it is alleged that the
3mbudsman has acted with grave abuse of
discretion amounting to lack or e1cess of
%urisdiction amounting to lack or e1cess of
%urisdiction7 a special civil action of certiorari under
*ue ;5 ma* be filed with the SC to set aside the
3mbudsmanCs order or resolution.
In crimina$ or non<a#ministrati0 cas7 the ruling of
the 3mbudsman shall be elevated to the SC b* wa* of
*ue ;5.
4he SCCs power to review over resolutions and orders of the
3ffice of the 3mbudsman is restricted on to determining
whether grave abuse of discretion has been committed b* it.
4he Court is not authori@ed to correct ever* error or mistake
of the 3ffice of the 3mbudsman other than grave abuse of
discretion. 4he remed* is not a petition for review on
certiorari under Rule '(.
REVIEW O) )INAL ORDERS O) T>E NLR/
4he remed* of a part* aggrieved b* the decision of the
#ational Labor Relations Commission >#LRC? is to
promptl* move for the reconsideration of the decision and if
denied to timel* file a special civil action of certiorari under
Rule )( within )D da*s from notice of the decision.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
42
:n observance of the doctrine of hierarch* of courts7 the
petition for certiorari should be filed in the CA >St. ,"rtin
Duner" Co$es 6s. -5*C, Se!t. 1;, 199<). Should the same
be filed with the SC7 the latter shall dismiss the same instead
of referring the action to the CA.
REVIEW O) )INAL ORDERS O) T>E A(ASI<
.(DI/IAL A+EN/IES
 Appeals from %udgments and final orders of ,uasi-
%udicial bodies6agencies are now re,uired to be brought
to the CA.
 4his rule was adopted precisel* to provide a uniform
rule of appellate procedure from ,uasi-%udicial bodies.
 4he appeal under *ue 83 ma* be taken to the CA
whether the appeal involves a ,uestion of fact7 a
,uestion of law7 or mi1ed ,uestions of fact and law b*
filing a verified petition for review with the CA.
 4he appeal shall #34 sta* the award7 %udgment7 final
order or resolution sought to be reviewed B#L2SS the
CA shall direct otherwise upon such terms as it ma*
deem %ust.
RELIE)S )ROM .(D+MENTS (or petition for relief
from denial of appeal) ORDERS AND OT>ER
,RO/EEDIN+S ;R(LE 16=
A petition for relief from %udgment is an e,uitable remed*
that is allowed onl* in e1ceptional cases when there is no
other available or ade,uate remed*.
A remed* where a part* seek to set aside a %udgment
rendered against him b* a court whenever he was un%ustl*
deprived of a hearing or was prevented from taking an
appeal because of fraud7 accident7 mistake or e1cusable
negligence.
Bnder Sec. 5, *ue 3<7 the court ma* grant preliminar*
in%unction to preserve the rights of the parties upon the filing
of a bond in favor of the adverse part*. 4he bond is
conditioned upon the pa*ment to the adverse part* of all
damages and costs that ma* be awarded to such adverse
part* b* reason of the issuance of the in%unction (Sec. 5).
+RO(NDS )OR AVAILIN+ O) T>E REMED'
;,ETITION )OR RELIE)=
<hen a %udgment or final order is entered7 or an* other
proceeding is thereafter taken against a part* in an* court
through >a? fraud7 >b? accident7 >c? mistake7 or >c? e1cusable
negligence >5A$2#?7 he ma* file a petition in such court
and in the same case pra*ing that the %udgment7 order or
proceeding be set aside (Sec. 1, *ue 3<).
<hen the petitioner has been prevented from taking an
appeal b* fraud7 mistake7 or e1cusable negligence (Sec. 2).
TIME TO )ILE ,ETITION
A petition for relief from %udgment7 order or other
proceedings must be verified7 filedE
!? within )D da*s after the petitioner learns of the
%udgment7 final order7 or other proceeding to be set
aside7 and
"? not more than si1 >)? months after such %udgment or
final order was entered7 or such proceeding was
taken.
 4hese two periods must concur. Both periods
are not e1tendible and are never interrupted.
/ONTENTS O) ,ETITION
4he petition must be verified and must be accompanied with
affidavits showing fraud7 accident7 mistake or e1cusable
negligence relied upon and it must have an affidavit of merit
showing the facts constituting the petitionerCs good and
substantial cause of action or defense7 as the case ma* be.
ANN(LMENT O) .(D+MENTS OR )INAL ORDERS
AND RESOL(TIONS ;R(LE 25=
4he annulment of %udgment if a remed* independent of the
case where the %udgment sought to be annulled was rendered
and ma* be availed of though the %udgment ma* have been
e1ecuted.
:ts purpose is to have the %udgment set aside so that there
will be a renewal of litigation where the ordinar* remedies
of new trial7 appeal7 relief from %udgment are no longer
available without the petitionerCs fault.
+RO(NDS )OR ANN(LMENT
(+ou shou' %e " !"rt+ to the c"se)
!? 6-trinsic 'raud – e1ists when there is a fraudulent act
committed b* the prevailing part* outside the trial of the
case7 whereb* the defeated part* was prevented from
presenting full* his side of the case b* deception
practiced on him b* the prevailing part*.
"? 7ac! of $urisdiction – refers to either lack of
%urisdiction over the person of the defendant or over the
sub%ect matter of the claim.
,ERIOD TO )ILE A/TION
:f based on 6-trinsic 'raud
 action must be filed within four >'? *ears from its
discover*
:f based on 7ac! of $urisdiction
 before it is barred b* laches or estoppels
E))E/TS O) .(D+MENT O) ANN(LMENT
!? 3n 6-trinsic 'raud
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
43
a? 4he court7 upon motion ma* order the trial court to
tr* the case as if a motion for new trial had been
granted.
b? 4he prescriptive period shall not be suspended if
the e1trinsic fraud is attributable to the plaintiff in
the original action.
"? 3n the ground of 7ac! of $urisdiction
a? 4he ,uestioned %udgment7 order or resolution
shall be set aside and rendered null and void.
4he nullit* shall be without pre%udice to the
refiling of the original action in the proper
court.
b? 4he prescriptive period to re-file shall be
deemed suspended from the filing of such
original action until the finalit* of the %udgment
of annulment.
/OLLATERAL ATTA/8 O) .(D+MENTS
A collateral attack is made when7 in another action to obtain
a different relief7 an attack on the %udgment is made as an
incident in said action.
4his is proper onl* when the %udgment7 on its face7 is null
and void7 as where it is patent that the court which rendered
said %udgment has no %urisdiction.
E#"$!esE
 A petition for certiorari under *ue ;5 is a direct
attack. :t is filed primaril* to have an order
annulled.
 An action for annulment of a %udgment is likewise a
direct attack on a %udgment.
 A motion to dismiss a complaint for collection of a
sum of mone* filed b* a corporation against the
defendant on the ground that the plaintiff has no
legal capacit* to use is a collateral attack on the
corporation. A motion to dismiss is incidental to the
main action for sum of mone*. :t is not filed as an
action intended to attack the legal e1istence of the
plaintiff.
E*E/(TION? SATIS)A/TION AND E))E/T O)
.(D+MENTS ;R%$ 17=
 :ssuance of the writ is ministerial
 8ranting of the writ is %udicial
DI))EREN/E BETWEEN )INALIT' O)
.(D+MENT )OR ,(R,OSE O) A,,EALH )OR
,(R,OSES O) E*E/(TION
5or purposes of appeal7 an order is final if it disposes of the
action as opposed to an interlocutor* order which leaves
something to be done in the trial court with respect to the
merits of the case.
5or purposes of e1ecution7 an order is final or e1ecutor*
after the lapse of the reglementar* period to appeal and no
such appeal has been perfected.
W>EN E*E/(TION S>ALL ISS(EH E*E/(TION AS
A MATTER O) RI+>T ;SE/& 1=
21ecution is a matter of right upon the e1piration of the
period to appeal and no appeal was perfected from a
%udgment or order that disposes of the action or proceeding.
3nce a %udgment becomes final and e1ecutor*7 the
prevailing part* can have it e1ecuted as a matter of right7
and the issuance of a writ of e1ecution becomes the
ministerial dut* of the court compellable b* mandamus
e1cept in certain cases7 as when subse,uent events would
render e1ecution of %udgment un%ust.
/udgments and orders become final and e1ecutor b*
operation of law and not b* %udicial declaration. 4he trial
court need not even pronounce the finalit* of the order as the
same becomes final b* operation of law. :ts finalit* becomes
a fact when the reglementar* period for appeal lapses7 and
no appeal is perfected within such period.
21ecution is a matter or right7 e1cept in the following casesE
a? <here %udgment turns out to be incomplete or
conditional9
b? /udgment is novated b* the parties9
c? 2,uitable grounds >i.e.7 change in the situation of
the partiesSsupervening fact doctrine?
d? 21ecution is en%oined >i.e.7 petition for relief from
%udgment or annulment of %udgment with 4R3 or
writ of preliminar* in%unction?9
e? /udgment has become dormant9 or
f? 21ecution is un%ust or impossible.
DIS/RETIONAR' E*E/(TION ;SE/& 2= J e1ecution
pending appeal
:t constitutes an e1ception to the general rule that a %udgment
cannot be e1ecuted before the lapse of the period for appeal
or during the pendenc* of an appeal.
Bnder Sec. 1, *ue 397 e1ecution shall issue onl* as a matter
of right upon a %udgment or final order that finall* disposes
of the action or proceeding upon the e1ecution of the period
to appeal therefrom if no appeal has been dul* perfected.
A discretionar* e1ecution is called Mdiscretionar*N precisel*
because it is not a matter of right. 4he e1ecution of a
%udgment under this concept is addressed to the discretionar*
power of the court and cannot be insisted upon but simpl*
pra*ed and hoped for because a discretionar* e1ecution is
not a matter of right.
Re,uisites for discretionar* e1ecutionE
!? 4here must be a motion filed b* the prevailing
part* with notice to the adverse part*9
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
44
"? 4here must be a hearing of the motion for
discretionar* e1ecution9
&? 4here must be good reasons to %ustif* the
discretionar* e1ecution9 and
'? 4he good reasons must be stated in a special order
(Sec. 2, *ue 39).
>OW A .(D+MENT IS E*E/(TED ;SE/& 2=
/udgments in actions for in%unction7 receivership7 accounting
and support7 and such other %udgments as are now or ma*
hereafter be declared to be immediatel* e1ecutor*7 shall be
enforceable after their rendition and shall not be sta*ed b*
an appeal taken therefrom7 unless otherwise ordered b* the
trial court.
3n appeal7 the appellate court in its discretion ma* make an
order suspending7 modif*ing7 restoring or granting the
in%unction7 receivership7 accounting7 or award of support.
4he sta* of e1ecution shall be upon such terms as to bond or
otherwise as ma* be considered proper for the securit* or
protection of the rights of the adverse part*.
/udgments that ma* be altered or modified after becoming
final and e1ecutor*E
!? 5acts and circumstances transpire which render its
e1ecution impossible or un%ust9
"? Support9
&? :nterlocutor* %udgment.
E*E/(TION B' MOTION OR B' INDE,ENDENT
A/TION ;SE/& 4=
a? 3nce revived7 then *ou can file a motion for e1ecution
b? 21ecution b* $34:3# ma* be had if the enforcement
of the %udgment is sought within ( *ears from the date
of its entr*.
c? 21ecution b* :#D22#D2#4 AC4:3# is when the (
*ear period has lapsed from the entr* of %udgment and
before it is barred b* the statute of limitations. 4his
action to revive the %udgment must be filed within !D
*ears from the date the %udgment became final.
ISS(AN/E AND /ONTENTS O) A WRIT O)
E*E/(TION ;SE/& 6=
4his is onl* upon motion and its lifetime is ( *ears9 as a rule7
it is issued b* the court of original %urisdiction
4he writ of e1ecution shallE
!? issue in the name of the Republic of the hilippines
from the court which granted the motion9
"? state the name of the court7 the case number and
title7 the dispositive part of the sub%ect %udgment or
order9 and
&? re,uire the S02R:55 (shou' $"9e " re!ort e6er+
3. '"+s) or other proper officer to whom it is
directed to enforce the writ according to its term7 in
the manner hereinafter providedE
a? :f the e1ecution be against the propert* of the
%udgment obligor7 to satisf* the %udgment7 with
interest7 out of the real or personal propert* of
such %udgment obligor9
b? :f it be against real or personal propert* in the
hands of personal representatives7 heirs7
devisees7 legatees7 tenants7 or trustees of the
%udgment obligor7 to satisf* the %udgment7 with
interest7 out of such propert*9
c? :f it be for the sale of real or personal propert*7
to sell such propert*7 describing it7 and appl*
the proceeds in conformit* with the %udgment7
the material parts of which shall be recited in
the writ of e1ecution9
d? :f it be for the deliver* of the possession of real
or personal propert*7 to deliver the possession
of the same7 describing it7 to the part* entitled
thereto7 and to satisf* an* costs7 damages7
rents7 or profits covered b* the %udgment out of
the personal propert* of the person against
whom it was rendered7 and if sufficient
personal propert* cannot be found7 then out of
the real propert*9 and
e? :n all cases7 the writ of e1ecution shall
specificall* state the amount of the interest7
costs7 damages7 rents7 or profits due as of the
date of the issuance of the writ7 aside from the
principal obligation under the %udgment. 5or
this purpose7 the motion for e1ecution shall
specif* the amounts of the foregoing reliefs
sought b* the movants.
E*E/(TION O) .(D+MENT )OR MONE'
;SE/& 7=
a? 8mmediate payment on demand 9 4he officer enforcing
the writ shall demand from the %udgment obligor the
immediate pa*ment of the full amount stated in the
%udgment including the lawful fees in cash7 certified
check pa*able to the %udgment oblige or "n+ other for$
of !"+$ent "cce!t"%e to him (Sec. 9).
 the sheriff is re,uired to first make a demand on the
obligor for the immediate pa*ment of the full
amount stated in the writ of e1ecution
b? &atisfaction by levy 9 :f the %udgment obligor cannot
pa* all or part of the obligation in cash7 certified check
or other mode of pa*ment7 the officer shall lev* upon
the properties of the %udgment obligor.
 4he %udgment obligor shall have the option to
choose which propert* or part thereof ma* be
levied upon. Should he fail to e1ercise the option7
the officer shall first lev* on the personal
properties7 if an*7 and then on the real properties if
the personal properties are insufficient to answer
for the personal %udgment but the sheriff shall sell
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onl* so much of the propert* that is sufficient to
satisf* the %udgment and lawful fees
c? :arnishment of debts and credits 9 4he officer ma*
lev* on the debts due the %udgment obligor including
bank deposits7 financial interests7 ro*alties7
commissions and other personal propert* not capable of
manual deliver* in the possession or control of the third
persons.
E*E/(TION O) .(D+MENT )OR S,E/I)I/ A/TS
;SE/& 10=
:f the %udgment re,uires a person to perform a specific act7
said act must be performed but if the part* fails to compl*
within the specified time7 the court ma* direct the act to be
done b* someone at the cost of the disobedient part* and the
act when so done shall have the effect as if done b* the part*
:f the %udgment directs a conve*ance of real or personal
propert*7 and said propert* is in the hilippines7 the court in
lieu of directing the conve*ance thereof7 ma* b* an order
divest the title of an* part* and vest it in others7 which shall
have the force and effect of a conve*ance e1ecuted in due
form of law.
E*E/(TION O) S,E/IAL .(D+MENTS ;SE/& 11=
<hen a %udgment re,uires the performance of an* act other7
a certified cop* of the %udgment shall be attached to the writ
of e1ecution and shall be served b* the officer upon the
part* against whom the same is rendered7 or upon an* other
person re,uired thereb*7 or b* law7 to obe* the same7 and
such part* or person ma* be punished for contempt if he
disobe*s such %udgment.
E))E/T O) LEV' ON T>IRD ,ERSONS
4he lev* on e1ecution shall create a lien in favor of the
%udgment obligee over the right7 title and interest of the
%udgment obligor in such propert* at the time of the lev*7
sub%ect to liens and encumbrances then e1isting.
,RO,ERTIES E*EM,T )ROM E*E/(TION
;SE/& 11=
2RC24 as otherwise e1pressl* provided b* law7 the
following propert*7 and no other7 shall be e#e$!t fro$
e#ecution0
!? 4he %udgment obligorLs famil* home as provided b*
law7 or the homestead in which he resides7 and the land
necessaril* used in connection therewith9
"? 3rdinar* tools and implements personall* used b* him
in his trade7 emplo*ment7 or livelihood9
&? 4hree horses7 or three cows7 or three carabaos7 or other
beasts of burden7 such as the %udgment obligor ma*
select necessaril* used b* him in his ordinar*
occupation9
'? 0is necessar* clothing and articles for ordinar* personal
use7 e1cluding %ewelr*9
(? 0ousehold furniture and utensils necessar* for
housekeeping7 and used for that purpose b* the
%udgment obligor and his famil*7 such as the %udgment
obligor ma* select7 of a value not e1ceeding !DD7DDD
pesos.
)? rovisions for individual or famil* use sufficient for
four months9
+? 4he professional libraries and e,uipment of %udges7
law*ers7 ph*sicians7 pharmacists7 dentists7 engineers7
surve*ors7 clerg*men7 teachers7 and other professionals7
not e1ceeding &DD7DDD pesos9
-? 3ne fishing boat and accessories not e1ceeding the total
value of !DD7DDD pesos owned b* a fisherman and b*
the lawful use of which he earns his livelihood9
.? So much of the salaries7 wages7 or earnings of the
%udgment obligor for his personal services with '
months preceding the lev* as are necessar* for the
support of his famil*9
!D? Lettered gravestones9
!!? $onies7 benefits7 privileges7 or annuities accruing or in
an* manner growing out of an* life insurance9
!"? 4he right to receive legal support7 or mone* or propert*
obtained as such support7 or an* pension or gratuit*
from the government9 and
!&? roperties speciall* e1empted b* law (Sec. 13, *ue 39).
:f the propert* is the sub%ect of e1ecution because of a
%udgment for the recover* of the price or upon %udgment of
foreclosure of a mortgage upon the propert*7 the propert* is
not e1empt from e1ecution.
,RO/EEDIN+S W>ERE ,RO,ERT' IS /LAIMED
B' T>IRD ,ERSONS ;SE/& 14=
:f the propert* levied on is claimed b* an* person other than
the %udgment obligor or his agent7 the officer shall not be
bound to keep the propert*7 unless such %udgment obligee7
on demand of the officer7 files a bond approved b* the court
to indemnif* the third-part* claimant in a sum not less than
the value of the propert* levied on.
4he officer shall not be liable for damages for the taking or
keeping of the propert*7 to an* third-part* claimant if such
bond is filed.
Re,uisites for a claim b* a third personE
a? 4he propert* is levied9
b? 4he claimant is a person other than the %udgment
obligor or his agent9
c? $akes an affidavit of his title thereto or right to the
possession thereof stating the grounds of such right
or title9 and
d? Serves the same upon the officer making the lev*
and the %udgment obligee.
IN RELATION TO T>IRD ,ART' /LAIM IN
ATTA/>MENT AND RE,LEVIN
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Remedies available to a third person not part* to the action
but whose propert* is the sub%ect of e1ecutionE
a= TER/ERIA
 B* making an affidavit of his title thereto or his
right to possession thereof7 stating the grounds of
such right or title.
 4he affidavit must be served upon the sheriff and
the attaching part* (Sec. 18, *ue 5:).
 Bpon service of the affidavit upon him7 the sheriff
shall not be bound to keep the propert* under
attachment e1cept if the attaching part* files a bond
approved b* the court.
 4he sheriff shall not be liable for damages for the
taking or keeping of the propert*7 if such bond shall
be filed.
b? E*/L(SION OR RELEASE O) ,RO,ERT'
 Bpon application of the third person through a
motion to set aside the lev* on attachment7 the
court shall order a summar* hearing for the purpose
of determining whether the sheriff has acted rightl*
or wrongl* in the performance of his duties in the
e1ecution of the writ of attachment.
 4he court ma* order the sheriff to release the
propert* from the erroneous lev* and to return the
same to the third person.
 :n resolving the application7 the court cannot pass
upon the ,uestion of title to the propert* with an*
character of finalit* but onl* insofar as ma* be
necessar* to decide if the sheriff has acted correctl*
or not.
c= INTERVENTION
 4his is possible because no %udgment has *et been
rendered and under the rules7 a motion for
intervention ma* be filed an* time before the
rendition of the %udgment b* the trial court (Sec. 2,
*ue 19).
d? A//ION REINVINDI/ATORIA
 4he third part* claimant is not precluded b* Sec.
18, *ue 5: from vindicating his claim to the
propert* in the same or in a separate action.
 0e ma* file a separate action to nullif* the lev*
with damages resulting from the unlawful lev* and
sei@ure. 4his action ma* be a totall* distinct action
from the former case.
R(LES ON REDEM,TION
W>AT MA' BE REDEEMEDI
 4he right of redemption is available onl* to real
properties. <hen personal properties are sold in
e1ecution their sale is absolute and no right of
redemption ma* be e1ercised.
W>O MA' REDEEMI
a? /udgment obligor7 or his successor in interest in the
whole or an* part of the propert*9
b? Redemptioner J a creditor having a lien b* virtue of
an attachment7 %udgment or mortgage on the
propert* sold7 or on some part thereof7 subse,uent
to the lien under which the propert* was sold.
W>EN TO REDEEMI
a? B* the %udgment obligor - within ! *ear from the
date of the registration of the certificate of sale.
b? B* the redemptioner - within ! *ear from the date
of the registration of the certificate of sale if he is
the first redemptioner7 or
c? <ithin )D da*s after the last redemption if he is a
subse,uent redemptioner7 provided that the
%udgment debtor has not e1ercised his right of
redemption.
 :n all cases the %udgment obligor shall have the
entire period of one >!? *ear from the date of the
registration of the sale to redeem the propert*. If
the &u'3$ent o%i3or re'ee$s, no further
re'e$!tion is "o)e' "n' he is restore' to his
est"te.
REDEM,TION ,RI/E
a= By t! @%#gmnt o9$igor
!. urchase price
". !U interest thereon up to the time of
redemption
&. An* amount of assessments or ta1es which the
purchaser ma* have paid thereon after
purchase7 and interest on such last named
amount at the same rate.
 :f the purchaser be also a creditor having a prior
lien to that of the redemptioner7 other than the
%udgment under which such purchase was made7 the
amount of such other lien7 with interest.
9= By t! r#m-tionr
!. Amount paid on the last redemption9
". "U interest thereon
&. An* amount of assessments or ta1es which the
last previous redemptioner paid after the
redemption b* him with interest on such last-
named amount9
'. Amount of an* liens held b* the last
redemptioner prior to his own7 with interest.
8enerall* in %udicial foreclosure sale7 there is no right of
redemption7 but onl* e,uit* of redemption. :n sale of estate
propert* to pa* off debts of the estate7 there is no redemption
at all. 3nl* in e1tra%udicial foreclosure sale and sale on
e1ecution is there the right of redemption.
:f no redemption be made within one >!? *ear from the date
of the registration of the certificate of sale7 the purchaser is
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entitled to a conve*ance and possession of the propert*9 or7
if so redeemed whenever si1t* >)D? da*s have elapsed and
no other redemption has been made7 and notice thereof
given7 and the time for redemption has e1pired7 the last
redemptioner is entitled to the conve*ance and possession.
Bpon the e1piration of the right of redemption7 the purchaser
or redemptioner shall be substituted to and ac,uire all the
rights7 title7 interest and claim of the %udgment obligor to the
propert* as of the time of the lev*.
4he possession of the propert* shall be given to the
purchaser or last redemptioner b* the same officer unless a
third part* is actuall* holding the propert* adversel* to the
%udgment obligor.
E*AMINATION O) .(D+MENTS OBLI+OR W>EN
.(D+MENT IS (NSATIS)IED ;SE/& 14=
<hen the return of a writ of e1ecution issued against
propert* of a %udgment obligor7 or an* one of several
obligors in the same %udgment7 shows that the %udgment
remains unsatisfied7 in whole or in part7 the %udgment
obligee7 at an* time after such return is made7 shall be
entitled to an order from the court which rendered the said
%udgment7 re,uiring such %udgment obligor to appear and be
e1amined concerning his propert* and income before such
court or before a commissioner appointed b* it7 at a
specified time and place9 and proceedings ma* thereupon be
had for the application of the propert* and income of the
%udgment obligor towards the satisfaction of the %udgment.
But no %udgment obligor shall be so re,uired to appear
before a court or commissioner outside the province or cit*
in which such obligor resides or is found.
E*AMINATION O) OBLI+OR O) .(D+MENT
OBLI+OR ;SE/& 15=
<hen the return of a writ of e1ecution against the propert*
of a %udgment obligor shows that the %udgment remains
unsatisfied7 in whole or in part7 and upon proof to the
satisfaction of the court which issued the writ7 that person7
corporation7 or other %uridical entit* has propert* of such
%udgment obligor or is indebted to him7 the court ma*7 b* an
order7 re,uire such person7 corporation7 or other %uridical
entit*7 or an* officer or member thereof7 to appear before the
court or a commissioner appointed b* it7 at a time and place
within the province or cit* where such debtor resides or is
found7 and be e1amined concerning the same.
4he service of the order shall bind all credits due the
%udgment obligor and all mone* and propert* of the
%udgment obligor in the possession or in control of such
person7 corporation7 or %uridical entit* from the time of
service9 and the court ma* also re,uire notice of such
proceedings to be given to an* part* to the action in such
manner as it ma* deem proper.
E))E/T O) .(D+MENT OR )INAL ORDERSC RES
.(DI/ATA ;SE/& 25=
:n case of a %udgment or final order against a specific thing7
or in respect to the probate of a will7 or the administration of
the estate of a deceased person7 or in respect to the personal7
political7 or legal condition or status of a particular person or
his relationship to another7 the %udgment or final order is
conclusive upon the title to the thing7 the will or
administration7 or the condition7 status or relationship of the
person9 however7 the probate of a will or granting of letters
of administration shall onl* be prima facie evidence of the
truth of the testator or intestate9
:n other cases7 the %udgment or final order is7 with respect to
the matter directl* ad%udged or as to an* other matter that
could have been raised in relation thereto7 conclusive
between the parties and their successors in interest b* title
subse,uent to the commencement of the action or special
proceeding7 litigating for the same thing and under the same
title and in the same capacit*9 and
:n an* other litigation between the same parties or their
successors in interest7 that onl* is deemed to have been
ad%udged in a former %udgment or final order which appears
upon its face to have been so ad%udged7 or which was
actuall* and necessaril* included therein or necessar*
thereto.
EN)OR/EMENT AND E))E/T O) )OREI+N
.(D+MENTS OR )INAL ORDERS ;SE/& 26=
!? :n case of a %udgment or final order upon a specific
thing7 the %udgment or final order is conclusive upon the
title to the thing9 and
"? :n case of a %udgment or final order against a person7 the
%udgment or final order is presumptive evidence of a
right as between the parties and their successors in
interest b* a subse,uent title. :n either case7 the
%udgment or final order ma* be repelled b* evidence of
a want of %urisdiction7 want of notice to the part*7
collusion7 fraud7 or clear mistake of law or fact.
A foreign %udgment on the mere strength of its promulgation
is not *et conclusive7 as it can be annulled on the grounds of
want of %urisdiction7 want of notice to the part*7 collusion7
fraud7 or clear mistake of law or fact.
:t is likewise recogni@ed in hilippine %urisprudence and
international law that a foreign %udgment ma* be barred
from recognition if it runs counter to public polic*.
,ROVISIONAL REMEDIES ;R%$s 35<41=
NAT(RE O) ,ROVISIONAL REMEDIES
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rovisional remedies are temporar*7 au1iliar*7 and ancillar*
remedies available to a litigant for the protection and
preservation of his rights while the main action is pending.
4he* are writs and processes which are not main actions and
the* presuppose the e1istence of a principal action.
rovisional remedies are resorted to b* litigants for an* of
the following reasonsE
!? 4o preserve or protect their rights or interests while
the main action is pending9
"? 4o secure the %udgment9
&? 4o preserve the status ,uo9 or
'? 4o preserve the sub%ect matter of the action.
,ro0isiona$ rm#is s-ci:i# %n#r t! r%$s arC
!. reliminar* attachment (*ue 5:);
". reliminar* in%unction (*ue 5<);
&. Receivership (*ue 59);
'. Replevin (*ue ;.); and
(. Support pendent lite (*ue ;1).
.(RISDI/TION OVER ,ROVISIONAL REMEDIES
4he court which grants or issues a provisional remed* is the
court which has %urisdiction over the main action. 2ven an
inferior court ma* grant a provisional remed* in an action
pending with it and within its %urisdiction.
,RELIMINAR' ATTA/>MENT ;R(LE 35=
reliminar* attachment is a provisional remed* issued upon
order of the court where an action is pending to be levied
upon the propert* of the defendant so the propert* ma* be
held b* the sheriff as securit* for the satisfaction of
whatever %udgment ma* be rendered in the.
<hen availed of and is granted in an action purel* in
personam7 it converts the action to one that is ,uasi in rem.
:n an action in rem or ,uasi in rem7 %urisdiction over the res
is sufficient. /urisdiction over the person of the defendant is
not re,uired.
4here is no separate action called preliminar* attachment. :t
is availed of in relation to a principal action.
reliminar* attachment is designed toE
!? Sei@e the propert* of the debtor before final
%udgment and put the same in custodial egis even
while the action is pending for the satisfaction of a
later %udgment.
"? 4o enable the court to ac,uire %urisdiction over the
res or the propert* sub%ect of the action in cases
where service in person or an* other service to
ac,uire %urisdiction over the defendant cannot be
affected.
4hree stages in the grant of the reliminar* Attachment
!? 4he court issues the order granting the application
"? 4he writ of attachment issues pursuant to the order
granting the writ
&? 4he writ if implemented
5or the " initial stages7 it is not necessar* that %urisdiction
over the person of the defendant be first obtained. 0owever7
once the implementation of the writ commences7 the court
must have ac,uired %urisdiction over the defendant for
without such %urisdiction7 the court has no power or
authorit* to act in an* manner against the defendant.
,RELIMINAR' ATTA/>MENT >AS
T>REE T',ES
>a? ,RELIMINAR' ATTA/>MENT J one issued at the
commencement of the action or at an* time before entr* of
%udgment as securit* for the satisfaction of an* %udgment
that ma* be recovered. 0ere the court takes custod* of the
propert* of the part* against whom attachment is directed.
>b? +ARNIS>MENT J plaintiff seeks to sub%ect either the
propert* of defendant in the hands of a third person
>garnishee? to his claim or the mone* which said third
person owes the defendant. 8arnishment does not involve
actual sei@ure of propert* which remains in the hands of the
garnishee. :t simpl* impounds the propert* in the
garnisheeCs possession and maintains the status ,uo until the
main action is finall* decided. 8arnishment proceedings are
usuall* directed against personal propert*7 tangible or
intangible and whether capable of manual deliver* or not.
>c? LEV' ON E*E/(TION J writ issued b* the court
after %udgment b* which the propert* of the %udgment
obligor is taken into custod* of the court before the sale of
the propert* on e1ecution for the satisfaction of a final
%udgment. :t is the preliminar* step to the sale on e1ecution
of the propert* of the %udgment debtor.
 4he grant of the remed* is addressed to the
discretion of the court whether or not the
application shall be given full credit is discretionar*
upon the court. :n determining the propriet* of the
grant7 the court also considers the principal case
upon which the provisional remed* depends.
+RO(NDS )OR ISS(AN/E O) WRIT O)
ATTA/>MENT
At the commencement of the action or at an* time before
entr* of %udgment7 a plaintiff or an* proper part* ma* have
the propert* of the adverse part* attached as securit* for the
satisfaction of an* %udgment that ma* be recovered in the
following casesE
!? :n an action for the recover* of a specified amount
of mone* or damages7 other than moral and
e1emplar*7 on a cause of action arising from law7
contract7 ,uasi-contract7 delict or ,uasi-delict
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against a part* who is about to depart from the
hilippines with intent to defraud his creditors9
"? :n an action for mone* or propert* embe@@led or
fraudulentl* misapplied or converted to his own use
b* a public officer7 or an officer of a corporation7 or
an attorne*7 factor7 broker7 agent or clerk7 in the
course of his emplo*ment as such7 or b* an* other
person in a fiduciar* capacit*7 or for a willful
violation of dut*9
&? :n an action to recover the possession of propert*
un%ustl* or fraudulentl* taken7 detained or
converted7 when the propert*7 or an* part* thereof7
has been concealed7 removed7 or disposed of to
prevent its being found or taken b* the applicant or
an authori@ed person9
'? :n an action against a part* who has been guilt* of a
fraud in contracting the debt or incurring the
obligation upon which the action the action is
brought7 or in the performance thereof9
(? :n an action against a part* who has removed or
disposed of his propert*7 or is about to do so7 with
intent to defraud his creditors9 or
)? :n an action against a part* who does not reside and
is not found in the hilippines7 or on whom
summons ma* be served b* publication (Sec. 1).
REA(ISITES
4he issuance of an order6writ of e1ecution re,uires the
followingE
!? 4he case must be an* of those where preliminar*
attachment is proper9
"? 4he applicant must file a motion whether e# !"rte
or )ith notice "n' he"rin39
&? 4he applicant must show b* affidavit (un'er o"th)
that there is no sufficient securit* for the claim
sought to be enforced9 that the amount claimed in
the action is as much as the sum of which the order
is granted above all counterclaims9 and
'? 4he applicant must post a bond e1ecuted to the
adverse part*.
 4his is called an A44AC0$2#4 B3#D7
which answers for all damages incurred b*
the part* against whom the attachment was
issued and sustained b* him b* reason of
the attachment.
ISS(AN/E AND /ONTENTS O) ORDER O)
ATTA/>MENT
An order of attachment ma* be issued either e1 parte or
upon motion with notice and hearing b* the court in which
the action is pending7 or b* the CA or the SC.
:t ma* issue e# !"rte and even before the summons is served
upon the defendant. 0owever7 the writ ma* not be enforced
and validl* implemented unless preceded or simultaneousl*
served with the summons7 a cop* of the complaint7
application for attachment7 the order of attachment and the
attachment bond.
A))IDAVIT AND BOND
4he order of attachment shall be granted onl* when it
appears b* the affidavit of the applicant that the re,uisites
for a grant of attachment are present.
4he applicant must thereafter give a bond e1ecuted to the
adverse part* in the amount fi1ed b* the court in its order
granting the issuance of the writ7 conditioned that the latter
will pa* all the costs which ma* be ad%udged to the adverse
part* and all damages which he ma* sustain b* reason of the
attachment7 if the court shall finall* ad%udge that the
applicant was not entitled thereto
R(LE ON ,RIOR OR /ONTEM,ORANEO(S
SERVI/E O) S(MMONS
 2nforcement of the writ or preliminar* attachment must
be preceded b* contemporaneousl* accompanied b* the
service of summons7 cop* of the complaint7 application
and affidavit of the attachment and the bond in favor of
the adverse part*.
 4he failure to ac,uire %urisdiction over the person of the
adverse part* shall render the implementation of the
writ void.
21ceptions to the re,uirementE
!? <here the summons could not be served personall*
or b* substituted service despite diligent efforts9
"? 4he defendant is a resident of the hilippines who
is temporaril* out of the countr*9
&? 4he defendant is a non-resident9 or
'? 4he action is one in rem or ,uasi in rem (Sec. 5).
MANNER O) ATTA/>IN+ REAL AND ,ERSONAL
,RO,ERT'
4he sheriff enforcing the writ shall without dela* and with
all reasonable diligence attach7 to await %udgment and
e1ecution in the action7 onl* so much of the propert* in the
hilippines of the part* against whom the writ is issued7 not
e1empt from e1ecution7 as ma* be sufficient to satisf* the
applicantTs demand.
:n attaching R2AL R32R4H7 or growing crops thereon
or an* interest therein7 a cop* of the order shall be filed with
the registr* of deeds along with a description of the propert*
attached and b* leaving a cop* of such order with the
occupant of the propert*7 if an* or such other person or his
agent if found within the province.
:n attaching 2RS3#AL R32R4H capable of manual
deliver* - b* taking and safel* keeping it in his custod* after
issuing the corresponding receipt therefor.
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As to S43C=S 3R S0AR2S7 or an interest thereon7 b*
leaving with the president or managing agent of the
compan*7 a cop* of the writ7 and a notice stating that the
stock or interest of the part* against whom the attachment is
issued is attached in pursuance of such writ.
D2B4S A#D CR2D:4S7 including bank deposits7 financial
interest7 ro*alties7 commissions and other personal propert*
not capable of manual deliver* shall be attached b* leaving
with the person owing such debts7 or in possession or control
of such credits or other personal propert*7 or with his agent7
a cop* of the writ7 and notice that such properties are
attached.
As to interest of the part* against whom attachment is issued
in propert* B2L3#8:#8 43 402 2S4A42 35 402
D2C2D2#4 are attached b* giving a cop* of the writ and
notice to the e1ecutor or administrator and the office of the
clerk of court where is the estate is being settled.
:f the propert* to be attached is :# CBS1F4IA 5EGIS7 a
cop* of the writ shall be filed with the proper court or ,uasi-
%udicial agenc*7 and notice of the attachment served upon
the custodian of such propert*.
W>EN ,RO,ERT' ATTA/>ED IS /LAIMED B'
T>IRD ,ERSON
4he third part* ma* resort to an* of the following remedies
which are cumulative and thus could be resorted
independentl* and separatel* from the othersE
a? 0e ma* avail of the remed* of terceri" - b* making
an affidavit of his title thereto or his right to
possession thereof7 stating the grounds of such right
or title. 4he affidavit must be served upon the
sheriff and the attaching part*. 4he sheriff shall not
be bound to keep the propert* under attachment
e1cept if the attaching part* files a bond approved
b* the court.
b? 4he third person ma* invoke the courtCs authorit*
in the same case and move for a summar* hearing
on his claim to decide if the sheriff has acted
correctl* or not.
c? 4he third part* ma* file a separate action to nullif*
the lev* with damages resulting from the unlawful
lev* and sei@ure. 4his action ma* be totall* distinct
from the case in which the attachment was issued.
>OW TO ,REVENT T>E ATTA/>MENT
4he part* whose propert* is sought to be attached7 m*
prevent the attachment b* doing either of two thingsE
!? B* depositing with the court an amount e,ual to the
value of the propert* to be attached9 or
"? B* giving a counter bond e1ecuted to the applicant7
in an amount e,ual to the bond posted b* the latter
to secure the attachment.
DIS/>AR+E O) ATTA/>MENT AND T>E
/O(NTER<BOND
:f the attachment has alread* been enforced7 the part* whose
propert* has been attached ma* file a $34:3# to discharge
the attachment. 4his motion shall be with notice and hearing.
After due notice and hearing7 the court shall discharge the
attachment if the movants makes a CAS0 D23S:4 or files
a C3B#42R-B3#D e1ecuted to the attaching part* with
the clerk of court where the application is made.
Attachment ma* likewise be discharged without the need for
filing of a counter-bond. 4his is possible when the part*
whose propert* has been attached files a motion to set aside
or discharge the attachment and during the hearing of the
motion7 he proves thatE
!? 4he attachment was improperl* or irregularl*
issued or enforced9 or
"? 4he bond of the attaching creditor is insufficient9 or
&? 4he attachment is e1cessive and must be discharged
as to the e1cess9 or
'? 4he propert* is e1empt from e1ecution7 and as such
is also e1empt from preliminar* attachment.
 M:mproperl*N >e.g. writ of attachment was not based on
the grounds in Sec. !?
 M:rregularl*N >e.g. writ of attachment was e1ecuted
without previous or contemporaneous service of
summons?
SATIS)A/TION O) .(D+MENT O(T O)
,RO,ERT' ATTA/>ED
:f %udgment is rendered in favor of the attaching part* and
e1ecution issued7 the sheriff ma* cause the %udgment to be
satisfied out of the propert* attached7 if it be sufficient for
that purpose.
,RELIMINAR' IN.(N/TION ;R(LE 36=
 Can be provisional remed* and can also an action
DE)INITIONS AND DI))EREN/ESC ,RELIMINAR'
IN.(N/TION AND TEM,ORAR' RESTRAININ+
ORDER
A preliminary in#unction is an order granted at an* stage of
an action or proceeding prior to the %udgment or final order7
re,uiring a part* or a court7 agenc* or a person to either
refr"in >prohibitor*? from or to !erfor$ >mandator*? a
particular act or acts during the pendenc* of the action.
4emporar* restraining order >4R3? is issued is an order to
maintain the status ,uo between and among the parties until
the determination of the pra*er for a writ of preliminar*
in%unction. 4he status ,uo is the last7 actual7 peaceable and
uncontested situation which precedes a controvers*.
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4he %udge ma* issue a 4R3 with a limited life of "D da*s
from date of issue. :f before the e1piration of the "D da*
period7 the application for preliminar* in%unction is denied7
the 4R3 would be deemed automaticall* vacated. :f no
action is taken b* the %udge within the "D da* period7 the
4R3 would automaticall* e1pire on the "Dth da* b* the
sheer force of law7 no %udicial declaration to that effect being
necessar*.
A writ of preliminar* in%unction cannot be granted without
notice and hearing. A 4R3 ma* be granted e1 parte if it
shall appear from facts shown b* affidavits or b* the verified
application that great or irreparable in%ur* would result to the
applicant before the matter can be heard on notice7 the court
in which the application for preliminar* in%unction was
made m* issue a 4R3 e1 parte for a period not e1ceeding "D
da*s from service to the part* sought to be en%oined.
REA(ISITES
!? 4here must be a verified petition7
"? 4he application must establish that he has a right of
relief or a right to be protected and that the act against
which the in%unction is sought violates such right7
&? 4he applicant must establish that there is a need to
restrain the commission of the continuance of the acts
complained of and if not en%oined would work in%ustice
to him7
'? A bond must be posted7 unless otherwise e1empted b*
the court.
(? 4he threatened in%ur* must be incapable of pecuniar*
estimation.
8INDS O) IN.(N/TION
,RO>IBITOR' J its purpose is to prevent a person from
the performance of a particular act which has not *et been
performed.
!? ,r$iminary J secured before the finalit* of
%udgment.
"? )ina$ J issued as a %udgment7 making the in%unction
permanent. :t perpetuall* restrains a person from
the continuance or commission of an act and
confirms the previous preliminar* in%unction. :t is
one included in the %udgment as the relief or part of
the relief granted as a result of the action7 hence7
granted onl* after trial and no bond is re,uired.
MANDATOR' J its purpose is to re,uire a person to
perform a particular positive act which has alread* been
performed and has violated the rights of another.
a? reliminar*
b? 5inal
Re,uisites for the issuance of mandator*
preliminar* in%unction
>a? 4he invasion of the right is material and substantial9
>b? 4he right of a complainant is clear and
unmistakable9
>c? 4here is an urgent and permanent necessit* for the
writ to prevent serious damage.
W>EN WRIT MA' BE ISS(ED
:t ma* be issued at an* stage prior to the %udgment or final
order.
+RO(NDS )OR ISS(AN/E O) ,RELIMINAR'
IN.(N/TION
!? 4he applicant is entitled to the relief demanded7 and the
whole or part of such relief consists in restraining the
commission or continuance of the act or acts
complained of7 or in re,uiring the performance of an act
or acts either for a limited period or perpetuall*9 or
"? 4he commission7 continuance or non-performance of
the act or acts complained of during the litigation would
probabl* work in%ustice to the applicant9 or
&? A part*7 court7 agenc* or a person is doing7 threatening
or is attempting to do7 or is procuring or suffering to be
done7 some act or acts probabl* in violation of the rights
of the applicant respecting the sub%ect of the action or
proceeding7 and tending to render the %udgment
ineffectual.
+RO(NDS )OR OB.E/TION TO OR )OR T>E
DISSOL(TION O) IN.(N/TION OR RESTRAININ+
ORDER
!? Bpon showing of insufficienc* of the application9
"? 3ther grounds upon affidavit of the part* or person
en%oined9
&? Appears after hearing that irreparable damage to the
part* or person en%oined will be caused while the
applicant can be full* compensated for such damages as
he ma* suffer7 and the part* en%oined files a counter-
bond9
'? :nsufficienc* of the bond9
(? :nsufficienc* of the suret* or sureties.
D(RATION O) TRO
4he lifetime of a 4R3 is "D da*s7 which is non-e1tendible
(A, .2/.2/.:/SC).
:f it is shown that the applicant would suffer 3re"t or
irre!"r"%e in&ur+ before the application for the writ of
in%unction can be heard7 the court ma* issue a temporar*
restraining order >4R? e# !"rte which shall be effective for
a period not e1ceeding twent* >"D? da*s from service on the
part* sought to be en%oined. <ithin the said twent*-da*
period7 the court must order said part* to show cause wh*
the in%unction should not be granted7 determine within the
same period whether or not the preliminar* in%unction shall
be granted7 and accordingl* issue the corresponding order.
:f the matter is of e1treme urgenc* and the applicant will
suffer grave in%ustice and irreparable in%ur*7 the e1ecutive
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%udge of a multiple-sala court or the presiding %udge of a
single sala court ma* issue e# !"rte a temporar* restraining
order effective for onl* sevent*-two >+"? hours. <ithin such
period7 the %udge shall conduct a summar* hearing to
determine whether the temporar* restraining order shall be
e1tended to "D da*s. 4he +" hours shall be included in the
ma1imum "D da* period.
:f a 4R3 is b* the Court of Appeals or a member thereof7 it
shall be effective for si1t* >)D? da*s from notice to service
part* to be en%oined.
:f a 4R3 is issued b* the Supreme Court or a member
thereof7 it shall be effective until further orders.
BAN O) TRO OR WRIT O) IN.(N/TION IN /ASES
INVOLVIN+ +OVERNMENT IN)RASTR(/T(RE
,RO.E/TSC RA 6753
#o court e1cept the SC shall issue an* or preliminar*
in%unction or preliminar* mandator* in%unction against the
government or it subdivisions7 officials or an* person or
entit* whether public or private acting under the government
direction7 to restrain7 prohibit or compel the following actsE
!? Ac,uisition7 clearance and development of the right
of wa* and6or site or location of an* government
pro%ect7
"? Bidding or awarding of a contract or pro%ect of the
national government7
&? Commencement7 prosecution7 e1ecution7
implementation7 operation of an* such contract or
pro%ect7
'? 4ermination or rescission of an* such
contract6pro%ect and
(? 4he undertaking or authori@ation of an* other
lawful activit* necessar* for such contract or
pro%ect.
 An* 4R37 preliminar* in%unction and preliminar*
mandator* in%unction issued in violation of the
above prohibition shall be void.
21ceptions to the prohibitionE
a? :n cases of e1treme urgenc*9
b? :f it involves constitutional issue9
c? 8rave in%ustice and irreparable in%ur* will
arise unless a 4R3 is issued.
 :n one case7 the SC said that in%unction is not
available to stop infrastructure pro%ects of the
government including arrastre and stevedoring
operations.
R(LE ON ,RIOR OR /ONTEM,ORANEO(S
SERVI/E O) S(MMONS IN RELATION TO
ATTA/>MENT
<hen an application for a writ of preliminar* in%unction or
4R3 is made in a complaint or other initiator* pleading7 the
case7 if filed in a multi-sala court7 shall be raffled onl* after
notice to and in the presence of the adverse part*. :n an*
event7 such notice shall be preceded or contemporaneousl*
accompanied b* a service of summons7 together with a cop*
of the complaint or initiator* pleading and the applicantCs
affidavit and bond7 upon the adverse part* in the hilippines.
:t is not available where
a? the summons could not be served personall* or b*
substituted service despite diligent efforts or
b? where the adverse part* is a resident of the
hilippines temporaril* absent therefrom or is a
non-resident thereof.
S(MMAR'BSTA+ES O) IN.(N/TION
;1= SEVENT'<TWO ;52= >O(R TEM,ORAR'
RESTRAININ+ ORDER
a? :f the matter is of e1treme urgenc* and the
applicant will suffer grave in%ustice and irreparable
in%ur*9
b? :ssued b* e1ecutive %udge of a multi-sala court or
the presiding %udge of a single-sala court9
c? 4hereafter must
i. Serve summons and other documents
ii. Conduct summar* hearing to determine
whether the 4R3 shall be e1tended to "D
da*s until the application for preliminar*
in%unction can be heard.
;2= TWENT' ;20= DA' TRO
a? :f it shall appear from the facts shown b* affidavits
or b* the verified application that great or
irreparable in%ur* would result to the applicant
before the matter can be heard on notice9
b? :f application is included in initiator* pleadingE
!. #otice of raffle shall be preceded7 or
contemporaneousl* accompanied7 b*
service of summons7 together with a cop*
of the complaint or initiator* pleading and
the applicantLs affidavit and bond7 upon
the adverse part* in the hilippines9
". Raffled onl* after notice to and in the
presence of the adverse part* or the person
to be en%oined.
c? :ssued with summar* hearing >to determine
whether the applicant will suffer great or
irreparable in%ur*? within "' hours after sheriffLs
return of service and6or records are received b* the
branch selected b* raffle9
d? <ithin "D-da* period7 the court must order said
person to show cause wh* the in%unction should not
be granted7 and determine whether or not the
preliminar* in%unction shall be granted7 and
accordingl* issue the corresponding order9
e? :ncluding the original +" hours7 total effectivit* of
4R3 shallE
!. #ot e1ceed "D da*s7 if issued b* an R4C
or $4C9
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". #ot e1ceed )D da*s7 if issued b* the CA or
a member thereof9
&. Bntil further orders7 if issued b* the SC.
f? 4R3 is automaticall* vacated upon e1piration of
the period and without granting of preliminar*
in%unction9
g? 2ffectivit* is not e1tendible without need of an*
%udicial declaration to that effect9
h? #o court shall have authorit* to e1tend or renew the
same on the same ground for which it was issued.
;1= ,RELIMINAR' IN.(N/TION
a? 0earing and prior notice to the part* sought to be
en%oined9
b? :f application is included in initiator* pleadingE
!. #otice of raffle shall be preceded7 or
contemporaneousl* accompanied7 b*
service of summons7 together with a cop*
of the complaint or initiator* pleading and
the applicantTs affidavit and bond7 upon the
adverse part* in the hilippines.
". Raffled onl* after notice to and in the
presence of the adverse part* or the person
to be en%oined
c? Applicant posts a bond
;2= )INAL IN.(N/TION
• #ote that a bond is re,uired onl* in preliminar*
in%unctions7 but is not re,uired in 4R3s. After lapse
of the "D da* 4R37 the court can still grant a
preliminar* in%unction.
• #ote that irreparable in%ur* is alwa*s a re,uisite in
4R3s. But in the +" hour 4R37 grave in%ustice
must also be shown. :n the "D da* 4R37 the ground
is great or irreparable in%ur*. <ithout a preliminar*
in%unction7 a 4R3 issued b* the CA e1pires without
necessit* of court action.
 3nl* SC ca issue a Status Auo 3rder
RE/EIVERS>I, ;R(LE 37=
 Can be applied even %udgment is final and e1ecutor*
 Receivership is a provisional remed* wherein the court
appoints a representative to preserve7 administer7
dispose of and prevent the loss or dissipation of the real
or personal propert* during the pendenc* of an action.
 :t ma* be the principal action itself or a mere
provisional remed*9 it can be availed of even after the
%udgment has become final and e1ecutor* as it ma* be
applied for to aid e1ecution or carr* %udgment into
effect.
/ASES W>EN RE/EIVER MA' BE A,,OINTED
Bpon a verified application7 one or more receivers of the
propert* sub%ect of the action or proceeding ma* be
appointed b* the court where the action is pending or b* the
Court of Appeals or b* the Supreme Court7 or a member
thereof7 in the following casesE
!. 4he part* appl*ing for the appointment of a
receiver has an interest in the propert* or fund
which is the sub%ect of the action or proceeding7
and that such propert* or fund is in danger of being
lost7 or materiall* in%ured unless a receiver be
appointed to administer and preserve it9
". :n an action b* the mortgagee for the foreclosure of
a mortgage that the propert* is in danger of being
wasted or dissipated or materiall* in%ured7 and that
its value is probabl* insufficient to discharge the
mortgage debt7 or that the parties have so stipulated
in the contract of mortgage9
&. After %udgment7 to preserve the propert* during the
pendenc* of an appeal7 or to dispose of it according
to the %udgment7 or to aid e1ecution when the
e1ecution has been returned unsatisfied or the
%udgment obligor refuses to appl* his propert* in
satisfaction of the %udgment7 or otherwise to carr*
the %udgment into effect9
'. <henever in other cases it appears that the
appointment of a receiver is the most convenient
and feasible means of preserving7 administering7 or
disposing of the propert* in litigation.
REA(ISITES
!? ;erified application9
"? Appointed b* the court where the action is pending7 or
b* the CA or b* the SC7 or a member thereof9
 During the pendenc* of an appeal7 the appellate
court ma* allow an application for the appointment
of a receiver to be filed in and decided b* the court
of origin and the receiver appointed to be sub%ect to
the control of said court.
&? ApplicantCs bond conditioned on pa*ing the adverse
part* all damages he ma* sustain b* the appointment of
the receiver in case the appointment is without sufficient
cause9
'? Receiver takes his oath and files his bond.
REA(IREMENTS BE)ORE ISS(AN/E O) AN
ORDER
!? Before issuing the order appointing a receiver the court
shall re,uire the applicant to file a bond e1ecuted to the
part* against whom the application is presented7 in an
amount to be fi1ed b* the court7 to the effect that the
applicant will pa* such part* all damages he ma*
sustain b* reason of the appointment of such receiver in
case the applicant shall have procured such appointment
without sufficient cause9 and
"? 4he court ma*7 in its discretion7 at an* time after the
appointment7 re,uire an additional bond as further
securit* for such damages.
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+ENERAL ,OWERS O) A RE/EIVER
!? 4o bring and defend7 in such capacit*7 actions in his
own name
"? 4o take and keep possession of the propert* in
controvers*
&? 4o receive rents
'? 4o collect debts due to himself as receiver or to the
fund7 propert*7 estate7 person7 or corporation of which
he is the receiver
(? 4o compound for and compromise the same
)? 4o make transfer
+? 4o pa* outstanding debts
-? 4o divide the mone* and other propert* that shall
remain among the persons legall* entitled to receive the
same
.? 4o do such acts respecting the propert* as the court ma*
authori@e.
!D? 0owever7 funds in the hands of a receiver ma* be
invested onl* b* order of the court upon the written
consent of all the parties to the action. #o action ma* be
filed b* or against a receiver without leave of the court
which appointed him.
TWO ;2= 8INDS O) BONDS
!? A--$icantDs Bon# >for appointment of receiver? J 4o
pa* the damages the adverse part* ma* sustain b*
reason of appointment of receiver9 and
"? Rci0rDs Bon# >of the appointed receiver7 aside from
oath? J 4o answer for receiverCs faithful discharge of his
duties.
1= /o%ntr Bon#
TERMINATION O) RE/EIVERS>I,
<henever the court7 motu proprio or on motion of either
part*7 shall determine that the necessit* for a receiver no
longer e1ists7 it shall7 after due notice to all interested parties
and hearing7 settle the accounts of the receiver7 direct the
deliver* of the funds and other propert* in his possession to
the person ad%udged to be entitled to receive them7 and order
the discharge of the receiver from further dut* as such.
4he court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant7 to be
ta1ed as costs against the defeated part*7 or apportioned7 as
%ustice re,uires.
Receivership shall also be terminated whenE
a? its continuance is not %ustified b* the facts and
circumstances of the case9 or
b? court is convinced that the powers are abused .
RE,LEVIN ;R(LE 40=
:t is a proceeding b* which the owner or one who has a
general or special propert* in the thing taken or detained
seeks to recover possession in specie7 the recover* of
damages being onl* incidental.
Replevin ma* be a main action or a provisional remed*. As
a principal action its ultimate goal is to recover personal
propert* capable of manual deliver* wrongfull* detained b*
a person. Bsed in this sense7 it is a suit in itself.
:t is a provisional remed* in the nature of possessor* action
and the applicant who seeks immediate possession of the
propert* involved need not be the holder of the legal title
thereto. :t is sufficient that he is entitled to possession
thereof.
W>EN MA' WRIT BE ISS(ED
a? 4he provisional remed* of replevin can onl* be applied
for before answer.
b? A part* pra*ing for the recover* of possession of
personal propert* ma*7 at the commencement of the
action or at an* time before answer7 appl* for an order
for the deliver* of such propert* to him.
REA(ISITES
4he applicant must show b* his own affidavit or that of
some other person who personall* knows the factsE
!? A part* pra*ing for the provisional remed* must
file an application for a writ of replevin. 0is
application must be filed at the commencement of
the action or at an* time before the defendant
answers7 and must contain an affidavit particularl*
describing the propert* to which he entitled of
possession.
"? 4he affidavit must state that the propert* is
wrongfull* detained b* the adverse part*7 alleging
therein the cause of the detention. :t must also state
that the propert* has not been destrained or taken
for ta1 assessment or a fine pursuant to law7 or
sei@ed under a writ of e1ecution or preliminar*
attachment7 or otherwise placed in custo'i" e3is. :f
it has been sei@ed7 then the affidavit must state that
it is e1empt from such sei@ure or custod*.
&? 4he affidavit must state the actual market value of
the propert*9 and
'? 4he applicant must give a bond7 e1ecuted to the
adverse part* and double the value of the propert*.
A))IDAVIT AND BONDH REDELIVER' BOND
Affidavit7 allegingE
a? 4hat the applicant is the owner of propert* claimed7
describing it or entitled to its possession9
b? 4hat the propert* is wrongfull* detained b* the
adverse part*7 alleging cause of its detention9
c? 4hat the propert* has not been distrained or taken
for ta1 assessment or fine or under writ of
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e1ecution6attachment or placed under custo'i"
e3is or if sei@ed7 that it is e1empt or should be
released9 and
d? 4he actual market value of the propert*.
Bond7 which must be double the value of propert*7 to answer
for the return of propert* if ad%udged and pa* for such sum
as he ma* recover from the applicant.
:t is re,uired that the redeliver* bond be filed within the
period of ( da*s after the taking of the propert*. 4he rule is
$A#DA43RH.
S>ERI))DS D(T' IN T>E IM,LEMENTATION O)
T>E WRITH W>EN ,RO,ERT' IS /LAIMED B'
T>IRD ,ART'
Bpon receiving such order7 the sheriff must serve a cop* on
the adverse part*7 together with a cop* of the application7
affidavit and bond7 and must take the propert* and retain it
in his custod*.
:f the propert* be concealed in a building or enclosure7 the
sheriff must demand its deliver*7 and if it be not delivered7
he must cause the building or enclosure to be broken open
and take the propert* into his possession.
:f within five >(? da*s after the taking of the propert* b* the
sheriff7 the adverse part* does not ob%ect to the sufficienc*
of the bond or if the adverse part* so ob%ects and the court
affirms its approval of the applicantTs bond or approves a
new bond7 or if the adverse part* re,uires the return of the
propert* but his bond is ob%ected to and found insufficient
and he does not file an approved bond7 the propert* shall be
delivered to the applicant.
:f for an* reason the propert* is not delivered to the
applicant7 the sheriff must return it to the adverse part*.
A &rd part* claimant ma* vindicate his claim to the propert*7
and the applicant ma* claim damages against such &rd part*7
in the same or separate action.
A claim on the indemnit* bond should be filed within !"D
da*s from posting of such bond.
:f the propert* taken is claimed b* a third person and make
an affidavit of his title or right to the possession thereof and
serves such affidavit upon the sheriff while the latter has
possession of the propert* and a cop* thereof upon the
applicant7 the sheriff shall not be bound to keep the propert*
under replevin or deliver it to the applicant B#L2SS the
applicant on demand of said sheriff7 shall file a bond
approved b* the court to indemnif* the third-part* claimant
in the sum not less than the value of the propert*.
4he sheriff shall not be liable for damages7 for the taking or
keeping of such propert*7 to an* such third-part* claimant if
such bond shall be filed.
S,E/IAL /IVIL A/TIONS ;R%$s 42 – 51=
NAT(RE O) S,E/IAL /IVIL A/TIONS
Special civil actions are basicall* ordinar* civil proceedings9
what makes them special are the distinct peculiarities
inherent in their ver* nature not found in ordinar* civil
actions.
4he* are actions in themselves7 but possessing special
matters that re,uired special procedures. 5or this reason7
these proceedings are classified as special civil actions.
Sec. 1, *ue ;2 provides that rules provided for ordinar*
civil actions are applicable in special civil proceedings7
which are not inconsistent with or ma* serve to supplement
the provisions of the rules relating to such special civil
actions.
ORDINAR' /IVIL A/TIONS VERS(S S,E/IAL
/IVIL A/TIONS
Although both t*pes of actions are governed b* the rules for
ordinar* civil actions7 there are certain rules that are
applicable onl* to specific special civil actions. 4he fact that
an action is sub%ect to special rules other than those
applicable to ordinar* civil actions is what makes a civil
action special.
An ordinar* civil action must be based on a /A(SE O)
A/TION. 4his means that the defendant must have
performed an act or omitted to do an act in violation of the
rights of another. 4hese definitions do not fit the
re,uirements of a cause of action in certain special civil
actions.
 4he cause of action as defined and re,uired of an
ordinar* civil action finds no application to the special
civil action of declarator* relief. :t finds no application
also in a complaint for interpleader. :n this action7 the
plaintiff ma* file a complaint even if he has sustained
no actual transgression of his rights. :n fact7 he actuall*
has no interest in the sub%ect matter of the action. 4his is
not so in an ordinar* civil action.
3rdinar* civil actions ma* be filed initiall* in either the
$4C or the R4C depending upon the /BR:SD:C4:3#AL
A$3B#4 3R 402 #A4BR2 of the action involved. 3n
the other hand7 there are special civil actions which can onl*
be filed in an $4C like the actions for forcible entr* and
unlawful detainer. 4here are also special civil actions which
cannot be commenced in the $4C7 foremost of which are
the petitions for certiorari7 prohibition7 and mandamus.
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4he ;2#B2 in ordinar* civil actions is determined b* either
the residence of the parties where the action is personal or b*
the location of the propert* where the action is real. 4his
does not alwa*s appl* to a special civil action.
<hile ordinar* civil actions when filed are denominated as
―complaints7 some special civil actions are not
denominated as such but ―petitions.
;a= S-cia$ ci0i$ actions initiat# 9y :i$ing o: a ,titionC
!? Declarator* relief other than similar remedies9
"? Review of ad%udication of the C3$2L2C and
C3A9
&? Certiorari7 prohibition and mandamus9
'? Auo warranto9 and
(? Contempt
;9= S-cia$ ci0i$ actions initiat# 9y :i$ing o: a /om-$aintC
!? :nterpleader9
"? 21propriation9
&? 5oreclosure of real estate mortgage9
'? artition9 and
(? 5orcible entr* and unlawful detainer.
.(RISDI/TION AND VEN(E
4he sub%ect matter of a petition for declarator* relief raises
issues which are not capable of pecuniar* estimation and
must be filed with the Regional 4rial Court. :t would be
error to file the petition with the Supreme Court which has
no original %urisdiction to entertain a petition for declarator*
relief.
INTER,LEADER ;R(LE 42=
:t is a special civil action filed b* a person7 who has propert*
in his possession or an obligation to render7 wholl* or
partiall*7 against whom two conflicting claims are made
upon the same sub%ect matter and over which he claims no
interest7 to compel the claimants to interplead and to litigate
their conflicting claims among themselves.
REA(ISITES )OR INTER,LEADER
!? 4here must be two or more claimants with adverse or
conflicting interests to a propert* in the custod* or
possession of the plaintiff9
"? 4he plaintiff in an action for interpleader has no claim
upon the sub%ect matter of the adverse claims or if he
has an interest at all7 such interest is not disputed b* the
claimants9
&? 4he sub%ect matter of the adverse claims must be one
and the same9 and
'? 4he parties impleaded must make effective claims.
W>EN TO )ILE
<henever conflicting claims upon the same sub%ect matter
are or ma* be made against a person who claims no interest
whatever in the sub%ect matter7 or an interest which in whole
or in part is not disputed b* the claimants7 he ma* bring an
action against the conflicting claimants to compel them to
interplead and litigate their several claims among
themselves.
DE/LARATOR' RELIE)S AND SIMILAR
REMEDIES ;R(LE 41=
An action for declarator* relief is brought to secure an
authoritative statement of the rights and obligations of the
parties under a contract or a statute for their guidance in the
enforcement or compliance with the same. 4hus7 the purpose
is to seek for a %udicial interpretation of an instrument or for
a %udicial declaration of a personCs rights under a statute and
not to ask for affirmative reliefs like in%unction7 damages or
an* other relief be*ond the purpose of the petition as
declared under the Rules.
4he sub%ect matter in a petition for declarator* relief is an*
of the followingE
a? Deed9
b? <ill9
c? Contract or other written instrument9
d? Statute9
e? 21ecutive order or regulation9
f? 3rdinance9 or
g? An* other governmental regulation.
4he petition for declarator* relief is filed before the
occurrence of an* breach or violation of the deed7 contract7
statute7 ordinance or e1ecutive order or regulation. :t will not
prosper when brought after a contract or a statute has alread*
been breached or violated. :f there has alread* been a
breach7 the appropriate ordinar* civil action and not
declarator* relief should be filed.
W>O MA' )ILE T>E A/TION
!? An* person interested under a deed7 will7 contract or
other written instrument or whose rights are affected b*
a statute7 e1ecutive order or regulation7 ordinance or
other governmental regulation ma* before breach or
violation thereof7 bring an action in the R4C to
determine an* ,uestion of construction or validit*
arising and for a declaration of his rights or duties7
thereunder.
"? 4hose who ma* sue under the contract should be those
with interest under the contract like the parties7 the
assignees and the heirs as re,uired b* substantive law.
&? :f it be a statute7 e1ecutive order7 regulation or
ordinance7 the petitioner is one whose rights are affected
b* the same. 4he other parties are all persons who have
or claim an* interest which would be affected b* the
declaration. 4he rights of person not made parties to the
action do not stand to be pre%udiced b* the declaration.
2011 Bar Examinations
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REA(ISITES O) A/TION )OR DE/LARATOR'
RELIE)
!? 4he sub%ect matter must be a deed7 will7 contract or
other written instrument7 statute7 e1ecutive order or
regulation or ordinance9
"? 4he terms of said document or the validit* thereof are
doubtful and re,uire %udicial construction9
&? 4here must have been no breach of said document9
'? 4here must be actual %usticiable controvers* or the
ripening seeds of one >there is threatened litigation the
immediate future?9
(? there must be allegation of an* threatened7 imminent
and inevitable violation of petitionerCs right sought to be
prevented b* the declarator* relief sought9
)? 4he controvers* is between persons whose interests are
adverse9
+? 4he issue must be ripe for %udicial determination e.g.
administrative remedies alread* e1hausted9
-? 4he part* seeking the relief has legal interest in the
controvers*9 and
.? Ade,uate relief is not available thru other means.
W>EN /O(RT MA' RE)(SE TO MA8E .(DI/IAL
DE/LARATION
8rounds for the court to refuse to e1ercise declarator* relief9
a? A decision would not terminate the uncertaint* or
controvers* which gave rise to the action9 or
b? 4he declaration or construction is not necessar* and
proper under the circumstances as when the
instrument or the statute has alread* been breached.
:n declarator* relief7 the court is given the discretion to act
or not to act on the petition. :t ma* therefore choose not to
construe the instrument sought to be construed or could
refrain from declaring the rights of the petitioner under the
deed or the law.
 A refusal of the court to declare rights or construe
an instrument is actuall* the functional e,uivalent
of the dismissal of the petition.
3n the other hand7 the court does not have the discretion to
refuse to act with respect to actions described as similar
remedies. 4hus7 in an action for reformation of an
instrument7 to ,uiet or to consolidate ownership7 the court
cannot refuse to render a %udgment.
/ONVERSION TO ORDINAR' A/TION
:f before final termination of the case7 a breach should take
place7 the action ma* be converted into ordinar* action to
avoid multiplicit* of suits.
3rdinar* civil action J plaintiff alleges that his right has
been violated b* the defendant9 %udgment rendered is
coercive in character9 a writ of e1ecution ma* be e1ecuted
against the defeated part*.
Special civil action of declarator* relief J an impending
violation is sufficient to file a declarator* relief9 no
e1ecution ma* be issued9 the court merel* makes a
declaration.
,RO/EEDIN+S /ONSIDERED AS SIMILAR
REMEDIES
Similar remedies areE
>a? Action for reformation of an instrument9
>b? Action for ,uieting of title9 and
>c? Action to consolidate ownership >Art. !)D+7
Civil Code?.
A& RE)ORMATION O) AN INSTR(MENT
:t is not an action brought to reform a contract but to reform
the instrument evidencing the contract. :t presupposes that
there is nothing wrong with the contract itself because there
is a meeting of minds between the parties.
4he contract is to be reformed because despite the meeting
of minds of the parties as to the ob%ect and cause of the
contract7 the instrument which is supposed to embod* the
agreement of the parties does not reflect their true agreement
b* reason of mistake7 ine,uitable conduct or accident. 4he
action is brought so the true intention of the parties ma* be
e1pressed in the instrument (Art. 1359, CC).
4he instrument ma* be reformed if it does not e1press the
true intention of the parties because of lack of skill of the
person drafting the instrument (Art. 13;3, CC).
:f the parties agree upon the mortgage or pledge of propert*7
but the instrument states that the propert* is sold absolutel*
or with a right of repurchase7 reformation of the instrument
is proper (Art. 13;5, CC).
<here the consent of a part* to a contract has been procured
b* fraud7 ine,uitable conduct or accident7 and an instrument
was e1ecuted b* the parties in accordance with the contract7
what is defective is the contract itself because of vitiation of
consent.
4he remed* is not to bring an action for reformation of the
instrument but to file an action for annulment of the contract
(Art. 1359, CC).
Reformation of the instrument cannot be brought to reform
an* of the followingE
!? Simple donation inter 6i6os wherein no condition is
imposed9
"? <ills9 or
&? <hen the agreement is void (Art. 1;;;, CC).
B& /ONSOLIDATION O) OWNERS>I,
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4he concept of consolidation of ownership under Art. 1;.:,
Ci6i Co'e7 has its origin in the substantive provisions of the
law on sales. Bnder the law7 a contract of sale ma* be
e1tinguished either b* legal redemption (Art. 1;19) or
conventional redemption (Art. 1;.1).
Legal redemption (retr"cto e3") is a statutor* mandated
redemption of a propert* previousl* sold. 5or instance7 a co-
owner of a propert* ma* e1ercise the right of redemption in
case the shares of all the other co-owners or an* of them are
sold to a third person (Art. 1;2.). 4he owners of ad%oining
lands shall have the right of redemption when a piece of
rural land with a si@e of one hectare or less is alienated (Art.
1;21).
Conventional redemption (!"cto 'e retro) sale is one that is
not mandated b* the statute but one which takes place
because of the stipulation of the parties to the sale. 4he
period of redemption ma* be fi1ed b* the parties in which
case the period cannot e1ceed ten >!D? *ears from the date of
the contract. :n the absence of an* agreement7 the
redemption period shall be four >'? *ears from the date of
the contract (Art. 1;.;).
<hen the redemption is not made within the period agreed
upon7 in case the sub%ect matter of the sale is a real propert*7
Art. 1;.: !ro6i'es th"t the consoi'"tion of o)nershi! in
the 6en'ee sh" not %e recor'e' in the *e3istr+ of Pro!ert+
)ithout " &u'ici" or'er, "fter the 6en'or h"s %een 'u+
he"r'.
T! action 9ro%g!t to conso$i#at o"nrs!i- is not :or
t! -%r-os o: conso$i#ating t! o"nrs!i- o: t!
-ro-rty in t! -rson o: t! 0n# or 9%yr 9%t :or t!
rgistration o: t! -ro-rty& 4he lapse of the redemption
period without the seller a retro e1ercising his right of
redemption consolidates ownership or title upon the person
of the vendee b* operation of law. Art. 1;.: re,uires the
filing of the petition to consolidate ownership because the
law precludes the registration of the consolidated title
without %udicial order.
/& A(IETIN+ O) TITLE TO REAL ,RO,ERT'
4his action is brought to remove a cloud on title to real
propert* or an* interest therein. 4he action contemplates a
situation where the instrument or a record is apparentl* valid
or effective but is in truth and in fact invalid7 ineffective7
voidable or unenforceable7 and ma* be pre%udicial to said
title to real propert*.
:t ma* also be brought as a preventive remed* to prevent a
cloud from being cast upon title to real propert* or an*
interest therein (Art. 8:;).
4he plaintiff need not be in possession of the real propert*
before he ma* bring the action as long as he can show that
he has a legal or an e,uitable title to the propert* which is
the sub%ect matter of the action (Art. 8::).
REVIEW O) .(D+MENTS AND )INAL ORDERS OR
RESOL(TION O) T>E /OMELE/ AND /OA ;R(LE
42=
A %udgment or final order or resolution of the Commission
on 2lections and the Commission on Audit ma* be brought
b* the aggrieved part* to the Supreme Court on certiorari.
4he filing of a petition for certiorari shall not sta* the
e1ecution of the %udgment or final order or resolution sought
to be reviewed7 unless the SC directs otherwise upon such
terms as it ma* deem %ust. 4o prevent the e1ecution of the
%udgment7 the petitioner should obtain a temporar*
restraining order or a writ of preliminar* in%unction because
the mere filing of a petition does not interrupt the course of
the principal case.
4ecisions of the Ci6i Ser6ice Co$$ission sh" %e "!!e"e'
to the Court of A!!e"s )hich h"s e#cusi6e "!!e"te
&uris'iction o6er " &u'3$ents or fin" or'ers of such
co$$ission (*A :9.2).
4he petition shall be filed within thirt* >&D? da*s from notice
of the %udgment or final order or resolution sought to be
reviewed. 4he filing of a motion for new trial or
reconsideration of said %udgment or final order or resolution7
if allowed under the procedural rules of the Commission
concerned7 shall interrupt the period herein fi1ed. :f the
motion is denied7 the aggrieved part* ma* file the petition
within the remaining period7 but which shall not be less than
five >(? da*s in an* event7 reckoned from notice of denial.
#ote that petition for review from decisions of ,uasi-%udicial
agencies to the CA should be within !( da*s and does not
sta* the decision appealed.
etition for review from decisions of the R4C decided in its
appellate %urisdiction filed to the CA should be filed within
!( da*s and sta*s e1ecution7 unless the case is under the
rules of Summar* rocedure. Special civil actions of
certiorari7 prohibition7 and mandamus7 from Comelec and
C3A should be filed within &D da*s7 and does not sta* the
decision appealed.
BottomlineE Decisions of ,uasi-%udicial bodies are not sta*ed
b* appeal alone. Decisions of regular courts are sta*ed on
appeal. Although in petition for review on certiorari to the
SC via Rule '(7 there is no e1press provision on effect of
appeal on e1ecution.
4he Mnot less than ( da*sN provision for filing a pleading
applies onl* toE
a? filing an answer after a denial of a $tD9
b? filing an answer after denial or service of a bill of
particulars9
c? filing an special civil action for certiorari from a
decision of the Comelec or CoA after denial of a
$fR or $#4. :t does not appl* to filing appeal
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BERT – NOTES in REMEDIAL LAW
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from decisions of other entities after denial of a
$fR or $#4. :n such cases7 either the parties have
a fresh !( da*s7 or the balance.
A,,LI/ATION O) R(LE 43 (NDER R(LE 42
Sec. +7 Art. :R-A of the Constitution reads7 Munless
otherwise provided b* the Constitution or b* law7 an*
decision7 order or ruling of each commission ma* be brought
to the Supreme Court on certiorari b* the aggrieved part*
within &D da*s from receipt of a cop* thereof.N 4he
provision was interpreted b* the Supreme Court to refer to
certiorari under Rule )( and not appeal b* certiorari under
Rule '(. 4o implement the above constitutional provision7
the SC promulgated Rule )'.
DISTIN/TION IN T>E A,,LI/ATION O) R(LE 43
TO .(D+MENTS O) T>E /OMELE/ AND /OA
AND T>E A,,LI/ATION O) R(LE 43 TO OT>ER
TRIB(NALS? ,ERSONS AND O))I/ERS
R%$ 42 R%$ 43
Directed onl* to the
%udgments7 final orders or
resolutions of the
C3$2L2C and C3A9
Directed to an* tribunal7
board or officers e1ercising
%udicial or ,uasi-%udicial
functions9
5iled within &D da*s from
notice of the %udgment9
5iled within )D da*s from
notice of the %udgment9
4he filing of a motion for
reconsideration or a motion
for new trial if allowed
interrupts the period for the
filing of the petition for
certiorari. :f the motion is
denied7 the aggrieved part*
ma* file the petition within
the remaining period7 but
which shall not be less than
( da*s reckoned from the
notice of denial.
4he period within which to
file the petition if the motion
for reconsideration or new
trial is denied is )D da*s
from notice of the denial of
the motion.
 (-da* Rule does not appl* in filing of notice of
appeal
/ERTIORARI? ,RO>IBITION AND MANDAM(S
;R(LE 43=
/rtiorari is a remed* for the correction of errors of
%urisdiction7 not errors of %udgment. :t is an original and
independent action that was not part of the trial that had
resulted in the rendition of the %udgment or order complained
of. Since the issue is %urisdiction7 an original action for
certiorari ma* be directed against an interlocutor* order of
the lower court prior to an appeal from the %udgment.
<here the error is not one of %urisdiction7 but of law or fact
which is a mistake of %udgment7 the proper remed* should be
appeal. 0ence7 if there was no ,uestion of %urisdiction
involved in the decision and what was being ,uestioned was
merel* the findings in the decision of whether or not the
practice of the other part* constitutes a violation of the
agreement7 the matter is a proper sub%ect of appeal7 not
certiorari.
'iling of petition for certiorari does not interrupt the
course of the principal action nor the running of the
reglementary periods involved in the proceeding, unless an
application for a restraining order or a writ of preliminary
in#unction to the appellate court is granted. #either does it
interrupt the reglementar* period for the filing of an answer
nor the course of the case where there is no writ of
in%unction.
:n a summar* proceeding7 petitions for certiorari7 prohibition
or mandamus against an interlocutor* order of the court are
not allowed.
Certiorari is not and cannot be made a substitute for an
appeal where the latter remed* is available but was lost
through fault or negligence. 4he remed* to obtain a reversal
of %udgment on the merits is appeal. 4his holds true even if
the error ascribed to the lower court is its lack of %urisdiction
over the sub%ect matter7 or the e1ercise of power in e1cess
thereof7 or grave abuse of discretion. 4he e1istence and
availabilit* of the right to appeal prohibits the resort to
certiorari because one of the re,uirements for certiorari is
that there is no appeal.
21ceptions to the rule that certiorari is not available when
the period for appeal has lapsed and certiorari ma* still be
invoked when appeal is lost are the followingE
!? Appeal was lost without the appellantCs negligence9
"? <hen public welfare and the advancement of
public polic* dictates9
&? <hen the broader interest of %ustice so re,uires9
'? <hen the writs issued are null and void9 and
(? <hen the ,uestioned order amounts to an
oppressive e1ercise of %udicial authorit*.
/ERTIORARI ,RO>IBITION MANDAM(S
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BERT – NOTES in REMEDIAL LAW
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Certiorari is an e1traordinar* writ
A##BLL:#8 3R $3D:5H:#8 the
proceedings of a tribunal7 board or
officer e1ercising %udicial or ,uasi-
%udicial functions when such tribunal7
board or officer has acted without or in
e1cess of its or his %urisdiction7 or with
grave abuse of discretion amounting to
lack or e1cess of %urisdiction7 there
being no appeal or an* other plain7
speed* and ade,uate remed* in the
ordinar* course of law (Sec. 1, *ue ;5).
rohibition is an e1traordinar* writ
C3$$A#D:#8 a tribunal7
corporation7 board or person7 whether
e1ercising %udicial7 ,uasi-%udicial or
ministerial functions7 43 D2S:S4 from
further proceedings when said
proceedings are without or in e1cess of
its %urisdiction7 or with abuse of its
discretion7 there being no appeal or an*
other plain7 speed* and ade,uate
remed* in the ordinar* course of law
(Sec. 2, *ue ;5).
$andamus is an e1traordinar* writ
commanding a tribunal7 corporation7
board or person7 to do an act
R2AB:R2D to be doneE
a? <hen he unlawfull* neglects the
performance of an act which the
law specificall* en%oins as a dut*7
and there is no other plain7 speed*
and ade,uate remed* in the
ordinar* course of law9 or
b? <hen one unlawfull* e1cludes
another from the use and en%o*ment
of a right or office to which the
other is entitled (Sec. 3, *ue ;5).
Directed against a person e1ercising to
%udicial or ,uasi-%udicial functions
Directed against a person e1ercising
%udicial or ,uasi-%udicial functions7 or
ministerial functions
Directed against a person e1ercising
ministerial duties
4he tribunal7 board or officer has acted
without7 or in e1cess of %urisdiction or
with abuse of discretion amounting to
lack or e1cess or %urisdiction
4he tribunal7 corporation7 board or
person must have acted without or in
e1cess of %urisdiction or with grave
abuse of discretion amounting to lack of
%urisdiction9
:t must be the dut* of the defendant to
perform the act7 which is ministerial and
not discretionar*7 because the same is
mandated b* law.
4here is no "!!e" or "n+ !"in, s!ee'+
"n' "'e(u"te re$e'+ in the or'in"r+
course of ").
4here is no "!!e" or "n+ !"in, s!ee'+
"n' "'e(u"te re$e'+ in the or'in"r+
course of ").
4he 'efen'"nt un")fu+ ne3ects the
!erfor$"nce of the 'ut+ en&oine' %+
")9
3b%ect is to corrct 3b%ect is to -r0nt 3b%ect is to com-$
urpose is to "nnu or $o'if+ the
!rocee'in3s
urpose is to sto! the !rocee'in3s urpose is to co$!e !erfor$"nce of the
"ct re(uire' "n' to coect '"$"3es
erson or entit* must have acted
without or in e1cess of %urisdiction7 or
with grave abuse of discretion
erson or entit* must have acted
without or in e1cess of %urisdiction7 or
with grave abuse of discretion
erson must have neglected a ministerial
dut* or e1cluded another from a right or
office
A person aggrieved thereb* ma* file a
verified petition in the proper court7
alleging the facts with certaint* and
pra*ing that %udgment be rendered
annulling or modif*ing the proceedings
of such tribunal7 board or officer7 and
granting such incidental reliefs as law
and %ustice ma* re,uire. 4he petition
shall be accompanied b* a certified true
cop* of the %udgment7 order or
resolution sub%ect thereof7 copies of all
pleadings and documents relevant and
pertinent thereto7 and a sworn
certification of non-forum shopping.
A person aggrieved thereb* ma* file a
verified petition in the proper court7
alleging the facts with certaint* and
pra*ing that %udgment be rendered
commanding the respondent to desist
from further proceedings in the action or
matter specified therein7 or otherwise
granting such incidental reliefs as law
and %ustice ma* re,uire. 4he petition
shall likewise be accompanied b* a
certified true cop* of the %udgment7
order or resolution sub%ect thereof7
copies of all pleadings and documents
relevant and pertinent thereto7 and a
sworn certification of non-forum
shopping.
4he person aggrieved thereb* ma* file a
verified petition in the proper court7
alleging the facts with certaint* and
pra*ing that %udgment be rendered
commanding the respondent7
immediatel* or at some other time to be
specified b* the court7 to do the act
re,uired to be done to protect the rights
of the petitioner7 and to pa* the damages
sustained b* the petitioner b* reason of
the wrongful acts of the respondent. 4he
petition shall also contain a sworn
certification of non-forum shopping.
,RO>IBITION IN.(N/TION
Alwa*s the main action $a* be the main action or %ust a provisional remed*
Directed against a court7 a tribunal e1ercising %udicial or
,uasi-%udicial functions
Directed against a part*
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8round must be the court acted without or in e1cess of
%urisdiction
Does not involve a ,uestion of %urisdiction
,RO>IBITION MANDAM(S
4o prevent an act b* a respondent 4o compel an act desired
$a* be directed against entities e1ercising %udicial or ,uasi-
%udicial7 or ministerial functions
$a* be directed against %udicial and non-%udicial entities
21tends to discretionar* functions 21tends onl* to ministerial functions
MANDAM(S A(O WARRANTO
Clarifies legal duties7 not legal titles Clarifies who has legal title to the office7 or franchise
Respondent7 without claiming an* right to the office7 e1cludes
the petitioner
Respondent usurps the office
 $andamus can be issued to perform an act but not to approve a certain re,uest
IN.(N/TIVE RELIE)
4he court in which the petition is filed ma* issue orders
e1pediting the proceedings7 and it ma* also grant a
temporar* restraining order or a writ of preliminar*
in%unction for the preservation of the rights of the parties
pending such proceedings. 4he petition shall not interrupt
the course of the principal case unless a temporar*
restraining order or a writ of preliminar* in%unction has been
issued against the public respondent from further proceeding
in the case.
4he public respondent shall proceed with the principal case
within ten >!D? da*s from the filing of a petition for
certiorari with a higher court or tribunal7 absent a 4emporar*
Restraining 3rder >4R3? or a <rit of reliminar*
:n%unction7 or upon its e1piration. 5ailure of the public
respondent to proceed with the principal case ma* be a
ground for an administrative charge (A, .:/:/12/SC, 4ec.
12, 2..:).
/ERTIORARI AS A MODE O) A,,EAL
;R(LE 23=
/ERTIORARI AS A S,E/IAL /IVIL A/TION
;R(LE 43=
Called petition for review on certiorari7 is a mode of
appeal7 which is but a continuation of the appellate
process over the original case9
A special civil action that is an original action and not a mode of
appeal7 and not a part of the appellate process but an independent
action.
Seeks to review final %udgments or final orders9 $a* be directed against an interlocutor* order of the court or where
not appeal or plain or speed* remed* available in the ordinar* course
of law
Raises onl* ,uestions of law9 Raises ,uestions of %urisdiction because a tribunal7 board or officer
e1ercising %udicial or ,uasi-%udicial functions has acted without
%urisdiction or in e1cess of %urisdiction or with grave abuse of
discretion amounting to lack of %urisdiction9
5iled within !( da*s from notice of %udgment or final
order appealed from7 or of the denial of petitionerLs
motion for reconsideration or new trial9
5iled not later than )D da*s from notice of %udgment7 order or
resolution sought to be assailed and in case a motion for
reconsideration or new trial is timel* filed7 whether such motion is
re,uired or not7 the )D da* period is counted from notice of denial of
said motion9
21tension of &D da*s ma* be granted for %ustifiable
reasons
21tension no longer allowed9
Does not re,uire a prior motion for reconsideration9 $otion for Reconsideration is a condition precedent7 sub%ect to
e1ceptions
Sta*s the %udgment appealed from9 Does not sta* the %udgment or order sub%ect of the petition unless
en%oined or restrained9
arties are the original parties with the appealing part*
as the petitioner and the adverse part* as the respondent
without impleading the lower court or its %udge9
4he tribunal7 board7 officer e1ercising %udicial or ,uasi-%udicial
functions is impleaded as respondent
5iled with onl* the Supreme Court $a* be filed with the Supreme Court7 Court of Appeals7
Sandiganba*an7 or Regional 4rial Court
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SC ma* den* the decision $otu !ro!io on the ground
that the appeal is without merit7 or is prosecuted
manifestl* for dela*7 or that the ,uestions raised therein
are too unsubstantial to re,uire consideration.
 4he remedies of appeal and certiorari are mutuall*
e1clusive and not alternative or successive. 4he
antithetic character of appeal and certiorari has
been generall* recogni@ed and observed save onl*
on those rare instances when appeal is satisfactoril*
shown to be an inade,uate remed*. 4hus7 a
petitioner must show valid reasons wh* the issues
raised in his petition for certiorari could not have
been raised on appeal.
,RO>IBITION MANDAM(S IN.(N/TION
rohibition is an e1traordinar* writ
commanding a tribunal7 corporation7
board or person7 whether e1ercising
%udicial7 ,uasi-%udicial or ministerial
functions7 to desist from further
proceedings when said proceedings
are without or in e1cess of its
%urisdiction7 or with abuse of its
discretion7 there being no appeal or
an* other plain7 speed* and ade,uate
remed* in the ordinar* course of law
>Sec. "7 Rule )(?.
$andamus is an e1traordinar* writ
commanding a tribunal7 corporation7
board or person7 to do an act re,uired to
be doneE >a? <hen he unlawfull*
neglects the performance of an act
which the law specificall* en%oins as a
dut*7 and there is no other plain7 speed*
and ade,uate remed* in the ordinar*
course of law9 or >b? <hen one
unlawfull* e1cludes another from the
use and en%o*ment of a right or office to
which the other is entitled >Sec. &7 Rule
)(?.
$ain action for in%unction seeks to
en%oin the defendant from the
commission or continuance of a specific
act7 or to compel a particular act in
violation of the rights of the applicant.
reliminar* in%unction is a provisional
remed* to preserve the status ,uo and
prevent future wrongs in order to
preserve and protect certain interests or
rights during the pendenc* of an action.
Special civil action Special civil action 3rdinar* civil action
4o prevent an encroachment7 e1cess7
usurpation or assumption of
%urisdiction9
4o compel the performance of a
ministerial and legal dut*9
5or the defendant either to refrain from
an act or to perform not necessaril* a
legal and ministerial dut*9
$a* be directed against entities
e1ercising %udicial or ,uasi-%udicial7
or ministerial functions
$a* be directed against %udicial and
non-%udicial entities
Directed against a part*
21tends to discretionar* functions 21tends onl* to ministerial functions Does not necessaril* e1tend to
ministerial7 discretionar* or legal
functions9
Alwa*s the main action Alwa*s the main action $a* be the main action or %ust a
provisional remed*
$a* be brought in the Supreme
Court7 Court of Appeals7
Sandiganba*an7 or in the Regional
4rial Court which has %urisdiction
over the territorial area where
respondent resides.
$a* be brought in the Supreme Court7
Court of Appeals7 Sandiganba*an7 or in
the Regional 4rial Court which has
%urisdiction over the territorial area
where respondent resides.
$a* be brought in the Regional 4rial
Court which has %urisdiction over the
territorial area where respondent resides.
E*/E,TIONS TO )ILIN+ O) MOTION )OR
RE/ONSIDERATION BE)ORE )ILIN+ ,ETITION
!? <hen the issue is one purel* of law9
"? <hen there is urgenc* to decide upon the ,uestion and
an* further dela* would pre%udice the interests of the
government or of the petitioner9
&? <here the sub%ect matter of the action is perishable9
'? <hen order is a patent nullit*7 as where the court a ,uo
has no %urisdiction or there was no due process9
(? <hen ,uestions have been dul* raised and passed upon
b* the lower court9
)? <hen is urgent necessit* for the resolution of the
,uestion9
+? <hen $otion for Reconsideration would be useless7
e.g. the court alread* indicated it would den* an*
$otion for Reconsideration9
-? :n a criminal case7 where relief from order of arrest is
urgent and the granting of such relief b* the trial court is
improbable9
.? <here the proceedings was e1 parte or in which the
petitioner had no opportunit* to ob%ect9
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!D? <hen petitioner is deprived of due process and there is
e1treme urgenc* for urgent relief9 and
!!? <hen issue raised is one purel* of law or public interest
is involved.
RELIE)S ,ETITIONER IS ENTITLED TO
4he primar* relief will be annulment or modification of the
%udgment7 order or resolution or proceeding sub%ect of the
petition. :t ma* also include such other incidental reliefs as
law and %ustice ma* re,uire. 4he court7 in its %udgment ma*
also award damages and the e1ecution of the award for
damages or costs.
A/TIONSBOMISSIONS O) MT/BRT/ IN ELE/TION
/ASES
Bnder Rule )(7 the proper part* who can file a petition for
certiorari7 prohibition or mandamus is the person aggrieved
b* the action of a trial court or tribunal in a criminal case
pending before it.
3rdinaril*7 the petition is filed in the name of the eople of
the hilippines b* the Solicitor 8eneral. 0owever7 there are
cases when such petition ma* be filed b* other parties who
have been aggrieved b* the order or ruling of the trial courts.
:n the prosecution of election cases7 the aggrieved part* is
the Comelec7 who ma* file the petition in its name through
its legal officer or through the Solicitor 8eneral if he agrees
with the action of the Comelec.
W>ERE TO )ILE ,ETITION
S%-rm /o%rt Sub%ect to the doctrine of
hierarch* of courts and
onl* when compelling
reasons e1ist for not filing
the same with the lower
courts
Rgiona$ Tria$ /o%rt :f the petition relates to an
act or an omission of an
$4C7 corporation7 board7
officer or person
/o%rt o: A--a$s on$y :f the petition involves an
act or an omission of a
,uasi-%udicial agenc*7
unless otherwise provided
b* law or rules
/o%rt o: A--a$s or t!
San#igan9ayan
<hether or not in aid of
appellate %urisdiction
/ommission on
E$ctions
:n election cases involving
an act or an omission of an
$4C or R4C
As "$en'e' %+ A, -o.
.:/:/12/SC, 4ec. 12,
2..:
A petition for certiorari must be based on %urisdictional
grounds because as long as the respondent acted with
%urisdiction7 an* error committed b* him or it in the e1ercise
thereof will amount to nothing more than an error of
%udgment which ma* be reviewed or corrected b* appeal.
E))E/TS O) )ILIN+ O) AN (NMERITORIO(S
,ETITION
4he Court ma* impose $otu !ro!rio, based on res i!s"
o(uitur7 other disciplinar* sanctions or measures on erring
law*ers for patentl* dilator* an unmeritorious petition for
certiorari.
4he court ma* dismiss the petition if it finds the same
patentl* without merit or prosecuted manifestl* for dela*7 or
if the ,uestions raised therein are too unsubstantial to re,uire
consideration.
:n such event7 the court ma* award in favor of the
respondent treble costs solidaril* against the petitioner and
counsel7 in addition to sub%ecting counsel to administrative
sanctions.
A(O WARRANTO ;R(LE 44=
Auo warranto is a demand made b* the state upon some
individual or corporation to show b* what right the* e1ercise
some franchise or privilege appertaining to the state which7
according to the Constitution and laws the* cannot legall*
e1ercise b* virtue of a grant and authorit* from the State.
:t is a special civil action commenced b* a verified petition
againstE
a? a person who usurps a public office7 position or
franchise9
b? a public officer who performs an act constituting
forfeiture of a public office9 or
c? an association which acts as a corporation within
the hilippines without being legall* incorporated
or without lawful authorit* to do so.
A(O WARRANTO
;R(LE 44=
A(O WARRANTO
;ELE/TION /ODE=
Sub%ect of the petition is
in relation to an
appointive office9
Sub%ect of the petition is in
relation to an elective office9
4he issue is the legalit*
of the occupanc* of the
office b* virtue of a legal
appointment9
8rounds relied upon areE >a?
ineligibilit* to the position9
or >b? dislo*alt* to the
Republic.
etition is brought either
to the Supreme Court7
the Court of Appeals or
the Regional 4rial Court9
$a* be instituted with the
C3$2L2C b* an* voter
contesting the election of an*
member of Congress7
regional7 provincial or cit*
officer9 or to the $e4C7
$4C or $C4C if against
an* baranga* official9
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5iled within one >!? *ear
from the time the cause
of ouster7 or the right of
the petitioner to hold the
office or position arose9
5iled within ten >!D? da*s
after the proclamation of the
results of the election9
etitioner is the person
entitled to the office9
etitioner ma* be an* voter
even if he is not entitled to
the office9
4he court has to declare
who the person entitled
to the office is if he is the
petitioner.
<hen the tribunal declares
the candidate-elect as
ineligible7 he will be
unseated but the person
occup*ing the second place
will not be declared as the
one dul* elected because the
law shall consider onl* the
person who7 having dul*
filed his certificate of
candidac*7 received a
pluralit* of votes.
 0R24 has %urisdiction involving member of
Congress
W>EN +OVERNMENT /OMMEN/E AN A/TION
A+AINST INDIVID(ALS
Auo warranto is commenced b* a verified petition brought
in the name of the 8overnment of the Republic of the
hilippines b* the Solicitor 8eneral7 or in some instances7 b*
a public prosecutor. <hen the action is commenced b* the
Solicitor 8eneral7 the petition ma* be brought in the
Regional 4rial Court of the Cit* of $anila7 the Court of
Appeals or the Supreme Court.
An action for the usurpation of a public office7 position or
franchise ma* be commenced b* a verified petition brought
in the name of the Republic of the hilippines thru the
Solicitor 8eneral againstE
!? A person who usurps7 intrudes into7 or unlawfull*
holds or e1ercises a public office7 position or
franchise9
"? A public officer who does or suffers an act which7
b* the provision of law7 constitutes a ground for the
forfeiture of his office9
&? An association which acts a corporation within the
hilippines without being legall* incorporated or
without lawful authorit* so to act.
W>EN INDIVID(AL MA' /OMMEN/E AN
A/TION
• 4he petition ma* be commenced b* a private person in
his own name where he claims to be entitled to the
public office or position alleged to have been usurped or
unlawfull* held or e1ercised b* another.
• Accordingl*7 the private person ma* maintain the action
without the intervention of the Solicitor 8eneral and
without need for an* leave of court.
• :n bringing a petition for ,uo warranto7 he must show
that he has a clear right to the office allegedl* being
held b* another. :t is not enough that he merel* asserts
the right to be appointed to the office.
.(D+MENT IN A(O WARRANTO A/TION
3f office7 position or franchise7 %udgment shall be rendered
that such respondent be ousted and altogether e1cluded
therefrom7 and that the petitioner recover his costs. Such
further %udgment ma* be rendered determining the
respective rights in and to the public office7 position or
franchise of the parties to the action as %ustice re,uires.
RI+>TS O) A ,ERSON AD.(D+ED ENTITLED TO
,(BLI/ O))I/E
:f the petitioner is ad%udged to be entitled to the office7 he
ma* sue for damages against the alleged usurper within one
>!? *ear from the entr* of %udgment establishing his right to
the office in ,uestion.
E*,RO,RIATION ;R(LE 45=
!? 4o be filed with the R4C9 this is action incapable of
pecuniar* estimation
"? 21propriation is an e1ercise of the StateCs power of
eminent domain wherein the government takes a private
propert* for public purpose upon pa*ment of %ust
compensation.
MATTERS TO ALLE+E IN /OM,LAINT )OR
E*,RO,RIATION
An e1propriation proceeding is commenced b* the filing of a
verified complaint which shallE
a? State with certaint* the right of the plaintiff to
e1propriation and the purpose thereof9
b? Describe the real or personal propert* sought to be
e1propriated9 and
c? /oin as defendants all persons owning or claiming
to own7 or occup*ing7 an* part of the propert* or
interest therein showing as far as practicable the
interest of each defendant. :f the plaintiff cannot
with accurac* identif* the real owners7 averment to
that effect must be made in the complaint.
TWO STA+ES IN EVER' A/TION )OR
E*,RO,RIATION
!? Determination of the authorit* of the plaintiff to
e1propriate ("!!e""%e "re"'+ "t this st"3e) J this
includes an in,uir* into the propriet* of the
e1propriation7 its necessit* and the public purpose. 4his
stage will end in the issuance of an order of
e1propriation if the court finds for the plaintiff or in the
dismissal of the complaint if it finds otherwise.
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BERT – NOTES in REMEDIAL LAW
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"? Determination of %ust compensation through the court-
appointed commissioners.
W>EN ,LAINTI)) /AN IMMEDIATEL' ENTER
INTO ,OSSESSION O) T>E REAL ,RO,ERT'
IN RELATION TO RA 6752
21cept for the ac,uisition of right-of-wa*7 site or location
for an* national government infrastructure pro%ect through
e1propriation7 the e1propriator shall have the right to take or
enter upon the possession of the real propert* involved if he
deposits with the authori@ed government depositar* an
amount e,uivalent to the assessed value of the propert* for
purposes of ta1ation to be held b* such bank sub%ect to the
orders of the court. such deposit shall be in mone*7 unless in
lieu thereof the court authori@es the deposit of a certificate of
deposit of a government bank of the hilippines pa*able on
demand to the authori@ed government depositar*.
NEW S'STEM O) IMMEDIATE ,A'MENT O)
INITIAL .(ST /OM,ENSATION
5or the ac,uisition of right-of-wa*7 site or location for an*
national government infrastructure pro%ect through
e1propriation7 upon the filing of the filing of the complaint7
and after due notice to the defendant7 the implementing
agenc* shall immediatel* pa* the owner of the propert* the
amount e,uivalent to the sum ofE
!? !DD 2RC2#4 of the value of the propert* based
on the current relevant @onal valuation of the B:R9
and
"? 4he value of the improvements and6or structures as
determined un'er Sec. : of *A <9:8 (Sec. 8, *A
<9:8).
 L8B J !(U market value
DE)ENSES AND OB.E/TIONS
3mnibus $otion Rule S a motion attacking a pleading7
order7 %udgment or proceeding shall include all ob%ections
then available7 and all ob%ections not so included shall be
deemed waived.
:f a defendant has no ob%ection or defense to the action or
the taking of his propert*7 he ma* file and serve a notice of
appearance and a manifestation to that effect7 specificall*
designating or identif*ing the propert* in which he claims to
be interested7 within the time stated in the summons.
4hereafter7 he shall be entitled to notice of all proceedings
affecting the same.
:f a defendant has an* ob%ection to the filing of or the
allegations in the complaint7 or an* ob%ection or defense to
the taking of his propert*7 he shall serve his answer within
the time stated in the summons. 4he answer shall
specificall* designate or identif* the propert* in which he
claims to have an interest7 state the nature and e1tent of the
interest claimed7 and adduce all his ob%ections and defenses
to the taking of his propert*. #o counterclaim7 cross-claim
or third-part* complaint shall be alleged or allowed in the
answer or an* subse,uent pleading.
A defendant waives all defenses and ob%ections not so
alleged but the court7 in the interest of %ustice7 ma* permit
amendments to the answer to be made not later than ten >!D?
da*s from the filing thereof.
0owever7 at the trial of the issue of %ust compensation7
whether or not a defendant has previousl* appeared or
answered7 he ma* present evidence as to the amount of the
compensation to be paid for his propert*7 and he ma* share
in the distribution of the award.
ORDER O) E*,RO,RIATION
:f the ob%ections to and the defenses against the right of the
plaintiff to e1propriate the propert* are overruled7 or when
no part* appears to defend as re,uired b* this Rule7 the court
ma* issue an order of e1propriation declaring that the
plaintiff has a lawful right to take the propert* sought to be
e1propriated7 for the public use or purpose described in the
complaint7 upon the pa*ment of %ust compensation to be
determined as of the date of the taking of the propert* or the
filing of the complaint7 whichever came first.
A final order sustaining the right to e1propriate the propert*
ma* be appealed b* an* part* aggrieved thereb*. Such
appeal7 however7 shall not prevent the court from
determining the %ust compensation to be paid.
After the rendition of such an order7 the plaintiff shall not be
permitted to dismiss or discontinue the proceeding e1cept on
such terms as the court deems %ust and e,uitable.
 Appealable with the CA
AS/ERTAINMENT O) .(ST /OM,ENSATION
4he order of e1propriation merel* declares that the plaintiff
has the lawful to e1propriate the propert* but contains no
ascertainment of the compensation to be paid to the owner of
the propert*.
So upon the rendition of the order of e1propriation7 the court
shall appoint not more than three >&? commissioners to
ascertain the %ust compensation for the propert*. 3b%ections
to the appointment ma* be made within !D da*s from
service of the order of appointment. 4he commissioners are
entitled to fees and their fees shall be ta1ed as part of the
costs of the proceedings7 and all costs shall be paid b* the
plaintiff e1cept those costs of rival claimants litigating their
claims.
<here the principal issue is the determination of %ust
compensation7 a hearing before the commissioners is
indispensable to allow the parties to present evidence on the
issue of %ust compensation. Although the findings of the
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BERT – NOTES in REMEDIAL LAW
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commissioners ma* be disregarded and the trial court ma*
substitute its own estimate of the value7 the latter ma* do so
onl* for valid reasons7 that is where the commissioners have
applied illegal principles to the evidence submitted to them7
where the* have disregarded a clear preponderance of
evidence7 or where the amount allowed is either grossl*
inade,uate or e1cessive.
A,,OINTMENT O) /OMMISSIONERSH
/OMMISSIONERDS RE,ORTH /O(RT A/TION
(,ON /OMMISSIONERDS RE,ORT
A--ointmnt& Bpon the rendition of the order of
e1propriation7 the court shall appoint not more than three >&?
competent and disinterested persons as commissioners to
ascertain and report to the court the %ust compensation for
the propert* sought to be taken. 4he order of appointment
shall designate the time and place of the first session of the
hearing to be held b* the commissioners and specif* the
time within which their report shall be submitted to the
court. Copies of the order shall be served on the parties.
3b%ections to the appointment of an* of the commissioners
shall be filed with the court within ten >!D? da*s from
service7 and shall be resolved within thirt* >&D? da*s after all
the commissioners shall have received copies of the
ob%ections.
R-ort& 4he court ma* order the commissioners to report
when an* particular portion of the real estate shall have been
passed upon b* them7 and ma* render %udgment upon such
partial report7 and direct the commissioners to proceed with
their work as to subse,uent portions of the propert* sought
to be e1propriated7 and ma* from time to time so deal with
such propert*. 4he commissioners shall make a full and
accurate report to the court of all their proceedings7 and such
proceedings shall not be effectual until the court shall have
accepted their report and rendered %udgment in accordance
with their recommendations. 21cept as otherwise e1pressl*
ordered b* the court7 such report shall be filed within si1t*
>)D? da*s from the date the commissioners were notified of
their appointment7 which time ma* be e1tended in the
discretion of the court. Bpon the filing of such report7 the
clerk of the court shall serve copies thereof on all interested
parties7 with notice that the* are allowed ten >!D? da*s
within which to file ob%ections to the findings of the report7
if the* so desire.
Action %-on t! r-ort& Bpon the e1piration of the period
of ten >!D? da*s referred to in the preceding section7 or even
before the e1piration of such period but after all the
interested parties have filed their ob%ections to the report or
their statement of agreement therewith7 the court ma*7 after
hearing7 accept the report and render %udgment in accordance
therewith9 or7 for cause shown7 it ma* recommit the same to
the commissioners for further report of facts9 or it ma* set
aside the report and appoint new commissioners9 or it ma*
accept the report in part and re%ect it in part9 and it ma* make
such order or render such %udgment as shall secure to the
plaintiff the propert* essential to the e1ercise of his right of
e1propriation7 and to the defendant %ust compensation for the
propert* so taken.
RI+>TS O) ,LAINTI)) (,ON .(D+MENT AND
,A'MENT
After pa*ment of the %ust compensation as determined in the
%udgment7 the plaintiff shall have the right to enter upon the
propert* e1propriated and to appropriate the same for the
public use or purpose defined in the %udgment or to retain
possession alread* previousl* made.
4itle to the propert* e1propriated passes from the owner to
the e1propriator upon full pa*ment of %ust compensation.
E))E/T O) RE/ORDIN+ O) .(D+MENT
4he %udgment entered in e1propriation proceedings shall
state definitel*7 b* an ade,uate description7 the particular
propert* or interest therein e1propriated7 and the nature of
the public use or purpose for which it is e1propriated.
<hen real estate is e1propriated7 a certified cop* of such
%udgment shall be recorded in the registr* of deeds of the
place in which the propert* is situated7 and its effect shall be
to vest in the plaintiff the title to the real estate so described
for such public use or purpose.
)ORE/LOS(RE O) REAL ESTATE MORT+A+E
;R(LE 46=
 A real estate mortgage is an accessor* contract e1ecuted
b* a debtor in favor of a creditor as securit* for the
principal obligation.
 4his principal obligation is a simple loan or mutuum
described in Art. 1953, Ci6i Co'e. 4o be a real estate
mortgage7 the contract must be constituted on either
immovables >real propert*? or inalienable real rights. :f
constituted on movables7 the contract is a chattel
mortgage (Art. 2128, CC).
• A mortgage contract ma* have a provision in which
the mortgage is a securit* for past7 present and
future indebtedness. 4his clause known as a
DRA+NET /LA(SE OR BLAN8ET mortgage
clause has its origins in American %urisprudence.
• 4he Supreme Court ruled that mortgages given to
secure future advancements are valid and legal
contracts (Pru'enti" B"n9 6s. A6i"r, 8;8 SC*A
353).
.(D+MENT ON )ORE/LOS(RE )OR ,A'MENT
OR SALE
:f after the trial7 the court finds that the matters set forth in
the complaint are true7 it shall render a %udgment containing
the following mattersE
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a? An ascertainment of the amount due to the plaintiff
upon the mortgage debt or obligation7 including
interest and other charges as approved b* the court7
as well as costs9
b? A %udgment of the sum found due9
c? An order that the amount found due be paid to the
court or to the %udgment obligee within the period
of not less than .D da*s nor more than !"D da*s
from the entr* of %udgment9 and
d? An admonition that in default of such pa*ment the
propert* shall be sold at public auction to satisf*
the %udgment.
4he %udgment of the court on the above matters is
considered a final ad%udication of the case and hence7 is
sub%ect to challenge b* the aggrieved part* b* appeal or b*
other post-%udgment remedies.
4he period granted to the mortgagor for the pa*ment of the
amount found due b* the court is not %ust a procedural
re,uirement but s substantive right given b* law to the
mortgagee as his first chance to save his propert* from final
disposition at the foreclosure sale.
SALE O) MORT+A+ED ,RO,ERT'H E))E/T
4he confirmation of the sale shall divest the rights in the
propert* of all parties to the action and shall vest their rights
in the purchaser7 sub%ect to such rights of redemption as ma*
be allowed b* law. 4he title vests in the purchaser upon a
valid confirmation of the sale and retroacts to the date of
sale.
4he import of Sec. 3 includes one vital effectE 4he e,uit* of
redemption of the mortgagor or redemptioner is cut-off and
there will be no further redemption7 unless allowed b* law
>as in the case of banks as mortgagees?.
4he e,uit* of redemption starts from the ninet*-da* period
set in the %udgment of the court up to the time before the sale
is confirmed b* an order of the court. Onc con:irm#? no
E%ity o: r#m-tion may :%rt!r 9 xrcis#&
4he or'er of confir$"tion is "!!e""%e and if not appealed
within the period for appeal becomes final. Bpon the finalit*
of the order of confirmation or upon the e1piration of the
period of redemption when allowed b* law7 the purchaser at
the auction sale or last redemptioner7 if an*7 shall be entitled
to the possession of the propert* and he ma* secure a writ of
possession7 upon7 motion7 from the court which ordered the
foreclosure unless a third part* is actuall* holding the same
adversel* to the %udgment obligor.
DIS,OSITION O) ,RO/EEDS O) SALE
4he proceeds of the sale of the mortgaged propert* shall7
after deducting the costs of the sale7 be paid to the person
foreclosing the mortgage7 and when there shall be an*
balance or residue after pa*ing off the mortgage debt due7
the same shall be paid to %unior encumbrancers in the order
of their priorit*. :f there be an* further balance after pa*ing
them or if there be no %unior encumbrancers7 the same shall
be paid to the mortgagor or an* person entitled thereto.
DE)I/IEN/' .(D+MENT
:f there be a balance due to the plaintiff after appl*ing the
proceeds of the sale7 the court7 upon motion7 shall render
%udgment against the defendant for an* such balance.
21ecution ma* issue immediatel* if the balance is all due
the plaintiff shall be entitled to e1ecution at such time as the
remaining balance shall become due and such due date shall
be stated in the %udgment. #ote that the deficienc* %udgment
is in itself a %udgment hence7 also appealable.
#o independent action need be filed to recover the
deficienc* from the mortgagor. 4he deficienc* %udgment
shall be rendered upon motion of the mortgagee. 4he motion
must be made onl* after the sale and after it is known that a
deficienc* e1ists. Before that7 an* court order to recover the
deficienc* is void. :t has been held that the mortgagor who is
not the debtor and who merel* e1ecuted the mortgage to
secure the principal debtorCs obligation is not liable for the
deficienc* unless he assumed liabilit* for the same in the
contract.
Since a deficienc* %udgment cannot be obtained against the
mortgagor who is not the debtor in the principal obligation7
mortgagee ma* have to file a separate suit against the
principal debtor.
INSTAN/ES W>EN /O(RT /ANNOT RENDER
DE)I/IEN/' .(D+MENT
<here the debtor-mortgagor is a non-resident and who at the
time of the filing of the action for foreclosure and during the
pendenc* of the proceedings was outside the hilippines7 it
is believed that a deficienc* %udgment would not be
procedurall* feasible.
A 'eficienc+ &u'3$ent is %+ n"ture in !erson"$ "n'
&uris'iction o6er the !erson is $"n'"tor+. C"6in3 %een
outsi'e the countr+, &uris'iction o6er his !erson cou' not
h"6e %een "c(uire'.
E*TRA<.(DI/IAL
)ORE/LOS(RE ;A/T
1113=
.(DI/IAL
)ORE/LOS(RE ;R(LE
46=
#o complaint is filed9 Complaint is filed with the
courts9
4here is a right of
redemption. $ortgagor
has a right of redemption
for ! *ear from registration
of the sale9
#o right of redemption
e1cept when mortgagee is a
banking institution9 e,uit*
of redemption onl* >.D to
!"D da*s7 and an* time
before confirmation of
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foreclosure sale?9
$ortgagee has to file a
separate action to recover
an* deficienc*9
$ortagagee can move for
deficienc* %udgment in the
same action
Bu*er at public auction
becomes absolute owner
onl* after finalit* of an
action for consolidation of
ownership9
Bu*er at public auction
becomes absolute owner
onl* after confirmation of
the sale9
$ortgagee is given a
special power of attorne*
in the mortgage contract to
foreclose the mortgaged
propert* in case of default.
$ortgagee need not be
given a special power of
attorne*.
EA(IT' O)
REDEM,TION
RI+>T O)
REDEM,TION
4he right of defendant
mortgagor to e1tinguish
the mortgage and retain
ownership of the propert*
b* pa*ing the debt within
.D to !"D da*s after the
entr* of %udgment or
even after the foreclosure
sale but prior to
confirmation.
A right granted to a debtor
mortgagor7 his successor in
interest or an* %udicial
creditor or %udgment creditor
or an* person having a lien
on the propert* subse,uent
to the mortgage or deed of
trust under which the
propert* is sold to
repurchase the propert*
within one *ear even after
the confirmation of the sale
and even after the
registration of the certificate
of foreclosure sale.
$a* be e1ercised even
after the foreclosure sale
provided it is made
before the sale is
confirmed b* order of the
court.
4here is no right of
redemption in a %udicial
foreclosure of mortgage
under Rule )-. 4his right of
redemption e1ists onl* in
e1tra%udicial foreclosures
where there is alwa*s a right
of redemption within one
*ear from the date of sale
(Sec. 3, Act 3135), but
interpreted b* the Court to
mean one *ear from the
registration of the sale.
$a* also e1ist in favor or
other encumbrances. :f
subse,uent lien holders
are not impleaded as
parties in the foreclosure
suit7 the %udgment in
favor of the foreclosing
mortgagee does not bind
the other lien holders. :n
this case7 their e,uit* of
redemption remains
unforeclosed. A separate
foreclosure proceeding
8eneral ruleE :n %udicial
foreclosures there is onl* an
e,uit* of redemption which
can be e1ercised prior to the
confirmation of the
foreclosure sale. 4his means
that after the foreclosure sale
but before its confirmation7
the mortgagor ma* e1ercise
his right of pa* the proceeds
of the sale and prevent the
confirmation of the sale.
has to be brought against
them to re,uire them to
redeem from the first
mortgagee or from the
part* ac,uiring the title
to the mortgaged
propert*.
:f not b* banks7 the
mortgagors merel* have
an e,uit* of redemption7
which is simpl* their
right7 as mortgagor7 to
e1tinguish the mortgage
and retain ownership of
the propert* b* pa*ing
the secured debt prior to
the confirmation of the
foreclosure sale.
21ceptionE there is a right of
redemption if the
foreclosure is in favor of
banks as mortgagees7
whether the foreclosure be
%udicial or e1tra%udicial. 4his
right of redemption is
e1plicitl* provided in Sec.
8: of the Gener" B"n9in3
5") of 2.... <hile the law
mentions the redemption
period to be one *ear
counted from the date of
registration of the certificate
in the Registr* of ropert*
,ARTITION ;R(LE 47=
artition is the separation7 division and assignment of a thing
held in common among those to whom it ma* belong.
:t presupposes the e1istence of a co-ownership over a
propert* between two or more persons. 4he rule allowing
partition originates from a well-known principle embodied
in the Civil Code7 that no co-owner shall be obliged to
remain the co-ownership. Because of this rule7 he ma*
demand at an* time the partition of the propert* owned in
common.
:nstances when a co-owner ma* not demand partition at an*
timeE
!? 4here is an agreement among the co-owners to
keep the propert* undivided for a certain period of
time but not e1ceeding ten *ears (Art. 898);
"? <hen partition is prohibited b* the donor or
testator for a period not e1ceeding "D *ears (Art.
898);
&? <hen partition is prohibited b* law (Art. 898);
'? <hen the propert* is not sub%ect to a ph*sical
division and to do so would render it unserviceable
for the use for which it is intended (Art. 895);
(? <hen the condition imposed upon voluntar* heirs
before the* can demand partition has not *et been
fulfilled (Art. 1.<8).
W>O MA' )ILE /OM,LAINTH W>O S>O(LD BE
MADE DE)ENDANTS
4he action shall be brought b* the person who has a right to
compel the partition of real estate or of an estate composed
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of personal propert*7 or both real and personal propert*. 4he
plaintiff is a person who is supposed to be a co-owner of the
propert* or estate sought to be partitioned. 4he defendants
are all the co-owners. All the co-owners must be %oined.
Accordingl*7 an action will not lie without the %oinder of all
co-owners and other persons having interest in the propert*.
All the co-owners7 therefore7 are indispensable parties.
MATTERS TO ALLE+E IN T>E /OM,LAINT )OR
,ARTITION
4he plaintiff shall state in his complaint7 the nature and
e1tent of his title7 an ade,uate description of the real estate
of which partition is demanded7 and shall %oin as defendants
all other persons interested in the propert*. 0e must also
include a demand for the accounting of the rents7 profits and
other income from the propert* which he ma* be entitled to.
4hese cannot be demanded in another action because the*
are parts of the cause of action for partition. 4he* will be
barred if not set up in the same action pursuant to the rule
against splitting a single cause of action.
STA+ES IN EVER' A/TION )OR ,ARTITION
A reading of the Rules will reveal that there are actuall*
three >&? stages in the action7 each of which could be the
sub%ect of appealE
!? the order of partition where the propert* of the
partition is determined9
"? the %udgment as to the accounting of the fruits and
income of the propert*9 and
&? the %udgment of partition.
ORDER O) ,ARTITION AND ,ARTITION B'
A+REEMENT
During the trial7 the court shall determine whether or not the
plaintiff is trul* a co-owner of the propert*7 that there is
indeed a co-ownership among the parties7 and that a partition
is not legall* proscribed thus ma* be allowed. :f the court so
finds that the facts are such that a partition would be in
order7 and that the plaintiff has a right to demand partition7
the court will issue an order of partition.
4he court shall order the partition of the propert* among all
the parties in interest7 if after trial it finds that the plaintiff
has the right to partition. :t was held that this order of
partition including an order directing an accounting is final
and not interlocutor* and hence7 appealable9 thus7 revoking
previous contrar* rulings on the matter. A final order
decreeing partition and accounting ma* be appealed b* an*
part* aggrieved thereb*.
,artition 9y agrmnt& 4he order of partition is one that
directs the parties or co-owners to partition the propert* and
the parties ma* make the partition among themselves b*
proper instruments of conve*ance7 if the* agree among
themselves. :f the* do agree7 the court shall then confirm the
partition so agreed upon b* all of the parties7 and such
partition7 together with the order of the court confirming the
same7 shall be recorded in the registr* of deeds of the place
in which the propert* is situated. 4here alwa*s e1ists the
possibilit* that the co-owners are unable to agree on the
partition. :f the* cannot partition the propert* among
themselves7 the ne1t stage in the action will follow the
appointment of commissioners.
,ARTITION B' /OMMISSIONERSH A,,OINTMENT
O) /OMMISSIONERS /OMMISSIONERDS RE,ORTH
/O(RT A/TION (,ON /OMMISSIONERDS
RE,ORT
:f the parties are unable to agree upon the partition7 the court
shall appoint not more than three >&? competent and
disinterested persons as commissioners to make the
partition7 commanding them to set off to the plaintiff and to
each part* in interest such part and proportion of the
propert* as the court shall direct.
<hen it is made to appear to the commissioners that the real
estate7 or a portion thereof7 cannot be divided without
pre%udice to the interests of the parties7 the court ma* order it
assigned to one of the parties willing to take the same7
provided he pa*s to the other parties such amounts as the
commissioners deem e,uitable7 unless one of the interested
parties asks that the propert* be sold instead of being so
assigned7 in which case the court shall order the
commissioners to sell the real estate at public sale under
such conditions and within such time as the court ma*
determine.
4he commissioners shall make a full and accurate report to
the court of all their proceedings as to the partition7 or the
assignment of real estate to one of the parties7 or the sale of
the same. Bpon the filing of such report7 the clerk of court
shall serve copies thereof on all the interested parties with
notice that the* are allowed ten >!D? da*s within which to
file ob%ections to the findings of the report7 if the* so desire.
#o proceeding had before or conducted b* the
commissioners shall pass the title to the propert* or bind the
parties until the court shall have accepted the report of the
commissioners and rendered %udgment thereon.
Bpon the e1piration of the period of ten >!D? da*s referred to
in the preceding section7 or even before the e1piration of
such period but after the interested parties have filed their
ob%ections to the report or their statement of agreement
therewith7 the court ma*7 upon hearing7 accept the report and
render %udgment in accordance therewith9 or7 for cause
shown7 recommit the same to the commissioners for further
report of facts9 or set aside the report and appoint new
commissioners9 or accept the report in part and re%ect it in
part9 and ma* make such order and render such %udgment as
shall effectuate a fair and %ust partition of the real estate7 or
of its value7 if assigned or sold as above provided7 between
the several owners thereof.
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.(D+MENT AND ITS E))E/TS
4he %udgment shall state definitel*7 b* metes and bounds
and ade,uate description7 the particular portion of the real
estate assigned to each part*7 the effect of the %udgment shall
be to vest in each part* to the action in severalt* the portion
of the real estate assigned to him.
:f the whole propert* is assigned to one of the parties upon
his pa*ing to the others the sum or sums ordered b* the
court7 the %udgment shall state the fact of such pa*ment and
of the assignment of the real estate to the part* making the
pa*ment7 and the effect of the %udgment shall be to vest in
the part* making the pa*ment the whole of the real estate
free from an* interest on the part of the other parties to the
action.
:f the propert* is sold and the sale confirmed b* the court7
the %udgment shall state the name of the purchaser or
purchasers and a definite description of the parcels of real
estate sold to each purchaser7 and the effect of the %udgment
shall be to vest the real estate in the purchaser or purchasers
making the pa*ment or pa*ments7 free from the claims of
an* of the parties to the action.
A certified cop* of the %udgment shall in either case be
recorded in the registr* of deeds of the place in which the
real estate is situated7 and the e1penses of such recording
shall be ta1ed as part of the costs of the action.
,ARTITION O) ,ERSONAL ,RO,ERT'
4he provisions of this Rule shall appl* to partitions of
estates composed of personal propert*7 or of both real and
personal propert*7 in so far as the same ma* be applicable.
,RES/RI,TION O) A/TION
 rescription of action does not run in favor of a co-
owner or co-heir against his co-owner or co-heirs as
long as there is a recognition of the co-ownership
e1pressl* or impliedl*.
 4he action for partition cannot be barred b* prescription
as long as the co-ownership e1ists.
 But while the action to demand partition of a co-owned
propert* does not prescribe7 a co-owner ma* ac,uire
ownership thereof b* prescription where there e1ists a
clear repudiation of the co-ownership and the co-owners
are apprised of the claim of adverse and e1clusive
ownership.
)OR/IBLE ENTR' AND (NLAW)(L DETAINER
;R(LE 50?
4he actions for forcible entr* and unlawful detainer belong
to the class of actions known b* the generic name "ccion
inter'ict" >e%ectment? where the issue is the right of
ph*sical or material possession of the sub%ect real propert*
independent of an* claim of ownership b* the parties
involved.
Accion 8nterdictal comprises two distinct causes of actionE
 )OR/IBLE ENTR' (6;64;A)834), where
one is deprived of ph*sical possession of real
propert* b* means of force7 intimidation7 strateg*7
threats or stealth ;)ISTS=H
 (NLAW)(L DETAINER (6&A<=8)3),
where one illegall* withholds possession after the
e1piration or termination of his right to hold
possession under an* contract7 e1press or implied.
)OR/IBLE ENTR' (NLAW)(L DETAINER
4he possession of the
defendant is unlawful
from the beginning9
issue is which part* has
prior de facto
possession9
4he possession of the
defendant is lawful from the
beginning becomes illegal b*
reason of the e1piration or
termination of his right to the
possession of the propert*9
4he law does not
re,uire previous
demand for the
defendant to vacate9
laintiff must first make such
demand which is
%urisdictional in nature9
4he plaintiff must
prove that he was in
prior ph*sical
possession of the
premises until he was
deprived b* the
defendant9 and
4he plaintiff need not have
been in prior ph*sical
possession9
4he one *ear period is
generall* counted from
the date of actual entr*
on the propert*.
4he one-*ear period is
counted from the date of last
demand.
A//ION
,(BLI/IANA
A//ION
REINVINDI/ATORIA
A plenar* ordinar* civil
action for the recover* of
the better right of
possession >%uridical
possession?7 must be
filed after the e1piration
of one *ear from the
accrual of the cause of
action or from the
unlawful withholding of
possession of the realt*.
:n other words7 if at the
time of the filing of the
complaint more than one
*ear had elapsed since
defendant had turned
An action for the recover*
of the e1ercise of
ownership7 particularl*
recover* of possession as
an attribute or incident of
ownership9
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plaintiff out of
possession or
defendantLs possession
had become illegal7 the
action will be not one of
forcible entr* or
unlawful detainer but an
accion
4he basis of the recover*
of possession is the
plaintiffLs real right of
possession or %us
possessionis7 which is
the right to the
possession of the real
propert* independent of
ownership.
4he basis for the recover*
of possession is ownership
itself.
/urisdiction is based on the value of the of the propert*
appl*ing "D= and (D= rule
>OW TO DETERMINE .(RISDI/TION IN A//ION
,(BLI/IANA AND A//ION REINVINDI/ATORIA
4he actions of forcible entr* and unlawful detainer are
within the e1clusive and original %urisdiction of the $4C7
$e4C and $C4C and shall be governed b* the rules on
summar* procedure irrespective of the amount of damages
or rental sought to be recovered.
:n actions for forcible entr*7 two allegations are mandator*
for the $4C to ac,uire %urisdictionE
!? plaintiff must allege his prior ph*sical possession of
the propert*9 and
"? he must also allege that he was deprived of his
possession b* force7 intimidation7 strateg*7 threat or
stealth.
:f the alleged dispossession did not occur b* an* of these
means7 the proper recourse is to file not an action for
forcible entr* but a plenar* action to recover possession.
Both actions must be brought within one *ear from the date
of actual entr* on the land7 in case of forcible entr*7 and
from the date of last demand7 in case of unlawful detainer.
/urisdiction is determined b* the allegations of the
complaint. 4he mere raising of the issue of tenanc* does not
automaticall* divest the court of %urisdiction because the
%urisdiction of the court is determined b* the allegations of
the complaint and is not dependent upon the defenses set up
b* the defendant.
W>O MA' INSTIT(TE T>E A/TION AND W>ENH
A+AINST W>OM T>E A/TION MA' BE
MAINTAINED
A person deprived of the possession of an* land or building
b* force7 intimidation7 threat7 strateg*7 or stealth7 or a lessor7
vendor7 vendee7 or other person against whom the
possession of an* land or building is unlawfull* withheld
after the e1piration or termination of the right to hold
possession7 b* virtue of an* contract7 e1press or implied7 or
the legal representatives or assigns of an* such lessor7
vendor7 vendee7 or other person7 ma*7 at an* time within one
>!? *ear after such unlawful deprivation or withholding of
possession7 bring an action in the proper $unicipal 4rial
Court against the person or persons unlawfull* withholding
or depriving of possession7 or an* person or persons
claiming under them7 for the restitution of such possession7
together with damages and costs.
Bnless otherwise stipulated7 such action b* the lessor shall
be commenced onl* after demand to pa* or compl* with the
conditions of the lease and to vacate is made upon the lessee7
or b* serving written notice of such demand upon the person
found on the premises7 or b* posting such notice on the
premises if no person be found thereon7 and the lessee fails
to compl* therewith after fifteen >!(? da*s in the case of
land or five >(? da*s in the case of buildings.
,LEADIN+S ALLOWED
4he onl* pleadings allowed to be filed are the complaint7
compulsor* counterclaim and cross-claim pleaded in the
answer7 and the answers thereto. All pleadings shall be
verified.
A/TION ON T>E /OM,LAINT
4he court ma*7 from an e1amination of the allegations in the
complaint and such evidence as ma* be attached thereto7
dismiss the case outright on an* of the grounds for the
dismissal of a civil action which are apparent therein. :f no
ground for dismissal is found7 it shall forthwith issue
summons.
W>EN DEMAND IS NE/ESSAR'
Bnless there e1ists a stipulation to the contrar*7 an unlawful
detainer case shall be commenced onl* after the demand to
pa* or compl* with the conditions of the lease and to vacate
is made upon the lessee.
4he re,uirement for a demand implies that the mere failure
of the occupant to pa* rentals or his failure to compl* with
the conditions of the lease does not ipso facto render his
possession of the premises unlawful. :t is the failure to
compl* with the demand that vests upon the lessor a cause of
action.
4he demand ma* be in the form of a written notice served
upon the person found in the premises. 4he demand ma*
also be made b* posting a written notice on the premises if
no person can be found thereon. :t has been ruled7 however7
that the demand upon a tenant ma* be oral. Sufficient
evidence must be adduced to show that there was indeed a
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72
demand like testimonies from disinterested and unbiased
witnesses.
,RELIMINAR' IN.(N/TION AND ,RELIMINAR'
MANDATOR' IN.(N/TION
4he court ma* grant preliminar* in%unction7 in accordance
with the provisions of *ue 5<7 to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible
entr* or unlawful detainer ma*7 within five >(? da*s from the
filing of the complaint7 present a motion in the action for
forcible entr* or unlawful detainer for the issuance of a writ
of preliminar* mandator* in%unction to restore him in his
possession. 4he court shall decide the motion within thirt*
>&D? da*s from the filing thereof.
RESOLVIN+ DE)ENSE O) OWNERS>I,
4he assertion b* the defendant of ownership over the
disputed propert* does not serve to divest the inferior court
of its %urisdiction. 4he defendant cannot deprive the court of
%urisdiction b* merel* claiming ownership of the propert*
involved.
<hen the defendant raises the issue of ownership7 the court
ma* resolve the issue of ownership onl* under the following
conditionsE
!? <hen the issue of possession cannot be resolved
without resolving the issue of ownership9 and
"? 4he issue of ownership shall be resolved onl* to
determine the issue of possession.
Such %udgment would not bar an action between the same
parties respecting title to the land or building. 4he resolution
of the $e4C on the ownership of the propert* is merel*
provisional or interlocutor*. An* ,uestion involving the
issue of ownership should be raised and resolved in a
separate action brought specificall* to settle the ,uestion
with finalit*.
>OW TO STA' T>E IMMEDIATE E*E/(TION O)
.(D+MENT
Defendant must take the following steps to sta* the
e1ecution of the %udgmentE
!? erfect an appeal9
"? 5ile a supersedeas bond to pa* for the rents7
damages and costs accruing down to the time of the
%udgment appealed from9 and
&? Deposit periodicall* with the R4C 7 during the
pendenc* of the appeal7 the ad%udged amount of
rent due under the contract or if there be no
contract7 the reasonable value of the use and
occupation of the premises.
21ceptions to the ruleE
!? <here dela* in the deposit is due to fraud7 accident7
mistake7 or e1cusable negligence9
"? <here supervening events occur subse,uent to the
%udgment bringing about a material change in the
situation of the parties which makes e1ecution
ine,uitable9 and
&? <here there is no compelling urgenc* for the
e1ecution because it is not %ustified b* the
circumstances.
S(MMAR' ,RO/ED(RE? ,RO>IBITED
,LEADIN+S
5orcible entr* and unlawful detainer actions are summar* in
nature designed to provide for an e1peditious means of
protecting actual possession or the right to possession of the
propert* involved. 4hese actions shall both fall under the
coverage of the Rules of Summar* rocedure irrespective of
the amount of damages or unpaid rental sought to be
recovered.
rohibited pleadings and motionsE
a? $otion to dismiss the complaint e1cept on the
ground of lack of %urisdiction over the sub%ect
matter7 or failure to compl* with section !"9
b? $otion for a bill of particulars9
c? $otion for new trial7 or for reconsideration of a
%udgment7 or for reopening of trial9
d? etition for relief from %udgment9
e? $otion for e1tension of time to file pleadings7
affidavits or an* other paper9
f? $emoranda9
g? etition for certiorari7 mandamus7 or prohibition
against an* interlocutor* order issued b* the court9
h? $otion to declare the defendant in default9
i? Dilator* motions for postponement9
%? Repl*9
k? 4hird-part* complaints9
l? :nterventions
/ONTEM,T ;R(LE 51=
Contempt is a disregard of7 or disobedience to the rules or
orders of a %udicial bod*7 or an interruption of its
proceedings b* disorderl* behavior or insolent language7 in
its presence or so near thereto as to disturb the proceedings
or to impair the respect due to such bod*.
Contempt of court is disobedience to the court b* acting in
opposition to its authorit*7 %ustice and dignit*. :t signifies not
onl* a willful disregard or disobedience of the courtLs orders
but also conduct tending to bring the authorit* of the court
and the administration of law into disrepute or7 in some
manner to impede the due administration of %ustice.
4he reason for the power to punish for contempt is that
respect of the courts guarantees the stabilit* of their
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institution. <ithout such guarantee7 said institution would be
resting on shak* foundation.
:t is inherent in all courts9 its e1istence is essential to the
preservation of order in %udicial proceedings and to the
enforcement of %udgments7 orders and mandates of the
courts7 and conse,uentl*7 to the due administration of
%ustice.
/ontm-t -roc#ings !as #%a$ :%nctionC
!? ;indication of public interest b* punishment of
contemptuous conduct9 and
"? Coercion to compel the contemnor to do what the
law re,uires him to uphold the power of the Court7
and also to secure the rights of the parties to a suit
awarded b* the Court.
8INDS O) /ONTEM,TH ,(R,OSE AND NAT(RE
O) EA/>
!? Civil or Criminal7 depending on the nature and effect of
the contemptuous act.
"? Direct or indirect7 according to the manner of
commission.
/IVIL /ONTEM,T /RIMINAL /ONTEM,T
:t is the failure to do
something ordered to be
done b* a court or a %udge
for the benefit of the
opposing part* therein and is
therefore and offense against
the part* in whose behalf the
violated order was made9
:t is a conduct directed
against the authorit* and
dignit* of the court or a
%udge acting %udiciall*9 it is
an obstructing the
administration of %ustice
which tends to bring the
court into disrepute or
disrespect9
4he purpose is to
compensate for the benefit
of a part*9
4he purpose is to punish7 to
vindicate the authorit* of the
court and protect its outraged
dignit*9
4he rules of procedure
governing contempt
proceedings or criminal
prosecutions ordinaril* are
inapplicable to civil
contempt proceedings.
Should be conducted in
accordance with the
principles and rules
applicable to criminal cases7
insofar as such procedure is
consistent with the summar*
nature of contempt
proceedings.
DIRE/T
/ONTEM,T
INDIRE/T /ONTEM,T
:n general is
committed in the
presence of or so near
the court or %udge
while performing the
%udicial function as to
obstruct or interrupt
the proceedings before
:t is not committed in the presence
of the court7 but done at a distance
which tends to belittle7 degrade7
obstruct or embarrass the court and
%ustice9
it9
Acts constitutin3
'irect conte$!t "re0
a? $isbehavior in the
presence of or so
near the court as
to obstruct or
interrupt the
proceedings
before it9
b? Disrespect toward
the court9
c? 3ffensive
personalities
towards others9
d? Refusal to be
sworn as a witness
or to answer as a
witness9
e? Refusal to
subscribe an
affidavit or
deposition when
lawfull* re,uired
to do so9
f? Acts of a part* or
a counsel which
constitute willful
and deliberate
forum shopping9
g? Bnfounded
accusations or
allegations or
words in a
pleading tending
to embarrass the
court or to bring it
into disrepute.
Acts constitutin3 in'irect conte$!t
"re0
After a charge in writing has been
filed7 and an opportunit* given to
the respondent to comment
thereon within such period as ma*
be fi1ed b* the court and to be
heard b* himself or counsel7 a
person guilt* of an* of the
following acts ma* be punished
for indirect contemptE
!? $isbehavior an officer of a
court in the performance of
his official duties or in his
official transactions9
"? Disobedience of or resistance
to a lawful writ7 process7
order7 or %udgment of a court7
including the act of a person
who7 after being dispossessed
or e%ected from an* real
propert* b* the %udgment or
process of an* court of
competent %urisdiction7 enters
or attempts or induces another
to enter into or upon such real
propert*7 for the purpose of
e1ecuting acts of ownership or
possession7 or in an* manner
disturbs the possession given
to the person ad%udged to be
entitled thereto9
&? An* abuse of or an* unlawful
interference with the
processes or proceedings of a
court not constituting direct
contempt under section ! of
this Rule9
'? An* improper conduct
tending7 directl* or indirectl*7
to impede7 obstruct7 or
degrade the administration of
%ustice9
(? Assuming to be an attorne* or
an officer of a court7 and
acting as such without
authorit*9
)? 5ailure to obe* a subpoena
dul* served9
+? 4he rescue7 or attempted
rescue7 of a person or propert*
in the custod* of an officer b*
virtue of an order or process
of a court held b* him.
5ailure b* counsel to inform the
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74
court of the death of his client
constitutes indirect contempt
within the purview of Sec. 3, *ue
:1, since it constitutes an improper
conduct tending to impede the
administration of %ustice.
REMED' A+AINST INDIRE/T /ONTEM,TH
,ENALT'
4he punishment for indirect contempt depends upon the
level of the court against which the act was committed9
a? <here the act was committed against an R4C or a
court of e,uivalent or higher rank7 he ma* be
punished b* a fine not e1ceeding &D7DDD pesos or
imprisonment not e1ceeding ) months7 or both9
b? <here the act was committed against a lower court7
he ma* be punished b* a fine not e1ceeding (7DDD
pesos or imprisonment not e1ceeding one month7 or
both. Aside from the applicable penalties7 if the
contempt consists in the violation of a writ of
in%unction7 4R3 or status ,uo order7 he ma* also be
ordered to make complete restitution to the part*
in%ured b* such violation of the propert* involved
or such amount as ma* be alleged and proved9
c? <here the act was committed against a person or
entit* e1ercising ,uasi-%udicial functions7 the
penalt* imposed shall depend upon the provisions
of the law which authori@es a penalt* for contempt
against such persons or entities.
4he person ad%udged in indirect contempt ma* appeal from
the %udgment or final order of the court in the same manner
as in criminal cases. 4he appeal will not however have the
effect of suspending the %udgment if the person ad%udged in
contempt does not file a bond in an amount fi1ed b* the
court from which the appeal is taken. 4his bond is
conditioned upon his performance of the %udgment or final
order if the appeal is decided against.
>OW /ONTEM,T ,RO/EEDIN+S ARE
/OMMEN/ED
roceedings for indirect contempt ma* be initiated $otu
!ro!rio b* the court against which the contempt was
committed b* an order or an* other formal charge re,uiring
the respondent to show cause wh* he should not be punished
for contempt.
:n all other cases7 charges for indirect contempt shall be
commenced b* a verified petition with supporting particulars
and certified true copies of documents or papers involved
therein7 and upon full compliance with the re,uirements for
filing initiator* pleadings for civil actions in the court
concerned. :f the contempt charges arose out of or are
related to a principal action pending in the court7 the petition
for contempt shall allege that fact but said petition shall be
docketed7 heard and decided separatel*7 unless the court in
its discretion orders the consolidation of the contempt charge
and the principal action for %oint hearing and decision.
W>EN IM,RISONMENT S>ALL BE IM,OSED
 <hen the contempt consists in the refusal or omission
to do an act which is *et in the power of the respondent
to perform7 he ma* be imprisoned b* order of the court
concerned until he performs it.
 :ndefinite incarceration ma* be resorted to where the
attendant circumstances are such that the non-
compliance with the court order is an utter disregard of
the authorit* of the court which has then no other
recourse but to use its coercive power.
• <hen a person or part* is legall* and validl* re,uired
b* a court to appear before it for a certain purpose7 and
when that re,uirement is disobe*ed7 the onl* remed*
left for the court is to use force to bring the person or
part* before it.
• 4he punishment is imposed for the benefit of a
complainant or a part* to a suit who has been in%ured
aside from the need to compel performance of the
orders or decrees of the court7 which the contemnor
refuses to obe* although able to do so. :n effect7 it is
within the power of the person ad%udged guilt* of
contempt to set himself free.
/ONTEM,T A+AINST A(ASI<.(DI/IAL BODIES
• 4he rules on contempt appl* to contempt
committed against persons or entities e1ercising
,uasi-%udicial functions or in case there are rules for
contempt adopted for such bodies or entities
pursuant to law7 *ue :1 shall appl* suppletoril*.
• Auasi-%udicial bodies that have the power to cite
persons for indirect contempt can onl* do so b*
initiating them in the proper R4C. :t is not within
their %urisdiction and competence to decide the
indirect contempt cases. 4he R4C of the place
where contempt has been committed shall have
%urisdiction over the charges for indirect contempt
that ma* be filed.
S,E/IAL ,RO/EEDIN+S ;R%$s 52 – 107=
S%9@ct Mattrs o: S-cia$ ,roc#ingsC /AT/> A+ED
S>AR/
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BERT – NOTES in REMEDIAL LAW
75
!? C hange of #ame
"? A doption
&? 4 rustees
'? C onstitution of 5amil* 0ome
(? 0 ospitali@ation of :nsane ersons
)? A bsence and Death7 Declaration of
+? 8 uardianship and Custod* of Children
-? 2 scheat
.? >;oluntar*? Dissolution of Corporation
!D? S ettlement of 2state of Deceased ersons
!!? 0 abeas Corpus
!"? >/udicial? Approval of ;oluntar* Recognition of $inor
#atural Children
!&? R escission and Revocation of Adoption
!'? C ancellation or Correction of 2ntries in the Civil
Registr*
Special roceedings is an application or proceeding to
establish the status or right of a part*7 or a particular fact7
generall* commenced b* application7 petition or special
form of pleading as ma* be provided for b* the particular
rule or law.
SETTLEMENT O) ESTATE O) DE/EASED
,ERSONS ;R%$s 51 – 71=
SETTLEMENT O) ESTATE O) DE/EASED
,ERSONS VEN(E AND ,RO/ESS ;R(LE 51=
W>I/> /O(RT >AS .(RISDI/TION
:f the decedent is an inhabitant of the hilippines at the time
of his death7 whether a citi@en or an alien7 his will shall be
proved7 or letters of administration granted7 and his estate
settled7 in the R4C in the province in which he resides at the
time of his death7 and if he is an inhabitant of a foreign
countr*7 the R4C of an* province in which he had his estate.
4he court first taking cogni@ance of the settlement of the
estate of a decedent7 shall e1ercise %urisdiction to the
e1clusion of all other courts.
Bnder RA +).!7 the law e1panding the %urisdiction of the
inferior courts7 $4C7 $e4C and $C4C shall e1ercise
e1clusive original %urisdiction over probate proceedings7
testate and intestate7 where the value of the estate does not
e1ceed ,100?000 >outside $etro $anila? or where such
estate does not e1ceed ,200?000 >in $etro $anila?.
4he %urisdiction of the R4C is limited to the settlement and
ad%udication of properties of the deceased and cannot e1tend
to collateral matters.
VEN(E IN .(DI/IAL SETTLEMENT O) ESTATE
4he residence of the decedent at the time of his death is
determinative of the venue of the proceeding.
:f he was a resident (inh"%it"nt, )hether citiHen or "ien) of
the hilippines7 venue is laid e1clusivel* in the province of
his residence at the time of his death. Residence means his
personal7 actual7 or ph*sical habitation7 his actual residence
or place of abode.
:t is onl* where the decedent was a nonresident of the
hilippines at the time of his death that venue lies in an*
province in which he had an estate7 4he ,uestion of
residence is determinative onl* of the venue and does not
affect the %urisdiction of the court.
;enue is waivable. :f instituted in two courts7 the court in
which the proceeding was first filed has e1clusive
%urisdiction to resolve the issue.
E*TENT O) .(RISDI/TION O) ,ROBATE /O(RT
4he main function of a probate court is to settle and li,uidate
the estates of deceased person either summaril* or through
the process of administration.
4he probate court e1ercises limited %urisdiction7 thus it has
no power to take cogni@ance of and determine the issue of
title to propert* claimed b* a third person adversel* to the
decedent unless the claimant and all other parties have legal
interest in the propert* consent7 e1pressl* or impliedl*7 to
the submission of the ,uestion to the probate court. :n that
case7 if the probate court allows the introduction of evidence
on ownership it is for the sole purpose of determining
whether the sub%ect properties should be included in the
inventor*7 which is within the probate courtCs competence.
4he determination is onl* provisional sub%ect to a proper
action in a separate action to resolve the title.
4he %urisdiction of the probate court merel* relates to
matters having to do with the settlement of the estate and the
probate of wills7 the appointment and removal of
administrators7 e1ecutors7 guardians and trustees. 4he
,uestion of ownership is7 as a rule7 an e1traneous matter
which the probate court cannot resolve with finalit*.
,OWERS AND D(TIES O) ,ROBATE /O(RT
4he powers and duties of a probate courtE
!? Distribute shares9
"? Determine the legal heirs9
&? :ssue warrants and processes to secure attendance
of witnesses9
'? Determine and rile upon issues relating to the
settlement of the estate7 such as administration7
li,uidation7 and distribution of the estate9 and
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(? Determine the followingE
a? 0eirs of the decedent9
b? Recognition of natural child9
c? ;alidit* of the disinheritance effected
b* testator9
d? Status of a woman who claims to be
the lawful wife of the decedent9
e? ;alidit* of waiver of hereditar* heirs9
f? Status of each heir9
g? <hatever propert* in inventor* is
con%ugal or e1clusive propert* of
deceased spouse9 and
h? $atters incidental or collateral to the
settlement and distribution of the
estate.
S(MMAR' SETTLEMENT O) ESTATES ;R(LE 52=
Summar* settlement of estate is a %udicial proceeding
wherein7 without the appointment of e1ecutor or
administrator7 and without dela*7 the competent court
summaril* proceeds to value the estate of the decedent9
ascertain his debts and order pa*ment thereof9 allow his will
if an*9 declare his heirs7 devisee and legatees9 and distribute
his net estate among his known heirs7 devisees7 and legatees7
who shall thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded to them7
respectivel*.
E*TRA.(DI/IAL SETTLEMENT B' A+REEMENT
BETWEEN >EIRS
W>EN ALLOWED
:f the decedent left no will and no debts and the heirs are all
of age7 or the minors are represented b* their %udicial or
legal representatives dul* authori@ed for the purpose7 the
parties ma*7 without securing letters of administration7
divide the estate among themselves as the* see fit b* means
of a public instrument filed in the office of the register of
deeds7 and should the* disagree7 the* ma* do so in an
ordinar* action of partition.
:f there is onl* one heir7 he ma* ad%udicate to himself the
entire estate b* means of an affidavit filed in the office of
the register of deeds.
4he parties to an e1tra%udicial settlement7 whether b* public
instrument or b* stipulation in a pending action for partition7
or the sole heir who ad%udicates the entire estate to himself
b* means of an affidavit shall file7 simultaneousl* with and
as a condition precedent to the filing of the public
instrument7 or stipulation in the action for partition7 or of the
affidavit in the office of the register of deeds7 a bond with
the said register of deeds7 in an amount e,uivalent to the
value of the personal propert* involved as certified to under
oath b* the parties concerned and conditioned upon the
pa*ment of an* %ust claim that ma* be filed under section '
of this rule.
4he fact of the e1tra%udicial settlement or administration
shall be published in a newspaper of general circulation in
the manner provided in the ne1t succeeding section9 but no
e1tra%udicial settlement shall be binding upon an* person
who has not participated therein or had no notice thereof.
21tra%udicial partition of the estate shall be valid when the
following conditions concurE
!? 4he decedent left no will9
"? 4he decedent left no debts7 or if there were debts
left7 all had been paid9
&? 4he heirs are all of age or if the* are minors7 the
latter are represented b* their %udicial guardian or
legal representative9
'? 4he partition was made b* means of a public
instrument or affidavit dul* filed with the Register
of Deeds9 and
(? 4he fact of the e1tra%udicial settlement or
administration shall be published in a newspaper of
general circulation.
TWO<'EAR ,RES/RI,TIVE ,ERIOD
:t shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within
two >"? *ears after the death of the decedent.
:f it shall appear at an* time within two >"? *ears after the
settlement and distribution of an estate in accordance with
the provisions of either of the first two sections of this rule7
that an heir or other person has been undul* deprived of his
lawful participation in the estate7 such heir or such other
person ma* compel the settlement of the estate in the courts
in the manner hereinafter provided for the purpose of
satisf*ing such lawful participation.
And if within the same time of two >"? *ears7 it shall appear
that there are debts outstanding against the estate which have
not been paid7 or that an heir or other person has been
undul* deprived of his lawful participation pa*able in
mone*7 the court having %urisdiction of the estate ma*7 b*
order for that purpose7 after hearing7 settle the amount of
such debts or lawful participation and order how much and
in what manner each distributee shall contribute in the
pa*ment thereof7 and ma* issue e1ecution7 if circumstances
re,uire7 against the bond provided in the preceding section
or against the real estate belonging to the deceased7 or both.
Such bond and such real estate shall remain charged with a
liabilit* to creditors7 heirs7 or other persons for the full
period of two >"? *ears after such distribution7
notwithstanding an* transfers of real estate that ma* have
been made.
A))IDAVIT O) SEL)<AD.(DI/ATION
B' SOLE >EIR
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:f there is onl* one heir7 he ma* ad%udicate to himself the
entire estate b* means of an affidavit filed in the office of
the register of deeds.
S(MMAR' SETTLEMENT O) ESTATES O) SMALL
VAL(EH W>EN ALLOWED
<henever the gross value of the estate of a deceased person7
whether he died testate or intestate7 does not e1ceed ten
thousand pesos7 and that fact is made to appear to the R4C
having %urisdiction of the estate b* the petition of an
interested person and upon hearing7 which shall be held not
less than >!? month nor more than three >&? months from the
date of the last publication of a notice which shall be
published once a week for three >&? consecutive weeks in a
newspaper of general circulation in the province7 and after
such other notice to interested persons as the court ma*
direct7 the court ma* proceed summaril*7 without the
appointment of an e1ecutor or administrator7 and without
dela*7 to grant7 if proper7 allowance of the will7 if an* there
be7 to determine who are the persons legall* entitled to
participate in the estate7 and to apportion and divide it
among them after the pa*ment of such debts of the estate as
the court shall then find to be due9 and such persons7 in their
own right7 if the* are of lawful age and legal capacit*7 or b*
their guardians or trustees legall* appointed and ,ualified7 if
otherwise7 shall thereupon be entitled to receive and enter
into the possession of the portions of the estate so awarded
to them respectivel*. 4he court shall make such order as
ma* be %ust respecting the costs of the proceedings7 and all
orders and %udgments made or rendered in the course thereof
shall be recorded in the office of the clerk7 and the order of
partition or award7 if it involves real estate7 shall be recorded
in the proper registerTs office.
4he court7 before allowing a partition7 ma* re,uire the
distributees7 if propert* other than real is to be distributed7 to
file a bond in an amount to be fi1ed b* court7 conditioned for
the pa*ment of an* %ust claim.
REMEDIES O) A++RIEVED ,ARTIES A)TER
E*TRA<.(DI/IAL SETTLEMENT O) ESTATE
!? 4he creditor ma* ask for administration of enough
propert* of the estate sufficient to pa* the debt7 but the
heirs cannot prevent such administration b* pa*ing the
obligation.
"? <here the estate has been summaril* settled7 the unpaid
creditor ma*7 within the two-*ear period7 file a motion
in the court wherein such summar* settlement was for
the pa*ment of his credit. After the lapse of the two-
*ear period7 an ordinar* action ma* be instituted against
the distributees within the statute of limitations7 but not
against the bond.
&? 4he action to annul a deed of e1tra%udicial settlement on
the ground of fraud should be filed within four *ears
from the discover* of the fraud.
,ROD(/TION AND ,ROBATE O) WILL
;R(LE 53=
NAT(RE O) ,ROBATE ,RO/EEDIN+
 robate of a will is a proceeding in re$. :t cannot be
dispensed with and substituted b* another proceeding7
%udicial or e1tra%udicial7 without offending public
polic*.
 :t is mandator* as no will shall pass either real or
personal propert* unless proved and allowed in
accordance with the Rules.
 :t is imprescriptible7 because it is re,uired b* public
polic* and the state could not have intended to defeat
the same b* appl*ing thereto the statute of limitation of
actions.
W>O MA' ,ETITION )OR ,ROBATEH ,ERSONS
ENTITLED TO NOTI/E
An* e1ecutor7 devisee7 or legatee named in a will7 or an*
other person interested in the estate7 ma*7 at an* time after
the death of the testator7 petition the court having
%urisdiction to have the will allowed7 whether the same be in
his possession or not7 or is lost or destro*ed.
 4he testator himself ma*7 during his lifetime7
petition the court for the allowance of his will.
4he court shall also cause copies of the notice of the time
and place fi1ed for proving the will to be addressed to the
designated or other known heirs7 legatees7 and devisees of
the testator resident in the hilippines at their places of
residence7 and deposited in the post office with the postage
thereon prepaid at least twent* >"D? da*s before the hearing7
if such places of residence be known.
A cop* of the notice must in like manner be mailed to the
person named as e1ecutor7 if he be not be petitioner9 also7 to
an* person named as co-e1ecutor not petitioning7 if their
places of residence be known. ersonal service of copies of
the notice at least ten >!D? da*s before the da* of hearing
shall be e,uivalent to mailing. :f the testator asks for the
allowance of his own will7 notice shall be sent onl* to his
compulsor* heirs.
ALLOWAN/E OR DISALLOWAN/E O) WILL
;R(LE 54=
/ONTENTS O) ,ETITION )OR ALLOWAN/E O)
WILL
A petition for the allowance of a will must show7 so far as
known to the petitionerE
!? 4he %urisdictional facts9
"? 4he names7 ages7 and residences of the heirs7
legatees7 and devisees of the testator or decedent9
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&? 4he probable value and character of the propert* of
the estate9
'? 4he name of the person for whom letters are
pra*ed9
(? :f the will has not been delivered to the court7 the
name of the person having custod* of it.
But no defect in the petition shall render void the allowance
of the will7 or the issuance of letters testamentar* or of
administration with the will anne1ed.
+RO(NDS )OR DISALLOWIN+ A WILL
4he will shall be disallowed in an* of the following cases9
!? :f not e1ecuted and attested as re,uired b* law9
"? :f the testator was insane7 or otherwise mentall*
incapable to make a will7 at the time of its
e1ecution9
&? :f it was e1ecuted under duress7 or the influence of
fear7 or threats9
'? :f it was procured b* undue and improper pressure
and influence7 on the part of the beneficiar*7 or of
some other person for his benefit9
(? :f the signature of the testator was procured b*
fraud or trick
)? :f the testator acted b* mistake or did not intend
that the instrument he signed should be his will at
the time of affi1ing his signature thereto.
RE,ROBATEH REA(ISITES BE)ORE WILL
,ROVED O(TSIDE ALLOWED IN T>E
,>ILI,,INESH E))E/TS O) ,ROBATE
<ill proved outside hilippines ma* be allowed here. <ills
proved and allowed in a foreign countr*7 according to the
laws of such countr*7 ma* be allowed7 filed7 and recorded b*
the proper Court of 5irst :nstance in the hilippines.
:f it appears at the hearing that the will should be allowed in
the hilippines7 the court shall so allow it7 and a certificate
of its allowance7 signed b* the %udge7 and attested b* the seal
of the court7 to which shall be attached a cop* of the will7
shall be filed and recorded b* the clerk7 and the will shall
have the same effect as if originall* proved and allowed in
such court.
<hen a will is thus allowed7 the court shall grant letters
testamentar* or letters of administration with the will
anne1ed7 and such letters testamentar* or of administration7
shall e1tend to all the estate of the testator in the hilippines.
Such estate7 after the pa*ment of %ust debts and e1penses of
administration7 shall be disposed of according to such will7
so far as such will ma* operate upon it9 and the residue7 if
an*7 shall be disposed of as is provided b* law in cases of
estates in the hilippines belonging to persons who are
inhabitants of another state or countr*.
:f the court is satisfied7 upon proof taken and filed7 that the
will was dul* e1ecuted7 and that the testator at the time of its
e1ecution was of sound and disposing mind7 and not acting
under duress7 menace7 and undue influence7 or fraud7 a
certificate of its allowance7 signed b* the %udge7 and attested
b* the seal of the court shall be attached to the will and the
will and certificate filed and recorded b* the clerk. Attested
copies of the will devising real estate and of certificate of
allowance thereof7 shall be recorded in the register of deeds
of the province in which the lands lie.
4he general rule universall* recogni@ed is that
administration e1tends onl* to the assets of the decedent
found within the state or countr* where it was granted7 so
that an administrator appointed in one state or countr* has
no power over the propert* in another state or countr*.
<hen a person dies intestate owning propert* in the countr*
of his domicile as well as in foreign countr*7 administration
shall be had in both countries. 4hat which is granted in the
%urisdiction of the decedentCs domicile is termed the
principal administration7 while an* other administration is
termed ancillar* administration. 4he ancillar* administration
is proper whenever a person dies leaving in a countr* other
than that of his domicile7 propert* to be administered in the
nature of assets of the decedent7 liable for his individual
debts or to be distributed among his heirs.
LETTERS TESTAMENTAR' AND O)
ADMINISTRATION ;R(LE 56=
Letters testamentar* is the appointment issued b* a probate
court7 after the will has been admitted to probate7 to the
e1ecutor named in the will to administer the estate of the
deceased testator7 provided the e1ecutor named in the will is
competent7 accepts the trust and gives a bond.
W>EN AND TO W>OM LETTERS O)
ADMINISTRATION +RANTED
#o person is competent to serve as e1ecutor or administrator
whoE
a? :s a minor9
b? :s not a resident of the hilippines9 and
c? :s in the opinion of the court unfit to e1ecute the
duties of the trust b* reason of drunkenness7
improvidence7 or want of understanding or
integrit*7 or b* reason of conviction of an offense
involving moral turpitude.
4he e1ecutor of an e1ecutor shall not7 as such7 administer
the estate of the first testator.
A married woman ma* serve as e1ecutri1 or administratri17
and the marriage of a single woman shall not affect her
authorit* so to serve under a previous appointment.
<hen a will has been proved and allowed7 the court shall
issue letters testamentar* thereon to the person named as
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e1ecutor therein7 if he is competent7 accepts the trust7 and
gives bond as re,uired b* these rules.
<hen all of the e1ecutors named in a will cannot act because
of incompetenc*7 refusal to accept the trust7 or failure to give
bond7 on the part of one or more of them7 letters
testamentar* ma* issue to such of them as are competent7
accept and give bond7 and the* ma* perform the duties and
discharge the trust re,uired b* the will.
:f no e1ecutor is named in the will7 or the e1ecutor or
e1ecutors are incompetent7 refuse the trust7 or fail to give
bond7 or a person dies intestate7 administration shall be
grantedE
a? 4o the surviving husband or wife7 as the case ma*
be7 or ne1t of kin7 or both7 in the discretion of the
court7 or to such person as such surviving husband
or wife7 or ne1t of kin7 re,uests to have appointed7
if competent and willing to serve9
b? :f such surviving husband or wife7 as the case ma*
be7 or ne1t of kin7 or the person selected b* them7
be incompetent or unwilling7 or if the husband or
widow7 or ne1t of kin7 neglects for thirt* >&D? da*s
after the death of the person to appl* for
administration or to re,uest that administration be
granted to some other person7 it ma* be granted to
one or more of the principal creditors7 if competent
and willing to serve9
c? :f there is no such creditor competent and willing to
serve7 it ma* be granted to such other person as the
court ma* select.
ORDER O) ,RE)EREN/EH ,RIORIT' IN
SELE/TIN+ AN ADMINISTRATOR
!? Surviving spouse7 or ne1t of kin7 or both7 or person as
such surviving spouse7 or ne1t of kin7 re,uests9
"? 3ne or more of the principal creditors J if such
surviving spouse7 or ne1t of kin7 or the person selected7
be incompetent or unwilling7 or if the* neglect for &D
da*s after the death of the decedent to appl* for
administration or to re,uest that administration be
granted to some other person7 it ma* be granted to7 if
competent and willing to serve9
&? Such other person as the court ma* select.
O,,OSITION TO ISS(AN/E O) LETTERS
TESTAMENTAR'H SIM(LTANEO(S )ILIN+ O)
,ETITION )OR ADMINISTRATION
An* person interested in a will ma* state in writing the
grounds wh* letters testamentar* should not issue to the
persons named therein e1ecutors7 or an* of them7 and the
court7 after hearing upon notice7 shall pass upon the
sufficienc* of such grounds. A petition ma*7 at the same
time7 be filed for letters of administration with the will
anne1ed.
,OWERS AND D(TIES O) E*E/(TORS AND
ADMINISTRATORSH RESTRI/TIONS ON T>E
,OWERS ;R(LE 62=
An 2R2CB43R is the person nominated b* a testator to
carr* out the directions and re,uests in his will and to
dispose of his propert* according to his testamentar*
provisions after his death.
An AD$:#:S4RA43R is person appointed b* the court7 in
accordance with the governing statute7 to administer and
settle intestate estate and such testate estate as no competent
e1ecutor was designated b* the testator.
4he e1ecutor or administrator of the estate of a deceased
partner shall at all times have access to7 and ma* e1amine
and take copies of7 books and papers relating to the
partnership business7 and ma* e1amine and make invoices of
the propert* belonging to such partnership9 and the surviving
partner or partners7 on re,uest7 shall e1hibit to him all such
books7 papers7 and propert* in their hands or control. 3n the
written application of such e1ecutor or administrator7 the
court having %urisdiction of the estate ma* order an* such
surviving partner or partners to freel* permit the e1ercise of
the rights7 and to e1hibit the books7 papers7 and propert*7 as
in this section provided7 and ma* punish an* partner failing
to do so for contempt.
An e1ecutor or administrator shall maintain in tenantable
repair the houses and other structures and fences belonging
to the estate7 and deliver the same in such repair to the heirs
or devisees when directed so to do b* the court.
An e1ecutor or administrator shall have the right to the
possession and management of the real as well as the
personal estate of the deceased so long as it is necessar* for
the pa*ment of the debts and the e1penses of administration.
An administrator of an intestate cannot e1ercise the right of
legal redemption over a portion of the propert* owned in
common sold b* one of the other co-owners since this is not
within the powers of administration.
<here the estate of a deceased person is alread* the sub%ect
of a testate or intestate proceeding7 the administrator cannot
enter into an* transaction involving it without an* prior
approval of the Court.
4he right of an e1ecutor or administrator to the possession
and management of the real and personal properties of the
deceased is not absolute and can onl* be e1ercised so long as
it is necessar* for the pa*ment of the debts and e1penses of
administration.
A,,OINTMENT O) S,E/IAL ADMINISTRATOR
<hen there is dela* in granting letters testamentar* or of
administration b* an* cause including an appeal from the
allowance or disallowance of a will7 the court ma* appoint a
special administrator to take possession and charge of the
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estate of the deceased until the ,uestions causing the dela*
are decided and e1ecutors or administrators appointed.
+RO(NDS )OR REMOVAL O) ADMINISTRATOR
Administration revoked if will discovered - :f after letters of
administration have been granted on the estate of a decedent
as if he had died intestate7 his will is proved and allowed b*
the court7 the letters of administration shall be revoked and
all powers thereunder cease7 and the administrator shall
forthwith surrender the letters to the court7 and render his
account within such time as the court directs. roceedings
for the issuance of letters testamentar* or of administration
under the will shall be as hereinbefore provided.
:f an e1ecutor or administrator neglects to render his account
and settle the estate according to law7 or to perform an order
or %udgment of the court7 or a dut* e1pressl* provided b*
these rules7 or absconds7 or becomes insane7 or otherwise
incapable or unsuitable to discharge the trust7 the court ma*
remove him7 or7 in its discretion7 ma* permit him to resign.
<hen an e1ecutor or administrator dies7 resigns7 or is
removed the remaining e1ecutor or administrator ma*
administer the trust alone7 unless the court grants letters to
someone to act with him. :f there is no remaining e1ecutor
or administrator7 administration ma* be granted to an*
suitable person (Sec. 2, *ue <2).
/LAIMS A+AINST T>E ESTATE ;R(LE 64=
Administration is for the purpose of li,uidation of the estate
and distribution of the residue among the heirs and legatees.
Li,uidation means the determination of all the assets of the
estate and pa*ment of all debts and e1penses.
4he purpose of presentation of claims against decedents of
the estate in the probate court is to protect the estate of
deceased persons. 4hat wa*7 the e1ecutor or administrator
will be able to e1amine each claim and determine whether it
is a proper one which should be allowed.
5urther7 the primar* ob%ect of the provisions re,uiring
presentation is to apprise the administrator and the probate
court of the e1istence of the claim so that a proper and
timel* arrangement ma* be made for its pa*ment in full or
b* pro rata portion in the due course of the administration7
inasmuch as upon the death of a person7 his entire estate is
burdened with the pa*ment of all his debts and no creditor
shall en%o* an* preference or priorit*9 all of them shall share
pro rata in the li,uidation of the estate of the deceased.
TIME WIT>IN W>I/> /LAIMS S>ALL BE )ILEDH
E*/E,TIONS
4he court shall state the time for the filing of claims against
the estate7 which shall not be more than twelve >!"? nor less
than si1 >)? months after the date of the first publication of
the notice. 0owever7 at an* time before an order of
distribution is entered7 on application of a creditor who has
failed to file his claim within the time previousl* limited7 the
court ma*7 for cause shown and on such terms as are
e,uitable7 allow such claim to be filed within a time not
e1ceeding one >!? month.
STAT(TE O) NON</LAIMS
A claim b* a person against the estate of deceased should be
made in not less than ) months nor more than !" months
since the first publication of allowance of the will. :f the said
claims are not filed within the time limited in the notice7
the* are forever be barred.
/LAIM O) E*E/(TOR OR ADMINISTRATOR
A+AINST T>E ESTATE
:f the e1ecutor or administrator has a claim against the estate
he represents7 he shall give notice thereof7 in writing7 to the
court7 and the court shall appoint a special administrator7
who shall7 in the ad%ustment of such claim7 have the same
power and be sub%ect to the same liabilit* as the general
administrator or e1ecutor in the settlement of other claims.
4he court ma* order the e1ecutor or administrator to pa* to
the special administrator necessar* funds to defend such
claim.
,A'MENT O) DEBTS ;R(LE 66=
:f there are sufficient properties7 the debts shall be paid7
thusE
!? All debts shall be paid in full within the time
limited for the purpose >Sec. !?9
"? :f the testator makes provision b* his will7 or
designates the estate to be appropriated for the
pa*ment of debts the* shall be paid according to the
provisions of the will7 which must be respected
>Sec. "?9
&? :f the estate designated in the will is not sufficient7
such part of the estate as is not disposed of b* will
shall be appropriated for the purpose >Sec. "?9
'? 4he personal estate not disposed of b* will shall be
first chargeable with pa*ment of debts and
e1penses >Sec. &?9
(? :f the personal estate is not sufficient7 or its sale
would be detrimental to the participants of the
estate7 the real estate not disposed of b* will shall
be sold or encumbered for that purpose >Sec. &?9
)? An* deficienc* shall be met b* contributions from
devisees7 legatees and heirs who have entered into
possession of portions of the estate before debts and
e1penses have been paid >Sec. )?9
+? 4he e1ecutor or administrator shall retain sufficient
estate to pa* contingent claims when the same
becomes absolute >Sec. '?.
:f the estate is insolvent7 the debts shall be paid in the
following mannerE
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!? 4he e1ecutor or administrator shall pa* the debts in
accordance with the preference of credits
established b* the Civil Code >Sec. +?9
"? #o creditor of an* one class shall receive an*
pa*ment until those of the preceding class are paid
>Sec. -?9
&? :f there are no assets sufficient to pa* the credits of
an* one class of creditors7 each creditor within such
class shall be paid a dividend in proportion to his
claim >Sec. -?9
'? <here the deceased was a nonresident7 his estate in
the hilippines shall be disposed of in such a wa*
that creditors in the hilippines and elsewhere ma*
receive an e,ual share in proportion to their
respective credits >Sec. .?9
(? Claims dul* proved against the estate of an
insolvent resident of the hilippines7 the e1ecutor
or administrator7 having had the opportunit* to
contest such claims7 shall e included in the certified
list of claims proved against the deceased. 4he
owner of such claims shall be entitled to a %ust
distribution of the estate in accordance with the
preceding rules if the propert* of such deceased
person in another countr* is likewise e,uall*
apportioned to the creditors residing in the
hilippines and other creditors7 according to their
respective claims >Sec. !D?9
)? :t must be noted that the pa*ments of debts of the
decedent shall be made pursuant to the order of the
probate court >Sec. !!?.
3n granting letters testamentar* or administration the court
shall allow to the e1ecutor or administrator a time for
disposing of the estate and pa*ing the debts and legacies of
the deceased7 which shall not7 in the first instance7 e1ceed
one >!? *ear9 but the court ma*7 on application of the
e1ecutor or administrator and after hearing on such notice of
the time and place therefor given to all persons interested as
it shall direct7 e1tend the time as the circumstances of the
estate re,uire not e1ceeding si1 >)? months for a single
e1tension nor so that the whole period allowed to the
original e1ecutor or administrator shall e1ceed two >"? *ears
(Sec. 15).
A/TIONS B' AND A+AINST E*E/(TORS AND
ADMINISTRATORS ;R(LE 65=
#o action upon a claim for the recover* of mone* or debts
or interest thereon shall be commenced against the e1ecutor
or administrator.
A/TIONS T>AT MA' BE BRO(+>T A+AINST
E*E/(TORS AND ADMINISTRATORS
An action to recover real or personal propert*7 or an interest
therein7 from the estate7 or to enforce a lien thereon7 and
actions to recover damages for an in%ur* to person or
propert*7 real or personal7 ma* be commenced against the
e1ecutor or administrator.
<henever a part* to a pending action dies7 and the claim is
not thereb* e1tinguished7 it shall be the dut* of his counsel
to inform the court within thirt* >&D? da*s after such death of
the fact thereof7 and to give the name and address of his
legal representative or representatives. 5ailure of counsel to
compl* with this dut* shall be a ground for disciplinar*
action. 4he heirs of the deceased ma* be allowed to be
substituted for the deceased7 without re,uiring the
appointment of an e1ecutor or administrator and the court
ma* appoint a guardian ad litem for the minor heirs.
4he court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
of thirt* >&D? da*s from notice. :f no legal representative is
named b* the counsel for the deceased part*7 or if the one so
named shall fail to appear within the specified period7 the
court ma* order the opposing part*7 within a specified time7
to procure the appointment of an e1ecutor or administrator
for the estate of the deceased and the latter shall immediatel*
appear for and on behalf of the deceased. 4he court charges
in procuring such appointment7 if defra*ed b* the opposing
part*7 ma* be recovered as costs.
<hen the action is for recover* of mone* arising from
contract7 e1press or implied7 and the defendant dies before
entr* of final %udgment in the court in which the action was
pending at the time of such death7 it shall not be dismissed
but shall instead be allowed to continue until entr* of final
%udgment. A favorable %udgment obtained b* the plaintiff
therein shall be enforced in the manner especiall* provided
in these Rules for prosecuting claims against the estate of a
deceased person.
REA(ISITES BE)ORE /REDITOR MA' BRIN+ AN
A/TION )OR RE/OVER' O) ,RO,ERT'
)RA(D(LENTL' /ONVE'ED B' T>E DE/EASED
!? 4here is a deficienc* of assets in the hands of an
e1ecutor or administrator for the pa*ment of debts and
e1penses of administration9
"? 4he deceased in his lifetime had made or attempted to
make a fraudulent conve*ance of his real or personal
propert*7 or a right or interest therein7 or a debt or
credit7 with intent to defraud his creditors or to avoid
an* right7 debt or dut*9 or had so conve*ed such
propert*7 right7 debt7 or credit that b* law the
conve*ance would be void as against his creditors9
&? 4he sub%ect of the attempted conve*ance would be
liable to attachment b* an* of them in his lifetime9
'? 4he e1ecutor or administrator has shown to have no
desire to file the action or failed to institute the same
within a reasonable time9
(? Leave is granted b* the court to the creditor to file the
action9
)? A bond is filed b* the creditor as prescribed in the
Rules9
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+? 4he action b* the creditor is in the name of the e1ecutor
or administrator.
DISTRIB(TION AND ,ARTITION ;R(LE 70=
Before there could be a distribution of the estate7 the
following two stages must be followedE
!? a*ment of obligations >li,uidation of estate? J
under the Rules7 the distribution of a
decedentLs assets ma* onl* be ordered under
an* of the following three circumstancesE
a. when the inheritance ta17 among other
is paid9
b. when a sufficient bond is given to
meet the pa*ment of the inheritance
ta1 and all other obligations9 and
c. when the pa*ment of the said ta1 and
all other obligations has been
provided for9 and
"? Declaration of heirs J there must first be
declaration of heirs to determine to whom the
residue of the estate should e distributed. A
separate action for the declaration of heirs is
not proper.
And likewise after7 not before the declaration of heirs is
made ma* the residue be distributed and delivered to the
heirs. 4he settlement of a decedentLs estate is a proceeding
in rem which is binding against the whole world. All persons
having interest in the sub%ect matter involved7 whether the*
were notified or not7 are e,uall* bound.
LIA(IDATION
W!n or#r :or #istri9%tion o: rsi#% ma#& <hen the
debts7 funeral charges7 and e1penses of administration7 the
allowance to the widow7 and inheritance ta17 if an*7
chargeable to the estate in accordance with law7 have been
paid7 the court7 on the application of the e1ecutor or
administrator7 or of a person interested in the estate7 and
after hearing upon notice7 shall assign the residue of the
estate to the persons entitled to the same7 naming them and
the proportions7 or parts7 to which each is entitled7 and such
person ma* demand and recover their respective shares from
the e1ecutor or administrator7 or an* other person having the
same in his possession. :f there is a controvers* before the
court as to who are the lawful heirs of the deceased person
or as to the distributive shares to which each person is
entitled under the law7 the controvers* shall be heard and
decided as in ordinar* cases.
#o distribution shall be allowed until the pa*ment of the
obligations above mentioned has been made or provided for7
unless the distributees7 or an* of them7 give a bond7 in a sum
to be fi1ed b* the court7 conditioned for the pa*ment of said
obligations within such time as the court directs.
A%stions as to a#0ancmnt to 9 #trmin#& Auestions
as to advancement made7 or alleged to have been made7 b*
the deceased to an* heir ma* be heard and determined b* the
court having %urisdiction of the estate proceedings9 and the
final order of the court thereon shall be binding on the
person raising the ,uestions and on the heir.
By "!om x-nss o: -artition -ai#& :f at the time of the
distribution the e1ecutor or administrator has retained
sufficient effects in his hands which ma* lawfull* be applied
for the e1penses of partition of the properties distributed7
such e1penses of partition ma* be paid b* such e1ecutor or
administrator when it appears e,uitable to the court and not
inconsistent with the intention of the testator9 otherwise7 the*
shall be paid b* the parties in proportion to their respective
shares or interest in the premises7 and the apportionment
shall be settled and allowed b* the court7 and7 if an* person
interested in the partition does not pa* his proportion or
share7 the court ma* issue an e1ecution in the name of the
e1ecutor or administrator against the part* not pa*ing for the
sum assessed.
,RO.E/T O) ,ARTITION
 ro%ect of partition is a document prepared b* the
e1ecutor or administrator setting forth the manner in
which the estate of the deceased is to be distributed
among the heirs.
 :f the estate is a testate estate7 the pro%ect of partition
must conform to the terms of the will9 if intestate7 the
pro%ect of partition must be in accordance with the
provisions of the Civil Code.
REMED' O) AN >EIR ENTITLED TO RESID(E
B(T NOT +IVEN >IS S>ARE
!? :f there is a controvers* before the court as to who are
the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law7 the controvers* shall be heard and
decided as in ordinar* cases.
"? 4he better practice for the heir who has not received his
share is to demand his share through a proper motion in
the same probate or administration proceedings7 or for
reopening of the probate or administrative proceedings
if it had alread* been closed7 and not through an
independent action7 which would be tried b* another
court or %udge.
&? :t has been held that an order which determines the
distributive share of the heirs of a deceased person is
appealable. :f not appealed within the reglementar*
period7 it becomes final.
'? 4he Court allowed the continuation of a separate action
to annul the pro%ect of partition b* a preterited heir7
since the estate proceedings have been closed and
terminated for over three *ears7 and on the ground of
lesion7 preterition and fraud.
INSTAN/ES W>EN ,ROBATE /O(RT MA' ISS(E
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WRIT O) E*E/(TION
a? 4o satisf* the contributive shares of devisees7 legatees
and heirs in possession of the decedentLs assets9
b? 4o enforce pa*ment of e1penses of partition9 and
c? 4o satisf* the costs when a person is cited for
e1amination in probate proceedings.
+ENERAL +(ARDIANS AND +(ARDIANS>I,
TR(STEES ;R(LE 76=
Re,uisites for e1istence of a valid trustE
!? 21istence of a person competent to create9
"? Sufficient words to create it9
&? A person capable of holding as trustee a specified
or ascertainable ob%ect9
'? A definite trust res9 and
(? A declaration of the terms of the trust
TR(STEE E*E/(TOR B
ADMINISTRATOR
An instrument or agent of the
cestui (ue trust7 who ac,uires
no beneficial interest in the
estate9 he merel* took the
legal estate onl* as the proper
e1ecution of the trust re,uired9
and7 his estate ceases upon the
fulfilment of the testatorLs
wishes7 in which case7 the
same vest absolutel* in the
beneficiar*.
An e1ecutor is the
person named in the will
to administer the
decedentLs estate and
carr* out the provisions
thereof.
An administrator is the
person appointed b* the
court to administer the
estate where the
decedent died intestate7
or where the will was
void and not allowed to
probate7 or where no
e1ecutor was named in
the will7 or the e1ecutor
named therein in
incompetent or refuses
to serve as such.
An association or corporation
authori@ed to conduct the
business of a trust compan* in
the hilippines ma* appointed
as trustee of an estate in the
same manner as an individual
>Art. !D)D7 CC?.
An association or
corporation authori@ed
to conduct the business
of a trust compan* in the
hilippines ma*
appointed as e1ecutor or
administrator of an
estate in the same
manner as an individual
>Art. !D)D7 CC?.
Duties are usuall* governed
b* the intention of the trustor
or the parties if established b*
a contract.
Duties ma* cover a wider
range.
Duties are fi1ed and6or
limited b* law >Rule
-'?.
Groun's for re$o6" of
trustee0
a? :nsanit*9
b? :ncapabilit* of
discharging trust or
evidentl* unsuitable
therefor >Sec. -7 Rule .-?9
c? #eglect in the
performance of his duties9
d? Breach of trust displa*ing
a want of fidelit*7 not
mere error in the
administration of the
trust9
e? Abuse and abandonment
of the trust9
f? Refusal to recogni@e or
administer the trust9
g? 5ailure or neglect or
impropriet* in investment
of the trust estate as to
give rise to waste of trust
propert*9
h? 5ailure to file accounts7
and failure of one co-
trustee to keep himself
informed of the conduct
of the other in the
administration of the trust.
Groun's for re$o6"0
a? #eglect to render an
account and settle
the estate according
to law9
b? #eglect to perform
an order or
%udgment of the
court9
c? #eglect to perform
a dut* e1pressl*
provided b* these
rules9
d? Absconds7 or
becomes insane7 or
e? otherwise incapable
or unsuitable to
discharge trust9
f? >e? 5raud or
misrepresentation
/ONDITIONS O) T>E BOND
A trustee appointed b* the court is re,uired to furnish a bond
and the terms of the trust or a statute ma* provide that a
trustee appointed b* a court shall be re,uired to furnish a
bond in order to ,ualif* him to administer the trust.
0owever7 the court ma* until further order e1empt a trustee
under a will from giving a bond when the testator has
directed or re,uested such e1emption or when all persons
beneficiall* interested in the trust7 being of full age7 re,uest
the e1emption. Such e1emption ma* be cancelled b* the
court at an* time7 and the trustee re,uired to forthwith file a
bond. :f the trustee fails to furnish a bond as re,uired b* the
court7 he fails to ,ualif* as such. #onetheless the trust is not
defeated b* such a failure to give bond.
4he following conditions shall be deemed to be a part of the
bond whether written therein or notE
a? 4hat the trustee will make and return to the court7 at
such time as it ma* order7 a true inventor* of all the
real and personal estate belonging to him as trustee7
which at the time of the making of such inventor*
shall have come to his possession or knowledge9
b? 4hat he will manage and dispose of all such estate7
and faithfull* discharge his trust in relation thereto7
according to law and the will of the testator or the
provisions of the instrument or order under which
he is appointed9
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c? 4hat he will render upon oath at least once a *ear
until his trust is fulfilled7 unless he is e1cused
therefrom in an* *ear b* the court7 a true account of
the propert* in his hands and of the management
and disposition thereof7 and will render such other
accounts as the court ma* order.
4hat at the e1piration of his trust he will settle his accounts
in court and pa* over and deliver all the estate remaining in
his hands7 or due from him on such settlement7 to the person
or persons entitled thereto. But when the trustee is appointed
as a successor to a prior trustee7 the court ma* dispense with
the making and return of an inventor*7 if one has alread*
been filed7 and in such case the condition of the bond shall
be deemed to be altered accordingl*.
REA(ISITES )OR T>E REMOVAL AND
RESI+NATION O) A TR(STEE
A trustee ma* be removed upon petition to the proper R4C
of the parties beneficiall* interested7 after due notice to the
trustee and hearing7 if it appears essential in the interests of
the petitioners. 4he court ma* also7 after due notice to all
persons interested7 remove a trustee who is insane or
otherwise incapable of discharging his trust or evidentl*
unsuitable therefor. A trustee7 whether appointed b* the
court or under a written instrument7 ma* resign his trust if it
appears to the court proper to allow such resignation.
A trustee whose acts or omissions are such as to show a
want of reasonable fidelit* will be removed b* the court and
where trust funds are to be invested b* the trustee7 neglect to
invest constitutes of itself a breach of trust7 and is a ground
for removal.
+RO(NDS )OR REMOVAL AND RESI+NATION O)
A TR(STEE
4he proper Regional 4rial Court ma*7 upon petition of the
parties beneficiall* interested and after due notice to the
trustee and hearing9 remove a trustee if such removal
appears essential in the interests of the petitioners. 4he court
ma* also7 after due notice to all persons interested7 remove a
trustee who is insane or otherwise incapable of discharging
his trust or evidentl* unsuitable therefor. A trustee7 whether
appointed b* the court or under a written instrument7 ma*
resign his trust if it appears to the court proper to allow such
resignation.
A trustee whose acts or omissions are such as to show a
want of reasonable fidelit* will be removed b* the court and
where trust funds are to be invested b* the trustee7 neglect to
invest constitutes of itself a breach of trust7 and is a ground
for removal.
E*TENT O) A(T>ORIT' O) TR(STEE
A trustee appointed b* the R4C shall have the same rights7
powers7 and duties as if he had been appointed b* the
testator. #o person succeeding to a trust as e1ecutor or
administrator of a former trustee shall be re,uired to accept
such trust.
Such new trustee shall have and e1ercise the same powers7
rights7 and duties as if he had been originall* appointed7 and
the trust estate shall vest in him in like manner as it had
vested or would have vested7 in the trustee in whose place he
is substituted9 and the court ma* order such conve*ance to
be made b* the former trustee or his representatives7 or b*
the other remaining trustees7 as ma* be necessar* or proper
to vest the trust estate in the new trustee7 either alone or
%ointl* with the others.
ES/>EAT ;R(LE 71=
2scheat is a proceeding whereb* the real and personal
propert* of a deceased person in the hilippines7 become the
propert* of the state upon his death7 without leaving an* will
or legal heirs.
W>EN TO )ILE
<hen a person dies intestate7 sei@ed of real or personal
propert* in the hilippines7 leaving no heir or person b* law
entitled to the same7 the Solicitor 8eneral or his
representative in behalf of the Republic of the hilippines7
ma* file a petition in the Court of 5irst :nstance of the
province where the deceased last resided or in which he had
estate7 if he resided out of the hilippines7 setting forth the
facts7 and pra*ing that the estate of the deceased be declared
escheated.
REA(ISITES )OR )ILIN+ O) ,ETITION
a? 4hat a person died intestate9
b? 4hat he left no heirs or person b* law entitled to the
same9 and
c? 4hat the deceased left properties.
REMED' O) RES,ONDENT A+AINST ,ETITIONH
,ERIOD )OR )ILIN+ A /LAIM
:f a devisee7 legatee7 heir7 widow7 widower or other person
entitled to such estate appears and files a claim thereto with
the court within ( *ears from the date of such %udgment7
such person shall have possession of and title to the same7 or
if sold7 the municipalit* or cit* shall be accountable to him
for the proceeds7 after deducting reasonable charges for the
care of the estate9 hence7 claim not made within such time
limit shall forever be barred.
+(ARDIANS>I, ;R(LES 72 – 75=
8uardianship is the power of protective authorit* given b*
law and imposed on an individual who is free and in the
en%o*ment of his rights7 over one whose weakness on
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BERT – NOTES in REMEDIAL LAW
105
account of his age or other infirmit* renders him unable to
protect himself. 8uardianship ma* also describe the relation
subsisting between the guardian and the ward. :t involves the
taking of possession of an management of7 the estate of
another unable to act for himself.
A guardian is a person lawfull* invested with power and
charged with the dut* of taking care of a person who for
some peculiarit* or status or defect of age7 understanding or
self-control is considered incapable of administering his own
affairs.
8in#s o: g%ar#iansC
!? According to scope or e1tent
a? 8uardian of the person J one who has been
lawfull* invested with the care of the person of
minor whose father is dead. 0is authorit* is derived
out of that of the parent9
b? 8uardian of the propert* J that appointed b* the
court to have the management of the estate of a
minor or incompetent person9
c? 8eneral guardians J those appointed b* the court to
have the care and custod* of the person and of all
the propert* of the ward.
"? According to constitution
a? Legal J those deemed as guardians without need of
a court appointment >Art. ""(7 5amil* Court?9
b? 8uardian ad litem J those appointed b* courts of
%ustice to prosecute or defend a minor7 insane or
person declared to be incompetent7 in an action in
court9 and
c? /udicial J those who are appointed b* the court in
pursuance to law7 as guardian for insane persons7
prodigals7 minor heirs or deceased was veterans and
other incompetent persons.
+ENERAL ,OWERS AND D(TIES O) +(ARDIANS
;R(LE 74=
a? 4o have care and custod* over the person of his ward7
and6or the management of his estate >Sec. !?9
b? 4o pa* the %ust debts of his ward out of the latterLs
estate >Sec. "?9
c? 4o bring or defend suits in behalf of the ward7 and7 with
the approval of the court7 compound for debts due the
ward and give discharges to the debtor >Sec. &?9
d? 4o manage the estate frugall* and without waste7 and
appl* the income and profits to the comfortable and
suitable maintenance of the ward and his famil* >Sec.
'?9
e? 4o sell or encumber the real estate of the ward upon
being authori@ed to do so >Sec. '?9
f? 4o %oin in an assent to a partition of real or personal
estate held b* the ward %ointl* or in common with others
>Sec. (?.
/ONDITIONS O) T>E BOND O) T>E +(ARDIAN
a? 4o file with the court complete inventor* of the estate of
the ward within & months9
b? 4o faithfull* e1ecute the duties of his trust to manage
and dispose of the estate according to the Rules for the
best interests of the ward7 and to provide for the proper
use7 custod*7 and education of the ward9
c? 4o render a true account of all the estate7 and of the
management and disposition of the same9
d? 4o settle his accounts with the court and deliver over all
the estate remaining in his hands to the person entitled
thereto9
e? 4o perform all orders of the court b* him to be
performed (Sec. 1; Sec. 18, A, .3/.2/.5/SC).
R(LE ON +(ARDIANS>I, OVER MINORS
;AM 01<02<03<S/=
4he father and mother shall %ointl* e1ercise legal
guardianship over the person and propert* of their
unemancipated common child without the necessit* of a
court appointment. 4he Rule shall be suppletor* to the
provisions of the 5amil* Code on guardianship.
3n grounds authori@ed b* law7 an* relative or other person
on behalf of a minor7 or the minor himself if !' *ears of age
or over7 ma* petition the 5amil* Court for the appointment
of a general guardian over the person or propert*7 or both7 of
such minor. 4he petition ma* also be filed b* the Secretar*
of DS<D and of the D30 in the case of an insane minor
who needs to be hospitali@ed.
+ro%n#s o: -titionC
a? Death7 continued absence7 or incapacit* of his
parents9
b? Suspension7 deprivation or termination of parental
authorit*9
c? Remarriage of his surviving parent7 if the latter is
found unsuitable to e1ercise parental authorit*9 or
d? <hen the best interest of the minor so re,uire.
A%a$i:ications o: g%ar#iansC
a? $oral character9
b? h*sical7 mental and ps*chological condition9
c? 5inancial status9
d? Relationship of trust with the minor9
e? Availabilit* to e1ercise the powers and duties of a
guardian for the full period of the guardianship9
f? Lack of conflict of interest with the minor9 and
g? Abilit* to manage the propert* of the minor.
3rder of preference in the appointment of guardian or the
person and6or propert* of minorE
a? 4he SBR;:;:#8 8RA#DAR2#4 and in case
several grandparents survive7 the court shall select
an* of them taking into account all relevant
considerations9
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106
b? 4he 3LD2S4 BR3402R 3R S:S42R of the
minor over "! *ears of age7 unless unfit or
dis,ualified9
c? 4he AC4BAL CBS43D:A# of the minor over "!
*ears of age7 unless unfit or dis,ualified9 and
d? An* 3402R 2RS3#7 who in the sound
discretion of the court7 would serve the best
interests of the minor.
5actors to consider in determining custod*E
a? An* e1tra%udicial agreement which the parties ma*
have bound themselves to compl* with respecting
the rights of the minor to maintain direct contact
with the non-custodial parent on a regular basis7
e1cept when there is an e1isting threat or danger of
ph*sical7 mental7 se1ual or emotional violence
which endangers the safet* and best interests of the
minor9
b? 4he desire and abilit* of one parent to foster an
open and loving relationship between the minor and
the other parent9
c? 4he health7 safet* and welfare of the minor9
d? An* histor* of child or spousal abuse b* the person
seeking custod* or who has had an* filial
relationship with the minor7 including an*one
courting the parent9
e? 4he nature and fre,uenc* of contact with both
parents9
f? 0abitual use of alcohol7 dangerous drugs or
regulated substances9
g? $arital misconduct9
h? 4he most suitable ph*sical7 emotional7 spiritual7
ps*chological and educational environment for the
holistic development and growth of the minor9 and
i? 4he preference of the minor over + *ears of age and
of sufficient discernment7 unless the parent chosen
is unfit (Sec. 18, A, -o. .3/.8/.8/SC).
 4he court shall order a social worker to conduct a
case stud* of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance before
the scheduled hearing.
ADO,TION ;R(LES 77
100? S(,ERSEDED B' AM 02<4<02<S/=
 Adoption is a %uridical act which creates between two
persons a relationship similar to that which results from
legitimate paternit*.
 Adoption is a %uridical act7 a proceeding in rem7 which
creates between the two persons a relationship similar to
that which results from legitimate paternit* and filiation.
 Adoption is not an adversarial proceeding. An
adversarial proceeding is one having opposing parties7
contested7 as distinguished from an e1 parte application7
one of which the part* seeking relief has given legal
warning to the other part* and afforded the latter an
opportunit* to contest it e1cludes an adoption
proceeding. :n adoption7 there is no particular defendant
to speak of since the proceeding involves the status of a
person it being an action in rem.
DOMESTI/ ADO,TION INTER</O(NTR' ADO,TION
8overned b* RA -(("7 the Domestic Adoption Act of
!..-9 procedure governed b* A, -o. .2/.;/.2/SC,
Au3. 22, 2..2.
8overned b* *A <.837 the :nter-Countr* Adoption Act of !..(9
procedure governed b* the Amended :mplementing Rules and
Regulations on :CAA.
Applies to domestic adoption of 5ilipino children7
where the entire adoption process beginning from the
filing of the petition up to the issuance of the adoption
decree takes place in the hilippines.
Applies to adoption of a 5ilipino child in a foreign countr*7 where
the petition for adoption is filed7 the supervised trial custod* is
undertaken and the decree of adoption is issued outside of the
hilippines.
W!o may 9 a#o-t# W!o may 9 a#o-t#
A child legall* available for adoption.
Re,uisitesE
a? Below !- *ears of age9 and
b? /udiciall* declared available for adoption.
c? 21ceptionsE
d? Legitimate son6daughter of one spouse b* the
other spouse9
e? :llegitimate sonI'"u3hter %+ " (u"ifie'
"'o!ter;
f? erson of legal age if7 prior to the adoption
said person has been consistentl* considered
and treated b* the adopter6s as his6her own
child since minorit*.
3nl* a legall* free child ma* be adopted.
Re,uisitesE
a? Below !( *ears of age9 and
b? 0as been voluntaril* or involuntaril* committed to the
DS<D in accordance with P4 ;.3.
W!o may a#o-t W!o may a#o-t
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BERT – NOTES in REMEDIAL LAW
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A& )ILI,INO /ITIGENS
!? 3f legal age9
"? :n possession of full civil capacit* and legal
rights9
&? 3f good moral character9
'? 0as not been convicted of an* crime
involving moral turpitude9
(? 2motionall* and ps*chologicall* capable of
caring for children9
)? :n a position to support and care for his6her
children in keeping with the means of the
famil*9
+? At least !) *ears older than the adoptee but
this latter re,uirement ma* be waived if >a?
the adopter is the biological parent of the
adoptee9 or >b? the adopter is the spouse of
the adopteeLs parent9 and
-? ermanent resident of the hilippines.
B& ALIENS
!? Same ,ualifications as above7 and in
additionE
"? 0is6her countr* has diplomatic relations with
the Republic of the hilippines9
&? 0is6her government allows the adoptee to
enter his6her countr* as his6her adopted
son6daughter9
'? 0as been living in the hilippines for at least
& continuous *ears prior to the filing of the
application for adoption and maintains such
residence until the adoption decree is
entered9 and
(? 0as been certified b* his6her diplomatic or
consular office or an* appropriate
government agenc* that he6she has the legal
capacit* to adopt in his6her countr*. 4his
re,uirement ma* be waived if >a? a former
5ilipino citi@ens seeks to adopt a relative
within the 'th degree of consanguinit* or
affinit*9 >b? one seeks to adopt the legitimate
son6daughter of his6her 5ilipino spouse9 >c?
one who is married to a 5ilipino citi@en and
seeks to adopt a relative within the 'th
degree of consanguinit* or affinit* of the
5ilipino spouse.
A. )ILI,INO /ITIGENS
!? ermanent resident of a foreign countr*9
"? 0as the capacit* to act and assume all rights and
responsibilities of parental authorit* under hilippine
laws9
&? 0as undergone the appropriate counseling from an
accredited counselor in countr* of domicile9
'? 0as not been convicted of a crime involving moral
turpitude9
(? 2ligible to adopt under hilippine laws9
)? :n a position to provide the proper care and support and to
give the necessar* moral values and e1ample to all his
children7 including the child to be adopted9
+? Agrees to uphold the basic rights of the child as
embodied under hilippine laws7 the B# Convention on
Rights of the Child7 and to abide b* the rules and
regulations issued to implement the provisions of the
:CAA9
-? Residing in a countr* with whom the hilippines has
diplomatic relations and whose government maintains a
similarl* authori@ed and accredited agenc* and that
adoption is allowed in that countr*9
.? ossesses all the ,ualifications and none of the
dis,ualifications provided in the :CAA and in other
applicable hilippine laws9
!D? At least "+ *ears of age at the time of the application9 and
!!? At least !) *ears older than the child to be adopted at the
time of application7 unless >a? adopted is the parent b*
nature of the child to be adopted9 or >b? adopter is the
spouse of the parent b* nature of the child to be adopted.
B& ALIENS
!? At least "+ *ears of age at the time of the application9
"? At least !) *ears older than the child to be adopted at the
time of application unless the adopter is the parent b*
nature of the child to be adopted or the spouse of such
parent9
&? 0as the capacit* to act and assume all rights and
responsibilities of parental authorit* under his national
laws9
'? 0as undergone the appropriate counseling from an
accredited counselor in his6her countr*9
(? 0as not been convicted of a crime involving moral
turpitude9
)? 2ligible to adopt under his6her national law9
+? :n a position to provide the proper care and support and to
give the necessar* moral values and e1ample to all his
children7 including the child to be adopted9
-? Agrees to uphold the basic rights of the child as
embodied under hilippine laws7 the B# Convention on
the Rights of the Child7 and to abide b* the rules and
regulations issued to implement the provisions of the
:CAA9
.? Comes from a countr* with whom the hilippines has
diplomatic relations and whose government maintains a
similarl* authori@ed and accredited agenc* and that
adoption is allowed under his6her national laws9 and
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BERT – NOTES in REMEDIAL LAW
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!D? ossesses all the ,ualifications and none of the
dis,ualifications provided in the :CAA and in other
applicable hilippine laws.
RE%irmnt o: .oint A#o-tion 9y S-o%ss RE%irmnt o: .oint A#o-tion 9y S-o%ss
8eneral ruleE husband and wife shall %ointl* adopt9
otherwise7 the adoption shall not be allowed.
21ceptionsE
!? :f one spouse seeks to adopt the legitimate
son6daughter of the other9
"? :f one spouse seeks to adopt his6her own
illegitimate son6daughter but the other spouse
must give his6her consent9
&? :f the spouses are legall* separated from each
other.
RuleE if the adopter is married7 his6her spouse must %ointl* file for
the adoption.
,roc#%r ,roc#%r
<here to file applicationE :n the 5amil* Court of the
province or cit* where the prospective parents reside.
After filingE 4he petition shall not be set for hearing
without a case stud* report b* a licensed social
worker.
Supervised 4rial Custod*E
a? 4emporar* parental authorit* is vested in
prospective adopter9
b? eriod is at least ) months7 but ma* be
reduced b* the court motu propio or upon
motion9
c? :f adopter is alien7 the law mandatoril*
re,uires completion of the )-month trial
custod* and ma* not be reduced7 e1cept ifE
!? a former 5ilipino citi@en seeks to adopt a
relative within 'th degree of
consanguinit* or affinit*9
"? one seeks to adopt the legitimate
son6daughter of his6her 5ilipino spouse9
&? one who is married to a 5ilipino citi@en
and seeks to adopt %ointl* with his6her
spouse a relative within the 'th degree of
consanguinit* or affinit* of the 5ilipino
spouse.
Decree of AdoptionE :ssued b* hilippine 5amil*
Court.
Consent Re,uiredE <ritten consent of the following to
the adoption is re,uired7 in the form of affidavitE
!? adoptee7 if !D *ears of age or over9
"? biological parent6s of the child7 if known7 or the
legal guardian7 or the proper government
instrumentalit* which has legal custod* of the
child9
&? legitimate and adopted sons or daughters7 !D
*ears of age or over7 of the adopter6s and adoptee7
if an*9
'? illegitimate sons6daughters7 !D *ears of age of
over7 of the adopter if living with said adopter
and the latterLs spouse7 if an*9
<here to file applicationE 2ither in >a? 5amil* Court having
%urisdiction over the place where the child resides or ma* be
found7 or >b? :nter-Countr* Adoption Board >:CAB? through an
intermediate agenc*7 whether governmental or an authori@ed and
accredited agenc*7 in the countr* of the prospective adoptive
parents.
After filingE
a? if filed in the 5C7 court determines sufficienc* of petition
in respect to form and substance7 after which7 petition is
transmitted to :CAB9
b? if petition is alread* with :CAB7 it conducts matching of
the applicant with an adoptive child9
c? after matchmaking7 the child is personall* fetched b* the
applicant for the trial custod* which takes place outside
of the hilippines.
Supervised 4rial Custod*E
a? 4his process takes place outside of the countr* and under
the supervision of the foreign adoption agenc*9
b? 5or a period of ) months9
c? :f unsuccessful7 :CAB shall look for another prospective
applicant. Repatriation of the child is to be resorted onl*
as a last resort9
d? :f successful7 :CAB transmits a written consent for the
adoption to be e1ecuted b* the DS<D7 and the applicant
then files a petition for adoption in his6her countr*.
Decree of AdoptionE :ssued b* a foreign court.
Consent Re,uiredE
!? <ritten consent of biological or adopted children above
!D *ears of age7 in the form of sworn statement is
re,uired to be attached to the application to be filed with
the 5C or :CAB9
"? :f a satisfactor* pre-adoptive relationship is formed
between the applicant and the child7 the written consent
to the adoption e1ecuted b* the DS<D is re,uired.
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BERT – NOTES in REMEDIAL LAW
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(? spouse7 if an*7 of the person adopting or to be
adopted.
DOMESTI/ ADO,TION A/T
;RA 6332H AM 02<04<02<S/=
E))E/TS O) ADO,TION
Trans:r o: -arnta$ a%t!ority J e1cept in cases where the
biological parent is the spouse of the adopter7 the parental
authorit* of the biological parents shall terminate and the
same shall be vested in the adopters.
Lgitimacy J the adoptee shall be considered the legitimate
son6daughter of the adopter>s? for all intents and purposes
and as such is entitled to all the rights and obligations
provided b* law to legitimate sons6daughters born to them
without discrimination of an* kind.
S%ccssiona$ rig!ts
a? :n legal and intestate succession7 the adopter>s? and
the adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation9
b? 0owever7 if the adoptee and his6her biological
parent>s? had left a will7 the law on testamentar*
succession shall govern9
c? 4he adoptee remains an intestate heir of his6her
biological parent.
Iss%anc o: n" crti:icat an# :irst nam an# s%rnam
o: a#o-t
a? 4he adoption decree shall state the name b* which
the child is to be known. An amended certificate of
birth shall be issued b* the Civil Registr* attesting
to the fact that the adoptee is the child of the
adopter>s? b* being registered with his6her
surname9
b? 4he original certificate of birth shall be stamped
McancelledN with the annotation of the issuance of
an amended birth certificate in its place and shall be
sealed in the civil registr* records. 4he new birth
certificate to be issued to the adoptee shall not bear
an* notation that it is an amended issue9
c? All records7 books7 and papers relating to the
adoption cases in the files of the court7 the DS<D7
or an* other agenc* or institution participating in
the adoption proceedings shall be kept strictl*
confidential and the court ma* order its release
under the following conditions onl*E >!? the
disclosure of the information to a third person is
necessar* for purposes connected with or arising
out of the adoption9 >"? the disclosure will be for
the best interest of the adoptee9 and >&? the court
ma* restrict the purposes for which it ma* be used.
INSTAN/ES W>EN ADO,TION MA' BE
RES/INDED
+ro%n#s :or rscissionC
a? Repeated ph*sical and verbal maltreatment b* the
adopter>s? despite having undergone counselling9
b? Attempt on the life of the adoptee9
c? Se1ual assault or violence9 or
d? Abandonment and failure to compl* with parental
obligations.
,rscri-ti0 -rio#C
a? :f incapacitated J within five >(? *ears after he
reaches the age of ma%orit*9
b? :f incompetent at the time of the adoption J within
five >(? *ears after recover* from such
incompetenc*.
E))E/TS O) RES/ISSION O) ADO,TION
!? arental authorit* of the adopteeLs biological parent>s?7
if known7 or the legal custod* of the DS<D shall be
restored if the adoptee is still a minor or incapacitated9
"? Reciprocal rights and obligations of the adopter>s? and
the adoptee to each other shall be e1tinguished9
&? Cancellation of the amended certificate of birth of the
adoptee and restoration of his6her original birth
certificate9 and
'? Succession rights shall revert to its status prior to
adoption7 but onl* as of the date of %udgment of %udicial
rescission. ;ested rights ac,uired prior to %udicial
rescission shall be respected.
INTER</O(NTR' ADO,TION ;RA 6021=
:nter-Countr* Adoption refers to the socio-legal process of
adopting a 5ilipino child b* a foreigner or a 5ilipino citi@en
permanentl* residing abroad where the petition is filed7 the
supervised trial custod* is undertaken7 and the decree of
adoption is issued in the hilippines.
W>EN ALLOWED
 :nter-countr* adoptions are allowed when the same shall
prove beneficial to the childLs best interests7 and shall
serve and protect his6her fundamental rights.
 :t is allowed when all the re,uirements and standards set
forth under RA -D'& are complied with.
)(N/TIONS O) T>E RT/
An application to adopt a 5ilipino child shall be filed either
with the hilippine Regional 4rial Court having %urisdiction
over the child7 or with the Board7 through an intermediate
agenc*7 whether governmental or an authori@ed and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
112
accredited agenc*7 in the countr* of the prospective adoptive
parents7 which application shall be in accordance with the
re,uirements as set forth in the implementing rules and
regulations.
JBEST INTEREST O) T>E MINORK STANDARD
:n case of custod* cases of minor children7 the court after
hearing and bearing in mind the best interest of the minor7
shall award the custod* as will be for the minorLs best
interests.
JBst intrsts o: t! c!i$#K - means the totalit* of the
circumstances and conditions as are most congenial to the
survival7 protection7 and feelings of securit* of the child and
most encouraging to his ph*sical7 ps*chological7 and
emotional development. :t also means the least detrimental
available alternative for safeguarding the growth and
development of the child.
WRIT O) >ABEAS /OR,(S ;R(LE 102=
<rit of habeas corpus is a writ which has been esteemed to
the best and onl* sufficient defense of personal freedom
having for its ob%ect the speed* release b* %udicial decree of
persons who are illegall* restrained of their libert*7 or
illegall* detained from the control of those who are entitled
to their custod*.
4he writ of habeas corpus shall e1tend to all cases of illegal
confinement or detention b* which an* person is deprived of
his libert*7 or b* which the rightful custod* of an* person is
withheld from the person entitled thereto. 4he function of
the special proceeding of habeas corpus is to in,uire into the
legalit* of oneCs detention.
:n all petitions for habeas corpus7 the court must in,uire into
ever* phase and aspect of the petitionerCs detention from the
moment petitioner was taken into custod* up to the moment
the court passes upon the merits of the petition and onl* after
such scrutin* can the court satisf* itself that the due process
clause of the Constitution has been satisfied.
0owever7 once the person detained is dul* charged in court7
he ma* no longer ,uestion his detention b* a petition for the
issuance of a writ of habeas corpus. 0is remed* then is the
,uashal of the information and6or the warrant of arrest dul*
issued. 4he reason for the issuance of the writ even becomes
more unavailing when the person detained files a bond for
his temporar* release.
0abeas corpus ma* not be used as a means of obtaining
evidence on the whereabouts of a person7 or as a means of
finding out who has specificall* abducted or caused the
disappearance of a certain person.
4he writs of habeas corpus and certiorari ma* be ancillar* to
each other where necessar* to give effect to the supervisor*
powers of the higher courts. A writ of habeas corpus reaches
the bod* and the %urisdictional matters7 but not the record. A
writ of certiorari reaches the record but not the bod*. 0ence7
a writ of habeas corpus ma* be used with the writ of
certiorari for the purpose of review.
4he general rule is that the release7 whether permanent or
temporar*7 of a detained person renders the petition for
habeas corpus moot and academic7 unless there are restraints
attached to his release which precludes freedom of action7 in
which case the Court can still in,uire into the nature of his
involuntar* restraint. etitionerCs temporar* release does not
render the petition for writ moot and academic.
Some instances when the writ ma* issueE
!? 4o in,uire into the legalit* of an order of
confinement b* a court martial.
"? 4o test the legalit* of an alienCs confinement and
proposed e1pulsion from the hilippines.
&? 4o enable parents to regain custod* of a minor
child7 even if the latter be in the custod* of a third
person of her own free will.
'? 4o obtain freedom for an accused confined for
failure to post bail where the prosecuting officer
unreasonabl* dela*s trial b* continued
postponement.
(? 4o give retroactive effect to a penal provision
favorable to the accused when the trial %udge has
lost %urisdiction b* virtue of the finalit* of the
%udgment of conviction.
)? 4o determine the constitutionalit* of a statute.
+? 4o permit an alien to land in the hilippines.
-? 4o put an end to an immoral situation7 as when a
minor girl7 although preferring to sta* with her
emplo*er7 maintains illicit relationship with him.
.? <hen a bond given b* an accused entitled thereto is
not admitted or e1cessive bail is re,uired of him.
!D? 4o determine the legalit* of an e1tradition.
!!? 4o determine the legalit* of the action of a
legislative bod* in punishing a citi@en for contempt.
!"? 4o obtain freedom after serving minimum sentence
when the penalt* under an old law has been
reduced b* an amendator* law.
(4ote> for )34;64;& 3' ;<6 P6;8;834 and
)34;64;& 3' ;<6 /6;=/4 of <abeas )orpus, please
see the table below)
,EREM,TOR' WRIT ,RELIMINAR'
/ITATION
Bnconditionall* commands
the respondent to have the
bod* of the detained person
before the court at a time
and place therein specified9
Re,uires the respondent to
appear and show cause wh*
the peremptor* writ should
not be granted
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
111
W>EN NOT ,RO,ERBA,,LI/ABLE
:nstances when the writ of habeas corpus is not proper areE
a? 5or asserting or vindicating denial of right to bail9
b? 5or correcting errors in appreciation of facts or
appreciation of law J where the trial court had no
%urisdiction over the cause7 over the person of the
accused7 and to impose the penalt* provided for b*
law7 the mistake committed b* the trial court7 in the
appreciation of the facts and6or in the appreciation
of the law cannot be corrected b* habeas corpus9
c? 3nce a person detained is dul* charged in court7 he
ma* no longer file a petition for habeas corpus. 0is
remed* would be to ,uash the information or
warrant.
W>EN WRIT DISALLOWEDBDIS/>AR+ED
:f it appears that the person alleged to be restrained of his
libert* is in the custod* of an officer under process issued b*
a court or %udge or b* virtue of a %udgment or order of a
court of record7 and that the court or %udge had %urisdiction
to issue the process7 render the %udgment7 or make the order7
the writ shall not be allowed9 or if the %urisdiction appears
after the writ is allowed7 the person shall not be discharged
b* reason of an* informalit* or defect in the process7
%udgment7 or order. #or shall an*thing in this rule be held to
authori@e the discharge of a person charged with or
convicted of an offense in the hilippines7 or of a person
suffering imprisonment under lawful %udgment.
WRIT O) >ABEAS /OR,(S WRIT O) AM,ARO WRIT O) >ABEAS DATA
A remed* available to an* person7 it
covers cases of illegal confinement
or detention b* which an* person is
deprived of his libert*7 or b* which
the rightful custod* of an* person is
withheld from the person entitled
thereto.
A remed* available to an* person
whose rig!t to $i:? $i9rty an#
sc%rity is 0io$at# or t!ratn#
with violation b* an unlawful act or
omission of a public official or
emplo*ee7 or of a private individual or
entit*. 4he writ covers e1tra%udicial
killings and enforced disappearances
or threats thereof.
:t is a form of constitutional relief.
A remed* available to an* person whose
rig!t to -ri0acy in $i:? $i9rty or sc%rity
is 0io$at# or t!ratn# b* an unlawful act
or omission of a public official or emplo*ee7
or of a private individual or entit* engaged in
the gathering7 collecting or storing of data or
information regarding the person7 famil*7
home and correspondence of the aggrieved
part*.
=ho $"+ fie !etition0
B* the part* for whose relief it is
intended7 or b* some person on his
behalf.
=ho $"+ fie (in or'er)0
a? An* member of the immediate
famil*E spouse7 children and
parents of the aggrieved part*9
b? An* ascendant7 descendant or
collateral relative of aggrieved
part* within the 'th civil degree
of consanguinit* or affinit*9
c? An* concerned citi@en7
organi@ation7 association or
institution7 if no known member
of immediate famil*.
Diin3 %+ the "33rie6e' !"rt+
sus!en's the ri3ht of " other
"uthoriHe' !erson to fie such !etition.
=ho $"+ fie (in or'er)0
a? An* member of the immediate famil*E
spouse7 children and parents of the
aggrieved part*9
b? An* ascendant7 descendant or collateral
relative of aggrieved part* within the 'th
civil degree of consanguinit* or affinit*.
=here to fie0
R4C7 enforceable within its area of
%urisdiction. CA or SC7 enforceable
an*where in the hilippines.
=here to fie0
R4C7 Sandiganba*an7 CA7 SC9 <rit is
enforceable an*where in the
hilippines.
=here to fie0
R4C7 SC7 CA7 Sandiganba*an9 <rit is also
enforceable an*where in the hilippines.
=here is the 6enue0
:f filed in the R4CE
a? in the place where the petitioner resides9
b? in the place where the respondents
reside9
c? in the place where the data or
information is gathered7 collected or
stored.
J At the option of the petitioner
etitioner is e1empted to pa* docket
and other lawful fees.
:ndigent petitioner is e1empted to pa* docket
and other lawful fees.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
112
=hen issue'0
5orthwith when a petition therefor
is presented and it appears that the
writ ought to issue7
=hen issue'0
:mmediatel* if on its face it ought to
be issued9 Served immediatel*9
Summar* hearing set not later than
seven >+? da*s from date of issuance.
=hen issue'0
:mmediatel* if on its face it ought to be
issued9 Served within & da*s from issuance9
Summar* hearing set not later than ten >!D?
work da*s from date of issuance.
Contents of 6erifie' !etition0
a? 4hat the person in whose behalf
the application is made is
imprisoned or restrained of his
libert*9
b? 4he officer or name of the
person b* whom he is so
imprisoned or restrained9 or7 if
both are unknown or uncertain7
such officer or person ma* be
described b* an assumed
appellation7 and the person who
is served with the writ shall be
deemed the person intended9
c? 4he place where he is so
imprisoned or restrained7 if
known9
d? A cop* of the commitment or
cause of detention of such
person7 if it can be procured
without impairing the
efficienc* of the remed*9 or7 if
the imprisonment or restraint is
without an* legal authorit*7
such fact shall appear
Contents of 6erifie' !etition0
a? ersonal circumstances of
petitioner and of respondent
responsible for the threat7 act or
omission9
b? ;iolated or threatened right to
life7 libert* and securit* of
aggrieved part*7 and how
committed with attendance
circumstances detailed in
supporting affidavits9
c? :nvestigation conducted7
specif*ing names7 personal
circumstances and addresses of
investigating authorit* or
individuals7 as well as manner
and conduct of investigation
together with an* report9
d? Actions and recourses taken b*
petitioner to determine the fate or
whereabouts of aggrieved part*
and identit* of person responsible
for the threat7 act or omission9 and
e? 4he relief pra*ed for.
f? $a* include general pra*er for
other %ust and e,uitable reliefs.
Contents of 6erifie' !etition0
a? ersonal circumstances of petitioner and
respondent9
b? 4he manner the right to privac* is
violated or threatened and how it affects
the right to life7 libert* or securit* of
aggrieved part*9
c? Actions and recourses taken b*
petitioner to secure the data or
information9
d? Location of files7 registers or databases7
government office7 and the person in
charge7 in possession or in control of the
data or information7 if known9
e? Reliefs pra*ed for7 which ma* include
the updating7 rectification7 suppression
or destruction of the database or
information or files kept b* respondent9
f? :n case of threats7 relief ma* include a
pra*er for an order en%oining the act
complained of9 and
g? Such other reliefs as are %ust and
e,uitable.
a? <hether he has or has not the
part* in his custod* or power7
or under restraint9
b? :f he has the part* in his
custod* or power7 or under
restraint7 the authorit* and the
true and whole cause thereof7
set forth at large7 with a cop* of
the writ7 order7 e1ecution7 or
other process7 if an*7 upon
which the part* is held9
c? :f the part* is in his custod* or
power or is restrained b* him7
and is not produced7
particularl* the nature and
gravit* of the sickness or
infirmit* of such part* b*
reason of which he cannot7
without danger7 be brought
before the court or %udge9
d? :f he has had the part* in his
custod* or power7 or under
restraint7 and has transferred
such custod* or restraint to
another7 particularl* to whom7
at what time7 for what cause7
and b* what authorit* such
transfer was made.
Contents of return0
<ithin +" hours after service of the
writ7 respondent shall file a verified
written return together with the
supporting affidavits7 which shall
containE
a? Lawful defenses9
b? Steps or actions taken to
determine whereabouts of
aggrieved part*9
c? All relevant information
pertaining to threat7 act or
omission against aggrieved part*9
d? :f respondent is a public official
or emplo*ee7 further stateE
!? verif* the identit* of
aggrieved9
"? recover and preserve
evidence related to death or
disappearance of person
identified in petition9
&? identif* witnesses and their
statements9
'? determine cause7 manner7
location and time of death or
disappearance as well as
pattern or practice9
(? identif* and apprehend
Contents of return0
a? Lawful defenses such as national
securit*7 state secrets7 privileged
communications7 confidentialit* of
source of information9
b? Disclosure of data6info about petitioner7
nature of data6info7 purpose of
collection9
c? Steps or actions taken b* respondent to
ensure securit* and confidentialit* of
data or information9
d? Currenc* and accurac* of data or
information9
e? 3ther allegations relevant to resolution
of the proceedings.
V A 3ener" 'eni" of the "e3"tions in
the !etition is not "o)e'.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
113
person6s involved in the
death6disappearance9
)? bring suspected offenders
before a competent court.
Effects of f"iure to fie return0
4he court7 %ustice or %udge shall
proceed to hear the petition e1 parte.
Effects of f"iure to fie return0
4he court7 %ustice or %udge shall proceed to
hear the petition e1 parte7 granting the
petitioner such relief as the petition ma*
warrant unless the court in its discretion
re,uires petitioner to submit evidence.
Proce'ure for he"rin30
4he hearing on the petition shall be
summar*. 0owever the court7 %ustice
or %udge ma* call for a preliminar*
conference to simplif* the issues and
determine the possibilit* of obtaining
stipulations and admissions from the
parties. 4he hearing shall be from da*
to da* until completed and given the
same priorit* as petitions for habeas
corpus.
Proce'ure for he"rin30
4he hearing on the petition shall be
summar*. 0owever the court7 %ustice or
%udge ma* call for a preliminar* conference
to simplif* the issues and determine the
possibilit* of obtaining stipulations and
admissions from the parties.
Interi$ reiefs "6"i"%e %efore fin"
&u'3$ent0
a? ? 4emporar* rotection 3rder J
protected in a government agenc*
of b* an accredited person or
private institution capable of
keeping and securing their safet*9
b? :nspection 3rder J with a lifetime
of ( da*s which ma* be e1tended7
ma* be opposed on the ground of
national securit* or privileged
information7 allows entr* into and
inspect7 measure7 surve* or
photograph the propert*9
c? roduction 3rder J to re,uire
respondents to produce and
permit inspection7 cop*ing or
photographing of documents7
papers7 books7 accounts7 letters7
photographs7 ob%ects or tangible
things that contain evidence.
d? <itness rotection 3rder J the
court ma* refer the witnessed to
the D3/
>#ot applicable?
Effect of fiin3 cri$in" "ction0
A criminal action first filed e1cludes
the filing of the writ9 relief shall be b*
motion in the criminal case. A
criminal case filed subse,uentl* shall
be consolidated with the petition for
the writ of amparo.
Effect of fiin3 cri$in" "ction0
A criminal action first filed e1cludes the
filing of the writ9 relief shall be b* motion in
the criminal case9 A criminal case filed
subse,uentl* shall be consolidated with the
petition for the writ of habeas data.
4o the SC under Rule '(7 within '-
hours from notice of %udgment. A
writ of habeas corpus does not lie
where petitioner has the remed* of
appeal or certiorari because it will
not be permitted to perform the
functions of a writ of error or appeal
A!!e"0
4o the SC under Rule '(7 within (
da*s from notice of adverse %udgment7
to be given the same priorit* as habeas
corpus cases.
A!!e"0
An* part* ma* appeal the decision within (
working da*s from the final %udgment or
order to the SC b* wa* of etition for
Review on Certiorari under Rule '( on pure
,uestions of law and facts or both7 to be
given the same priorit* as habeas corpus and
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
114
for the purpose of reviewing mere
errors or irregularities in the
proceedings of a court having
%urisdiction over the person and the
sub%ect matter.
amparo cases.
?u"ntu$ of !roof0
B* substantial evidence. rivate
respondent to prove ordinar* diligence
was observed in the performance of
dut*. ublic official6emplo*ee
respondent to prove e1traordinar*
diligence was observed7 and cannot
invoke the presumption that official
dut* has been regularl* performed to
evade responsibilit* or liabilit*.
?u"ntu$ of !roof0
4he court shall render %udgment within !D
da*s from the time the petition is submitted
for decision. :f the allegations are proven b*
substantial evidence7 the court shall en%oin
the act complained of7 or the deletion7
destruction7 or rectification of the erroneous
data or information and grant other reliefs as
ma* be %ust and e,uitable9 otherwise the
privilege shall be denied.
R(LES ON /(STOD' O) MINORS AND WRIT O)
>ABEAS /OR,(S IN RELATION TO /(STOD' O)
MINORS ;AM NO& 01<02<02<S/=
4he 5amil* Court has e1clusive original %urisdiction to hear
petitions for custod* of minors and the issuance of the writ
of habeas corpus in relation to custod* of minors. 4he Court
is tasked with the dut* of promulgating special rules or
procedure for the disposition of famil* cases with the best
interests of the minor as primar* consideration7 taking into
account the Bnited #ations Convention on the Rights of the
Child. :t should be clarified that the writ is issued b* the
5amil* Court onl* in relation to custod* of minors. An
ordinar* petition for habeas corpus should be filed in the
regular Court. 4he issue of child custod* ma* be tackled b*
the 5amil* Court without need of a separate petition for
custod* being filed.
4he Committee chose the phrase Man* person claiming
custod*N as it is broad enough to cover the followingE >a? the
unlawful deprivation of the custod* of a minor9 or >b? which
parent shall have the care and custod* of a minor7 when such
parent is in the midst of nullit*7 annulment or legal
separation proceedings.
4he hearings on custod* of minors ma*7 at the discretion of
the court7 be closed to the public and the records of the case
shall not be released to non-parties without its approval.
A motion to dismiss the petition is not allowed e1cept on the
ground of lack of %urisdiction over the sub%ect matter or over
the parties. An* other ground that might warrant the
dismissal of the petition shall be raised as an affirmative
defense in the answer.
Bpon the filing of the verified answer of the e1piration of
the period to file it7 the court ma* order a social worker to
make a case stud* of the minor and the parties and to submit
a report and recommendation to the court at least three da*s
before the scheduled pre-trial.
>o$# D-art%r Or#r J 4he minor child sub%ect of the
petition shall not be brought out of the countr* without prior
order from the court while the petition is pending. 4he court
motu propio or upon application under oath ma* issue e1
parte a hold departure order addressed to the B:D of the D3/
a cop* of the hold departure order within "' hours from its
issuance and through the fastest available means of
transmittal.
WRIT O) AM,ARO ;AM NO& 05<7<12<S/= (See table
above?
WRIT O) AM,ARO SEAR/> WARRANT
Issu"nce of the =rit.
Bpon the filing of the
petition7 the court7 %ustice or
%udge shall immediatel*
order the issuance of the
writ if on its face it ought to
issue. 4he clerk of court
shall issue the writ under the
seal of the court9 or in case
of urgent necessit*7 the
%ustice or the %udge ma*
issue the writ in his or her
own hand7 and ma* deputi@e
an* officer or person to
serve it. 4he writ shall also
set the date and time for
summar* hearing of the
petition which shall not be
later than seven >+? da*s
from the date of its issuance.
*e(uisites for issuin3 se"rch
)"rr"nt
A search warrant shall not
issue e1cept upon probable
cause in connection with one
specific offense to be
determined personall* b* the
%udge after e1amination
under oath or affirmation of
the complainant and the
witness he ma* produce7 and
particularl* describing the
place to be searched and the
things to be sei@ed which
ma* be an*where in the
hilippines.
OMNIB(S WAIVER R(LE
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
115
Defenses #ot leaded Deemed <aived S All defenses shall
be raised in the return7 otherwise7 the* shall be deemed
waived.
WRIT O) >ABEAS DATA ;AM NO& 06<1<14<S/=
Sco- o: "ritH A0ai$a9i$ity o: "ritH Disting%is! :rom
>a9as /or-%s an# Am-aroH W!o may :i$H /ontnts o:
t! -titionH /onso$i#ationH E::ct o: :i$ing o: a crimina$
actionH Instit%tion o: s-arat action (&ee table above)
INSTAN/ES W>EN ,ETITION BE >EARD IN
/>AMBERS
A hearing in chambers ma* be conducted where the
respondent invokes the defense that the release of the data or
information in ,uestion shall compromise national securit*
or state secrets7 or when the data or information cannot be
divulged to the public due to its nature or privileged
character.
/>AN+E O) NAME ;R(LE 101=
 A change of name is a special proceeding to establish
the status of a person involving his relation with others7
that is7 his legal position in7 or with regard to7 the rest of
the communit*. :t is proceeding in rem and as such7
strict compliance with %urisdictional re,uirements7
particularl* on publication7 is essential in order to vest
the court with %urisdiction therefor. 5or this purpose7 the
onl* name that ma* be changed is the true or official
name as recorded in the civil register.
 A mere change of name would not cause in oneCs
e1isting famil* relations7 nor create new famil* rights
and duties where none e1ists before. #either would it
affect a personCs legal capacit*7 civil status or
citi@enship.
 A change of name granted b* the court affects onl* the
petitioner. A separate petition for change of name must
be filed b* his wife and children.
R(LE 101 ()hange of 4ame) RA 7026 ()lerical 6rror Act) R(LE 106 ()ancellation or
correction of entries in the civil
registry)
etition should be filed in the R4C where the
petitioner resides
etitions filed with the cit* or
municipal civil registrar7 or with
consul general for citi@ens living
abroad
;erified petition filed in the R4C
where the corresponding Civil
Registr* is located
Civil Registrar is not a part*. Solicitor
8eneral to be notified b* service of a cop* of
petition.
Civil Registrar is an indispensable
part*. :f not made a part*7
proceedings are null and void.
ReasonE he is interested part* in
protecting the integrit* of public
documents. Solicitor 8eneral must
also be notified b* service of a cop*
of the petition.
etition is filed b* the person desiring to
change his name
;erified petition in the form of
affidavit is filed b* an* person
having direct and personal interest in
the correction
B* a person interested in an* acts7
event7 order or decree
:nvolves change of name onl* :nvolves first name and nickname All cancellation or correction of
entries ofE (see %eo) 3roun's or
inst"nces)
:nvolves substantial changes :nvolves clerical or t*pographical
errors
Substantial and adversar* if change
affects the civil status7 citi@enship or
nationalit* of a part*9 Summar* if
involves mere clerical errors.
Groun's0
a? #ame is ridiculous7 dishonorable or
e1tremel* difficult to write or
pronounce9
b? Change is a legal conse,uence of
legitimation or adoption9
c? Change will avoid confusion9
d? 3ne has continuousl* used and been
known since childhood b* a 5ilipino
Groun's0
a? 5irst name or nickname is found
to be ridiculous7 tainted with
dishonor or e1tremel* difficult
to write or pronounce9
b? 4he first name or nickname has
been habituall* and continuous
used b* petitioner publicl*
known b* that first name or
Groun's0
Cancellation or correction of entries
ofE >a? births9 >b? marriages9 >c?
deaths9 >d? legal separation9 >e?
%udgments or annulments of
marriage9 >f? %udgments declaring
marriages void from the beginning9
>g? legitimations9 >h? adoptions9 >i?
acknowledgments of natural
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
116
name and was unaware of alien
parentage9
e? Change is based on a sincere desire to
adopt a 5ilipino name to erase signs of
former alienage7 all in good faith and
without pre%udice to an*bod*9 and
f? Surname causes embarrassment and
there is no showing that the desired
change of name was for a fraudulent
purpose7 or that the change of name
would pre%udice public interest.
nickname in the communit*9
c? Change will avoid confusion.
children9 >%? naturali@ations9 >k?
election7 loss or recover* of
citi@enship9 >l? civil interdiction9 >m?
%udicial determination of filiation9
>n? voluntar* emancipation of a
minor9 and >o? changes of name.
3rder for hearing to be published once a
week for three consecutive weeks in a
newspaper of general circulation in the
province.
etition shall be published at least
once a week for two consecutive
weeks in a newspaper of general
circulation. Also to be posted in a
conspicuous place for ten
consecutive da*s.
3rder shall also be published once a
week for three consecutive weeks in
a newspaper of general circulation
in the province7 and court shall
cause reasonable notice to persons
named in the petition.
2ntr* is correct but petitioner desires to
change the entr*
2ntr* is incorrect. Cancellation or correction of correct
or incorrect entries
An appropriate adversar* proceeding An appropriate administrative
proceeding.
An appropriate summar* or
adversar* proceeding depending on
effects
Re,uires %udicial order Does not re,uire %udicial order. Directed or changed b* the cit* or
municipal civil registrar or consul
general without %udicial order
Service of %udgment shall be upon the civil
register concerned
4ransmittal of decision to civil
registrar general
Service of %udgment shall be upon
the civil register concerned
Appeal ma* be availed of if %udgment or
final order rendered affects substantial rights
of person appealing.
:n case denied b* the cit* or
municipal civil registrar or the consul
general7 petitioner ma* either appeal
the decision to the civil register
general or file appropriate petition
with proper court b* petition for
review under Rule '&.
Appeal ma* be availed of if
%udgment or final order rendered
affects substantial rights of person
appealing7 to the R4C or to the CA.
+RO(NDS )OR />AN+E O) NAME
(!e"se see t"%e "%o6e)
ABSENTEES ;R(LE 105=
Stags o: a9sncC
!? provisional absence
"? declaration of absence
&? presumption of death
,(R,OSE O) T>E R(LE
4he purpose of the Rule is to allow the court to appoint an
administrator or representative to take care of the propert* of
the person who is sought to be %udiciall* declared absent. :t
also aims to have the court appoint the present spouse as
administrator or administratri1 of the absent spouseLs
properties7 or for the separation of properties of the spouses.
W>O MA' )ILEH W>EN TO )ILE
4he following ma* file an application for the declaration of
absence of a personE
a? Spouse present9
b? 0eirs instituted in a will7 who ma* present an
authentic cop* of the same9
c? Relatives who would succeed b* the law of
intestac*9 and
d? 4hose who have over the propert* of the absentee
some right subordinated to the condition of his
death.
e? 4hose who have over the propert* of the absentee
some right subordinated to the condition of his
death.
• After the lapse of two >"? *ears from his
disappearance and without an* news about the
absentee or since the receipt of the last news7 or of
five >(? *ears in case the absentee has left a person
in charge of the administration of his propert*7 the
declaration of his absence and appointment of a
trustee or administrator ma* be applied for.
• <hen a person disappears from his domicile7 his
whereabouts being unknown7 and without having
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left an agent to administer his propert*7 or the
power conferred upon the agent has e1pired7 an*
interested part*7 relative or friend7 ma* petition the
Court of 5irst :nstance of the place where the
absentee resided before his disappearance for the
appointment of a person to represent him
provisionall* in all that ma* be necessar*.
/AN/ELLATION OR /ORRE/TION O) ENTRIES
IN T>E /IVIL RE+ISTR' ;R(LE 106=
Entris s%9@ct to canc$$ation or corrction %n#r R%$
106? in r$ation to RA 7026
 Bpon good and valid grounds7 the following entries
in the civil register ma* be cancelled or correctedE
!? births9
"? marriages9
&? deaths9
'? legal separations9
(? %udgments of annulments of marriage9
)? %udgments declaring marriages void from the
beginning9
+? legitimations9
-? adoptions9
.? acknowledgments of natural children9
!D? naturali@ation
!!? election7 loss or recover* of citi@enship
!"? civil interdiction9
!&? %udicial determination of filiation9
!'? voluntar* emancipation of a minor9 and
!(? changes of name.
Correction ma* be effected in two wa*s. 3ne is without
%udicial authorit* or b* administrative proceeding7 which is
governed b* RA .D'- on matters relating to correction of
mere clerical or t*pographical errors. 4he other is through
%udicial or court proceedings7 which is governed b* Rule
!D-.
4he petition for change of first names or nicknames ma* be
allowed when such names or nicknames are ridiculous7
tainted with dishonor or e1tremel* difficult to write or
pronounce9 or the new name or nickname has been used
habituall* and continuousl* petitioner and has been publicl*
known b* that first name or nickname in the communit*9 or
the change will avoid confusion.
A,,EALS IN S,E/IAL ,RO/EEDIN+ ;R(LE 107=
.(D+MENTS AND ORDERS )OR W>I/> A,,EAL
MA' BE TA8EN
An interested person ma* appeal in special proceedings from
an order or %udgment rendered b* a Court of 5irst :nstance or
a /uvenile and Domestic Relations Court7 where such order
or %udgmentE
a? Allows or disallows a will9
b? Determines who are the lawful heirs of a deceased
person7 or the distributive share of the estate to
which such person is entitled9
c? Allows or disallows7 in whole or in part7 an* claim
against the estate of a deceased person7 or an*
claim presented on behalf of the estate in offset to a
claim against it9
d? Settles the account of an e1ecutor7 administrator7
trustee or guardian9
e? Constitutes7 in proceedings relating to the
settlement of the estate of a deceased person7 or the
administration of a trustee or guardian7 a final
determination in the lower court of the rights of the
part* appealing7 e1cept that no appeal shall be
allowed from the appointment of a special
administrator9 and
f? :s the final order or %udgment rendered in the case7
and affects the substantial rights of the person
appealing7 unless it be an order granting or den*ing
a motion for a new trial or for reconsideration.
W>EN TO A,,EAL
Appeals in special proceedings necessitate a record on
appeal as the original record should remain with the trial
court9 hence the reglementar* period of thirt* >&D? da*s is
provided for the perfection of appeals in special proceedings.
MODES O) A,,EAL
 <hile under the concept in ordinar* civil actions some
of the orders stated in Sec. ! ma* be considered
interlocutor*7 the nature of special proceedings declares
them as appealable orders7 as e1ceptions to the
provisions of Sec., *ue 81. 4husE
!? Or#inary a--a$& 4he appeal to the CA in cases
decided b* the R4C in the e1ercise of its original
%urisdiction shall be taken b* filing a notice of appeal
with the court which rendered the %udgment or final
order appealed from and serving a cop* thereof upon
the adverse part*. #o record on appeal shall be re,uired
e1cept in special proceedings and other cases of
multiple or separate appeals where the law or the Rules
so re,uire. :n such cases7 the record on appeal shall be
filed and served in like manner.
"? ,tition :or r0i"& 4he appeal to the CA in cases
decided b* the R4C in the e1ercise of its appellate
%urisdiction shall be b* petition for review in accordance
with Rule '".
&? ,tition :or r0i" on crtiorari& :n all cases where
onl* ,uestions of law are raised or involved7 the appeal
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120
shall be to the SC b* petition for review on certiorari in
accordance with Rule '(.
R(LE ON ADVAN/E DISTRIB(TION
#otwithstanding a pending controvers* or appeal in
proceedings to settle the estate of a decedent7 the court ma*7
in its discretion and upon such terms as it ma* deem proper
and %ust7 permit that such part of the estate as ma* not be
affected b* the controvers* or appeal be distributed among
the heirs or legatees7 upon compliance with the conditions
set forth in Rule .D of these rules.
R(LES O) /RIMINAL ,RO/ED(RE ;R%$s 110 – 125=
+ENERAL MATTERS
.(RISDI/TION OVER
S(B.E/T MATTER
.(RISDI/TION OVER
,ERSON O) T>E
A//(SED
Derived from the law.
Does not depend upon the
consent or omission of the
parties to the action or an*
of them9
$a* be conferred b*
consent e1pressl* or
impliedl* given7 or it ma*7
b* ob%ection7 be prevented
from attaching or being
removed after it is
attached.
3b%ection that the court
has no %urisdiction over the
sub%ect matter ma* be
made at an* stage of the
proceeding7 and the right
to make such ob%ection is
never waived.
:f he fails to make his
ob%ections in time7 he will
be deemed to have waived
it.
/urisdiction over the
sub%ect matter is
determined upon the
allegations made in the
complaint7 irrespective of
whether the plaintiff is
entitled or not7 to recover
upon the claim asserted
therein7 a matter resolved
onl* after and as a result of
the trial.
/urisdiction over the
person of the accused b*
voluntar* appearance or
surrender of the accused or
b* his arrest.
REA(ISITES )OR E*ER/ISE O) /RIMINAL
.(RISDI/TION
!? 4he offense if one which the court is b* law authori@ed
to take cogni@ance of9
"? 4he offense must have been committed within its
territorial %urisdiction9 and
&? 4he person charged with the offense must have been
brought into its forum for trial7 forcibl* or b* warrant of
arrest or upon his voluntar* submission to the court.
.(RISDI/TION O) /RIMINAL /O(RTS (see
&uris'iction of courts in ci6i !ro)
W>EN IN.(N/TION MA' BE ISS(ED TO
RESTRAIN /RIMINAL ,ROSE/(TION
82#2RAL RBL2E Criminal prosecution ma* not be
restrained or sta*ed b* in%unction.
2RC24:3#SE
!? 4o afford ade,uate protection to the constitutional
rights of the accused9
"? 4hen necessar* for the orderl* administration of
%ustice or to avoid oppression or multiplicit* of
actions9
&? <hen there is a pre-%udicial ,uestion which is su%
&u'ice;
'? <hen the acts of the officer are without or in
e1cess of authorit*9
(? <here the prosecution is under an invalid law7
ordinance or regulation9
)? <hen double %eopard* is clearl* apparent9
+? <here the court has no %urisdiction over the
offense9
-? <here it is a case of persecution rather than
prosecution9
.? <here the charges are manifestl* false and
motivated b* the lust for vengeance9
!D? <hen there is clearl* no prima facie case against
the accused and a motion to ,uash on that ground
has been denied9 and
!!? 4o prevent the threatened unlawful arrest of
petitioners.
,ROSE/(TION O) O))ENSES R(LE 110=
/RIMINAL A/TIONSH >OW INSTIT(TED
!? 5or offenses where a preliminar* investigation is
re,uired pursuant to section ! of Rule !!"7 b* filing the
complaint with the proper officer for the purpose of
conducting the re,uisite preliminar* investigation.
"? 5or all other offenses7 b* filing the complaint or
information directl* with the $unicipal 4rial Courts
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BERT – NOTES in REMEDIAL LAW
121
and $unicipal Circuit 4rial Courts7 or the complaint
with the office of the prosecutor.
&? :n $anila and other chartered cities7 the complaint shall
be filed with the office of the prosecutor7 unless
otherwise provided in their charters.
 4he institution of the criminal action shall interrupt the
period of prescription of the offense charged unless
otherwise provided in special laws.
 reliminar* investigation is re,uired for offenses
punishable b* at least ' *ears7 " months7 and ! da*7
unless the accused was lawfull* arrested without a
warrant7 in which case7 an in,uest must have been
conducted.
W>O MA' )ILE T>E /RIMINAL A/TION
!? 3ffended part*
"? An* peace officer9 or
&? 3ther public officer charged with the enforcement
of the law violated.
All criminal actions commenced b* complaint or
information shall be prosecuted under the direction and
control of the prosecutor.
:n the $unicipal 4rial Courts or $unicipal Circuit 4rial
Courts when the prosecutor assigned thereto or to the case is
not available7 the offended part*7 an* peace officer7 or public
officer charged with the enforcement of the law violated
ma* prosecute the case. 4his authorit* shall cease upon
actual intervention of the prosecutor or upon elevation of the
case to the Regional 4rial Court.
RIMES T>AT /ANNOT BE ,ROSE/(TED DE
O)I/IO
!? A#%$try an# conc%9inag J to be prosecuted upon a
complaint filed b* the offended spouse7 impleading both
guilt* parties7 if both alive7 unless he shall have
consented or pardoned the offenders9
"? S#%ction? a9#%ction? or acts or $asci0io%snss J to be
prosecuted upon a complaint filed b* the offended part*
or her parents7 grandparents7 or guardian7 unless
e1pressl* pardoned b* the above named persons >in
such stated order?9
&? D:amation im-%ting a -rson any o: t! :o$$o"ing
crims o: conc%9inag? a#%$try? s#%ction?
a9#%ction or $asci0io%snss J can be prosecuted onl*
b* the part* defamed.
4he offended part*7 even if a minor7 has the right to initiate
the prosecution of the offenses of seduction7 abduction and
acts of lasciviousness independentl* of her parents7
grandparents or guardian7 unless she is incompetent or
incapable of doing so. <here the offended part*7 who is a
minor7 fails to file the complaint7 her parents7 grandparents7
or guardian ma* file the same. 4he right to file the action
granted to parents7 grandparents or guardian shall be
e1clusive of all other persons and shall be e1ercised
successivel* in the order herein provided7 e1cept as stated in
the preceding paragraph.
/ONTROL O) ,ROSE/(TION
3nl* the Solicitor 8eneral ma* represent the eople of the
hilippines on appeal. 4he private offended part* or
complainant ma* ,uestion such ac,uittal or dismissal or
appeal therefrom onl* insofar as the civil aspect is
concerned7 in the name of the petitioner or appellant and not
in the name of the eople of the hilippines. 4he rule that
the Solicitor 8eneral is the law*er of the eople in appellate
courts admits an e1ception7 Jin " c"ses ee6"te' to the
S"n'i3"n%"+"n "n' fro$ the S"n'i3"n%"+"n to the Su!re$e
Court, the Fffice of the F$%u's$"n, throu3h its s!eci"
!rosecutor, sh" re!resent the Peo!e of the Phii!!ines,
e#ce!t in c"ses fie' !ursu"nt to EF 1, 2, 18 "n' 18/A,
issue' in 19<;.K
4he prosecution determines the charges to be filed and how
the legal and factual elements in the case shall be utili@ed as
components of the information. <henever a criminal case is
prosecuted and the State is the offended part*7 the case must
alwa*s be prosecuted under control and guidance of the
State through the government prosecutors.
4he prosecution ma* however be allowed to a private
prosecutor upon compliance with the following conditionsE
!? 4he public prosecutor has a heav* work schedule or
there is no public prosecutor assigned in the cit* or
province9
"? 4he private prosecutor is authori@ed in writing b*
the Chief of the rosecutor 3ffice or the Regional
State rosecutor
&? 4he authorit* of the private prosecutor must be
approved b* the court9
'? 4he private prosecutor shall continue to prosecute
the case until the end of the trial unless the
authorit* is withdrawn or otherwise revoked9
(? :n case of the withdrawal or revocation of the
authorit* of the private prosecutor7 the same must
be approved b* court.
S())I/IEN/' O) /OM,LAINT OR IN)ORMATION
A complaint or information is sufficient if it statesE
!? 4he name of the accused9
"? 4he designation of the offense given b* the statute9
&? 4he acts or omissions complained of as constituting
the offense9
'? 4he name of the offended part*9
(? 4he appro1imate date of the commission of the
offense9 and
)? 4he place wherein the offense was committed.
<hen an offense is committed b* more than one person7 all
of them shall be included in the complaint or information. :f
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the prosecutor refuses to include one accused7 the remed* is
mandamus.
DESI+NATION O) O))ENSE
4he complaint or information shall state the designation of
the offense given b* the statute7 aver the acts or omissions
constituting the offense7 and specif* its ,ualif*ing and
aggravating circumstances.
:f there is no designation of the offense7 reference shall be
made to the section or subsection of the statute punishing it.
/A(SE O) T>E A//(SATION
4he acts or omissions complained of as constituting the
offense and the ,ualif*ing and aggravating circumstances
must be stated in ordinar* and concise language and not
necessaril* in the language used in the statute but in terms
sufficient to enable a person of common understanding to
know what offense is being charged as well as its ,ualif*ing
and aggravating circumstances and for the court to
pronounce %udgment.
D(,LI/IT' O) T>E O))ENSEH E*/E,TION
 A complaint or information must charge onl* one
offense7 2RC24 when the law prescribes a single
punishment for various offenses >Sec. !&?.
 21ceptionE 4he law prescribes a single punishment for
various offenses7 such as in continuing and comple1
crimes.
AMENDMENT OR S(BSTIT(TION O) /OM,LAINT
OR IN)ORMATION
A complaint or information ma* be amended7 in form or in
substance7 without leave of court7 at an* time before the
accused enters his plea.
 After the plea and during the trial7 a formal
amendment ma* onl* be made with leave of court
and when it can be done without causing pre%udice
to the rights of the accused.
0owever7 an* amendment before plea7 which downgrades
the nature of the offense charged in or e1cludes an* accused
from the complaint or information7 can be made onl* upon
motion b* the prosecutor7 with notice to the offended part*
and with leave of court. 4he court shall state its reasons in
resolving the motion and copies of its order shall be
furnished all parties7 especiall* the offended part*.
:f it appears at an* time before %udgment that a mistake has
been made in charging the proper offense7 the court shall
dismiss the original complaint or information upon the filing
of a new one charging the proper offense in accordance with
Section 19, *ue 119, provided the accused would not be
placed in double %eopard*. 4he court ma* re,uire the
witnesses to give bail for their appearance at the trial (Sec.
18).
 E#ce!tion0 <hen a fact supervenes which changes
the nature of the crime charged in the information
or upgrades it to a higher crime7 a substantial
amendment ma* be made with a need for a re-
arraignment of the accused under the amended
information.
AMENDMENT AND S(BSTIT(TION
DISTIN+(IS>EDC
!? Amendment ma* involve either formal or
substantial changes9 substitution necessaril*
involves a substantial change from the original
charge9
"? Amendment before plea has been entered can be
effected without leave of court9 substitution of
information must be with leave of court7 as the
original information has to be dismissed9
&? <here the amendment is onl* as to form7 there is
no need for another preliminar* investigation and
the retaking of the plea of the accused9 in
substitution of information7 another preliminar*
investigation is entailed and the accused has to
plead anew to the new information9 and
'? An amended information refers to the same offense
charged in the original information or to an offense
which necessaril* includes or is necessaril*
included in the original charge9 hence substantial
amendments to the information after the plea has
been taken cannot be made over the ob%ection of the
accused7 for if the original information would be
withdrawn7 the accused could invoke double
%eopard*. Substitution re,uires or presupposes that
the new information involves different offense
which does not include or is not necessaril*
included in the original charge9 hence the accused
cannot claim double %eopard*.
VEN(E O) /RIMINAL A/TIONS
82#2RAL RBL2E 4he criminal action shall be instituted
and tried in the court of the municipalit* or territor* where
the offense was committed or where an* of its essential
ingredients occurred.
2RC24:3#SE
!? +here an offense is committed in a railroad train,
aircraft, or other public or private vehicle in the
course of its trip / the criminal action shall be
instituted and tried in the court of an* municipalit*
or territor* where said train7 aircraft or other
vehicle passed during its trip7 including the place of
its departure and arrival.
"? +here an offense is committed on board a vessel
in the course of its voyage - the criminal action
shall be instituted and tried in the court of the first
port of entr* or of an* municipalit* or territor*
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121
where the vessel passed during such vo*age7
sub%ect to the generall* accepted principles of
international law.
&? 'elonies under Article 2 of the /evised Penal
)ode - shall be cogni@able b* the court where the
criminal action is first filed.
'? Piracy 9 the venue of pirac*7 unlike all other
crimes7 has no territorial limits. :t ma* be tried
an*where.
(? 7ibel 9 the action ma* be instituted at the election
of the offended or suing part* in the province or
cit*E
a? <here the libellous article is printed and
first published9
b? :f one of the offended parties is a private
individual7 where said individual actuall*
resides at the time of the commission of
the offense9
c? :f the offended part* is a public official7
where the latter holds office at the time of
the commission of the offense9
)? 8n e-ceptional cases A to ensure a fair and impartial
in,uir*. 4he SC shall have the power to order a
change of venue or place of trial to avoid the
miscarriage of %ustice.
+? 8n cases filed under ?P 22 9 the criminal action
shall be filed in the place where the check was
issued and bounced. :n case of crossed-check7 in
the place of depositor*.
INTERVENTION O) O))ENDED ,ART'
<here the civil action for recover* of civil liabilit* is
instituted in the criminal action pursuant to *ue 111, the
offended part* ma* intervene b* counsel in the prosecution
of the offense.
,ROSE/(TION O) /IVIL A/TION ;R(LE 111=
R(LE ON IM,LIED INSTIT(TION O) /IVIL
A/TION WIT> /RIMINAL A/TION
4he 82#2RAL RBL2 is that the institution or filing of the
criminal action includes the institution therein of the civil
action for recover* of civil liabilit* arising from the offense
charged7 2RC24 in the following casesE
!? 4he offended part* waives the civil action9
"? 0e reserves his right to institute the civil action
separatel*9 or
&? 0e institutes the civil action prior to the criminal
action.
4he e1ception to the reservation re,uirement is a claim
arising out of a dishonored check under B ""7 where no
reservation to file such civil action separatel* shall be
allowed7 which means that the filing of the criminal action
for violation of B "" shall be deemed to include the
corresponding civil action and that unless a separate civil
action has been filed before the institution of the criminal
action7 no such civil action can be instituted after the
criminal action has been filed as the same has been included
therein.
Another instance where no reservation shall be allowed and
where a civil action filed prior to the criminal action has to
be transferred to the subse,uentl* filed criminal action for
%oint hearing is a claim arising from an offense which is
cogni@able b* the Sandiganba*an.
W>EN SE,ARATE /IVIL A/TION IS S(S,ENDED
a? :f criminal action has been commenced earlier J
separate civil action cannot be instituted until final
%udgment has been entered in the criminal action.
b? :f the criminal action is filed after the separate civil
action has alread* been instituted J
a. Civil action suspended7 in whatever stage it
ma* be found before %udgment on the merits7
until final %udgment is rendered in the criminal
action.
b. Civil action ma*7 upon motion of the offended
part*7 be consolidated with the criminal action
in the court tr*ing the criminal action
c. 2vidence alread* adduced in the civil action
shall be deemed automaticall* reproduced in
the criminal action
d. <ithout pre%udice to the right of the
prosecution to cross-e1amine the witnesses
presented b* the offended part* in the criminal
case and the parties to present additional
evidence.
c? 4he consolidated criminal and civil actions shall be tried
and decided %ointl*.
d? During the pendenc* of the criminal action7 the running
of prescription of the civil action which cannot be
instituted separatel* or whose proceeding has been
suspended shall be tolled.
4he bar on the institution or suspension of the separate civil
actions has the following e1ceptionE
 :n the cases provided for in Artices 32, 33, 38 "n'
21:; of the Ci6i Co'e7 the independent civil action
ma* be brought b* the offended part*. :t shall
proceed independentl* of the criminal action and
shall re,uire onl* a preponderance of evidence. :n
no case7 however7 ma* the offended part* recover
damages twice for the same act or omission
charged in the criminal action.
E))E/T O) T>E DEAT> O) A//(SED OR
/ONVI/T ON /IVIL A/TION
4he death of the accused after arraignment and during the
pendenc* of the criminal action shall e1tinguish the civil
liabilit* arising from the delict. 0owever7 the independent
civil action instituted under section 3 of this *ue (*ue 111)
or which thereafter is instituted to enforce liabilit* arising
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from other sources of obligation ma* be continued against
the estate or legal representative of the accused after proper
substitution or against said estate7 as the case ma* be. 4he
heirs of the accused ma* be substituted for the deceased
without re,uiring the appointment of an e1ecutor or
administrator and the court ma* appoint a guardian ad litem
for the minor heirs.
4he court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
of thirt* >&D? da*s from notice.
A final %udgment entered in favor of the offended part* shall
be enforced against the estate of the deceased.
:f the accused dies before arraignment7 the case shall be
dismissed without pre%udice to an* civil action the offended
part* ma* file against the estate of the deceased.
,RE.(DI/IAL A(ESTION
A petition for suspension of the criminal action based upon
the pendenc* of a pre%udicial ,uestion in a civil action ma*
be filed in the office of the prosecutor or the court
conducting the preliminar* investigation. <hen the criminal
action has been filed in court for trial7 the petition to suspend
shall be filed in the same criminal action at an* time before
the prosecution rests.
82#2RAL RBL2E Criminal action takes precedence of civil
actions.
2RC24:3#SE
a? independent civil actions
b? pre%udicial ,uestion
re%udicial ,uestion which arises in a case the resolution of
which is a logical antecedent of the issues involved in said
cases7 and the cogni@ance of which pertains to another
tribunal.
T! $mnts o: a -r@%#icia$ E%stion arC
a? the previousl* instituted civil action
involves an issue similar or intimatel*
related to the issue raised in the
subse,uent criminal action7 and
b? the resolution of such issue determines
whether or not the criminal action ma*
proceed.
42S4E :t must appear not onl* that the civil case involves
the same facts upon which the criminal prosecution is based7
but also that the resolution of the issues in said civil action
would be necessaril* determinative of the guilt or innocence
of the accused.
A pre%udicial ,uestion can be interposed at the 3ffice of the
rosecutor7 but9
!? 4he ,uestion can also be raised in court9
"? :f raised7 the court should merel* suspend the
criminal case9
&? 4he court must wait for a motion7 otherwise7 that is
a waiver9
'? 4he court cannot $otu !ro!io suspend the criminal
case.
R(LE ON )ILIN+ )EES IN /IVIL A/TION DEEMED
INSTIT(TED WIT> T>E /RIMINAL A/TION
<hen the offended part* seeks to enforce civil liabilit*
against the accused b* wa* of moral7 nominal7 temperate or
e1emplar* damages without specif*ing the amount thereof
in the complaint or information7 the filing fees therefor shall
constitute a first lien on the %udgment awarding such
damages.
<here the amount of damages7 other than actual7 is specified
in the complaint or information7 the corresponding filing
fees shall be paid b* the offended part* upon filing thereof
in court. 21cept as otherwise provided in these Rules7 no
filing fees shall be re,uired for actual damages.
<ith respect to criminal actions for violations of B ""7 the
offended part* shall pa* in full the filing fees based on the
face value of the checks as the actual damages.
,RELIMINAR' INVESTI+ATION ;R(LE 112=
reliminar* investigation is an in,uir* or proceeding for the
purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and that the respondent is probabl* guilt* thereof7
and should be held for trial.
NAT(RE O) RI+>T
4he right to preliminar* investigation is not a constitutional
grant9 it is merel* statutor* and ma* be invoked onl* when
specificall* created b* statute. :t is a component part of due
process in criminal %ustice.
reliminar* investigation is a function that belongs to the
public prosecutor. :t is an e1ecutive function7 although the
prosecutor7 in the discharge of such function7 is a ,uasi-
%udicial authorit* tasked to determine whether or not a
criminal case must be filed in court.
4he right to preliminar* investigation ma* be waived b* the
accused either e1pressl* or impliedl*. 4he posting of a bond
b* the accused constitutes such a waiver7 such that even if
the warrant was irregularl* issued7 an* infirmit* attached to
it is cured when the accused submits himself to the
%urisdiction of the court b* appl*ing for bail. :t is also cured
b* submitting himself to arraignment
,(R,OSES O) ,RELIMINAR' INVESTI+ATION
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BERT – NOTES in REMEDIAL LAW
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4he basic purpose of preliminar* investigation is to
determine whether a crime has been committed and whether
there is probable cause to believe that the accused is guilt*
thereof.
8enerall*7 preliminar* investigation has a three-fold
purposeE
!? 4o in,uire concerning the commission of crime and
the connection of accused with it7 in order that he
ma* be informed of the nature and character of the
crime charged against him7 and if there is probable
cause for believing him guilt*7 that the state ma*
take the necessar* steps to bring him to trial9
"? 4o preserve the evidence and keep the witnesses
within the control of the state9 and
&? 4o determine the amount of bail7 if the offense is
bailable.
W>O MA' /OND(/T DETERMINATION O)
E*ISTEN/E O) ,ROBABLE /A(SE
3n the basis of the evidence before him7 the investigating
office must decide whether to dismiss the case or to file the
information in court. 4his involves the determination of
probable cause.
4he Court has maintained the polic* of non-interference in
the determination of the e1istence of probable cause7
provided there is no grave abuse in the e1ercise of such
discretion. 4he rule is based not onl* upon respect for the
investigator* and prosecutorial powers of prosecutors but
upon practicalit* as well.
O))I/ERS A(T>ORIGED TO /OND(/T
,RELIMINAR' INVESTI+ATION
!? rovincial or cit* prosecutors and their assistants9
"? #ational and Regional State rosecutors9 and
&? 3ther officers as ma* be authori@ed b* law
>C3$2L2C7 C887 3mbudsman?
4heir authorit* to conduct preliminar* investigation shall
include all crimes cogni@able b* the proper court in their
respective territorial %urisdictions.
RESOL(TION O) INVESTI+ATION ,ROSE/(TOR
:f the investigating prosecutor finds cause to hold the
respondent for trial7 he shall prepare the resolution and
information. 0e shall certif* under oath in the information
that he7 or as shown b* the record7 an authori@ed officer7 has
personall* e1amined the complainant and his witnesses9 that
there is reasonable ground to believe that a crime has been
committed and that the accused is probabl* guilt* thereof9
that the accused was informed of the complaint and of the
evidence submitted against him9 and that he was given an
opportunit* to submit controverting evidence. 3therwise7 he
shall recommend the dismissal of the complaint.
<ithin five >(? da*s from his resolution7 he shall forward the
record of the case to the provincial or cit* prosecutor or
chief state prosecutor7 or to the 3mbudsman or his deput* in
cases of offenses cogni@able b* the Sandiganba*an in the
e1ercise of its original %urisdiction. 4he* shall act on the
resolution within ten >!D? da*s from their receipt thereof and
shall immediatel* inform the parties of such action.
#o complaint or information ma* be filed or dismissed b*
an investigating prosecutor without the prior written
authorit* or approval of the provincial or cit* prosecutor or
chief state prosecutor or the 3mbudsman or his deput*.
<here such the recommendation of dismissal was
disapproved on the ground that a probable cause e1ists7 the
chief prosecutor ma* file the information against the
respondent7 or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminar*
investigation.
REVIEW
A preliminar* investigation falls under the authorit* of the
state prosecutor who is given b* law the power to direct and
control criminal actions. 0e is7 however7 sub%ect to the
control6appeal to the Secretar* of /ustice7 which the latter
ma* e1ercise $otu !ro!io or upon petition of the proper
part*.
4he Secretar* of /ustice e1ercises the power of direct control
and supervision over prosecutors7 and ma* thus affirm7
nullif*7 reverse or modif* their rulings. :n reviewing
resolutions of state prosecutors7 the Secretar* of /ustice is
not precluded from considering errors7 although unassigned7
for the purpose of determining whether there is probable
cause for filing cases in court.
An aggrieved part* ma* appeal b* filing a verified petition
for review with the Secretar* and b* furnishing copies
thereof to the adverse part* and prosecution office issuing
the appealed resolution. 4he appeal shall be taken within !(
da*s from receipt of the resolution or of the denial of the
motion for reconsideration6reinvestigation if one has been
filed within !(v da*s from receipt of the assailed resolution.
3nl* one motion for reconsideration shall be allowed.
Bnless the Secretar* directs otherwise7 the appeal S0ALL
#34 S4AH the filing of the corresponding information in
court on the basis of the finding of probable cause in the
assailed decision. :f the Secretar* of /ustice reverses or
modifies the resolution of the provincial or cit* prosecutor or
chief state prosecutor7 he shall direct the prosecutor
concerned either to file the corresponding information
without conducting another preliminar* investigation7 or to
dismiss or move for dismissal of the complaint or
information with notice to the parties.
W>EN WARRANT O) ARREST MA' ISS(E
;a= By t! Rgiona$ Tria$ /o%rt
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
124
 <ithin ten >!D? da*s from the filing of the
complaint or information7 the %udge shall personall*
evaluate the resolution of the prosecutor and its
supporting evidence.
 0e ma* immediatel* dismiss the case if the
evidence on record clearl* fails to establish
probable cause.
 :f he finds probable cause7 he shall issue a warrant
of arrest7 or a commitment order if the accused has
alread* been arrested pursuant to a warrant issued
b* the %udge who conducted the preliminar*
investigation or when the complaint or information
was filed pursuant to section ) of this Rule.
 :n case of doubt on the e1istence of probable cause7
the %udge ma* order the prosecutor to present
additional evidence within five >(? da*s from notice
and the issue must be resolved b* the court within
thirt* >&D? da*s from the filing of the complaint or
information.
;9= By t! M%nici-a$ Tria$ /o%rt
 <hen re,uired pursuant to the second paragraph of
section ! of this Rule7 the : of cases falling under
the original %urisdiction of the $4Cs shall be
conducted b* the prosecutor. 1he !roce'ure for the
issu"nce of " )"rr"nt of "rrest %+ the &u'3e sh"
%e 3o6erne' %+ !"r"3r"!h (") of this section (Sec.
5, *ue112).
;c= W!n "arrant o: arrst not ncssary
A warrant of arrest shall not issue if the accused is
alread* under detention pursuant to a warrant
issued b* the $unicipal 4rial Court in accordance
with paragraph >b? of this section7 or if the
complaint or information was filed pursuant to
section ) of this Rule or is for an offense penali@ed
b* fine onl*. 4he court shall then proceed in the
e1ercise of its original %urisdiction (Sec. 5, "s
"$en'e' %+ A, .5/</2;/SC).
/ASES NOT REA(IRIN+ A ,RELIMINAR'
INVESTI+ATION
!? Cases in which the imposable penalt* D32S #34
2RC22D four >'? *ears7 two >"? months and one >!?
da*
"? <hen the accused has undergone in,uest proceeding.

REMEDIES O) A//(SED I) T>ERE WAS NO
,RELIMINAR' INVESTI+ATION
 Refuse to enter a plea upon arraignment and ob%ect to
further proceedings upon such grounds
 4o hold in abe*ance the proceedings and order6insist the
prosecutor to hold preliminar* investigation.
 Raised the lack of : as an error in appeal
:f the case has been conducted7 the accused ma* within (
da*s from the time he learns of its filing ask for a
preliminar* investigation. 4he five-da* period to file the
motion for preliminar* investigation is mandator*7 and an
accused is entitled to ask for preliminar* investigation b*
filing the motion within the said period. 4he failure to file
the motion within the five-da* period amounts to a waiver of
the right to ask for preliminar* investigation. Apart from
such waiver7 posting bail without previousl* or
simultaneousl* demanding for a preliminar* investigation
%ustifies denial of the motion for investigation.
INA(EST
:t is a summar* investigation conducted b* a public
prosecutor in criminal cases involving persons arrested and
detained without the benefit of a warrant of arrest issued b*
the court for the purpose of determining whether or not said
persons should remain under custod* and correspondingl*
be charged in court. Such proceedings must terminate within
the period prescribed under Art. 125 of the *e6ise' Pen"
Co'e.
Re,uired where the crime is punishable b* at least ' *ears7 "
months and ! da*.
ARREST ;R(LE 111=
Arrest is the taking of a person into custod* in order that he
ma* be bound to answer for the commission of an offense.
>OW AN ARREST MADEI
!? b* an actual restraint of a person to be arrested7 3R
"? b* his submission to the custod* of the person making
the arrest.
 #o violence or unnecessar* force shall he used in
making an arrest. 4he person arrested shall not be
sub%ect to a greater restraint than is necessar* for
his detention.
ARREST WIT>O(T WARRANT?W>EN LAW)(L
!? <hen7 in his presence7 the person to be arrested has
committed7 is actuall* committing7 or is attempting to
commit an offense9
"? <hen an offense has %ust been committed and he h"s
!ro%"%e c"use to %eie6e %"se' on his !erson"
9no)e'3e of f"cts or circu$st"nces th"t the !erson to
%e "rreste' h"s co$$itte' the cri$e;
&? <hen the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final %udgment or is temporaril* confined while
his case is pending7 or has escaped while being
transferred from one confinement to another.
'? <here a person who has been lawfull* arrested escape
or is rescued9
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
125
(? <hen the bondsmen arrests a prisoner out on bail for
the purpose of bringing him to court9
)? <here the accused attempts to leave the countr* without
the permission of the court.
MET>OD O) ARREST
Mt!o# o: arrst 9y o::icr 9y 0irt% o: "arrant
4he officer shall inform the person to be arrested of the
cause of the arrest and the fact that a warrant has been issued
for his arrest7 e1cept when he flees or forcibl* resists before
the officer has opportunit* to so inform him7 or when the
giving of such information will imperil the arrest.
4he officer need not have the warrant in his possession at the
time of the arrest but after the arrest7 if the person arrested so
re,uires7 the warrant shall be shown to him as soon as
practicable.
Mt!o# o: arrst 9y o::icr "it!o%t "arrant
4he officer shall inform the person to be arrested of his
authorit* and the cause of the arrest7 unless the latter is
either engaged in the commission of an offense7 is pursued
immediatel* after its commission7 has escaped7 flees or
forcibl* resists before the officer has opportunit* to so
inform him7 or when the giving of such information will
imperil the arrest.
Mt!o# o: arrst 9y -ri0at -rson
A private person shall inform the person to be arrested of the
intention to arrest him and cause of the arrest7 unless the
latter is either engaged in the commission of an offense7 is
pursued immediatel* after its commission7 or has escaped7
flees or forcibl* resists before the person making the arrest
has opportunit* to so inform him7 or when the giving of such
information will imperil the arrest.
REA(ISITES O) A VALID WARRANT O) ARREST
RE%isits :or arrst "arrant iss%# 9y a RT/ @%#g
under Sec. 5, *ue 1120
!? <ithin !D da*s from the filing of the complaint or
information
"? 4he %udge shall personall* evaluate the resolution
of the prosecutor and its supporting evidence.
&? :f he finds probable cause7 he shall issue a warrant
of arrest
'? :n case of doubt on the e1istence of probable cause
a. 4he %udge ma* order the prosecutor to
present additional evidence within ( da*s
from notice9 and
b. 4he issue must be resolved b* the court
within &D da*s from the filing of the
complaint of information.
RE%isits :or iss%ing sarc! "arrant under Sec. 8, *ue
12;0
!? :t must be issued upon probable cause in
connection with one specific offense9
"? 4he probable cause must be determined b* the
%udge himself and not b* the applicant or an* other
person9
&? :n the determination of probable cause7 the %udge
must e1amine under oath or affirmation7 the
complainant and the witness he ma* produce9 and
'? 4he warrant issued must particularl* describe the
person to be arrested in connection with a specific
offense or crime.
DETERMINATION O) ,ROBABLE /A(SE )OR
ISS(AN/E O) WARRANT O) ARREST
:t is the %udge alone who determines the probable cause for
the issuance of warrant of arrest. :t is not for the provincial
fiscal or prosecutor to ascertain.
DISTIN+(IS> ,ROBABLE /A(SE O) )IS/AL
)ROM T>AT O) A .(D+E
4he 'eter$in"tion %+ the !rosecutor of probable cause is for
the purpose of either filing an information in court or
dismissing the charges against the respondent7 which is an
e1ecutive function.
4he 'eter$in"tion %+ the &u'3e of probable cause begins
onl* after the prosecutor has filed the information in court
and the latterCs determination of probable cause is for the
purpose of issuing an arrest warrant against the accused7
which is %udicial function. . A %udge cannot be compelled to
issue a warrant of arrest if he or she believes honestl* that
there is no probable cause for doing so.
robable cause to hold a person for trial refers to the finding
of the investigating prosecutor after the conduct of a
preliminar* investigation7 that there is sufficient ground to
hold a well-founded belief that a crime has been committed
and that the respondent is probabl* guilt* thereof and should
be held for trial. Based on such finding7 the investigating
prosecutor files the corresponding complaint or information
in the competent court against the accused.
BAIL ;R(LE 112=
NAT(RE
All persons7 e1cept those charged with offenses punishable
b* reclusion perpetua when evidence of guilt is strong7 shall
before conviction7 be bailable b* sufficient sureties7 or be
released on recogni@ance as ma* be provided b* law. 4he
right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended. 21cessive bail shall
not be re,uired (Sec. 13, Art. III, 1he Constitution).
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
126
Bail is the securit* re,uired b* the court and given b* the
accused to ensure that the accused appear before the proper
court at the scheduled time and place to answer the charges
brought against him. :t is awarded to the accused to honor
the presumption of innocence until his guilt is proven
be*ond reasonable doubt7 and to enable him to prepare his
defense without being sub%ect to punishment prior to
conviction. :ts main purpose is to relieve an accused from
the rigors of imprisonment until his conviction and secure
his appearance at the trial.
4he person seeking provisional release need not wait for a
formal complaint or information to be filed against him as it
is available to all persons where the offense is bailable7 so
long as the applicant is in the custod* of the law.
8in#s o: 9ai$C
a? /or-orat 9on# S one issued b* a corporation
licensed to provide bail subscribed %ointl* b* the
accused and an officer dul* authori@ed b* its board
of directors.
b? ,ro-rty 9on# S an undertaking constituted as a
lien on the real propert* given as securit* for the
amount of the bond.
c? RcogniLanc S an obligation of record entered
into usuall* b* the responsible members of the
communit* before some court or magistrate dul*
authori@ed to take it7 with the condition to do some
particular act7 the most usual act being to assure the
appearance of the accused for trial.
d? /as! #-osit S the mone* deposited b* the
accused or an* person acting on his behalf7 with the
nearest collector of internal revenue7 or provincial7
cit* or municipal treasurer. Considered as bail7 it
ma* be applied to the pa*ment of an* fees and
costs7 and the e1cess7 if an*7 shall be returned to the
accused or to whoever made the deposit.
W>EN A MATTER O) RI+>TH E*/E,TIONS
All persons in custod* shall be admitted to bail as a matter
of right7 with sufficient sureties7 or released on
recogni@anceE
a? before or after conviction b* the $4C7 and
b? before conviction b* the R4C of an offense #34
punishable b* death7 reclusion perpetua7 or life
imprisonment and the evidence of guilt is strong.
:f bail can be granted in deportation cases and e1tradition
cases9 both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.
Bail is a matter of right before final conviction7 but the rule
is not absolute. 4he e1ception is when a person is charged
with a capital offense when the evidence of guilt is strong7 or
when the offense for which on is charged is punishable b*
reclusion perpetua. 4he e1ception to this rule7 however7 is
even if a person is charged with a capital offense where the
evidence of guilt is strong7 if the accused has failing health7
hence7 for humanitarian reasons7 he ma* be admitted to bail7
but that is discretionar* on the part of the court.
W>EN A MATTER O) DIS/RETION
!? Before conviction7 in case of offenses punishable b*
reclusion perpetua7 life imprisonment or death9
 :f it is determined that it is #34 strong7 then bail is
a matter of right. 4here is no more discretion of the
court in den*ing the bail7 the moment there is a
determination that the evidence of guilt is not
strong.
"? After conviction b* the R4C of a non-capital offense.
4he application for bail ma* be filed and acted upon b* the
trial court despite the filing of a notice of appeal7 provided it
has not transmitted the original record to the appellate court.
0owever7 if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable
to bailable7 the application for bail can onl* be filed with and
resolved b* the appellate court.
:f the penalt* imposed b* the trial court is imprisonment
e1ceeding si1 >)? *ears7 the accused shall be denied bail7 or
his bail shall be cancelled upon a showing b* the
prosecution7 with notice to the accused7 of the following or
other similar circumstancesE
a? 4hat he is a recidivist7 ,uasi-recidivist7 or habitual
delin,uent7 or has committed the crime aggravated
b* the circumstance of reiteration9
b? 4hat he has previousl* escaped from legal
confinement7 evaded sentence7 or violated the
conditions of his bail without valid %ustification9
c? 4hat he committed the offense while under
probation7 parole7 or under conditional pardon9
d? 4hat the circumstances of his case indicate the
probabilit* of flight if released on bail9 or
e? 4hat there is undue risk that he ma* commit
another crime during the pendenc* of the appeal.
<here the grant of bail is a matter of discretion7 or the
accused seeks to be released on recogni@ance7 the
application ma* onl* be filed in the court where the case is
pending7 whether on preliminar* investigation7 trial7 or on
appeal.
>EARIN+ O) A,,LI/ATION )OR BAIL IN
/A,ITAL O))ENSES
+(IDELINES IN )I*IN+ AMO(NT O) BAIL
A bail application in capital offense does not onl* involve
the right of the accused to temporar* libert*7 but likewise the
right of the State to protect the people and the peace of the
communit* from dangerous elements. 4he prosecution must
be given ample opportunit* to show that the evidence of
guilt is strong7 because it is on the basis of such evidence
that %udicial discretion is e1ercised in determining whether
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
127
the evidence of guilt is strong is a matter of %udicial
discretion.
A hearing is absolutel* indispensable. :n receiving evidence
on bail7 while a court is not re,uired to tr* the merits of the
case7 he must nevertheless conduct a summar* hearing to
determine the weight of the evidence for purposes of the
bail.
A %udge should not hear a petition for bail in capital offenses
on the same da* that the petition was filed. 0e should give
the prosecution a reasonable time within which to oppose the
same. #either is he supposed to grant bail solel* on the
belief that the accused will not flee during the pendenc* of
the case b* reason of the fact that he had even voluntaril*
surrendered. ;oluntar* surrender is merel* a mitigating
circumstance in decreasing the penalt* but is not a ground
for granting bail to an accused charged with a capital
offense.
a? 5inancial abilit* of the accused to give bail9
b? #ature and circumstances of the offense9
c? enalt* for the offense charged9
d? Character and reputation of the accused9
e? Age and health of the accused9
f? <eight of the evidence against the accused9
g? robabilit* of the accused appearing at the trial9
h? 5orfeiture of other bail9
i? 4he fact that the accused was a fugitive from %ustice
when arrested9 and
%? endenc* of other cases where the accused is on
bail.
21cessive bail shall not be re,uired.
BAIL W>EN NOT REA(IRED
!? <hen the offense charged is a violation of an ordinance7
light felon* or a criminal offense the imposable penalt*
does not e1ceed ) months of imprisonment and6or fine
of "7DDD.DD under RA )D&).
"? <here 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 one7 in which case he ma*
be released on recogni@ance.
&? :n case of *outhful offender held for ph*sical or mental
e1amination7 trial or appeal7 if unable to furnish bail and
under the circumstances under P4 ;.3, "s "$en'e'.
'? <hen the law or these Rules so provide.
(? <hen a person has been in custod* for a period e,ual to
or more than the possible ma1imum imprisonment
prescribed for the offense charged7 he shall be released
immediatel*7 without pre%udice to the continuation of
the trial or the proceedings on appeal.
)? A person accused of an offense with a ma1imum
penalt* of destierro7 he shall be released after &D da*s of
preventive imprisonment.
IN/REASE OR RED(/TION O) BAIL
After the accused is admitted to bail7 the court ma*7 upon
good cause7 either increase or reduce its amount.
<hen increased7 the accused ma* be committed to custod*
if he does not give bail in the increased amount within a
reasonable period.
An accused held to answer a criminal charge7 who is
released without bail upon filing of the complaint or
information7 ma*7 at an* subse,uent stage of the
proceedings whenever a strong showing of guilt appears to
the court7 be re,uired to give bail in the amount fi1ed7 or in
lieu thereof7 committed to custod*.
)OR)EIT(RE AND /AN/ELLATION O) BAIL
<hen the presence of the accused is re,uired7 his bondsmen
shall be notified to produce him on a given date and time. :f
the accused fails to appear7 his bail shall be declared
forfeited and the bondsmen given thirt* >&D? da*s within
which to produce their principal and to show cause wh* no
%udgment should be rendered against them for the amount of
their bail. <ithin the said period7 the bondsmen mustE
a? produce the bod* of their principal or give the
reason for his non-production9 and
b? e1plain wh* the accused did not appear before the
court when first re,uired to do so.
5ailing in these two re,uisites7 a %udgment shall be rendered
against the bondsmen7 %ointl* and severall*7 for the amount
of the bail. 4he court shall not reduce or otherwise mitigate
the liabilit* of the bondsmen7 unless the accused has been
surrendered or is ac,uitted.
Bpon application of the bondsmen7 with due notice to the
prosecutor7 the bail ma* be cancelled upon surrender of the
accused or proof of his death.
4he bail shall be deemed automaticall* cancelled upon
ac,uittal of the accused7 dismissal of the case7 or e1ecution
of the %udgment of conviction. :n all instances7 the
cancellation shall be without pre%udice to an* liabilit* on the
bail.
A,,LI/ATION NOT A BAR TO OB.E/TIONS IN
ILLE+AL ARREST? LA/8 O) OR IRRE+(LAR
,RELIMINAR' INVESTI+ATION
4he posting of the bail does not constitute a waiver of an*
,uestion on the irregularit* attending the arrest of person. 0e
can still ,uestion the same before arraignment7 otherwise7
the right to ,uestion it is deemed waived.
An application for or admission to bail shall not bar the
accused from challenging the validit* of his arrest or the
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
110
legalit* of the warrant issued therefor7 or from assailing the
regularit* or ,uestioning the absence of a preliminar*
investigation of the charge against him7 provided that he
raises them before entering his plea.
4he arraignment of an accused is not a prere,uisite to the
conduct of hearings on his petition for bail. A person is
allowed to petition for bail as soon as he is deprived of his
libert* b* virtue of his arrest or voluntar* surrender. Bail
should be granted before arraignment9 otherwise the accused
ma* be precluded from filing a motion to ,uash.
>OLD DE,ART(RE ORDER M B(REA( O)
IMMI+RATION WAT/>LIST
Supreme Court Cir. -o. 39/9: '"te' 2une 19, 199: limits
the authorit* to issue hold departure orders to the R4Cs in
criminal cases within their e1clusive %urisdiction.
Conse,uentl*7 $4C %udges have no authorit* to issue hold-
departure orders9 neither does it has authorit* to cancel one
which he issued.
A court has the power to prohibit a person admitted to bail
from leaving the hilippines. 4his is necessar* conse,uence
of the nature and function of a bail bond. <here it appears
that the accused had the propensit* to evade or disobe*
lawful orders7 the issuance of a hold departure order is
warranted.
T! scrtary o: @%stic may iss% a "atc!$ist or#r in
t! :o$$o"ing circ%mstancsC
!? Against the accused7 irrespective of nationalit*7 in
criminal cases pending trial before the R4C9
"? Against the respondent7 irrespective of nationalit*7
in criminal cases pending preliminar* investigation7
petition for review7 or motion for reconsideration
before D3/ or an* of its provincial or cit* offices.
&? Against an* person7 either motu proprio7 or upon
re,uest of an* government agenc*7 including
commissions7 task forces or similar entities created
b* the office of the resident7 pursuant to Anti
A1r"ffic9in3 in Persons Acts of 2..3, and6or in
connection with an* investigation being conducted
b* it7 or in the interest of national securit*7 public
safet* of public health.
RI+>TS O) T>E A//(SED ;R(LE113=
RI+>TS O) A//(SED AT T>E TRIAL
!? 4o be R2SB$2D :##3C2#4 until the contrar* is
proved be*ond reasonable doubt.
"? 4o be :#53R$2D 35 402 #A4BR2 A#D CABS2
35 402 ACCBSA4:3# against him.
&? 4o be R2S2#4 A#D D252#D :# 2RS3# A#D
BH C3B#S2L A4 2;2RH S4A82 35 402
R3C22D:#8S7 from arraignment to promulgation of
the %udgment.
'? 4o 42S4:5H AS A <:4#2SS :# 0:S 3<# B20AL5
but sub%ect to cross-e1amination on matters covered b*
direct e1amination. 0is silence shall not in an* manner
pre%udice him9
(? 4o be 2R2$4 5R3$ B2:#8 C3$2LL2D 43 B2
A <:4#2SS A8A:#S4 0:$S2L5.
)? 4o C3#5R3#4 A#D CR3SS-2RA$:#2 402
<:4#2SS2S against him at the trial.
+? 4o have C3$BLS3RH R3C2SS issued to secure
the attendance of witnesses and production of other
evidence in his behalf.
-? 4o have S22DH7 :$AR4:AL A#D BBL:C
4R:AL.
.? 4o appeal in all cases allowed and in the manner
prescribed b* law.
RI+>TS O) ,ERSONS (NDER /(STODIAL
INVESTI+ATION
!? 4o be informed of his rights to remain silent and to have
competent and independent counsel preferabl* of his
own choice. :f the person cannot afford the services of
counsel7 he must be provided with one. 4hese rights
cannot be waived e1cept in writing and in the presence
of counsel9
"? #o torture7 force7 violence7 intimidation or an* other
means which vitiate the free will shall be used against
him. Secret detention places7 solitar*7 incommunicado7
or other similar forms of detention are prohibited9
&? An* confession or admission in violation of Self-
:ncrimination Clause shall be inadmissible in evidence
against him9
'? 4he law shall provide for penal and civil sanctions as
well as compensation to aid rehabilitation of victims of
torture or similar practice7 and their families.
(NDER RA 5612
4he following are the rights of persons arrested7 detained or
under custodial investigationE
!? 4o be assisted b* counsel at all times9
"? Shall be informed 7 in a language known to and
understood b* him7 of his right to remain silent and
to have competent and independent counsel7
preferabl* of his own choice7 who shall at all times
be allowed to confer privatel* with him9
&? 4he custodial investigation report shall be read and
ade,uatel* e1plained to him b* his counsel or b*
the assisting counsel in the language or dialect
known him9 otherwise7 such investigation report
shall be null and void9
'? An* e1tra%udicial confession made b* him shall be
in writing and signed in the presence of his counsel
or upon a valid waiver7 and in the presence of his
an* immediate famil* members7 otherwise7 such
e1tra%udicial confession shall be inadmissible in
an* proceeding9
(? An* waiver under the provisions of Art. 125 of the
*PC or under custodial investigation7 shall be in
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BERT – NOTES in REMEDIAL LAW
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writing signed b* such person in the presence of his
counsel9 otherwise such waiver shall be null and
void and of no effect9
)? Shall be allowed visits b* his or conferences with
an* member of his immediate famil*7 or an*
medical doctor or priest or religious minister
chosen b* him or b* his counsel7 or b* an* national
#83 dul* accredited b* the 3ffice of the resident.
T>REE RI+>TS ARE MADE AVAILABLE
B' &6). 12(1)>
a? 4he right to remain silent
 Bnder the right against self-incrimination in
Sec. 1:, onl* an accused has the absolute right
to remain silent. A person who is not an
accused ma* assume the stance of silence onl*
when asked an incriminator* ,uestion.
 Bnder Sec. 12, however7 a person under
investigation has the right to refuse to answer
an* ,uestion. 0is silence7 moreover7 ma* not
be used against him.
b? 4he right to counsel S 21ample of those who are not
impartial counsel areE
!? Special counsel7 private or public prosecutor7
counsel of the police7 or a municipal attorne*
whose interest is adverse to that of the accused9
"? a ma*or7 unless the accused approaches him as
counselor or adviser9
&? a baranga* captain9
'? an* other whose interest ma* be adverse to that
of the accused.
c? 4he right to be informed of his rights S the right
guaranteed here is more than what is shown in
television shows where the police routinel* reads out
the rights from a note card9 he must also e1plain their
effects in practical terms.
/(STODIAL INVESTI+ATION
4he right to custodial investigation begins onl* when the
investigation is no longer a general in,uir* into an unsolved
crime but has begun to focus on a particular suspect7 the
suspect has been taken into police custod*7 the police carr*
out a process of interrogations that lends itself to eliciting
incriminating statements.
:t has e1tended to situations in which an individual has not
been formall* arrested but has merel* been MinvitedN for
,uestioning.
ARRAI+NMENT AND ,LEA ;R(LE 114=
:t is the mode of implementing the constitutional right to be
informed of the nature of the accusation against him7 and to
fi1 the identit* of the accused.
SOME R(LES ON ARRAI+NMENTC
a? 4rial in absentia is allowed onl* after arraignment9
b? /udgment is generall* void if the accused has not
been arraigned9
c? 4here can be no arraignment in absentia9
d? :f the accused went to trial without arraignment7 but
his counsel had the opportunit* to cross-e1amine
the witnesses of the prosecution and after
prosecution7 he was arraigned7 the defect was
cured.
ARRAI+NMENT AND ,LEA? >OW MADE
a? 4he accused must be arraigned before the court where
the complaint or information was filed or assigned for
trial. 4he arraignment shall be made in open court b*
the %udge or clerk b* furnishing the accused with a cop*
of the complaint or information7 reading the same in the
language or dialect known to him7 and asking him
whether he pleads guilt* or not guilt*.
b? <hen the accused is under preventive detention7 his
case shall be raffled and its records transmitted to the
%udge to whom the case was raffled within three >&?
da*s from the filing of the information or complaint.
4he accused shall be arraigned within ten >!D? da*s
from the date of the raffle. 4he pre-trial conference of
his case shall be held within ten >!D? da*s after
arraignment.
c? 4he private offended part* shall be re,uired to appear at
the arraignment for purposes of plea-bargaining7
determination of civil liabilit*7 and other matters
re,uiring his presence. :n case of failure of the offended
part* to appear despite due notice7 the court ma* allow
the accused to enter a plea of guilt* to a lesser offense
which is necessaril* included in the offense charged
with the conformit* of the trial prosecutor alone.
d? 4he arraignment shall be held within thirt* >&D? da*s
from the date the court ac,uires %urisdiction over the
person of the accused. 4he time of the pendenc* of a
motion to ,uash or for a bill of particulars or other
causes %ustif*ing suspension of the arraignment shall be
e1cluded in computing the period.
W>EN S>O(LD ,LEA O) NOT +(ILT' BE
ENTERED
a? 4he accused so pleaded9
b? <hen he refuses to plead9
c? <here in admitting the act charged7 he sets up
matters of defense or with a lawful %ustification9
d? <hen he enters a conditional plea of guilt9
e? <here7 after a plea of guilt7 he introduces evidence
of self-defense or other e1culpator* circumstances 9
and
f? <hen the plea is indefinite or ambiguous.
W>EN MA' AN A//(SED ENTER A ,LEA O)
+(ILT' TO A LESSER O))ENSE
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A4 ARRA:8#$2#47 the accused7 with the consent of the
offended part* and the prosecutor7 ma* be allowed b* the
trial court to plead guilt* to a lesser offense which is
necessaril* included in the offense charged.
A542R ARRA:8#$2#4 BB4 B253R2 4R:AL7 the
accused ma* still be allowed to plead guilt* to said lesser
offense after withdrawing his plea of not guilt*. #o
amendment of the complaint or information is necessar*.
:t has been held that the accused can still plead guilt* to a
lesser offense after the prosecution has rested.
:f accused entered a plea to a lesser offense without the
consent of the offended part* and the prosecutor and he was
convicted7 his subse,uent conviction in the crime charged
would not place him in double %eopard*.
A//(SED ,LEAD +(ILT' TO /A,ITAL O))ENSE?
W>AT T>E /O(RT S>O(LD DO
4he court should accomplish three >&? things9
!? :t should conduct searching in,uir* into the
voluntariness and full comprehension of the
conse,uences of the plea9
"? :t should re,uire the prosecution to prove the guilt
of the accused and the precise degree of culpabilit*9
and
&? :t should in,uire whether or not the accused wishes
to present evidence on his behalf and allow him if
he so desires.
SEAR/>IN+ INA(IR'
Searching ,uestion means more than informing cursoril* the
accused that he faces a %ail term. :t also includes the e1act
length* of imprisonment under the law and the certaint* that
he will serve at the national penitentiar* or a penal colon*.
:t is intended to undermine the degree of culpabilit* of the
accused in order that the court ma* be guided in determining
the proper penalt*.
IM,ROVIDENT ,LEA
 :t is a plea without information as to all the
circumstances affecting it9 based upon a mistaken
assumption or misleading information or advise.
 Conviction based on an improvident plea of guilt* ma*
set aside onl* when such plea is the sole basis of the
%udgment.
 At an* time before the %udgment of conviction becomes
final7 the court ma* permit the withdrawal of an
improvident plea of guilt*7 to be substituted b* a plea of
not guilt*7 even after %udgment has been promulgated
but before the same becomes final.
 A plea of not guilt* can likewise be withdrawn so that
the accused ma* instead plead guilt* to the same
offense7 but for obvious reasons7 this must be done
before promulgation of %udgment.
 <hen the accused pleads guilt* but presents
e1culpator* evidence7 his plea shall be deemed
withdrawn and a plea of not guilt* shall be entered for
him.
+RO(NDS )OR S(S,ENSION O) ARRAI+NMENT
Bpon motion b* the proper part*7 the arraignment shall be
suspended in the following casesE
!? 4he accused appears to be suffering from an
unsound mental condition which effectivel* renders
him unable to full* understand the charge against
him and to plead intelligentl* thereto. :n such case7
the court shall order his mental e1amination and7 if
necessar*7 his confinement for such purpose.
"? 4here e1ists a pre%udicial ,uestion9 and
&? A petition for review of the resolution of the
prosecutor is pending at either the D3/ or the
3ffice of the resident9 provided that the period of
suspension shall not e1ceed si1t* >)D? da*s counted
from the filing of the petition with the reviewing
office.
MOTION TO A(AS> ;R(LE 115=
A motion to ,uash is a h*pothetical admission of the facts
alleged in the information7 hence the court in resolving the
motion cannot consider facts contrar* to those alleged in the
information or which do not appear on the face of the
information7 e1cept those admitted b* the prosecution.
4he motion to ,uash must be filed before the arraignment.
4hereafter7 no motion to ,uash can be entertained b* the
court7 the onl* e1ceptions being those in Sec. 9 which adopts
the omnibus motion rule7 sub%ect to said e1ceptions. Sec. 3
has been amended to separatel* refer to lack to %urisdiction
over the offense7 not over the person of the accused since7 b*
filing a motion to ,uash on other grounds7 the accused has
submitted himself to the %urisdiction of the court.
+RO(NDS
!? 4hat the facts charged do not constitute an offense9
"? 4hat the court tr*ing the case has no %urisdiction over
the offense charged9
&? 4hat the court tr*ing the case has no %urisdiction over
the person of the accused9
'? 4hat the officer who filed the information had no
authorit* to do so9
(? 4hat it does not conform substantiall* to the prescribed
form9
)? 4hat more than one offense is charged e1cept when a
single punishment for various offenses is prescribed b*
law9
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BERT – NOTES in REMEDIAL LAW
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+? 4hat the criminal action or liabilit* has been
e1tinguished -
a. B* the death of the convict7 as to the personal
penalties9 as to pecuniar* penalties7 liabilit*
therefor is e1tinguished onl* when the death of
the offender occurs before final %udgment.
b. B* service of the sentence9
c. B* amnest*7 which completel* e1tinguishes
the penalt* and all its effects9
d. B* absolute pardon9
e. B* prescription of the crime9
f. B* prescription of the penalt*9
g. B* the marriage of the offended woman in
i. Seduction
ii. abduction or
iii. acts of lasciviousness (Art. 388 *PC)
-? 4hat it contains averments which7 if true7 would
constitute a legal e1cuse or %ustification9 and
.? 4hat the accused has been previousl* convicted or
ac,uitted of the offense charged7 or the case against him
was dismissed or otherwise terminated without his
e1press consent.
8rounds that are not waived even if not allegedE
a? 5ailure to charge an offense9
b? Lack of %urisdiction9
c? 21tinction of criminal action or liabilit*9
d? Double %eopard*.
MOTION TO A(AS> DEM(RER TO EVIDEN/E
Rule !!+ Section "&7 Rule !!.
=hen fie' At an* time before accused enters plea After the prosecution rests its case
Groun's a? 4hat the facts charged do not constitute an offense9
b? 4hat the court tr*ing the case has no %urisdiction over
the offense charged9
c? 4hat the court tr*ing the case has no %urisdiction over
the person of the accused9
d? 4hat the officer who filed the information had no
authorit* to do so9
e? 4hat it does not conform substantiall* to the
prescribed form9
f? 4hat more than one offense is charged e1cept when a
single punishment for various offenses is prescribed
b* law9
g? 4hat the criminal action or liabilit* has been
e1tinguished9
h? 4hat it contains averments which7 if true7 would
constitute a legal e1cuse or %ustification9 and
i? 4hat the accused has been previousl* convicted or
ac,uitted of the offense charged7 or the case against
him was dismissed or otherwise terminated without
his e1press consent.
 :nsufficienc* of evidence
Effect if
3r"nte'
• :f the motion to ,uash is sustained7 the court ma*
order that another complaint or information be filed
e1cept as provided in section ; of this rule.
 :f the order is made7 the accused7 if in custod*7
shall not be discharged unless admitted to bail.
 :f no order is made or if having been made7 no
new information is filed within the time
specified in the order or within such further time
as the court ma* allow for good cause7 the
accused7 if in custod*7 shall be discharged unless
he is also in custod* of another charge.
• 4he remed* of prosecution is to amend the
information to correct the defects thereof7 e1cept on
the grounds of (3) "n' (&); of the prosecution ma*
appeal the ,uashal of information or complaint
• :f leave of court is granted7 the
accused shall file the demurrer to
evidence within a non-e1tendible
period of ten >!D? da*s from notice.
• 4he prosecution ma* oppose the
demurrer to evidence within !D
da*s from receipt of the motion.
Effect if
'enie'
4he usual course to take is for the accused to proceed
with trial7 and in case of conviction7 to appeal therefrom
and assign as error the denial of the motion to ,uash7
• An accused who files a demurrer to
evidence with leave of court does not
lose the right to present evidence in the
event his motion is denied.
• 3n the other hand7 if he files the
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BERT – NOTES in REMEDIAL LAW
112
demurrer without leave of court and the
same is denied7 he loses the right to
present evidence7 in which event the
case will be deemed submitted for
decision.
*e$e'ies if
'enie'
4he order den*ing the motion to ,uash is interlocutor*
and therefore not appealable7 nor can it be the sub%ect of a
petition for certiorari.
4he order den*ing the motion for leave of
court to file demurrer to evidence or to
demur itself shall not be reviewable b*
appeal or certiorari before %udgment.
A special civil action ma* lie against an order of denial
of a motion to ,uash7 as an e1ception to the general rule7
in an* of the following instancesE
a? <here there is necessit* to afford protection to
the constitutional rights of the accused9
b? <hen necessar* for the orderl* administration
of %ustice or to avoid oppression or multiplicit*
of actions9
c? <here there is pre%udicial ,uestion which is
su% &u'ice;
d? <hen the acts of the officer are without or in
e1cess of authorit*9
e? <here the prosecution is under an invalid law7
ordinance or regulation9
f? <hen double %eopard* is clearl* apparent9
g? <here the court has no %urisdiction over the
offense9
h? <here it is a case of persecution rather than
prosecution9
i? <here the charges are manifestl* false and
motivated b* the lust for vengeance9
%? <hen there is clearl* no prima facie case
against the accused9 and
k? 4o avoid multiplicit* of actions.
E))E/TS O) S(STAININ+ T>E MOTION TO
A(AS>
:f the motion to ,uash is sustained7 the court ma* order that
another complaint or information be filed e1cept as provided
in section ; of this rue.
a? :f the order is made7 the accused7 if in custod*7 shall
not be discharged unless admitted to bail.
b? :f no order is made or if having been made7 no new
information is filed within the time specified in the
order or within such further time as the court ma*
allow for good cause7 the accused7 if in custod*7
shall be discharged unless he is also in custod* of
another charge.
E*/E,TION TO T>E R(LE T>AT S(STAININ+
T>E MOTION IS NOT A BAR TO ANOT>ER
,ROSE/(TION
!? An order sustaining the motion to ,uash is not a bar to
another prosecution for the same offense unless the
motion was based on the grounds specified in Sec. 3(3)
"n' (i) J that the criminal action or liabilit* has been
e1tinguished and that the accused has been previousl*
convicted or in %eopard* of being convicted7 or
ac,uitted of the offense charged.
"? An order den*ing a motion to ,uash is interlocutor* and
not appealable and generall*7 such denial cannot be
controlled b* certiorari9 and the denial of a motion to
,uash grounded on double %eopard* is not controllable
b* mandamus
DO(BLE .EO,ARD'
#o person shall be twice put in %eopard* of punishment for
the same offense. :f an act is punished b* a law and an
ordinance7 conviction or ac,uittal under either shall
constitute a bar to another prosecution for the same act (Sec.
21, Art. III, Constitution).
T! rE%irmnts o: #o%9$ @o-ar#y arC
a? ;alid indictment9
b? Competent court9
c? ;alid arraignment9
d? ;alid plea entered9
e? Case is dismissed or terminated without the e1press
consent of the accused.
<hen an accused has been convicted or ac,uitted7 or the
case against him dismissed or otherwise terminated
<:403B4 0:S 2RR2SS C3#S2#4 b* a court of
competent %urisdiction7 upon a valid complaint or
information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had
pleaded to the charge7 the conviction or ac,uittal of the
accused or the dismissal of the case shall be a bar to another
prosecution for the offense charged7 or for an* attempt to
commit the same or frustration thereof7 or for an* offense
which necessaril* includes or is necessaril* included in the
offense charged in the former complaint or information.
0owever7 the conviction of the accused shall not be a bar to
another prosecution for an offense which necessaril*
includes the offense charged in the former complaint or
information under an* of the following instancesE
!? the graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge9
"? the facts constituting the graver charge became
known or were discovered onl* after a plea was
entered in the former complaint or information9 or
&? the plea of guilt* to the lesser offense was made
without the consent of the prosecutor and of the
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
113
offended part* e1cept as provided in section !>f? of
Rule !!).
,ROVISIONAL DISMISSAL
!? A case shall not be provisionall* dismissed e1cept with
the e1press consent of the accused and with notice to the
offended part*.
"? 4he provisional dismissal of offenses punishable b*
imprisonment not e1ceeding si1 >)? *ears or a fine of
an* amount7 or both7 shall become permanent one >!?
*ear after issuance of the order without the case having
been revived.
&? <ith respect to offenses punishable b* imprisonment of
more than si1 >)? *ears7 their provisional dismissal shall
become permanent two >"? *ears after issuance of the
order without the case having been revived.
'? 4he r"ison '7etre for the re,uirement of the e1press
consent of the accused to a provisional dismissal of a
criminal case is to bar him from subse,uentl* asserting
that the revival of the criminal case will place him in
double %eopard* for the same offense or for an offense
necessaril* included therein.
,RE<TRIAL ;R(LE 116=
4he court shall7 after arraignment and within thirt* >&D? da*s
from the date the court ac,uires %urisdiction over the person
of the accused7 unless a shorter period is7 order a pre-trial
conference. :ts main ob%ective is to achieve an e1peditious
resolution of the case.
MATTERS TO BE /ONSIDERED D(RIN+ ,RE
TRIAL
!? plea bargaining9
"? stipulation of facts9
&? marking for identification of evidence of the
parties9
'? waiver of ob%ections to admissibilit* of evidence9
(? modification of the order of trial if the accused
admits the charge but interposes a lawful defense9
and
)? such matters as will promote a fair and e1peditious
trial of the criminal and civil aspects of the
W>AT T>E /O(RT S>O(LD DO W>EN
,ROSE/(TION AND O))ENDED ,ART' A+REE
TO T>E ,LEA O))ERED B' T>E A//(SED
4he agreements shall be approved b* the court. rovided
that the agreement on the plea of the accused should be to a
lesser offense necessaril* included in the offense charged.
,RE<TRIAL A+REEMENT
All agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed
b* the accused and counsel9 otherwise7 the* cannot be used
against the accused.
NON<A,,EARAN/E D(RIN+ ,RE<TRIAL
:f the counsel for the accused or the prosecutor does not
appear at the pre-trial conference and does not offer an
acceptable e1cuse for his lack of cooperation7 the court ma*
impose proper sanctions or penalties.
,RE<TRIAL ORDER
After the pre-trial conference7 the court shall issue an order
reciting the actions taken7 the facts stipulated7 and evidence
marked. Such order shall bind the parties7 limit the trial to
matters not disposed of7 and control the course of the action
during the trial7 unless modified b* the court to prevent
manifest in%ustice.
RE)ERRAL O) SOME /ASES )OR /O(RT
ANNE*ED AND MEDIATION AND .(DI/IAL
DIS,(TE RESOL(TION ;AM 11<1<4<S/ ,>IL.A=
/ON/E,T O) /O(RT DIVERSION O) ,ENDIN+
/ASES
4he diversion of pending court cases both to Court-Anne1ed
$ediation >CA$? and to /udicial Dispute Resolution >/DR?
is plainl* intended to put an end to pending litigation
through a compromise agreement of the parties and thereb*
help solve the ever-pressing problem of court docket
congestion.
Cases that ma* be referredE
!? All civil cases and the civil liabilit* of criminal
cases covered b* the Rule on Summar* rocedure7
including the civil liabilit* for violation of B.. ""7
e1cept those which b* law ma* not be
compromised9
"? Special proceedings for the settlement of estates9
&? All civil and criminal cases filed with a certificate
to file action issued b* the unong Baranga* or the
angkat ng 4agapagkasundo under the Revised
=atarungang ambaranga* Law9
'? 4he civil aspect of Auasi-3ffenses under 4itle !'
of the Revised enal Code9
(? 4he civil aspect of less grave felonies punishable
b* correctional penalties not e1ceeding ) *ears
imprisonment7 where the offended part* is a private
person9
)? 4he civil aspect of estafa7 theft and libel9
+? All civil cases and probate proceedings7 testate and
intestate7 brought on appeal from the e1clusive and
original %urisdiction granted to the first level courts9
-? All cases of forcible entr* and unlawful detainer
brought on appeal from the e1clusive and original
%urisdiction granted to the first level courts9
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BERT – NOTES in REMEDIAL LAW
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.? All civil cases involving title to or possession of
real propert* or an interest therein brought on
appeal from the e1clusive and original %urisdiction
granted to the first level courts9 and
!D? All habeas corpus cases decided b* the first level
courts in the absence of the Regional 4rial Court
%udge7 that are brought up on appeal from the
special %urisdiction granted to the first level courts.
4he following CAS2S S0ALL #34 B2 R252RR2D 43
CA$ A#D /DRE
!? Civil cases which b* law cannot be compromised9
"? 3ther criminal cases not covered under paragraphs
& to ) above9
&? 0abeas Corpus petitions9
'? All cases under Republic Act #o. .")" >;iolence
against <omen and Children?9 and
(? Cases with pending application for Restraining
3rders6reliminar* :n%unctions.
0owever7 in cases covered under !7 ' and ( where the
parties inform the court that the* have agreed to undergo
mediation on some aspects thereof7 e.g.7 custod* of minor
children7 separation of propert*7 or support !en'ente ite7 the
court shall refer them to mediation.
,RO/ED(RE
/udicial proceedings shall be divided into two stagesE
!? 5rom the filing of a complaint to the conduct of
CA$ and /DR during the pre-trial stage7 and
"? pre-trial proper to trial and %udgment. 4he %udge to
whom the case has been originall* raffled7 who
shall be called the /DR /udge7 shall preside over the
first stage. 4he %udge7 who shall be called the trial
%udge7 shall preside over the second stage.
At the initial stage of the pre-trial conference7 the /DR %udge
briefs the parties and counsels of the CA$ and /DR
processes. 4hereafter7 he issues an 3rder of Referral of the
case to CA$ and directs the parties and their counsels to
proceed to the $CB bringing with them a cop* of the
3rder of Referral. 4he /DR %udge shall include in said
3rder7 or in another 3rder7 the pre-setting of the case for
/DR not earlier than fort*-five >'(? da*s from the time the
parties first personall* appear at the $CB so that /DR will
be conducted immediatel* if the parties do not settle at
CA$.
All incidents or motions filed during the first stage shall be
dealt with b* the /DR %udge. :f /DR is not conducted
because of the failure of the parties to appear7 the /DR %udge
ma* impose the appropriate sanctions and shall continue
with the proceedings of the case.
:f the parties do not settle their dispute at CA$7 the parties
and their counsels shall appear at the preset date before the
/DR %udge7 who will then conduct the /DR process as
mediator7 neutral evaluator and6or conciliator in order to
activel* assist and facilitate negotiations among the parties
for them to settle their dispute. As mediator and conciliator7
the %udge facilitates the settlement discussions between the
parties and tries to reconcile their differences. As a neutral
evaluator7 the %udge assesses the relative strengths and
weaknesses of each part*Ts case and makes a non-binding
and impartial evaluation of the chances of each part*Ts
success in the case. 3n the basis of such neutral evaluation7
the %udge persuades the parties to a fair and mutuall*
acceptable settlement of their dispute.
4he /DR %udge shall not preside over the trial of the case
when the parties did not settle their dispute at /DR.
/RIMINAL /ASES
:f settlement is reached on the civil aspect of the criminal
case7 the parties7 assisted b* their respective counsels7 shall
draft the compromise agreement which shall be submitted to
the court for appropriate action.
Action on the criminal aspect of the case will be determined
b* the ublic rosecutor7 sub%ect to the appropriate action of
the court.
:f settlement is not reached b* the parties on the civil aspect
of the criminal case7 the /DR %udge shall proceed to conduct
the trial on the merits of the case should the parties file a
%oint written motion for him to do so7 despite confidential
information that ma* have been divulged during the /DR
proceedings. 3therwise7 the /DR /udge shall turn over the
case to a new %udge b* re-raffle in multiple sala courts or to
the originating court in single sala courts7 for the conduct of
pretrial proper and trial.
,RE<TRIAL ,RO,ER
<here no settlement or onl* a partial settlement was
reached7 and there being no %oint written motion submitted
b* the parties7 as stated in the last preceding paragraphs7 the
/DR %udge shall turn over the case to the trial %udge7
determined b* re-raffle in multiple sala courts or to the
originating court in single sala courts7 as the case ma* be7 to
conduct pre-trial proper7 as mandated b* *ues 1< "n' 11<
of the *ues of Court.
TRIAL ;R(LE117=
Continuous trial is one where the courts are called upon to
conduct the trial with utmost dispatch7 with %udicial e1ercise
of the courtCs power to control the trial to avoid dela* and
for each part* to complete the presentation of evidence with
the trial dates assigned to him.
INSTAN/ES W>EN ,RESEN/E O) A//(SED IS
REA(IRED B' LAW
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4he onl* instances when the presence of the accused is
re,uired b* law and when the law ma* forfeit the bond if he
fails to appear areE
!? 3n arraignment9
"? 3n promulgation of %udgment e1cept for light
offenses9
&? 5or identification purposes9
'? <hen the court with due notice re,uires so.
REA(ISITE BE)ORE TRIAL /AN BE S(S,ENDED
ON A//O(NT O) ABSEN/E O) WITNESS
 4o warrant postponement due to absence of a witness7 it
must appearE
a? 4hat the witness is reall* material and appears
to the court to be so9
b? 4hat the part* who applies for postponement
has not been guilt* of neglect9
c? 4hat the witness can be had at the time to
which the trial has been deferred9 and
d? 4hat no similar evidence could be obtained.
 4he non-appearance of the prosecution at the trial7
despite due notice7 %ustifies a provisional dismissal or
an absolute dismissal7 depending on the circumstances.
 An* period of dela* resulting from the absence or
unavailabilit* of an essential witness shall be e1cluded
in computing the time within which trial must
commence.

TRIAL IN ABSENTIA
4he Constitution permits trial in absentia of an accused after
his arraignment who un%ustifiabl* fails to appear during the
trial notwithstanding due notice. 4he purpose of trial in
absentia is to speed up the disposition of criminal cases.
4he R2AB:S:42S 35 4R:AL :# ABS2#4:A areE
a? 4he accused has been arraigned9
b? 0e has been dul* notified of the trial9 and
c? 0is failure to appear is %ustified.
4he waiver of the accused of appearance or trial in absentia
does not mean that the prosecution is thereb* deprived of its
right to re,uire the presence of the accused for purposes of
identification b* the witnesses which is vital for conviction
of the accused7 e1cept where he un,ualifiedl* admits in open
court after his arraignment that he is the person named as
defendant in the case on trial. Such waiver does not mean a
release of the accused from his obligation under the bond to
appear in court whenever re,uired.
0e can still be subpoenaed to appear for identification
purposes7 without violating his right against self-
incrimination as he will not take the stand to testif* but
merel* to be present in court7 where the prosecution witness
ma*7 while in the witness stand7 point to him as the accused.
REMED' W>EN A//(SED IS NOT BRO(+>T TO
TRIAL WIT>IN T>E ,RES/RIBED ,ERIOD
:f the accused is not brought to trial within the time limit7 the
information ma* be dismissed on motion of the accused on
the ground of denial of his right to speed* trial. 4he
dismissal shall be sub%ect to the rules on double %eopard*.
5ailure of the accused to move for dismissal prior to trial
shall constitute a waiver of the right to dismiss under this
section.
REA(ISITES )OR DIS/>AR+E O) A//(SED TO
BE/OME A STATE WITNESS
<hen two or more persons are %ointl* charged with the
commission of an* offense7 upon motion of the prosecution
before resting its case7 the court ma* direct one or more of
the accused to be discharged with their consent so that the*
ma* be witnesses for the state when7 after re,uiring the
prosecution to present evidence and the sworn statement of
each proposed state witness at a hearing in support of the
discharge7 the court is satisfied thatE
!? 4here is absolute necessit* for the testimon* of the
accused whose discharge is re,uested9
"? 4here is no other direct evidence available for the
proper prosecution of the offense committed7
e1cept the testimon* of said accused9
&? 4he testimon* of said accused can be substantiall*
corroborated in its material points9
'? Said accused does not appear to be the most guilt*9
and
(? Said accused has not at an* time been convicted of
an* offense involving moral turpitude.
2vidence adduced in support of the discharge shall
automaticall* form part of the trial. :f the court denies the
motion for discharge of the accused as state witness7 his
sworn statement shall be inadmissible in evidence.
E))E/TS O) DIS/>AR+E O) A//(SED AS STATE
WITNESS
4he order shall amount to an ac,uittal of the discharged
accused and shall be a bar to future prosecution for the same
offense7 unlessE
a? 4he accused fails or refuses to testif* against his
co-accused in accordance with his sworn statement
constituting the basis for his discharge.
b? :f he was granted immunit* and fails to keep his
part of the agreement7 his confession of his
participation in the commission of the offense is
admissible in evidence against him.
4he court shall order the discharge and e1clusion of the said
accused from the information. Admission into such rogram
shall entitle such State <itness to immunit* from criminal
prosecution for the offense or offenses in which his
testimon* will be given or used.
DEM(RRER TO EVIDEN/E
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 After the prosecution rests its case7 the court ma*
dismiss the action on the ground of insufficienc* of
evidence >!? on its own initiative after giving the
prosecution the opportunit* to be heard or >"? upon
demurrer to evidence filed b* the accused with or
without leave of court.
 :f the court denies the demurrer to evidence filed with
leave of court7 the accused ma* adduce evidence in his
defense.
 <hen the demurrer to evidence is filed without leave of
court7 the accused waives the right to present evidence
and submits the case for %udgment on the basis of the
evidence for the prosecution.
 4he motion for leave of court to file demurrer to
evidence shall specificall* state its grounds and shall be
filed within a non-e1tendible period of five >(? da*s
after the prosecution rests its case. 4he prosecution ma*
oppose the motion within a non-e1tendible period of
five >(? da*s from its receipt.
 :f leave of court is granted7 the accused shall file the
demurrer to evidence within a non-e1tendible period of
ten >!D? da*s from notice. 4he prosecution ma* oppose
the demurrer to evidence within a similar period from
its receipt.
 4he order den*ing the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not be
reviewable b* appeal or b* certiorari before %udgment.
.(D+MENT ;R(LE 120=
/udgment means the ad%udication b* the court that the
accused is guilt* or is not guilt* of the offense charged7 and
the imposition of the proper penalt* and civil liabilit*
provided for b* law on the accused.
$emorandum decision is one in which the appellate court
ma* adopt b* reference7 the findings of facts and
conclusions of law contained in the decision appealed from.
REA(ISITES O) A .(D+MENT
:t must be written in the official language7 personall* and
directl* prepared b* the %udge and signed b* him and shall
contain clearl* and distinctl* a statement of the facts and the
law upon which it is based.
/ONTENTS O) .(D+MENT
:f the %udgment is of conviction7 it shall stateE
!? the legal ,ualification of the offense constituted b*
the acts committed b* the accused and the
aggravating or mitigating circumstances which
attended its commission9
"? the participation of the accused in the offense7
whether as principal7 accomplice7 or accessor* after
the fact9
&? the penalt* imposed upon the accused9 and
'? the civil liabilit* or damages caused b* his
wrongful act or omission to be recovered from the
accused b* the offended part*7 if there is an*7
unless the enforcement of the civil liabilit* b* a
separate civil action has been reserved or waived.
:n case the %udgment is of ac,uittal7 it shall state whether the
evidence of the prosecution absolutel* failed to prove the
guilt of the accused or merel* failed to prove his guilt
be*ond reasonable doubt. :n either case7 the %udgment shall
determine if the act or omission from which the civil liabilit*
might arise did not e1ist.
,ROM(L+ATION O) .(D+MENTH INSTAN/ES O)
,ROM(L+ATION O) .(D+MENT IN ABSENTIA
4he %udgment is promulgated b* reading it in the presence of
the accused and an* %udge of the court in which it was
rendered. 0owever7 if the conviction is for a light offense7
the %udgment ma* be pronounced in the presence of his
counsel or representative. <hen the %udge is absent or
outside the province or cit*7 the %udgment ma* be
promulgated b* the clerk of court.
:f the accused is confined or detained in another province or
cit*7 the %udgment ma* be promulgated b* the e1ecutive
%udge of the Regional 4rial Court having %urisdiction over
the place of confinement or detention upon re,uest of the
court which rendered the %udgment. 4he court promulgating
the %udgment shall have authorit* to accept the notice of
appeal and to approve the bail bond pending appeal9
provided7 that if the decision of the trial court convicting the
accused changed the nature of the offense from non-bailable
to bailable7 the application for bail can onl* be filed and
resolved b* the appellate court.
4he proper clerk of court shall give notice to the accused
personall* or through his bondsman or warden and counsel7
re,uiring him to be present at the promulgation of the
decision. :f the accused was tried in absentia because he
%umped bail or escaped from prison7 the notice to him shall
be served at his last known address.
:n case the accused fails to appear at the scheduled date of
promulgation of %udgment despite notice7 the promulgation
shall be made b* recording the %udgment in the criminal
docket and serving him a cop* thereof at his last known
address or thru his counsel.
:f the %udgment is for conviction and the failure of the
accused to appear was without %ustifiable cause7 he shall lose
the remedies available in these rules against the %udgment
and the court shall order his arrest. <ithin fifteen >!(? da*s
from promulgation of %udgment7 however7 the accused ma*
surrender and file a motion for leave of court to avail of
these remedies. 0e shall state the reasons for his absence at
the scheduled promulgation and if he proves that his absence
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was for a %ustifiable cause7 he shall be allowed to avail of
said remedies within fifteen >!(? da*s from notice.
W>EN DOES .(D+MENT BE/OME )INAL ;)O(R
INSTAN/ES=
a? After the lapse of the period for perfecting an
appeal9
b? <hen the sentence has been partiall* or totall*
satisfied or served9
c? <hen the accused has waived in writing his right to
appeal9 or
d? 0as applied for probation.
MNT OR MR IN
/RIMINAL /ASES
MNT OR MR IN /IVIL
/ASES
2ither on motion of
accused7 or the court motu
proprio with consent of the
accused
$ust be upon motion of a
part*7 canCt be motu
proprio
Groun's for ,-1 J errors
of law or irregularities
committed during the trial7
or newl* discovered
evidence
Groun's for ,-1 J
5A$27 or newl*
discovered evidence
Groun' for ,* J error of
law or fact
Groun's for ,* J
21cessive damages7
insufficient evidence7 or
decision is contrar* to law
5iled an* time before
%udgment of conviction
becomes final
5iled within the period for
taking an appeal
Should include all the
grounds then available and
those not so included shall
be deemed waived.
<hen granted7 the original
%udgment is alwa*s set
aside or vacated and a new
%udgment rendered
4here ma* be partial grant
+RO(NDS )OR NEW TRIAL
a? 4hat errors of law or irregularities pre%udicial to the
substantial rights of the accused have been committed
during the trial9
b? 4hat new and material evidence has been discovered
which the accused could not with reasonable diligence
have discovered and produced at the trial and which if
introduced and admitted would probabl* change the
%udgment.
+RO(NDS )OR RE/ONSIDERATION
4he court shall grant reconsideration on the ground of errors
of law or fact in the %udgment7 which re,uires no further
proceedings.
REA(ISITES BE)ORE A NEW TRIAL MA' BE
+RANTED ON +RO(ND O) NEWL' DIS/OVERED
EVIDEN/E
a? 4he evidence was discovered after trial9
b? 4he evidence could not have been discovered and
produced at the trial even with e1ercise of reasonable
diligence9
c? 4he evidence is material7 not merel* cumulative7
corroborative or impeaching9
d? :t must go to the merits as it would produce a different
result if admitted.
E))E/TS O) +RANTIN+ A NEW TRIAL OR
RE/ONSIDERATION
a? <hen a new trial is granted on the ground of errors of
law or irregularities committed during the trial7 all the
proceedings and evidence affected thereb* shall be set
aside and taken anew. 4he court ma*7 in the interest of
%ustice7 allow the introduction of additional evidence.
b? <hen a new trial is granted on the ground of newl*-
discovered evidence7 the evidence alread* adduced shall
stand and the newl*-discovered and such other evidence
as the court ma*7 in the interest of %ustice7 allow to be
introduced shall be taken and considered together with
the evidence alread* in the record.
c? :# ALL CAS2S7 when the court grants new trial or
reconsideration7 the original %udgment shall be set aside
or vacated and a new %udgment rendered accordingl*.
A,,LI/ATION O) NE',ES DO/TRINE IN
/RIMINAL /ASES
4his rule was adopted 43 S4A#DARD:W2 402 A2AL
2R:3DS provided in the Rules to afford fair opportunit* to
review the case and7 in the process7 minimi@e errors of
%udgment. F%6ious+, the ne) 15 '"+ !erio' $"+ %e "6"ie'
of on+ if either $otion is fie' "n' )"s 'enie'; other)ise,
the 'ecision %eco$es fin" "n' e#ecutor+ "fter the "!se of
the ori3in" "!!e" !erio' !ro6i'e' in *ue 81
:f the motion is denied7 the movants has a fresh period of !(
da*s from receipt or notice of the order den*ing or
dismissing the motion for reconsideration within which to
file a notice to appeal.
4his fresh period rule applies onl* to Rule '! governing
appeals from the R4C but also to Rule 'D governing appeals
from $4C to R4C7 Rule '" on petitions for review from the
R4C to the CA7 Rule '& on appeal from ,uasi-%udicial
agencies to the CA7 and Rule '( governing appeals b*
certiorari to the SC.
#e*pes ruling shall not be applied where no motion for new
trial or motion for reconsideration has been filed in which
case the !(-da* period shall run from notice of the %udgment.
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BERT – NOTES in REMEDIAL LAW
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4he fresh period rule does not refer to the period within
which to appeal from the order den*ing the motion for new
trial because the order is not appealable.
:n the case of 2u'ith Lu 6s. 2u'3e S"$son, De%. 9, 2.11, the
SC held that the #e*pes doctrine is applicable in criminal
cases.
A,,EAL ;R(LE 122=
An appeal opens the whole case for review and this includes
the review of the penalt*7 indemnit* and the damages
involved.
E))E/T O) AN A,,EAL
Bpon perfection of the appeal7 the e1ecution of the %udgment
or order appealed from is sta*ed as to the appealing part*.
4he civil appeal of the offended part* does not affect the
criminal aspect of the %udgment or order appealed from.
4he trial court loses %urisdiction over the7 e1ceptE
!? 4o issue orders for the protection and preservation
of the rights of the parties which do not involve an*
matter litigated b* the appeal9
"? 4o approve compromises offered b* the parties
prior to the transmission of the records on appeal to
the appellate court.
W>ERE TO A,,EAL
a? 4o the Regional 4rial Court7 in cases decided b* the
$4Cs9
b? 4o the Court of Appeals or to the Supreme Court in the
proper cases provided b* law7 in cases decided b* the
R4C9 and
c? 4o the Supreme Court7 in cases decided b* the Court of
Appeals.
>OW A,,EAL TA8EN
a? 4he appeal to the R4C7 or to the CA in cases decided
b* the R4C in the e1ercise of its original %urisdiction7
shall be taken b* filing a #34:C2 35 A2AL with
the court which rendered the %udgment or final order
appealed from and b* serving a cop* thereof upon the
adverse part*.
b? 4he appeal to the CA in cases decided b* the R4C in
the e1ercise of its appellate %urisdiction shall be b*
24:4:3# 53R R2;:2< under Rule '".
c? 4he appeal to the SC in cases where the penalt*
imposed b* the R4C is reclusion perpetua7 or life
imprisonment7 or where a lesser penalt* is imposed but
for offenses committed on the same occasion or which
arose out of the same occurrence that gave rise to the
more serious offense for which the penalt* of death7
reclusion perpetua7 or life imprisonment is imposed7
shall be b* filing a #34:C2 35 A2AL.
d? #o notice of appeal is necessar* in cases where the
death penalt* is imposed b* the R4C. 4he same shall be
automaticall* reviewed b* the SC.
 21cept as provided in the last paragraph of section
13, *ue 128, all other appeals to the Supreme
Court shall be b* 24:4:3# 53R R2;:2< 3#
C2R4:3RAR: under Rule '(.
E))E/T O) A,,EAL B' AN' O) SEVERAL
A//(SED
a? An appeal taken b* one or more of several accused shall
not affect those who did not appeal7 e1cept insofar as
the %udgment of the appellate court is favorable and
applicable to the latter.
b? 4he appeal of the offended part* from the civil aspect
shall not affect the criminal aspect of the %udgment or
order appealed from.
+RO(NDS )OR DISMISSAL O) A,,EAL
a? 5ailure on the part of the appellant to file brief within
the reglementar* period7 e1cept when he is repsented b*
counsel de officio9
b? 2scape f the appellant from prison or confinement9
c? <hen the appellant %umps bail9
d? 5light of the appellant for a foreign countr* during the
pendenc* of the appeal9
e? atentl* without merit9
f? rosecuted manifestl* for dela*9 or
g? 4he ,uestions raised therein are too unsubstantial to
re,uire consideration.
SEAR/> AND SEIG(RE ;R(LE 124=
NAT(RE O) SEAR/> WARRANT
4he constitutional right against unreasonable search and
sei@ure refers to the immunit* of oneCs person7 whether a
citi@en or alien7 from interference b* government7 included
in whish is his residence7 his papers and other possession.
4he overriding function of the constitutional guarantee is to
protect personal privac* and human dignit* against
unwarranted intrusion b* the State.
4he right of the people to be secure in their persons7 houses7
papers7 and effects against unreasonable searches and
sei@ures of whatever nature and for an* purpose shall be
inviolable7 and no search warrant or warrant of arrest shall
issue e1cept upon probable cause to be determined
personall* b* the %udge after e1amination under oath or
affirmation of the complainant and the witnesses he ma*
produce7 and particularl* describing the place to be searched
and the persons or things to be sei@ed (Sec. 2, Art. III,
Constitution).
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BERT – NOTES in REMEDIAL LAW
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SEAR/> WARRANT ;R(LE 124= WARRANT O) ARREST ;R(LE 111=
A search warrant is an order in writing issued in the name of
the eople of the hilippines7 signed b* a %udge and directed
to a peace officer7 commanding him to search for personal
propert* described therein and bring it before the court (Sec.
1, *ue 12;).
Arrest is the taking of a person into custod* in order that
he ma* be bound to answer for the commission of an
offense (Sec. 1, *ue 113).
*e(uisites0
A search warrant shall not issue e1cept upon probable cause
in connection with one specific offense to be determined
personall* b* the %udge after e1amination under oath or
affirmation of the complainant and the witness he ma*
produce7 and particularl* describing the place to be searched
and the things to be sei@ed which ma* be an*where in the
hilippines (Sec. 8, *ue 12;).
*e(uisites for "rrest )"rr"nt issue' %+ *1C &u'3e un'er
Sec. 5, *ue 1120
a? <ithin !D da*s from the filing of the complaint or
information
b? 4he %udge shall personall* evaluate the resolution of
the prosecutor and its supporting evidence.
c? :f he finds probable cause7 he shall issue a warrant of
arrest
d? :n case of doubt on the e1istence of probable cause
e? 4he %udge ma* order the prosecutor to present
additional evidence within ( da*s from notice9 and
f? 4he issue must be resolved b* the court within &D
da*s from the filing of the complaint of information
Se"rch or seiHure )ithout )"rr"nt, )hen ")fu0
!? Consented search9
"? As an incident to a lawful arrest9
&? Searches of vessels and aircrafts for violation of
immigration7 customs and drug laws9
'? Searches of moving vehicles9
(? Searches of automobiles at borders or constructive
borders9
)? <here the prohibited articles are in plain view9
+? Searches of buildings and premises to enforce fire7
sanitar* and building regulations9
-? MStop and friskN operations9
.? 21igent and emergenc* circumstances (in ti$es of )"r
"n' )ithin the "re" of $iit"r+ o!er"tion)
Arrest )ithout )"rr"nt, )hen ")fu0
a? <hen7 in his presence7 the person to be arrested has
committed7 is actuall* committing7 or is attempting to
commit an offense9
b? <hen an offense has %ust been committed and he has
probable cause to believe based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it9 and
c? <hen the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he
is serving final %udgment or is temporaril* confined
while his case is pending7 or has escaped while being
transferred from one confinement to another (Sec. 5,
*ue 113).
A,,LI/ATION )OR SEAR/> WARRANT? W>ERE
)ILED
An application for search warrant shall be filed with the
followingE
a? An* court within whose territorial %urisdiction a
crime was committed.
b? 5or compelling reasons stated in the application7
an* court within the %udicial region where the crime
was committed if the place of the commission of
the crime is known7 or an* court within the %udicial
region where the warrant shall be enforced.
0owever7 if the criminal action has alread* been filed7 the
application shall onl* be made in the court where the
criminal action is pending.
,ROBABLE /A(SE
robable cause is defined as such facts and circumstances
which could lead a reasonabl* discreet and prudent man to
believe that an offense has been committed and that the
ob%ects sought in connection with the offense are in the place
sought to be searched.
RE%isits :or iss%ing sarc! "arrant J A search warrant
shall not issue e1cept upon probable cause in connection
with one specific offense to be determined personall* b* the
%udge after e1amination under oath or affirmation of the
complainant and the witness he ma* produce7 and
particularl* describing the place to be searched and the
things to be sei@ed which ma* be an*where in the
hilippines.
Iss%anc an# :orm o: sarc! "arrant J :f the %udge is
satisfied of the e1istence of facts upon which the application
is based or that there is probable cause to believe that the*
e1ist7 he shall issue the warrant7 which must be substantiall*
in the form prescribed b* these Rules.
,ERSONAL E*AMINATION B' .(D+E O) T>E
A,,LI/ANT AND WITNESSES
4he %udge must7 before issuing the warrant7 personall*
e1amine in the form of searching ,uestions and answers7 in
writing and under oath7 the complainant and the witnesses he
ma* produce on facts personall* known to them and attach
to the record their sworn statements7 together with the
affidavits submitted.
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,ARTI/(LARIT' O) ,LA/E TO BE SEAR/>ED
AND T>IN+S TO BE SEIGED
4he warrant must particularl* describe the place to be
searched and the persons or things to be sei@ed.
4he rule is that a description of the place to be searched is
sufficient if the officer with the warrant can7 with reasonable
effort7 ascertain and identif* the place intended to be
searched. <here there are several apartments in the place to
be searched7 a description of the specific place can be
determined b* reference to the affidavits supporting the
warrant that the apartment to be searched is the one occupied
b* the accused. 4he searching part* cannot go from one
apartment to the other as the warrant will then become a
general warrant.
,ERSONAL ,RO,ERT' TO BE SEIGED
A search warrant ma* be issued for the search and sei@ure of
personal propert*E
a? Sub%ect of the offense9
b? Stolen or embe@@led and other proceeds7 or fruits of
the offense9 or
c? Bsed or intended to be used as the means of
committing an offense.
 :t is not necessar* that the propert* to be
searched or sei@ed should be owned b* the
person against whom the search is issued9 it is
sufficient that the propert* is under his control
or possession.
E*/E,TIONS TO SEAR/> WARRANT
REA(IREMENT
1& SEAR/> IN/IDENTAL TO LAW)(L ARREST
A person lawfull* arrested ma* be searched for dangerous
weapons or an*thing which ma* have been used or
constitute proof in the commission of an offense without a
search warrant.
4he law re,uires that there first be a lawful arrest before a
search can be made. 4he process cannot be reversed. 4hus7
in a bu*-bust operation conducted to entrap a drug pusher7
the law enforcement agents ma* sei@e the marked mone*
found on the person of the pusher immediatel* after the
arrest even without arrest and search warrants.
4his is absolutel* limit a warrantless search of a person who
is lawfull* arrested to his or her person at the time of and
incident to his or her arrest and to dangerous weapons or
an*thing which ma* be used as proof of the commission of
the offense. Such warrantless search obviousl* cannot be
made in an* other than the place of arrest.
2& /ONSENTED SEAR/>
Rights ma* be waived7 unless the waiver is contrar* to law7
public order7 morals7 or good customs7 or pre%udicial to a
third person with a right recogni@ed b* law.
4o constitute a valid waiver of a constitutional right7 it must
appearE
a? that the right e1ists7
b? the person involved had knowledge either actual or
constructive7 of the e1istence of such right7 and
c? said person has an actual intention to relin,uish the
right.
As the constitutional guarantee is not dependent upon an*
affirmative act of the citi@en7 the courts do not place the
citi@en in the position of either contesting an officerCs
authorit* b* force7 or waiving his constitutional rights7 but
instead the* hold that a peaceful submission and silence of
the accused in a search or sei@ure is not a consent or an
invitation thereto7 but is merel* a demonstration of regard to
the supremac* of the law.
1& SEAR/> O) MOVIN+ VE>I/LE
:n carr*ing out warrantless searches of moving vehicles7
peace officers are limited to routine checks7 that is7 the
vehicles are neither reall* searched nor their occupants
sub%ected to ph*sical or bod* searches7 the e1amination of
the vehicles being limited to visual inspection.
<arrantless search for moving vehicle is %ustified on the
ground that it is not practicable to secure a warrant because
the vehicle can be ,uickl* moved out of the localit* or
%urisdiction in which the warrant must be sought.
2& />E/8 ,OINTSH BOD' />E/8S IN AIR,ORT
A warrantless search conducted at police or militar*
checkpoints has been upheld for as long as the vehicle is
neither searched nor its occupants sub%ected to bod* search7
and the inspection of the vehicle is merel* limited to visual
search.
Routine inspections are not regarded as violative of an
individualCs right against unreasonable search.
4he search is limited to the following instancesE
!? where the officer merel* draws aside the curtain of
a vacant vehicle which is parked on the public fair
grounds9
"? simpl* looks into a vehicle9
&? flashes a light therein without opening the carCs
doors9
'? where the occupants are not sub%ected to a ph*sical
or bod* search9
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(? where the inspection of the vehicles is limited to a
visual search or visual inspection9 and
)? where the routine check is conducted in a fi1ed
area.
3& ,LAIN VIEW SIT(ATION
:t recogni@es that ob%ects inadvertentl* falling in plain view
of an officer who has the right to be in the position to have
that view7 are sub%ect to sei@ure without warrant.
:t is usuall* applied where a police officer is not searching
for evidence against the accused7 but nonetheless
inadvertentl* comes across an incriminating ob%ect.
:t is also been suggested that even if an ob%ect is observed in
plain view7 the sei@ure of the sub%ect will not be %ustified
where the incriminating nature of the ob%ect is not apparent9
it must be immediatel* apparent to the police that the items
that the* observe ma* be evidence of a crime7 contraband or
otherwise sub%ect to sei@ure.
4he elements of Mplain viewNsei@ure areE
!? prior valid intrusion based on the valid warrantless
arrest in which the police are legall* present in the
pursuit of their official duties9
"? the evidence was inadvertentl* discovered b* the
police who had the right to be where the* are9
&? the evidence must be immediatel* apparent9 and
'? Mplain viewN %ustified mere sei@ure of evidence
without further search.
4& STO, AND )RIS8 SIT(ATION
A person who was carr*ing a bag and acting suspiciousl*
could be searched b* police officers and the unlicensed
firearm sei@ed inside the bag is admissible in evidence7
being an incident of a lawful arrest.
A person roaming around in a place where drug addicts
usuall* are found7 whose e*es were red and who was
wobbling like a drunk7 could be legall* searched of his
person and the illegal drug sei@ed from him is admissible in
evidence against him.
A stop and frisk serves a two-fold interestE
a? the general interest of effective criminal protection
and detection which underlie the recognition that a
police officer ma*7 under appropriate circumstances
and in an appropriate manner7 approach a person
for purposes of investigating possible criminal
behavior even without probable cause9 and
b? the more pressing interest of safet* and self-
preservation which permit the police officer to take
steps to assure himself that the person with whom
he deals is not armed with a deadl* weapon that
could une1pectedl* and fatall* be used against him.
5& EN)OR/EMENT O) /(STOM LAWS
4he intention is to prevent smuggling and to secure the
collection of the legal duties7 ta1es and other charges.
Bnder the 4ariff and Customs Code7 Customs officers are
authori@ed to make arrest7 search and sei@ure of an* vessel7
aircraft7 cargo7 articles7 animals or other movable propert*
when the same is sub%ect to forfeiture or liable for an* fine
under the customs and tariff laws7 rules and regulations and
ma* at an* time enter7 pass through or search an* land or
inclosure or an* warehouse7 store or other building without
being a dwelling house.
A dwelling house ma* be entered or searched onl* upon
warrants issued b* %udge upon sworn application showing
probable cause and particularl* describing the placed to be
searched and person or things to be searched.
6& SEAR/>ES O) A(TOMOBILES AT BORDERS OR
/ONSTR(/TIVE BORDERS
7& SEAR/>ES O) B(ILDIN+S AND ,REMISES TO
EN)OR/E )IRE? SANITAR' AND B(ILDIN+
RE+(LATIONS
10& E*I+ENT AND EMER+EN/' /IR/(MSTAN/ES
11& IN TERMS O) WAR WIT>IN T>E AREA O)
MILITAR' O,ERATION
REMEDIES )ROM (NLAW)(L SEAR/> AND
SEIG(RE
A motion to ,uash a search warrant and6or to suppress
evidence obtained thereb* ma* be filed in and acted upon
onl* b* the court where the action has been instituted. :f no
criminal action has been instituted7 the motion ma* be filed
in and resolved b* the court that issued search warrant.
0owever7 if such court failed to resolve the motion and a
criminal case is subse,uentl* filed in another court7 the
motion shall be resolved b* the latter court.
Alternative remedies of the accused adversel* affected b* a
search warrant are the followingE
!? $otion to ,uash the search warrant with the issuing
court9 or
"? $otion suppress evidence with the court tr*ing the
criminal case.
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4he remedies are alternative7 not cumulative. :f the motion
to ,uash is denied7 a motion to suppress cannot be availed of
subse,uentl*. Replevin ma* also be proper if the ob%ects are
legall* possessed.
,ROVISIONAL REMEDIES ;R(LE 125=
NAT(RE
4he provisional remedies in civil actions7 insofar as the* are
applicable7 ma* be availed of in connection with the civil
action deemed instituted with the criminal action.
An application for recover* of damages on the bond posted
for purposes of said provisional remedies shall be made in
the same action and7 generall*7 cannot be the sub%ect of a
separate action.
4he provisional remedies are proper onl* where the civil
action for the recover* of civil liabilit* e# 'eicto has not
been e1pressl* waived or the right to institute such civil
action separatel* is not reserved7 in those cases where such
reservation ma* be made.
8INDS O) ,ROVISIONAL REMEDIES
ATTA/>MENT
<hen the civil action is properl* instituted in the criminal
action as provided in Rule !!!7 the offended part* ma* have
the propert* of the accused attached as securit* for the
satisfaction of an* %udgment that ma* be recovered from the
accused in the following casesE
!? <hen the accused is about to abscond from the
hilippines9
"? <hen the criminal action is based on a claim for
mone* or propert* embe@@led or fraudulentl*
misapplied or converted to the use of the accused
who is a public officer7 officer of a corporation7
attorne*7 factor7 broker7 agent or clerk7 in the course
of his emplo*ment as such7 or b* an* other person
in a fiduciar* capacit*7 or for a willful violation of
dut*9
&? <hen the accused has concealed7 removed7 or
disposed of his propert*7 or is about to do so9 and
'? <hen the accused resides outside the hilippines.
 *ue 5: on preliminar* attachment applies on the
procedure to secure an attachment in the cases
authori@ed under *ue 12:.
 At the commencement of the action or at an* time
before entr* of %udgment7 a plaintiff or an* proper part*
ma* have the propert* of the adverse part* attached as
securit* for the satisfaction of an* %udgment that ma* be
recovered in the following casesE
!? :n an action for the recover* of a specified
amount of mone* or damages7 other than moral
and e1emplar*7 on a cause of action arising
from law7 contract7 ,uasi-contract7 delict or
,uasi-delict against a part* who is about to
depart from the hilippines with intent to
defraud his creditors9
"? :n an action for mone* or propert* embe@@led
or fraudulentl* misapplied or converted to his
own use b* a public officer7 or an officer or a
corporation7 or an attorne*7 factor7 broker7
agent7 or clerk7 in the course of his
emplo*ment as such7 or b* an* other person in
a fiduciar* capacit*7 or for a willful violation
of dut*9
&? :n an action to recover the possession of
propert* un%ustl* or fraudulentl* taken7
detained or converted7 when the propert*7 or
an* part thereof7 has been concealed7 removed7
or disposed of to prevent its being found or
taken b* the applicant or an authori@ed person9
'? :n an action against a part* who has been
guilt* of a fraud in contracting the debt or
incurring the obligation upon which the action
is brought7 or in the performance thereof9
(? :n an action against a part* who has removed
or disposed of his propert*7 or is about to do
so7 with intent to defraud his creditors9 or
)? :n an action against a part* who does not reside
and is not found in the hilippines7 or on whom
summons ma* be served b* publication.
EVIDEN/E ;R%$s 126 – 112=
/ON/E,T O) EVIDEN/E
2vidence is the means7 sanctioned b* the Rules of Court7 of
ascertaining in a %udicial proceeding the truth respecting a
matter of fact. :t is onl* a means of ascertaining the truth.
4his truth should depend upon the evidence submitted in a
court in accordance with the rules.
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through witnesses who are placed in the witness stand to
testif* on what the* personall* know or to identif* relevant
documents. 4he* are presented voluntaril* or through the
coercive process of su%!oen" 'uces tecu$.
2vidence is also secured b* resorting to modes of
discoveries7 such asE
a? 4aking of depositions of an* person7 oral or written
>Rule "&?9
b? Serving of interrogatories to parties >Rule "(?9
c? Serving of re,uests for admission b* the adverse
part* >Rule "(?9
d? roduction and inspection of documents >Rule "+?9
and
e? 21amination of ph*sical and mental conditions of
persons >Rule "-?.
A matter ma* also be proved b* means of affidavit7 such as
in motions based on facts not appearing on record7 in cases
covered b* the Rules on Summar* rocedure7 and those
filed in administrative or ,uasi-%udicial bodies.
S/O,E O) T>E R(LES O) EVIDEN/E
4he rules of evidence are guided b* the !rinci!e of
unifor$it+. As a general polic*7 the rules of evidence shall
be the same in all courts and in all trials and hearings.
EVIDEN/E IN /IVIL
/ASES
EVIDEN/E IN
/RIMINAL /ASES
4he part* having the
burden of proof must prove
his claim b* a
preponderance of evidence.
4he guilt of the accused
has to be proven be*ond
reasonable doubt.
An offer of compromise is
not an admission of an*
liabilit*7 and is not
admissible in evidence
against the offeror.
21cept in cases of criminal
negligence or those
allowed b* law to be
compromised7 an offer of
compromise b* the accused
ma* be received in
evidence as an implied
admission of guilt.
8enerall*7 there is no
presumption for or against a
part*7 e1cept in some civil
cases such as in a
contractual suit against the
carrier7 there e1ists a
presumption against the
defendant.
4he accused en%o*s the
presumption of innocence.
EVIDEN/E ,ROO)
$edium of proof 6 $eans to
the end
2ffect and result of
evidence 6 2nd result.
)A/T(M ,ROBAND(M )A/T(M ,ROBANS
roposition to be established $aterial evidencing the
proposition
ADMISSIBILIT' O) EVIDEN/E
4wo a1ioms of admissibilit*E
a? #one but facts having rational probative value are
admissible >relevance?.
b? All facts having rational probative value are
admissible unless some specific rules forbid
>competence?.
ADMISSIBILIT' O)
EVIDEN/E
WEI+>T O)
EVIDEN/E
ertains to the abilit* of the
evidence to be allowed and
accepted sub%ect to its
relevanc* and competence
ertains to the effect of
evidence admitted
REA(ISITES )OR ADMISSIBILIT' O) EVIDEN/E
a? 4hat it is relevant to the issue9 and
b? 4hat it is competent7 that is7 that it does not belong to
that class of evidence which is e1cluded b* the law or
the rules.
RELEVAN/E O) EVIDEN/E AND /OLLATERAL
MATTERS
*ee6"nce / evidence must have such a relation to the fact in
issue as to induce belief in its e1istence or non-e1istence.
Co"ter" $"tters - evidence on collateral matters shall not
be allowed7 e1cept when it tends in an* reasonable degree to
establish the probabilit* or improbabilit* of the fact in issue
or to corroborate or supplement facts established previousl*
b* direct evidence.
a? rospectant collateral matters J those preceding of
the fact in issue but pointing forward to it7 like
moral character7 motive7 conspirac*9
b? Concomitant collateral matters J those
accompan*ing the fact in issue and pointing to it7
like alibi7 or opportunit* and incompatibilit*9
c? Retrospectant collateral matters J those succeeding
the fact in issue but pointing backward to it7 like
flight and concealment7 behavior of the accused
upon being arrested7 fingerprints or footprints7
articles left at the scene of the crime which ma*
identif* the culprit.
M(LTI,LE ADMISSIBILIT'
4here are times when proffered evidence is admissible for
two or more purposes. Sometimes it is admissible for one
purpose but inadmissible for another or vice versa. :t ma*
also be admissible against one part* but not against another.
4his kind of evidence is to b received provided it meets the
relevanc* and competenc* tests for which it is offered.
/ONDITIONAL ADMISSIBILIT'
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2vidence which appears to be immaterial is admitted b* the
court and the proponent ma* ask that the evidence be
conditionall* admitted in the meantime sub%ect to the
condition that he is going to establish its relevanc* and
competenc* at a later time. :f a promise thus made is not
fulfilled7 the court ma* strike out the evidence thus
conditionall* admitted7 if a motion is made b* the opposite
part*.
/(RATIVE ADMISSIBILIT'
:t refers to a situation where incompetent evidence was
erroneousl* received b* the court despite ob%ection from the
other part*. :t will not appl* where the evidence was
admitted without ob%ection because of a waiver of the
admissibilit* of the evidence. So7 where the ob%ection was
incorrectl* overruled7 the court must allow the other part* to
introduce evidence to contradict the evidence improperl*
admitted. 4his is reasons of fairness.
DIRE/T AND /IR/(MSTANTIAL EVIDEN/E
DIRE/T EVIDEN/E is that which proves the fact in
dispute without the aid of an* inference or presumption.
2vidence which if believed proves the e1istence of a fact in
issue without interference or presumption.
/IR/(MSTANTIAL EVIDEN/E is the proof of facts
from which7 taken collectivel*7 the e1istence of the
particular fact in dispute ma* be inferred as a necessar* or
probable conse,uence.
:n a criminal case7 circumstantial evidence is sufficient for
conviction provided the following re,uisites concurE
!? 4here is more than one circumstances9
"? 4he facts from which the inferences are derived are
proven9 and
&? 4he combination of all the circumstances is such as
to produce a conviction be*ond reasonable doubt.
,OSITIVE AND NE+ATIVE EVIDEN/E
 4estimon* is positive when the witness affirms that a
fact did or did not e1ist and is entitled to greater weight.
 :t is negative when he sa*s that he did not see or know
of the factual occurrence. :t is considered to be a ver*
weak defense and can never overcome an affirmative or
positive testimon* particularl* when it comes from the
mouth of a credible witness.
/OM,ETENT AND /REDIBLE EVIDEN/E
Competent evidence is one that is not e1cluded b* law or the
rules. :f the test of relevance is logic and common sense7 the
test of competence is the law or the rules. Competence7 in
relation to evidence in general7 refers to ei3i%iit+ of "n
e6i'ence to %e recei6e' "s such.
A witness ma* be competent7 and *et give incredible
testimon*9 he ma* be incompetent7 and *et his evidence7 if
received7 be perfectl* credible.
/OM,ETENT EVIDEN/E /REDIBLE EVIDEN/E
Competenc* is a ,uestion
which arises before
considering the evidence
given b* the witness9
Credibilit* concerns the
degree of credit to be given
to his testimon*9
4enotes the !erson"
(u"ific"tion of the )itness
Denotes the veracit* of the
testimon*
B(RDEN O) ,ROO) B(RDEN O)
EVIDEN/E
Denotes the dut* of
establishing the truth of a
given proposition or issue b*
such ,uantum of evidence as
the law demands in the case in
which the issue arises.
$eans the necessit* of
going forward with the
evidence to meet the prima
facie case created against
him
:t remains with the part*
alleging facts and never shifts
to the other part*. 0e who
alleges the affirmative of the
issue has the burden of proof7
and the same never parts.
:t shifts from side to side
as the trial of the case
progresses
,RES(M,TIONS
A presumption is an assumption of fact resulting from a rule
of law which re,uires such fact to be assumed from another
fact or group of facts found or otherwise established in the
action. :t is not evidence in itself but it is an assumption
resulting from the evidence. 4he* merel* affect the burden
of offering evidence. :n a sense7 it is an inference which is
mandator* unless rebutted.
A& /ON/L(SIVE ,RES(M,TIONS
($=/8& 6; 6 $=/6)
:t is conclusive when the presumption becomes irrebuttable
upon the presentation of the evidence tending to rebut the
presumption is not admissible. 4his presumption is in realit*
a rule of substantive law. 21amplesE
<henever a part* has7 b* his own declaration7 act7 or
omission7 intentionall* and deliberatel* led another to
believe a particular thing true7 and to act upon such belief7 he
cannot7 in an* litigation arising out of such declaration7 act
or omission7 be permitted to falsif* itE
4he tenant is not permitted to den* the title of his landlord at
the time of the commencement of the relation of landlord
and tenant between them.
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B& DIS,(TABLE ,RES(M,TIONS
($=/8& ;A4;=@)
:t is disputable or rebuttable or it ma* be contradicted or
overcome b* other evidence. <hen evidence that rebuts the
presumption is introduced7 the force of the presumption
disappears.
a? 4hat a person is innocent of crime or wrong9
b? 4hat an unlawful act was done with an unlawful
intent9
c? 4hat a person intends the ordinar* conse,uences of
his voluntar* act9
d? 4hat a person takes ordinar* care of his concerns9
e? 4hat evidence willfull* suppressed would be
adverse if produced (*ue 131, Sec 3).
LIBERAL /ONSTR(/TION O) T>E R(LES O)
EVIDEN/E
4he rules of evidence must be i%er"+ construe'. Rules of
procedure are mere tools intended to facilitate rather than to
frustrate the attainment of %ustice. A strict and rigid
application of the rules must alwa*s be eschewed if it would
subvert their primar* ob%ective of enhancing substantial
%ustice. :t means that the words should receive a fair and
reasonable interpretation7 so as to secure a %ust7 speed* and
ine1pensive disposition of ever* action or proceeding.
A(ANT(M O) EVIDEN/E ;WEI+>T AND
S())I/IEN/' O) EVIDEN/E NR(LE 111O=
A& ,ROO) BE'OND REASONABLE DO(BT
 re,uired for conviction of an accused in criminal case
 the logical and inevitable result of the evidence on
record7 e1clusive of an* other consideration7 of the
moral certaint* of the guilt of the accused or that degree
of proof which produces conviction in an unpre%udiced
mind. :t does not mean such degree of proof as7
e1cluding possibilit* of error7 produces absolute
certaint*. $oral certaint* onl* is re,uired.
B& /LEAR AND /ONVIN/IN+ EVIDEN/E
 that measure or degree of proof which will produce in
the mind of the trier of facts a firm belief or conviction
as to the allegations sought to be established.
 it is more than preponderance but not to the e1tent of
such moral certaint* as is re,uired be*ond reasonable
doubt as in criminal cases. :t is often said that to
overcome a disputable presumption of law7 clear and
convincing evidence is re,uired (use to contr"'ict the
!resu$!tion of 6"i'it+ "n' re3u"rit+ in f"6or of "
not"ri" or !u%ic 'ocu$ent; the ") enforcers h"6e
re3u"r+ !erfor$e' their 'uties re(uires th"t !roof of
fr"$e/u!; "n "ccuse' )ho in6o9es sef/'efense).
4his standard should be lower than proof be*ond reasonable
doubt but higher than preponderance of evidence.
/& ,RE,ONDERAN/E O) EVIDEN/E
 re,uired in civil cases
 that which is of greater weight or more convincing than
that which is offered in opposition to it9 s*non*mous
with the terms Mgreater weight of evidenceN or Mgreater
weight of credible evidence.N :t means probabl* the
truth. :t is evidence which is more convincing to the
court as worth* of belief than that which is offered in
opposition thereto.
D& S(BSTANTIAL EVIDEN/E
 re,uired in administrative proceedings or ,uasi-%udicial
bodies
 such relevant evidence as a reasonable mind might
accept as ade,uate to support a conclusion
 more than a scintilla but ma* be somewhat less than
preponderance7 even if other reasonable minds might
conceivabl* opine otherwise. (SC s"i' th"t in
"'$inistr"ti6e c"ses "3"inst &u'3esIsherrifs "re hi3h+
!en" in n"ture "n' re(uires !roof %e+on' re"son"%e
'ou%t).
.(DI/IAL NOTI/E AND .(DI/IAL ADMISSIONS
MATTERS O) .(DI/IAL NOTI/E
4here are matters which must be admitted without need for
evidence. All these matters which the court ma* take
cogni@ance of without evidence are called matters of
M%udicial noticeN.
4he function of %udicial notice is to abbreviate litigation b*
the admission of matters that need no evidence. :t takes the
place of proof and is of e,ual force. :t displaces evidence
and fulfils the purpose for which the evidence is designed to
fulfil.
a. MANDATOR' – when the matter is sub%ect to a
mandator* %udicial notice7 no motion of hearing is necessar*
for the court to take %udicial notice of a fact. 4hese areE
a? the e1istence and territorial e1tent of states9
b? the political histor*7 forms of government and
s*mbols of nationalit* of states9
c? the law of nations9
d? the admiralt* and maritime courts of the world and
their seals9
e? the political constitution and histor* of the
hilippines9
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f? the official acts of the legislative7 e1ecutive and
%udicial departments of the hilippines9
g? the laws of nature9
h? the measure of time9 and
i? the geographical divisions.
b. DIS/RETIONAR' < A court ma* take %udicial notice of
mattersE
a? which are of public knowledge9 or
b? capable of un,uestionable demonstration9 or
c? ought to be known to %udges because of their
%udicial functions.
4he principles of discretionar* %udicial notice will appl*
here the following re,uisites are metE
a? 4he matter must be of common knowledge9
b? 4he matter must be settled be*ond reasonable doubt
>if there is na* uncertaint* about the matter7 then
evidence must be adduced?9 and
c? 4he knowledge must e1ist within the %urisdiction of
the court.
.(DI/IAL ADMISSIONS
/udicial admissions are conclusive upon the part* making
them7 while e1tra%udicial admissions or other admissions are7
as a rule7 and where the elements of estoppels are not
present7 disputable and needs to be formall* offered in
evidence.
Declaration of a part* favorable to himself are not
admissible as proof of the facts asserted.
4he* ma* be e1press or implied7 implied admissions b* a
defendant of material facts alleged in a complaint include
!? keeping silent on such material facts7
"? den*ing such material facts without setting forth the
matters upon which he relies to support his denial7
and
&? asserting lack of knowledge or information of the
truth of the material allegations when the same is
plainl* and necessaril* within the knowledge of
defendant.
E))E/T O) .(DI/IAL ADMISSIONS
An admission7 verbal or written7 made b* a part* in the
course of the proceedings in the same case7 does not re,uire
proof. Bnder Sec. '7 Rule !".7 the following are the effects
of %udicial admissionsE
!? 4he* do not re,uire proof9 and
"? 4he* cannot be contradicted because the* are
conclusive upon the part* making it.
>OW .(DI/IAL ADMISSIONS MA' BE
/ONTRADI/TED
/udicial admissions can be contradictedE
!? 4hat it was made through palpable mistake9 or
"? #o such admission was in fact made. 4hese
e1ceptions ma* negate the admission. But %efore
the court $"+ "o) " !"rt+ to reie6e hi$ of the
effects of "'$issions or to )ith'r") therefro$, he
h"s to sho), %+ !ro!er $otion, &ustifi"%e re"son or
!"!"%e $ist"9e.
.(DI/IAL NOTI/E O) )OREI+N LAWS? LAW O)
NATIONS AND M(NI/I,AL ORDINAN/E
5oreign laws ma* not be taken %udicial notice of and have to
be proven like an* other fact b* an official publication or b*
a dul* attested and authenticated cop* thereof. :t must be
alleged and proved. 1he !ro6isions of the forei3n ") $"+
"so %e the su%&ect of &u'ici" "'$ission un'er Sec. 8, *ue
129. A%sent "n+ of the fore3oin3 e6i'ence or "'$ission, the
forei3n ") is !resu$e' to the s"$e "s th"t in the
Phii!!ines, un'er the so/c"e' 'octrine of !rocessu"
!resu$!tion.
0owever7 the court ma* take %udicial notice of the treatise
containing the foreign law.
Law of nations is sub%ect to mandator* %udicial notice under
Sec. 1, *ue 129. Bnder the hilippine Constitution7 the
hilippines adopts the generall* accepted principles of
international law as part of the law of the land. 1he+ "re
therefore technic"+ in the n"ture of oc" ")s "n' hence,
"re su%&ect to " $"n'"tor+ &u'ici" notice.
$4Cs must take %udicial notice of municipal ordinances in
force in the municipalit* in which the* sit.
R4Cs should also take %udicial notice of municipal
ordinances in force in the municipalities within their
%urisdiction but onl* when so re,uired b* law. (i.e. the
ch"rter of Cit+ of ,"ni" re(uires " courts sittin3 therein
to t"9e &u'ici" notice of " or'in"nces !"sse' %+ the cit+
counci.) Such court must take %udicial notice also of
municipal ordinances on appeal to it from the inferior court
in which the latter took %udicial.
4he CA ma* take %udicial notice of municipal ordinances
because nothing in the Rules prohibits it from taking
cogni@ance of an ordinance which is capable of
un,uestionable demonstration.
R(LES O) ADMISSIBILIT' ;R(LE 110=
OB.E/T ;REAL= EVIDEN/EH NAT(RE O) OB.E/T
EVIDEN/E
 3b%ects as evidence are those addressed to the senses of
the court. <hen an ob%ect is relevant to the fact in issue7
it ma* be e1hibited to7 e1amined or viewed b* the court.
 Real evidence is also called autoptic preference7 which
is inspection b* the court of a thing itself and its
conditions7 to enable the court to effectivel* e1ercise its
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BERT – NOTES in REMEDIAL LAW
127
%udicial power of receiving and weighing the evidence.
:t is knowledge ac,uired b* the court from inspection or
b* direct self-perception or autops* of the evidence.
 h*sical evidence is evidence of the highest order. :t
speaks more elo,uentl* than a hundred witnesses.
REA(ISITES )OR ADMISSIBILIT' O) ;REAL=
EVIDEN/E
a? 4he ob%ect must be relevant to the fact in issue (to
%e ree6"nt, the e6i'ence $ust h"6e " re"tionshi!
to the f"ct in issue);
b? 4he ob%ect must be competent ($ust not %e
e#cu'e' %+ the rues);
c? 4he ob%ect must be authenticated before it is
admitted (it $ust %e sho)n th"t it is the 6er+ thin3
)hich is the su%&ect $"tter of the suit);
d? 4he authentication must be made b* a competent
witness9 and
e? 4he ob%ect must be formall* offered in evidence.
/ATE+ORIES O) OB.E/T EVIDEN/E
5or purposes of authentication of an ob%ect or for la*ing the
foundation for the e1hibit7 ob%ect evidence ma* be classified
into the followingE
a? Bni(ue F%&ects - 3b%ect that have readil*
identifiable marks (i9e seri" nu$%er of " c"i%re
85 !isto);
b? F%&ects ,"'e Bni(ue / 3b%ects that are made
readil* identifiable (i9e " t+!ic" 9nife, )itness
$"+ i'entif+ %+ !"cin3 $"r9s on it); and
c? -on/Bni(ue F%&ects / 3b%ects with no identif*ing
marks and cannot be marked (i9e 'ro! of %oo',
oi, "n' 'ru3s, the !ro!onent $ust est"%ish "
ch"in of custo'+).
DEMONSTRATIVE EVIDEN/E
Demonstrative evidence is tangible evidence that merel*
illustrates a matter of importance in the litigation. Common
t*pes of demonstrative evidence include photographs7
motion pictures and recordings7 1-ra* pictures7 scientific
tests7 demonstrations and e1periments7 maps7 diagrams7
models7 summaries7 and other materials created especiall*
for the litigation.
:n contrast to demonstrative evidence7 ob%ect evidence is a
tangible ob%ect that pla*ed some actual role in the matter that
gave rise to the litigation. 5or instance7 the knife used in the
altercation that forms the basis for the lawsuit.
4he foundation for demonstrative evidence does not involve
showing that the ob%ect was the one used in the underl*ing
event. Rather7 the foundation generall* involves showing
that the demonstrative ob%ect fairl* represents or illustrates
what it is alleged to illustrate.
VIEW O) AN OB.E/T OR S/ENE
4he inspection ma* be made inside or outside the
courtroom. An inspection or view outside the courtroom
should be made in the presence of the parties or at least with
previous notice to them. :t is error for the %udge for e1ample7
to go alone to the land in ,uestion7 or to the place where the
crime was committed and take a view without the previous
knowledge of the parties. Such inspection or view is part of
the trial since evidence is thereb* being received.
/>AIN O) /(STOD' IN RELATION TO SE/TION
21 O) T>E /OM,RE>ENSIVE DAN+ERO(S
DR(+S A/T O) 2002
4he purpose of chain of custod* is to guarant* the integrit*
of the ph*sical evidence and to prevent the introduction of
evidence which is not authentic.
4he D2A shall take charge and have custod* of all
dangerous drugs7 plant sources of dangerous drugs7
controlled precursors and essential chemicals7 as well as
instruments6paraphernalia and6or laborator* e,uipment so
confiscated7 sei@ed and6or surrendered7 for proper
disposition in the following mannerE
!? 4he apprehending team having initial custod* and
control of the drugs shall7 immediatel* after sei@ure
and confiscation7 ph*sicall* inventor* and
photograph the same in the presence of the accused
and an* elected public official who shall be
re,uired to sign the copies of the inventor* and be
given a cop* thereof9
"? <ithin "' hours upon confiscation6sei@ure7 the
same shall be submitted to the D2A 5orensic
Laborator* for a ,ualitative and ,uantitative
e1amination9
&? A certification of the forensic laborator*
e1amination results7 which shall be done under oath
b* the forensic laborator* e1aminer7 shall be issued
within "' hours after the receipt of the sub%ect
item6s9
'? After the filing of the criminal case7 the Court shall7
within +" hours7 conduct an ocular inspection of the
confiscated7 sei@ed and6or surrendered dangerous
drugs7 plant sources of dangerous drugs7 and
controlled precursors and essential chemicals7
including the instruments6 paraphernalia and6or
laborator* e,uipment7 and through the D2A shall
within "' hours thereafter proceed with the
destruction or burning of the same7 in the presence
of the accused or the person6s from whom such
items were confiscated and6or sei@ed7 or his6her
representative or counsel7 a representative from the
media and the D3/7 civil societ* groups and an*
elected public official.
(? 4he Board shall then issue a sworn certification as
to the fact of destruction or burning of the sub%ect
item6s which7 together with the representative
sample6s in the custod* of the D2A7 shall be
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130
submitted to the court having %urisdiction over the
case9 and
)? 4he alleged offender or his6her representative or
counsel shall be allowed to personall* observe all
of the above proceedings and his6her presence shall
not constitute an admission of guilt. :n case the said
offender or accused refuses or fails to appoint a
representative after due notice in writing to the
accused or his6her counsel within +! hours before
the actual burning or destruction or the evidence in
,uestion7 the S3/ shall appoint a member of the
A3 to represent the former9
+? After the promulgation and %udgment in the
criminal case wherein the representative sample6s
was presented as evidence in court7 the trial
prosecutor shall inform the Board of the final
termination of the case and7 in turn7 shall re,uest
the court for leave to turn over the said
representative sample6s to the D2A for proper
disposition and destruction within "' hours from
receipt of the same.
R(LE ON DNA EVIDEN/E ;A&M& NO& 04<11<3<S/=
4otes>
 D#A report is a documentar* evidence
 D#A testing order is e1ecutor*7 unless there is an
in%unction
 4he Rule on D#A 2vidence is the primar* rule to
be applied whenever D#A evidence is offered7
used or proposed to be offered or used as evidence
in criminal and civil actions and special
proceedings.
MEANIN+ O) DNA
D#A means deo1*ribonucleic acid7 which is the chain of
molecules found in ever* nucleated cell of the bod*. 4he
totalit* of an individualCs D#A is uni,ue for the individual7
e1cept identical twins.
D#A evidence constitutes the totalit* of the D#A profiles7
results and other genetic information directl* generated from
D#A testing of biological samples.
DNA -ro:i$ means genetic information derived from D#A
testing of a biological sample obtained from a person7 which
biological sample is clearl* identifiable as originating from
that person9
DNA tsting means verified and credible scientific methods
which include the e1traction of D#A from biological
samples7 the generation of D#A profiles and the comparison
of the information obtained from the D#A testing of
biological samples for the purpose of determining7 with
reasonable certaint*7 whether or not the D#A obtained from
two or more distinct biological samples originates from the
same person >direct identification? of if the biological
samples originate from related persons >kinship anal*sis?.
A,,LI/ATION )OR DNA TESTIN+ ORDER
4he appropriate court ma*7 at an* time7 either $otu !ro!io
or on application of an* person who has a legal interest in
the matter in litigation7 order a D#A testing. Such order
shall issue after due hearing and notice to the parties upon a
showing of the followingE
a? A biological sample e1ists that is relevant to the
case9
b? 4he biological sampleE
!? <as not previousl* sub%ected to the t*pe
of D#A testing now re,uested9 or
"? <as previousl* sub%ected to D#A testing
but the results ma* re,uire confirmation
for good reasons9
c? 4he D#A testing uses a scientificall* valid
techni,ue9
d? 4he D#A testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case9 and
e? 4he e1istence of other factors7 if an*7 which the
court ma* consider as potentiall* affecting the
accurac* of integrit* of the D#A testing.
4his rule shall not preclude a D#A testing7 without need of
prior court order7 at the behest of an* part*7 including law
enforcement agencies7 before a suit or proceeding is
commenced.
,OST</ONVI/TION DNA TESTIN+H REMED'
,ost<con0iction DNA tsting ma* be available7 without
need of prior court order7 to the prosecution or an* person
convicted b* final and e1ecutor* %udgment provided that
a? a biological sample e1ists7
b? such sample is relevant to the case7 and
c? the testing would probabl* result in the
reversal or modification of the %udgment of
conviction.
Remed* - 4he convict or the prosecution ma* file for a writ
of habeas corpus in the court of origin if he results of the
post-conviction D#A testing are favorable to the convict. :n
case the court7 after due hearing finds the petition to be
meritorious7 it shall reverse or modif* the %udgment of
conviction and order the release of the convict7 unless
continued detention is %ustified for a lawful cause.
ASSESSMENT O) ,ROBATIVE VAL(E O) DNA
EVIDEN/E AND ADMISSIBILIT'
4he following are the guidelines to be used in assessing the
probative value of the D#A evidenceE
a? 0ow the samples were collected9
b? 0ow the* were handled9
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c? 4he possibilit* of contamination of the samples9
d? 4he procedure followed in anal*@ing the samples9
e? <hether the proper standards and procedures were
followed in conducting the tests9 and
f? 4he ,ualification of the anal*st who conducted the
test.
4he determination of the probative value of the D#A
evidence rests upon the sound %udicial assessment taking
into considerations the following mattersE
a? 4he chair of custod*7 including how the biological
samples were collected7 how the* were handled7
and the possibilit* of contamination of the samples9
b? 4he D#A testing methodolog*7 including the
procedure followed in anal*@ing the samples7 the
advantages and disadvantages of the procedure7 and
compliance with the scientificall* valid standards in
conducting the tests9
c? 4he forensic D#A laborator*7 including
accreditation b* an* reputable standards-setting
institution and the ,ualification of the anal*st who
conducted the tests. :f the laborator* is not
accredited7 the relevant e1perience of the laborator*
in forensic casework and credibilit* shall be
properl* established9 and
d? 4he reliabilit* of the testing result7 as herein after
provided.
4he provisions of the Rules of Court concerning the
appreciation of evidence shall appl* suppletoril*.
R(LES ON EVAL(ATION O) RELIABILIT' O)
T>E DNA TESTIN+ MET>ODOLO+'
:n evaluating whether the D#A testing methodolog* is
reliable7 the court shall consider the followingE
a? 4he falsifiabilit* of the principles or methods used7
that is7 whether the theor* or techni,ue can be and
has been tested9
b? 4he sub%ection to peer review and publication of
the principles or methods9
c? 4he general acceptance of the principles or methods
b* the relevant scientific communit*9
d? 4he e1istence and maintenance of standards and
controls to ensure the correctness of data generated9
e? 4he e1istence of an appropriate reference
population database9 and
f? 4he general degree of confidence attributed to
mathematical calculations used in comparing D#A
profiles and the significance and limitation of
statistical calculations used in comparing D#A
profiles.
DO/(MENTAR' EVIDEN/E
Documentar* evidence is evidence supplied b* written
instruments7 or derived from conventional s*mbols7 such as
letters7 b* which ideas are represented on material
substances9 documents produced for the inspection of the
court or %udge. :t includes books7 papers accounts and the
like.
Documents as evidence consist of )ritin3 or "n+ $"teri"
>not onl* writing? containing letters7 words7 numbers7
figures7 s*mbols or other modes of written e1pressions
offered as -roo: o: t!ir contnts&
REA(ISITES )OR ADMISSIBILIT'
a? 4he document must be relevant to the fact in issue
b? 4he document must be competent
c? 4he document must be authenticated before it is
admitted
d? 4he authentication must be made b* a competent
witness9 and
e? 4he document must be formall* offered in
evidence.
BEST EVIDEN/E R(LE
MEANIN+ O) T>E R(LE
:t re,uires the highest grade of evidence obtainable to prove
a disputed fact. :t cannot be invoked unless t! contnts o:
"riting is t! s%9@ct o: @%#icia$ inE%iry 7 in which case the
best evidence is the original writing itself.
4he best evidence refers to that which the law or the rules
consider as the best evidence to prove the fact in dispute.
4he best evidence is the evidence which the case in its
nature is susceptible and which is within the power of the
part* to produce. 2vidence cannot be received which
indicates on its face that it is secondar*7 that is7 merel*
substitutionar* in its nature7 and that the original source of
information is in e1istence and accessible. 4he underl*ing
purpose is the prevention of fraud.
W>EN A,,LI/ABLE
<hen the sub%ect of in,uir* is the contents of a document7
no evidence shall be admissible other than the original
document itself7 e1cept in the following casesE
a? <hen the original has been lost or destro*ed7 or
cannot be produced in court7 without bad faith on
the part of the offeror9
b? <hen the original is in the custod* or under the
control of the part* against whom the evidence is
offered7 and the latter fails to produce it after
reasonable notice9
c? <hen the original consists of numerous accounts or
other documents which cannot be e1amined in
court without great loss of time and the fact sought
to be established from them is onl* the general
result of the whole9 and
d? <hen the original is a public record in the custod*
of a public officer or is recorded in a public office.
 :t applies onl* to documentar* evidence.
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MEANIN+ O) ORI+INAL
4he original does not necessaril* mean the one first written9
its meaning is relative onl* to the particular issue. 4he
original is the document whose contents are to be proved.
Sec. 8, *ue 13. has clarified what constitutes the original of
a documentE
a? 4he original of a document is one the contents of
which are the sub%ect of in,uir*9
b? <hen a document is in two or more copies
e1ecuted at or about the same time7 with identical
contents7 all such copies are e,uall* regarded as
originals9 and
c? <hen an entr* is repeated in the regular course of
business7 one being copied from another at or near
the time of the transaction7 all the entries are
likewise e,uall* regarded as originals.
REA(ISITES )OR INTROD(/TION O)
SE/ONDAR' EVIDEN/E
4he offeror must satisf* first the re,uirements for la*ing the
basis for the presentation of secondar* evidence. La*ing the
basis involves e1plaining to the satisfaction of the court the
reason for the inabilit* to offer the original of the document7
in the followingE
!? 4he e1ecution or e1istence of the original9
"? 4he loss and destruction of the original or its
nonproduction in court9
&? Bnavailabilit* of the original is not due to bad faith
on the part of the offeror.
:f the offeror has successfull* laid the basis for the
presentation of the secondar* evidence7 then the original
need not be presented. 0owever7 one must observe the order
in which the secondar* evidence is to be offered. 4his is
because not ever* secondar* evidence can be offered. 4he
following order must therefore7 be observedE
a? A cop* of the original9
b? :f there is no cop*7 then a recital of its contents in
some authentic document9
c? :n default of hereof7 b* the testimon* of witnesses
in the order stated.
W!n origina$ #oc%mnt is %na0ai$a9$ - <hen the
original document has been lost or destro*ed7 or cannot be
produced in court7 the offeror7 upon proof of its e1ecution or
e1istence and the cause of its unavailabilit* without bad faith
on his part7 ma* prove its contents b* a cop*7 or b* a recital
of its contents in some authentic document7 or b* the
testimon* of witnesses in the order stated.
W!n origina$ #oc%mnt is in a#0rs -artyPs c%sto#y or
contro$ - :f the document is in the custod* or under the
control of the adverse part*7 he must have reasonable notice
to produce it. :f after such notice and after satisfactor* proof
of its e1istence7 he fails to produce the document7 secondar*
evidence ma* be presented as in the case of its loss.
E0i#nc a#missi9$ "!n origina$ #oc%mnt is a -%9$ic
rcor# - <hen the original of a document is in the custod*
of a public officer or is recorded in a public office7 its
contents ma* be proved b* a certified cop* issued b* the
public officer in custod* thereof.
R(LES ON ELE/TRONI/ EVIDEN/E
A&M& NO& 01<5<01<S/=
MEANIN+ O) ELE/TRONI/ EVIDEN/EH
ELE/TRONI/ DATA MASSA+E
 2lectronic evidence is that which use of electronic data
message as evidence.
 2lectronic data message refers to information generated7
sent7 received or stored b* electronic7 optical or similar
means.
 2lectronic documents as functional e,uivalent of paper-
based documents. <henever a rule of evidence to the
term of writing7 document7 record7 instrument7
memorandum or an* other form of writing7 such term
shall be deemed to include an electronic document.
E$ctronic #oc%mnt refers to information or the
representation of information7 data7 figures7 s*mbols or other
modes of written e1pression7 described or however
represented7 b* which a right is established or an obligation
e1tinguished7 or b* which a fact ma* be proved and
affirmed7 which is received7 recorded7 transmitted7 stored7
processed7 retrieved or produced electronicall*. :t includes
digitall* signed documents and an* print-out or output7
readable b* sight or other means7 which accuratel* reflects
the electronic data message or electronic document.
 4he term Melectronic documentN ma* be used
interchangeabl* with electronic data message.
,ROBATIVE VAL(E O) ELE/TRONI/
DO/(MENTS OR EVIDENTIAR' WEI+>TH
MET>OD O) ,ROO)
An electronic document is admissible in evidence if it
complies with the rules on admissibilit* prescribed b* the
Rules and related laws and is authenticated in the manner
prescribed b* the Rules on 2lectronic 2vidence.
:n assessing the evidentiar* weight of an electronic
document7 the following factors ma* be consideredE
a? 4he reliabilit* of the manner or method in which it
was generated7 stored or communicated7 including
but not limited to input and output procedures7
controls7 tests and checks for accurac* and
reliabilit* of the electronic data message or
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
131
document7 in the light of all the circumstances as
well as an* relevant agreement9
b? 4he reliabilit* of the manner in which its originator
was identified9
c? 4he integrit* of the information and
communication s*stem in which it is recorded or
stored7 including but not limited to the hardware
and computer programs or software used as well as
programming errors9
d? 4he familiarit* of the witness or the person who
made the entr* with the communication and
information s*stem9
e? 4he nature and ,ualit* of the information which
went into the communication and information
s*stem upon which the electronic data message or
electronic document was based9 or
f? 3ther factors which the court ma* consider as
affecting the accurac* or integrit* of the electronic
document or electronic data message.
MET>OD O) ,ROO)C a::i#a0it o: 0i#nc < All matters
relating to the admissibilit* and evidentiar* weight of an
electronic document ma* be established b* an affidavit
stating facts of direct personal knowledge of the affiant or
based on authentic records. 4he affidavit must affirmativel*
show the competence of the affiant to testif* on the matters
contained therein.
MET>OD O) ,ROO)C cross<xamination o: #-onnt <
4he affiant shall be made to affirm the contents of the
affidavit in open court and ma* be cross-e1amined as a
matter of right b* the adverse part*.
A(T>ENTI/ATION O) ELE/TRONI/
DO/(MENTS AND ELE/TRONI/ SI+NAT(RES
4he person seeking to introduce an electronic document in
an* legal proceeding has the burden of proving its
authenticit*.
Before an* private electronic document offered as authentic
is received in evidence7 its authenticit* must be proved b*
an* of the following meansE
a? B* evidence that it had been digitall* signed b* the
person purported to have signed the same9
b? B* evidence that other appropriate securit*
procedures or devices as ma* be authori@ed b* the
Supreme Court or b* law for authentication of
electronic documents were applied to the
document9 or
c? B* other evidence showing its integrit* and
reliabilit* to the satisfaction of the %udge.
A document electronicall* notari@ed in accordance with the
rules promulgated b* the Supreme Court shall be considered
as a public document and proved as a notarial document
under the Rules of Court.
An electronic signature or a digital signature authenticated in
the manner prescribed hereunder is inadmissible in evidence
as the functional e,uivalent of the signature or a person on a
written document.
An electronic signature ma* be authenticated in an* of the
following mannersE
a? B* evidence that a method or process was utili@ed
to establish a digital signature and verif* the same9
b? B* an* other means provided b* law9 or
c? B* an* other means satisfactor* to the %udge as
establishing the genuineness of the electronic
signature.
Bpon the authentication of an electronic signature7 it shall be
presumed thatE
a? 4he electronic signature is that of the person to
whom it correlates9
b? 4he electronic signature was affi1ed b* that person
with the intention of authenticating or approving
the electronic document to which it is related or to
indicate such personLs consent to the transaction
embodied therein9 and
c? 4he methods or processes utili@ed to affi1 or verif*
the electronic signature without error or fault.
Bpon the authentication of a digital signature7 it shall be
presumed7 in addition to those mentioned in the
immediatel* preceding section7 thatE
a? 4he information contained in a certificate is
correct9
b? 4he digital signature was created during the
operational period of a certificate9
c? 4he message associated with a digital signature
has not been altered from the time it was
signed9 and
d? A certificate had been issued b* the
certification authorit* indicated therein.
ELE/TRONI/ DO/(MENTS AND T>E
>EARSA' R(LE
An electronic document shall be regarded as the e,uivalent
of an original document under the Best 2vidence Rule if it is
a printout or output readable b* sight or other means7 shown
to reflect the data accuratel*.
<hen a document is in two or more copies e1ecuted at or
about the same time with identical contents7 or is a
counterpart produced b* the same impression as the original7
or from the same matri17 or b* mechanical or electronic re-
recording7 or b* chemical reproduction7 or b* other
e,uivalent techni,ues which accuratel* reproduces the
original7 such copies or duplicates shall be regarded as the
e,uivalent of the original.
#otwithstanding the foregoing7 copies or duplicates shall not
be admissible to the same e1tent as the original ifE
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BERT – NOTES in REMEDIAL LAW
132
a? A genuine ,uestion is raised as to the authenticit*
of the original9 or
b? :n the circumstances it would be un%ust or
ine,uitable to admit a cop* in lieu of the original.
A memorandum7 report7 record or data compilation of acts7
events7 conditions7 opinions7 or diagnoses7 made b*
electronic7 optical or other similar means at or near the time
of or from transmission or suppl* of regular course of
conduct of a business activit*7 and such was the regular
practice to make the memorandum7 report7 record7 or data
compilation b* electronic7 optical or similar means7 all of
which are shown b* the testimon* of the custodian or other
,ualified witnesses7 is e1cepted from the rule on hearsa*
evidence.
4he presumption ma* be overcome b* evidence of the
untrustworthiness of the source of information of the method
or circumstances of the preparation7 transmission or storage
thereof.
A(DIO? ,>OTO+RA,>I/? VIDEO AND
E,>EMERAL EVIDEN/E
Audio7 photographic and video evidence of events7 acts or
transactions shall be admissible provided it shall be shown7
presented or displa*ed to the court and shall be identified7
e1plained or authenticated b* the person who made the
recording or b* some other person competent to testif* on
the accurac* thereof.
2phemeral electronic communications shall be proven b* the
testimon* of a person who was a part* to the same or has
personal knowledge thereof. :n the absence or unavailabilit*
of such witnesses7 other competent evidence ma* be
admitted.
:f the foregoing communications are recorded or embodied
in an electronic document7 then the provisions of Rule (
>authentication of electronic documents? shall appl*.
2phemeral electronic communication refers to telephone
conversations7 te1t messages7 chatroom sessions7 streaming
audio7 streaming video7 and other electronic forms of
communication the evidence of which is not recorded or
retained.
,AROL EVIDEN/E R(LE ;R(LE 110=
A,,LI/ATION O) T>E ,AROL EVIDEN/E R(LE
<hen the terms of an agreement have been reduced to
writing7 it is considered as containing all the terms agreed
upon7 and there can be between the parties and their
successors in interest7 no evidence of such terms other than
the contents of the written agreement.
:t seeks to preserve what the parties have reduced in writing
and prohibits evidence "iun'e or oral testimonial evidence
from being presented to var* the terms of7 or add stipulations
to7 the written agreement. :n other words7 an* oral evidence
of an agreement should be e1cluded when the e1isting
agreement is alread* in writing.
3ral testimon* cannot prevail over a written agreement of
the parties7 the purpose being to give stabilit* to written
agreements and to remove the temptation and possibilit* of
per%ur*7 which would be afforded if parol evidence were
admissible.
4he rule is based on the presumption that the parties have
made the written instrument the onl* repositor* and
memorial of the truth and whatever is not found in the
instrument must have been waived and abandoned b* the
parties. 0ence7 parol evidence cannot serve the purpose of
incorporation into the contract additional contemporaneous
conditions which are not mentioned at all in the writing7
unless the case falls under an* of the e1ceptions to the rule.
W>EN ,AROLE EVIDEN/E /AN BE INTROD(/ED
:ntroducing parol evidence means offering e1trinsic or
e1traneous evidence that would modif*7 e1plain or add to
the terms of the written agreement. arol evidence can be
introduced as long as the pleader puts in issue in the
pleading an* of the matters set forth in the rule such asE
a? An intrinsic ambiguit*7 mistake or imperfection in
the written agreement9
b? 4he failure of the written agreement to e1press the
true intent and agreement of the parties thereto9
c? 4he validit* of the written agreement9 or
d? 4he e1istence of other terms agreed to b* the
parties or their successors in interest after the
e1ecution of the written agreement.
 4he terms FagreementF includes wills.
BEST EVIDEN/E
R(LE
,AROL EVIDEN/E
R(LE
4he issue is contents of a
writing.
4here is no issue as to
contents of a writing.
Secondar* evidence is
offered to prove the
contents of a writing7
which is not allowed
unless the case falls under
an* of the e1ceptions.
4he purpose for the offer of
parol evidence is to change7
var*7 modif*7 ,ualif*7 or
contradict the terms of a
complete written agreement7
which is not allowed unless
the case falls under an* of the
e1ceptions.
2stablishes preference for
the original document
over a secondar*
evidence thereof.
#ot concerned with the
primac* of evidence but
presupposes that the original
is available.
recludes the admission
of secondar* evidence if
the original document is
available.
recludes the admission of
other evidence to prove the
terms of a document other
than the contents of the
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133
document itself.
Can be invoked b* an*
litigant to an action
whether or not said
litigant is a part* to the
document involved.
Can be invoked onl* be the
parties to the document and
their successors in interest.
Applies to all forms of
writing.
Applies to written
agreements >contracts? and
wills.
A(T>ENTI/ATION AND ,ROO) O) DO/(MENTS
;R(LE 112=
MEANIN+ O) A(T>ENTI/ATION < Authentication is
the process of evidencing the due e1ecution and genuineness
of a document. 2vidence when presented in court is not
presumed authentic. 4he general rule therefore is to prove its
authenticit* unless it is self-authenticating.
,(BLI/ VERS(S ,RIVATE DO/(MENTS
5or the purpose of their presentation evidence7 documents
are either public or private. ublic documents areE
a? 4he written official acts7 or records of the official
acts of the sovereign authorit*7 official bodies and
tribunals7 and public officers7 whether of the
hilippines7 or of a foreign countr*9
b? Documents acknowledge before a notar* public
e1cept last wills and testaments9 and
c? ublic records7 kept in the hilippines7 of private
documents re,uired b* law to the entered therein.
All other writings are private. >"Da?
W>EN A ,RIVATE WRITIN+ REA(IRES
A(T>ENTI/ATIONH ,ROO) O) A ,RIVATE
WRITIN+
A private writing is not self-authenticating. :t re,uires proof
of their due e1ecution and authentication before the* can be
received in evidence. 4he due e1ecution and authenticit*
must be proved eitherE
a? B* an*one who saw the document e1ecuted or
written9 or
b? B* evidence of the genuineness of the signature or
handwriting of the maker
An* other private document need onl* be identified as that
which it is claimed to be.
W>EN EVIDEN/E O) A(T>ENTI/IT' O) A
,RIVATE WRITIN+ IS NOT REA(IRED ;AN/IENT
DO/(MENTS=
!? <hen the genuineness and due e1ecution of the
document is admitted b* the adverse part*9
"? <hen such genuineness and due e1ecution are
immaterial to the issue9
&? <hen the document is an ancient document.
REA(ISITE O) AN AN/IENT DO/(MENT
!? $ore than thirt* >&D? *ears old9
"? 5ound in the proper custod*9
&? Bnblemished b* an* alteration or b* an*
circumstance of suspicion9 and
'? :t must on its face appear to be genuine.
>OW TO ,ROVE +EN(INENESS O) A
>ANDWRITIN+
4he handwriting of a person ma* be proved b*E
a? an* witness who believes it to be the handwriting of
such person because he has seen the person write7
or
b? has seen writing purporting to be his upon which
the witness has acted or been charged7 and has thus
ac,uired knowledge of the handwriting of such
person.
2vidence respecting the handwriting ma* also be given b* a
comparison7 made b* the witness or the court7 with writings
admitted or treated as genuine b* the part* against whom the
evidence is offered7 or proved to be genuine to the
satisfaction of the %udge.
 #oteE 4he identification of handwriting should not rest7
therefore7 on the apparent similarit* or dissimilarit* of
one feature but should be based on the e1amination of
all the basic characteristics of the handwriting under
stud*.
,(BLI/ DO/(MENTS AS EVIDEN/E
ublic documents areE
a? 4he written official acts7 or records of the official
acts of the sovereign authorit*7 official bodies and
tribunals7 and public officers7 whether of the
hilippines7 or of a foreign countr*9
b? Documents acknowledged before a notar* public
e1cept last wills and testaments9 and
c? ublic records7 kept in the hilippines7 of private
documents re,uired b* law to be entered therein.
ublic documents are of two classesE
a? 4hose issued b* competent public officials b*
reason of their office7 and
b? 4hose e1ecuted b* private individuals which are
authenticated b* notaries public.
Documents consisting of entries in public records made in
the performance of a dut* b* a public officer are -rima
:aci 0i#nc of the facts therein stated. All other public
documents are evidence7 even against a third person7 of the
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134
fact which gave rise to their e1ecution and of the date of the
latter.
,ROO) O) O))I/IAL RE/ORD
4he record of public documents >official acts?7 when
admissible for an* purpose7 ma* be evidenced
a? b* an official publication thereof or
b? b* a cop* attested b* the officer having the legal
custod* of the record7 or b* his deput*7 and
accompanied7 if the record is not kept in the
hilippines7 with a certificate that such officer has
the custod*.
:f the office in which the record is kept is in a foreign
countr*7 the certificate ma* be made b* a secretar* of the
embass* or legation7 consul general7 consul7 vice consul7 or
consular agent or b* an* officer in the foreign service of the
hilippines stationed in the foreign countr* in which the
record is kept7 and authenticated b* the seal of his office.
ATTESTATION O) A /O,'
<henever a cop* of a document or record is attested for the
purpose of evidence7 the attestation must state7 in substance7
that the cop* is a correct cop* of the original7 or a specific
part thereof7 as the case ma* be. 4he attestation must be
under the official seal of the attesting officer7 if there be an*7
or if he be the clerk of a court having a seal7 under the seal
of such court.
,(BLI/ RE/ORD O) A ,RIVATE DO/(MENT
An authori@ed public record of a private document ma* be
proved b* the original record7 or b* a cop* thereof7 attested
b* the legal custodian of the record7 with an appropriate
certificate that such officer has the custod*.
,ROO) O) LA/8 O) RE/ORD
A written statement signed b* an officer having the custod*
of an official record or b* his deput* that after diligent
search no record or entr* of a specified tenor is found to
e1ist in the records of his office7 accompanied b* a
certificate as above provided7 is admissible as evidence that
the records of his office contain no such record or entr*.
>OW A .(DI/IAL RE/ORD IS IM,EA/>ED
An* %udicial record ma* be impeached b* evidence ofE
a? want of %urisdiction in the court or %udicial officer7
b? collusion between the parties7 or
c? fraud in the part* offering the record7 in respect to
the proceedings
 which must be clear7 convincing and more than merel*
preponderant7 in order to overcome the presumption of
regularit* in the performance of official duties and the
presumption of regularit* of %udicial proceedings7 and
the burden of proof lies on the part of the part* who
challenges the validit* of %udicial records.
,ROO) O) NOTARIAL DO/(MENTS
A document acknowledged before a notar* public becomes a
public instrument and renders it admissible in court without
further proof of its authenticit*.
>OW TO E*,LAIN ALTERATIONS IN A
DO/(MENT
4he part* producing a document as genuine which has been
altered and appears to have been altered after its e1ecution7
in a part material to the ,uestion in dispute7 must account for
the alteration.
0e ma* show that the alteration was made b* another7
without his concurrence7 or was made with the consent of
the parties affected b* it7 or was otherwise properl* or
innocentl* made7 or that the alteration did not change the
meaning or language of the instrument. :f he fails to do that
the document shall not be admissible in evidence.
DO/(MENTAR' EVIDEN/E IN AN (NO))I/IAL
LAN+(A+E
Documents written in an unofficial language shall not be
admitted as evidence7 unless accompanied with a translation
into 2nglish or 5ilipino. 4o avoid interruption of
proceedings7 parties or their attorne*s are directed to have
such translation prepared before trial.
TESTIMONIAL EVIDEN/E
A(ALI)I/ATIONS O) A WITNESS
A prospective witness must show that he has the following
abilitiesE
!? 4o 3bserve J the testimonial ,ualit* of perception
"? 4o Remember J the testimonial ,ualit* of memor*
&? 4o Relate J the testimonial ,ualit* of narration
'? 4o Recogni@e a dut* to tell the truth J the
testimonial ,ualit* of sincerit*.
 All persons who can perceive7 and perceiving7 can make
known their perception to others7 ma* be witnesses.
Religious or political belief7 interest in the outcome of
the case7 or conviction of a crime unless otherwise
provided b* law7 shall not be a ground for
dis,ualification.
 Loss of the perceptive sense after the occurrence of the
fact does not affect the admissibilit* of the testimon*.
 A blind man can testif* to what he saw prior to his
blindness or a deaf man7 to what he heard prior to his
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135
deafness. But a person incapable of perception is !ro
t"nto incapable of testif*ing.
 A witness ma* have been capable of perceiving7 *et
incapable of narration. 0e ma* have no powers of
speech7 and have no means of e1pressing himself b*
signs. 0e ma* have become insane since the occurrence
he is called upon to relate. A person incapable of
narration is !ro t"nto incapable of testif*ing.
/OM,ETEN/' VERS(S /REDIBILIT'
O) A WITNESS
Competenc* of a witness refers to the basic ,ualifications of
a witness as his capacit* to perceive and to communicate the
same to others. :t also includes the absence of an* of the
dis,ualifications imposed upon a witness.
Credibilit* of the witness refers to the believabilit* of the
witness and has nothing to do with the law or the rules. :t
refers to the weight and the trustworthiness or reliabilit* of
the testimon*.
DISA(ALI)I/ATIONS O) WITNESSES
ABSOL(TE DISA(ALI)I/ATION
a? 4hose who cannot perceive.
b? 4hose who can perceive but cannot make their
perception known.
c? Mnta$$y inca-acity J 4hose whose mental
condition7 at the time of their production for
e1amination7 is such that the* are incapable of
intelligentl* making known their perception to
others.
d? $entall* immaturit* J Children whose mental
maturit* is such as to render them incapable of
perceiving the facts respecting which the* are
e1amined and of relating them truthfull*.
e? Marita$ #isE%a$i:ication J During their marriage7
neither the husband nor the wife ma* testif* for or
against the other without the consent of the affected
spouse7 e1cept in a civil case b* one against the
other7 or in a criminal case for a crime committed
b* one against the other or the latterTs direct
descendants or ascendants.
f? arental and filial privilege -- #o person ma* be
compelled to testif* against his parents7 other direct
ascendants7 children or other direct descendants.
RELATIVE DISA(ALI)I/ATION
;a= DEAD MANDS STAT(TE J arties or
assignors of parties to a case7 or persons in whose
behalf a case is prosecuted7 against an e1ecutor or
administrator or other representative of a deceased
person7 or against a person of unsound mind7 upon
a claim or demand against the estate of such
deceased person or against such person of unsound
mind7 cannot testif* as to an* matter of fact
occurring before the death of such deceased person
or before such person became of unsound mind.
;9= DISA(ALI)I/ATION B' REASON O)
,RIVILE+ED /OMM(NI/ATION
!. 4he husband or the wife7 during or after
the marriage7 cannot be e1amined without
the consent of the other as to an*
communication received in confidence b*
one from the other during the marriage
e1cept in a civil case b* one against the
other7 or in a criminal case for a crime
committed b* one against the other or the
latterTs direct descendants or ascendants9
". An attorne* cannot7 without the consent of
his client7 be e1amined as to an*
communication made b* the client to him7
or his advice given thereon in the course
of7 or with a view to7 professional
emplo*ment7 nor can an attorne*Ts
secretar*7 stenographer7 or clerk be
e1amined7 without the consent of the client
and his emplo*er7 concerning an* fact the
knowledge of which has been ac,uired in
such capacit*9
&. A person authori@ed to practice medicine7
surger* or obstetrics cannot in a civil case7
without the consent of the patient7 be
e1amined as to an* advice or treatment
given b* him or an* information which he
ma* have ac,uired in attending such
patient in a professional capacit*7 which
information was necessar* to enable him
to act in that capacit*7 and which would
blacken the reputation of the patient9
'. A minister or priest cannot7 without the
consent of the person making the
confession7 be e1amined as to an*
confession made to or an* advice given b*
him in his professional character in the
course of discipline en%oined b* the church
to which the minister or priest belongs9
(. A public officer cannot be e1amined
during his term of office or afterwards7 as
to communications made to him in official
confidence7 when the court finds that the
public interest would suffer b* the
disclosure.
;c= NEWSMANDS ,RIVILE+E -- <ithout
pre%udice to his liabilit* under the civil and criminal
laws7 the publisher7 editor7 columnist or dul*
accredited reporter of an* newspaper7 maga@ine or
periodical of general circulation cannot be
compelled to reveal the source of an* news-report
or information appearing in said publication which
was related in confidence to such publisher7 editor
or reporter unless the court or a 0ouse or
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136
committee of Congress finds that such revelation is
demanded b* the securit* of the State >RA !'++?9
;#= BAN8 DE,OSITS -- All deposits of whatever
nature with banks or banking institutions in the
hilippines including investments in bonds issued
b* the 8overnment of the hilippines7 its political
subdivisions and its instrumentalities7 are hereb*
considered as of an absolutel* confidential nature
and ma* not be e1amined7 in,uired or looked into
b* an* person7 government official7 bureau or
office7 e1cept upon written permission of the
depositor7 or in cases of impeachment7 or upon
order of a competent court in cases of briber* or
dereliction of dut* of public officials7 or in cases
where the mone* deposited or invested is the
sub%ect matter of the litigation >RA !'D(?.
;= SAN/TIT' O) T>E BALLOT J voters ma*
not be compelled to disclose for whom the* voted.
;:= TRADE SE/RETS
;g= IN)ORMATION /ONTAINED IN TA*
RET(RNS >RA "D+D7 as amended b* RA ""!"?.
DISA(ALI)I/ATION B' REASON O) MENTAL
/A,A/IT' OR IMMAT(RIT'
4he following persons cannot be witnessesE
a? 4hose whose mental condition7 at the time of their
production for e1amination7 is such that the* are
incapable of intelligentl* making known their
perception to others9
b? Children whose mental maturit* is such as to render
them incapable of perceiving the facts respecting
which the* are e1amined and of relating them
truthfull*.
Regardless of the nature or cause of mental disabilit*7 the
test of competenc* to testif* is as to whether the individual
has sufficient understanding to appreciate the nature and
obligation of an oath and sufficient capacit* to observe and
describe correctl* the facts in regard to which he is called to
testif*.
Basic re,uirements of a childCs competenc* as a witnessE
a? Capacit* of observation9
b? Capacit* of recollection9
c? Capacit* of communication.
:n ascertaining whether a child is of sufficient
intelligence according to the foregoing re,uirements7 it
is settled rule that the trial court is called upon to make
such determination.
DISA(ALI)I/ATION B' REASON O) MARRIA+E
;S,O(SAL IMM(NIT'=
As a general rule7 during their marriage7 neither the husband
nor the wife ma* testif* for or against the other without the
consent of the affected spouse. 4he re,uisites of this rule are
the followingE
!? 4hat the spouse for or against whom the testimon*
is offered is a part* to the case9
"? 4hat the spouses are legall* married >valid until
annulled?9
&? 4estimon* is offered during the e1istence of
marriage9
'? 4he case is not one of the e1ceptions provided in
the rule.
4he e1ceptions are the followingE
!? <here the testimon* was made outside the
marriage9
"? :n a civil case b* one spouse against the other9 or
&? :n a criminal case for a crime committed b* one
spouse against the other or the latterCs direct
descendant or ascendants.
DISA(ALI)I/ATION B' REASON O) DEAT> OR
INSANIT' O) ADVERSE ,ART' ;S(RVIVORS>I,
OR DEAD MANQS STAT(TE=
4his rule applies onl* to a civil case or a special proceeding.
4he following are the elements for the application of the
ruleE
a? 4he plaintiff is the person who has a claim against
the estate of the decedent or person of unsound
mind9
b? 4he defendant in the case is the e1ecutor or
administrator or a representative of the deceased or
the person of unsound mind9
c? 4he suit is upon a claim b* the plaintiff against the
estate of said deceased or person of unsound mind9
d? 4he witness is the plaintiff7 or an assignor of that
part*7 or a person in whose behalf the case is
prosecuted9 and
e? 4he sub%ect of the testimon* is as to an* matter of
fact occurring before the death ("nte ite$ $ot"$)
of such deceased person or before such person
became of unsound mind.
DISA(ALI)I/ATION B' REASON O) ,RIVILE+ED
/OMM(NI/ATIONS
BETWEEN >(SBAND AND WI)E
4he application of the rule re,uires the presence of the
following elementsE
!? 4here must be a valid marriage between the
husband and the wife9
"? 4he privilege is invoked with respect to a
confidential communication between the spouses
during said marriage9 and
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BERT – NOTES in REMEDIAL LAW
137
&? 4he spouse against whom such evidence is being
offered has not given his or her consent to such
testimon*.
MARITAL
DISA(ALI)I/ATION ;SE/&
22=
MARITAL
,RIVILE+E ;SE/& 22=
Can be invoked onl* if one of
the spouses is a part* to the
action9
Can be claimed whether
or not the spouse is a
part* to the action9
Applies onl* if the marriage is
e1isting at the time the
testimon* is offered9
Can be claimed even
after the marriage has
been dissolved9
Ceases upon the death or either
spouse9
Continues even after the
termination of the
marriage9
Constitutes a total prohibition
against an* testimon* for or
against the spouse of the
witness9
Applies onl* to
confidential
communications between
the spouses.
4he prohibition is a testimon*
for or against the other.
4he prohibition is the
e1amination of a spouse
as to matters related in
confidence to the other
spouse.
BETWEEN ATTORNE' AND /LIENT
5or the rule to appl*7 it is re,uired thatE
!? 4here is an attorne* and client relation9
"? 4he privilege is invoked with respect to a
confidential communication between them in the
course of or with a view to professional
emplo*ment9 and
&? 4he client has not given his consent to the
attorne*Ls testimon* thereon9 or
:f the attorne*Cs secretar*7 stenographer or clerk is
sought to be e1amined7 that both the client and the
attorne* have not given their consent thereto.
4he rule applies when the attorne* has been consulted in his
professional capacit*7 even if no fee has been paid therefor.
reliminar* communications made for the purpose of
creating the attorne*-client relationship are within the
privilege. 0owever7 if the communications were not made
for the purpose of creating that relationship7 the* will not be
covered b* the privilege even if thereafter the law*er
becomes the counsel of the part* in a case involving said
statements.
BETWEEN ,>'SI/IAN AND ,ATIENT
5or the dis,ualification to appl*7 it is necessar* thatE
a? 4he ph*sician is authori@ed to practice medicine7
surger* or obstetrics9
b? 4he information was ac,uired or the advice or
treatment was given b* him in his professional
capacit* for the purpose of treating and curing the
patient9
c? 4he information7 advice or treatment7 if revealed7
would blacken the reputation of the patient9 and
d? 4he privilege is invoked in a civil case7 whether the
patient is a part* thereto or not.
4he privilege does not appl* whereE
a? 4he communication was not given in confidence9
b? 4he communication is irrelevant to the professional
emplo*ment9
c? 4he communication was made for an unlawful
purpose7 as when it is intended for the commission
or concealment of a crime9
d? 4he information was intended to be made public9 or
e? 4here was a waiver of the privilege either b* the
provisions of contract or law.
 4he privilege survives the death of the patient.
BETWEEN ,RIEST AND ,ENITENT
 A minister or priest cannot7 without the consent of the
person making the confession7 be e1amined as to an*
confession made to or an* advice given b* him in his
professional character in the course of discipline
en%oined b* the church to which the minister or priest
belongs.
 4he communication must be made pursuant to
confessions of sin. <here the penitent discussed
business arrangements with the priest7 the privilege does
not appl*.
INVOLVIN+ ,(BLI/ O))I/ERS
4he dis,ualification because of privileged communications
to public officers re,uires thatE
a? :t was made to the public officer in official
confidence9 and
b? ublic interest would suffer b* the disclosure of
such communications7 as in the case of State
secrets. <here no public interest would be
pre%udiced7 this rule does not appl*.
21ceptions to the ruleE
a? <hat is asked is useful evidence to vindicate the
innocence of an accused person9
b? Disclosure would lessen the risk of false testimon*9
c? Disclosure is essential to the proper disposition of
the case9
d? 4he benefit to be gained b* a correct disposition of
the litigation was greater than an* in%ur* which
could inure to the relation b* a disclosure of the
information.
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140
,ARENTAL AND )ILIAL TESTIMONIAL
,RIVILE+E R(LE
#o person ma* be compelled to testif* against his parents7
other direct ascendants7 children or other direct descendants.
Bn'er Art. 215 of the D"$i+ Co'e7 the descendant ma* be
compelled to testif* against his parents and grandparents if
such testimon* is indispensable in prosecuting a crime
against the descendant or b* one parent against the other.
E*AMINATION O) A WITNESS ;R(LE 112=
4he e1amination of witnesses presented in a trial or hearing
shall be done in open court7 and under oath or affirmation.
Bnless the witness is incapacitated to speak7 or the ,uestion
calls for a different mode of answer7 the answers of the
witness shall be given orall*.
4he entire proceedings shall be recorded b* means of
shorthand or stenot*pe or b* other means of recording found
suitable b* the court. A transcript of the record of the
proceedings made b* the official stenographer7 stenot*pist or
recorder and certified as correct b* him shall be deemed
prima facie a correct statement of such proceedings.
RI+>TS AND OBLI+ATIONS O) A WITNESS
A witness must answer ,uestions7 although his answer ma*
tend to establish a claim against him. 0owever7 it is the right
of a witnessE
!? 4o be protected from irrelevant7 improper7 or
insulting ,uestions7 and from harsh or insulting
demeanor9
"? #ot to be detained longer than the interests of
%ustice re,uire9
&? #ot to be e1amined e1cept onl* as to matters
pertinent to the issue9
'? #ot to give an answer which will tend to sub%ect
him to a penalt* for an offense unless otherwise
provided b* law9 or
(? #ot to give an answer which will tend to degrade
his reputation7 unless it be to the ver* fact at issue
or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of
his previous final conviction for an offense.
ORDER IN T>E E*AMINATION O) AN
INDIVID(AL WITNESS
4he order in which an individual witness ma* be e1amined
is as followsE
!? Direct e1amination b* the proponent9
"? Cross-e1amination b* the opponent9
&? Re-direct e1amination b* the proponent9
'? Re-cross-e1amination b* the opponent.
(? Recalling the witness
DIRE/T
E*AMINATION
Direct e1amination is the e1amination-in-chief
of a witness b* the part* presenting him on the
facts relevant to the issue.
urpose is to build up the theor* of the case b*
eliciting facts about the clientLs cause of action or
defense.
/ROSS
E*AMINATION
Bpon the termination of the direct e1amination7
the witness ma* be cross-e1amined b* the
adverse part* as to an* matters stated in the
direct e1amination7 or connected therewith7 with
sufficient fullness and freedom to test his
accurac* and truthfulness and freedom from
interest or bias7 or the reverse7 and to elicit all
important facts bearing upon the issue.
Cross-e1amination aims toE
a? 4est the accurac* and truthfulness of the
witness and his freedom from interest or bias
or the reverse9 and
b? 2licit all important facts bearing upon the
issue7 not onl* of those covered in the direct
e1amination but also on all other matters
relevant to the issue6s pleaded.
RE<DIRE/T
E*AMINATION
After the cross-e1amination of the witness has
been concluded7 he ma* be re-e1amined b* the
part* calling him7 to e1plain or supplement his
answers given during the cross-e1amination. 3n
re-direct e1amination7 ,uestions on matters not
dealt with during the cross-e1amination7 ma* be
allowed b* the court in its discretion.
rincipal ob%ects areE
a? to prevent in%ustice to the witness and the
part* who has called him b* affording an
opportunit* to the witness to e1plain the
testimon* given on cross-e1amination7
b? to e1plain an* apparent contradiction or
inconsistenc* in his statements7 and
c? complete the answer of a witness7 or add a
new matter which has been omitted7 or
correct a possible misinterpretation of
testimon*.
RE</ROSS
E*AMINATION
Bpon the conclusion of the re-direct
e1amination7 the adverse part* ma* re-cross-
e1amine the witness on matters stated in his re-
A witness cannot be recalled without leave of
court7 which ma* be granted onl* upon showing
of concrete7 substantial grounds.
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direct e1amination7 and also on such other
matters as ma* be allowed b* the court in its
discretion.
RE/ALLIN+ T>E
WITNESS
After the e1amination of a witness b* both sides
has been concluded7 the witness cannot be
recalled without leave of the court. 4he court
will grant or withhold leave in its discretion7 as
the interests of %ustice ma* re,uire.
Aims to correct or e1plain his prior testimon*9 or
la* the proper foundation for his impeachment7
but this is permitted onl* with the discretion of
the court.
Cross-e1amination of a witness is the absolute right7 not a
mere privilege7 of the part* against whom he is called9 and
with regard to the accused7 it is a right granted b* the
Constitution. Sec. 18(2), Art. III thereof provides that the
accused shall en%o* the right to meet the witnesses face to
face.
LEADIN+ AND MISLEADIN+ A(ESTIONS
;SE/& 10? R(LE 112=
A ,uestion which suggests to the witness the answer which
the e1amining part* desires is a $a#ing E%stion. :t is not
allowed7 e1ceptE
!? 3n cross e1amination9
"? 3n reliminar* matters9
&? <hen there is difficult* in getting direct and
intelligible answers from a witness who is ignorant7
or a child of tender *ears7 or is of feeble mind7 or a
deaf-mute9
'? 3f an unwilling or hostile witness9 or
(? 3f a witness who is an adverse part* or an officer7
director7 or managing agent of a public or private
corporation or of a partnership or association which
is an adverse part*.
)? :n all stages of e1amination of a child if the same
will further the interests of %ustice (Sec. 2., A,
..8/.:/SC).
A mis$a#ing E%stion is one which assumes as true a
fact not *et testified to b* the witness7 or contrar* to that
which he has previousl* stated. :t is not allowed (Sec.
1.). 4he adverse part* should ob%ect thereto or ask the
court to e1punge the answer from the records7 if he has
alread* given his answer.
MET>ODS O) IM,EA/>MENT O) ADVERSE
,ART'DS WITNESS
4o impeach means to call into ,uestion the veracit* of the
witnessCs testimon* b* means of evidence offered for that
purpose7 or b* showing that the witness is unworth* of
belief. :mpeachment is an allegation7 supported b* proof7
that a witness who has been e1amined is unworth* of credit.
A witness be impeached b* the part* against whom he was
calledE
a? B* contradictor* evidence9
b? B* evidence that his general reputation for truth7
honest*7 or integrit* is bad9 or
c? B* evidence that he has made at other times
statements inconsistent with his present testimon*9
d? But not b* evidence of particular wrongful acts7
e1cept that it ma* be shown b* the e1amination of
the witness7 or the record of the %udgment7 that he
has been convicted of an offense.
3ther modes of impeachment aside from those provided b*
the Rules areE
a? B* producing the record of his conviction of an
offense9
b? B* showing improbabilit* or unreasonableness of
testimon*9
c? B* showing bias7 pre%udice or hostilit*9
d? B* prior acts or conduct inconsistent with his
testimon*9
e? B* showing social connections7 occupation and
manner of living.
f? B* showing interest.
g? B* showing intent and motive.
4he part* producing a witness is not allowed to impeach his
credibilit*.
A witness ma* be considered as unwilling or hostile onl* if
so declared b* the court upon ade,uate showing of his
adverse interest7 un%ustified reluctance to testif*7 or his
having misled the part* into calling him to the witness stand.
4he unwilling or hostile witness so declared7 or the witness
who is an adverse part*7 ma* be impeached b* the part*
presenting him in all respects as if he had been called b* the
adverse part*7 e1cept b* evidence of his bad character. 0e
ma* also be impeached and cross-e1amined b* the adverse
part*7 but such cross e1amination must onl* be on the
sub%ect matter of his e1amination-in-chief.
>OW T>E WITNESS IS IM,EA/>ED B'
EVIDEN/E O) IN/ONSISTENT STATEMENTS
(7A%84: ;<6 P/68)A;6)
Before a witness can be impeached b* evidence that he has
made at other times statements inconsistent with his present
testimon*E
a? the statements must be related to him7 with the
circumstances of the times and places and the
persons present7 and
b? he must be asked whether he made such statements7
and if so7 allowed to e1plain them. :f the statements
be in writing the* must be shown to the witness
before an* ,uestion is put to him concerning them.
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A witness cannot be impeached b* evidence of contradictor*
or prior inconsistent statements until the proper foundation
or predicate has been laid b* the part* against whom said
witness was called.
La*ing the predicate means that it is the dut* of a part*
tr*ing to impugn the testimon* of a witness b* means of
prior or subse,uent inconsistent statements7 whether oral or
in writing7 to give the witness a change to reconcile his
conflicting declaration.
<here no predicate is laid during the trial proof of alleged
inconsistent statements of the witness7 whether verbal or
written7 cannot be admitted on ob%ection of the adverse
part*7 or be pointed out on appeal for the purpose of
destro*ing the credibilit* of the witness.
An e1ception to the rule re,uiring the la*ing of foundation
for the admissibilit* of evidence of inconsistent statements
has been allowed in the case of d*ing declarations.
EVIDEN/E O) T>E +OOD />ARA/TER O) A
WITNESS
2vidence of the good character of a witness is not admissible
until such character has been impeached. 4he law presumes
ever* person to be reputedl* truthful until evidence shall
have been produced to the contrar*.
/!aractr 0i#nc not gnra$$y a#missi9$H xc-tions&
J
a? :n )riminal )asesC
!? 4he accused ma* prove his good moral
character which is pertinent to the moral trait
involved in the offense charged.
"? Bnless in rebuttal7 the prosecution ma* not
prove his bad moral character which is
pertinent it to the moral trait involved in the
offense charged.
 #ote that in criminal cases7 the prosecution
goes first. 0ence7 it cannot present evidence on
the bad moral character of the accused on its
evidence in chief.
 4he good or bad moral character of the
offended part* ma* be proved if it tends to
establish in an* reasonable degree the
probabilit* or improbabilit* of the offense
charged.
b? :n )ivil )asesC
 2vidence of the moral character of a part* in a
civil case is admissible onl* when pertinent to
the issue of character involved in the case.
ADMISSION /ON)ESSION
An act7 declaration or 4he declaration of an
omission of a part* as to
a relevant fact.
accused acknowledging his
guilt of the offense charged7
or of an* offense necessaril*
included therein.
:t is a voluntar*
acknowledgment made
b* a part* of the
e1istence of the truth of
certain facts which are
inconsistent with his
claims in an action.
:t is a statement b* the
accused that he engaged in
conduct which constitutes a
crime.
Broader than confession. Specific t*pe of admission
which refers onl* to an
acknowledgment of guilt
$a* be implied like
admission b* silence.
Cannot be implied7 but
should be a direct and
positive acknowledgment of
guilt.
$a* be %udicial or
e1tra%udicial.
$a* be %udicial or
e1tra%udicial.
$a* be adoptive7 which
occurs when a person
manifests his assent to
the statements of another
person.
RES INTER ALIOS A/TA R(LE
Res inter alios acta alteri nocere debt means that Fthings
done to strangers ought not to in%ure those who are not
parties to themN :t has two branches7 namel*E
a? 4he rule that the rights of a part* cannot be
pre%udiced b* an act7 declaration7 or omission of
another9 and
b? 4he rule that evidence of previous conduct or
similar acts at one time is not admissible to prove
that one did or did not do the same act at another
time.
4he rule has reference to e1tra%udicial declarations. 0ence7
statements made in open court b* a witness implicating
persons aside from his own %udicial admissions are
admissible as declarations from one who has personal
knowledge of the facts testified to.
21ceptions to the first branch of the ruleE
a? Admission b* a co-partner or agent (Sec. 29, *ue
13.);
b? Admission b* a co-conspirator (Sec. 3., *ue 13.);
and
c? Admission b* privies (Sec. 31, *ue 13.).
ADMISSION B' A ,ART'
4he act7 declaration or omission of a part* as to a relevant
fact ma* be given in evidence against him.
ADMISSION B' A T>IRD ,ART'
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4he rights of a part* cannot be pre%udiced b* an act7
declaration7 or omission of another, e#ce!t "s herein"fter
!ro6i'e'.
ADMISSION B' A /O<,ARTNER OR A+ENT
4he act or declaration of a partner or agent of the part*
within the scope of his authorit* and during the e1istence of
the partnership or agenc*7 ma* be given in evidence against
such part* after the partnership or agenc* is shown b*
evidence other than such act or declaration. 4he same rule
applies to the act or declaration of a %oint owner7 %oint
debtor7 or other person %ointl* interested with the part*.
5or the admission of a co-partner or agent to be admissible7
the following re,uisites must concurE
a? 4he declaration or act of the partner and agent must
have been made or done within the scope of his
authorit*9
b? 4he declaration or act of the partner and agent must
have been made or done during the e1istence of the
partnership or agenc*7 and the person making the
declaration still a partner or an agent9 and
c? 4he e1istence of the partnership or agenc* is
proven b* evidence other than the declaration or act
of the partner and agent.
ADMISSION B' A /ONS,IRATOR
Conspirac* e1ists when two or more persons come to an
agreement concerning the commission of a felon* and
decide to commit it. 3nce conspirac* is proven7 the act of
one is the act of all. 4he statement therefore of one ma* be
admitted against the other co-conspirators as an e1ception to
the rule of res inter "ios "ct".
5or the e1ception to appl*7 the following re,uisites must
concurE
!? 4he declaration or act be made or done during the
e1istence of the conspirac*9
"? 4he declaration or act must relate to the conspirac*9
and
&? 4he conspirac* must be shown b* evidence other
than the declaration or act.
ADMISSION B' ,RIVIES
rivit* means mutual succession of relationship to the same
rights of propert*. rivies are those who have mutual or
successive relationship to the same right of propert* or
sub%ect matter7 such as personal representatives7 heirs7
devisees7 legatees7 assigns7 voluntar* grantees or %udgment
creditors or purchasers from them with notice of the facts.
4hree e1ceptions are recogni@ed to the rule that declarations
of the transferor7 made subse,uent to the transfer7 are
inadmissibleE
!? <here the declarations are made in the presence of
the transferee7 and he ac,uiesces in the statements7
or asserts no rights where he ought to speak9
"? <here there has been a prima facie case of fraud
established7 as where the thing after the sale or
transfer7 remains with the seller or transferor9
&? <here the evidence establishes a continuing
conspirac* to defraud7 which conspirac* e1ists
between the vendor and the vendee.
ADMISSION B' SILEN/E
An act or declaration made in the presence and within the
hearing or observation of a part* who does or sa*s nothing
when the act or declaration is such as naturall* to call for
action or comment if not true7 and when proper and possible
for him to do so7 ma* be given in evidence against him.
4he common sense of mankind is e1pressed in the popular
phrase7 silence gives consent which is but another form of
e1pressing the ma1im of the law7 (ui t"cet cosentire 6i'etur.
Before the silence of a part* can be taken as an admission of
what is said7 the following re,uisites must concurE
a? 0earing and understanding of the statement b* the
part*9
b? 3pportunit* and necessit* of den*ing the
statements9
c? Statement must refer to a matter affecting his right9
d? 5acts were within the knowledge of the part*9 and
e? 5acts admitted or the inference to be drawn from
his silence would be material to the issue.
/ON)ESSIONS
4he declaration of an accused acknowledging his guilt of the
offense charged7 or of an* offense necessaril* included
therein7 ma* be given in evidence against him.
An* confession or admission obtained in violation of this or
Section !+ hereof shall be inadmissible in evidence against
him (Sec. 12, Art. III, Constitution).
Confession is an acknowledgment in e1press words7 b* the
accused in a criminal case7 of the truth of the offense
charged7 or of some essential parts thereof. 4o be valid7
confessions must be voluntaril* and freel* made.
21ceptions to the rule that confessions of an accused ma* be
given in evidence against him and incompetent against his
co-accusedE
a? <hen several accused are tried together7 confession
made b* one of them during the trial implicating
the others is evidence against the latter.
b? <hen one of the defendants is discharged from the
information and testifies as a witness for the
prosecution7 the confession made in the course of
his testimon* is admissible against his co-
defendants7 if corroborated b* indisputable proof.
c? :f a defendant after having been apprised of the
confession of his co-defendant ratifies or confirms
said confession7 the same is admissible against him.
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d? :nterlocking confessions -- <here several e1tra-
%udicial confession had been made b* several
persons charged with an offense and there could
have been no collusion with reference to said
several confessions7 the facts that the statements
therein are in all material respects identical7 is
confirmator* of the confession of the co-defendant7
and is admissible against his other co-defendants.
e? A statement made b* one defendant after his arrest7
in the presence of this co-defendant7 confessing his
guilt and implicating his co-defendant who failed to
contradict or den* it7 is admissible against his co-
defendant.
f? <hen the confession is of a conspirator and made
after conspirac* in furtherance of its ob%ect7 the
same is admissible against his co-conspirator9 and
g? 4he confession of one conspirator made after the
termination of a conspirac* is admissible against
his co-conspirator if made in his presence and
assented to b* him7 or admitted its truth or failed to
contradict or den* it.
SIMILAR A/TS AS EVIDEN/E
2vidence that one did or did not do a certain thing at one
time is not admissible to prove that he did or did not do the
same or a similar thing at another time9 but it ma* be
received to prove a specific intent or knowledge7 identit*7
plan7 s*stem7 scheme7 habit7 custom or usage7 and the like.
E6i'ence of co"ter" offenses $ust not %e recei6e' "s
su%st"nti6e e6i'ence of the offenses on tri".
>EARSA' R(LE
A witness can testif* onl* to those facts which he knows of
his personal knowledge9 that is7 which are derived from his
own perception7 e1cept as otherwise provided in these rules.
8enerall*7 hearsa* evidence is inadmissible because the
person who testifies does so based on matters not of his
personal knowledge but based on the knowledge of another
who is not in court and cannot therefore7 b cross-e1amined.
4he one in courts is the person who merel* repeats matters
witnessed personall* b* another. 4his t*pe o evidence is
inadmissible because of its inherent unreliabilit*.
0earsa* evidence ma* be in writing. 5or instance7 an
affidavit is hearsa* unless the affiant affirms the same in
court and is sub%ect to cross-e1amination.
A hearsa* testimon* involves an outside-declarant and an in-
court witness. :t is the outside declarant who sa*s something
based on what he has perceived. 0is statement is heard b*
someone who is the one testifies in court as to what he
heard.
:f the witness offers the statement of the outside declarant to
prove the truth of such statement >the one which he heard?
the testimon* of the witness is hearsa*. :f itCs offered merel*
to prove that he heard the statement without reference to its
truth or falsit*7 his testimon* is not hearsa*.
:f what he heard is relevant to an issue in the case7 it will fall
under the categor* of in'e!en'ent ree6"nt st"te$ents which
means statements which are relevant as to their tenor or to
the fact that the* were uttered and not as to whether the* are
true or false.
MEANIN+ O) >EARSA'
:t also means the evidence not of what the witness himself
knows but of what he has heard from others.
REASON )OR E*/L(SION O) >EARSA'
EVIDEN/E
0earsa* evidence is inadmissible according to the general
rule. 4he real basis for the e1clusion is the fact that hearsa*
testimon* is not sub%ect to the tests which can ordinaril* be
applied for the ascertainment of the truth of testimon*7 since
the declarant is not present and available for cross-
e1amination.
:n criminal cases the admission of hearsa* evidence would
be a violation of the constitutional provision that the accused
shall en%o* the right of being confronted with the witnesses
testif*ing against him and to cross-e1amine them. $oreover7
the court is without the opportunit* to test the credibilit* of
hearsa* statements b* observing the demeanor of the person
who made them.
E*/E,TIONS TO T>E >EARSA' R(LE
>D2;5L2C4LD <:-CA?
!? D*ing declaration;
"? 2ntries in the course of business9
&? ;erbal acts9
'? 5amil* reputation or tradition regarding
pedigree9
(? Learned treatises9
)? 2ntries in official records9
+? Common reputation9
-? 4estimon* or deposition at a former
proceeding9
.? Declaration against interest9
!D? <aiver9
!!? :ndependentl* relevant evidence9
!"? Commercial lists and the like9
!&? Act or declaration about pedigree9 and
!'? art of res 3est"e.
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4he statements from which the facts in issue ma* be inferred
ma* be testified to b* witnesses without violating the
hearsa* rule. 3f this kind areE
Statements of a personE
a? showing his state of mind7 that is his mental
condition7 knowledge7 belief7 intention7 ill-will and
other emotion9
b? showing his ph*sical condition7 as illness and the
like9
c? from which an inference ma* be made as to the
state of mind of another7 that is7 knowledge7 belief7
motive7 good or bad faith7 etc. of the latter9
d? which ma* identif* the date7 place7 and person in
,uestion9 and
e? showing the lack of credibilit* of a witness.
D'IN+ DE/LARATION
4he declaration of a d*ing person7 made under the
consciousness of an impending death7 ma* be received in
an* case wherein his death is the sub%ect of in,uir*7 as
evidence of the cause and surrounding circumstances of such
death.
R2AB:S:42SE
!? 4hat death is imminent and the declarant is
conscious of that fact9
"? 4hat the declaration refers to the cause and
surrounding circumstances of such death9
&? 4hat the declaration relates to facts which the
victim is competent to testif* to9 and
'? 4hat the declaration is offered in a case wherein the
declarantCs death is the sub%ect of the in,uir*.
4he most significant element is that the declaration must
have been conscious of his impending death. :t is this
consciousness which is assumed to be the compelling motive
to tell the truth. An* statement he makes not related to the
circumstances of his death is inadmissible as a d*ing
declaration.
4he d*ing declaration is admissible in A#H CAS2 provided
the sub%ect of in,uir* in that case is the death of the
declarant.
:t is re,uired that the declarant should die. :f he lives7 he
ma* testif* personall* based on his personal knowledge. :f
he is unable to testif*7 his declaration could be admitted as a
statement made b* a person immediatel* subse,uent to a
startling occurrence (cou' %e consi'ere' !"rt of res 3est"e).
DE/LARATION A+AINST INTEREST
4he declaration made b* a person deceased7 or unable to
testif*7 against the interest of the declarant7 if the fact
asserted in the declaration was at the time it was made so far
contrar* to declarantTs own interest7 that a reasonable man in
his position would not have made the declaration unless he
believed it to be true7 ma* be received in evidence against
himself or his successors in interest and against third
persons.
RE%isits :or t! xc-tion to a--$yC
a? 4hat the declarant is dead or unable to testif*9
b? 4hat it relates to a fact against the interest of the
declarant9
c? 4hat at the time he made said declaration the
declarant was aware that the same was contrar* to
his aforesaid interest9 and
d? 4hat the declarant had no motive to falsif* and
believed such declaration to be true.
ADMISSION B'
,RIVIES
DE/LARATION
A+AINST INTEREST
3ne of & e1ceptions to res
inter alios acta
21ception to hearsa*
2vidence against the
successor in interest of the
admitter
2vidence against even the
declarant7 his successor in
interest7 or &rd persons
Admitter need not be dead
or unable to testif*
Declarant is dead or unable
to testif*
Relates to title to propert* Relates to an* interest
Admission need not be
against the admitterLs
interest
Declaration must be against
the interest of the declarant
A/T OR DE/LARATION ABO(T ,EDI+REE
4he word FpedigreeF includes relationship7 famil*
genealog*7 birth7 marriage7 death7 the dates when and the
places where these facts occurred7 and the names of the
relatives. :t embraces also facts of famil* histor* intimatel*
connected with pedigree.
edigree is the histor* of famil* descent which is transmitted
from one generation to another b* both oral and written
declarations and b* traditions.
RE%isits :or a--$ica9i$ityC
a? Declarant is dead or unable to testif*9
b? #ecessit* that pedigree be in issue9
c? Declarant must be a relative of the person whose
pedigree is in ,uestion9
d? Declaration must be made before the controvers*
occurred9 and
e? 4he relationship between the declarant and the
person whose pedigree is in ,uestion must be
shown b* evidence other than such act or
declaration.
)AMIL' RE,(TATION OR TRADITION
RE+ARDIN+ ,EDI+REE
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2ntries in famil* bibles or other famil* books or charts7
engravings on rings7 famil* portraits and the like7 ma* be
received as evidence of pedigree.
RE%isits :or t! xc-tion to a--$yC
a? 4here is a controvers* in respect to the pedigree of
an* members of a famil*9
b? 4he reputation or tradition of the pedigree of the
person concerned e1isted ante litem motam or
pervious to the controvers*9 and
c? 4he witness testif*ing to the reputation or tradition
regarding the pedigree of the person concerned
must be a member of the famil* of said person7
either b* consanguinit* or affinit*.
/OMMON RE,(TATION
RE%isits :or t! a#missi9i$ity o: t! xc-tionC
a? 4he facts must be of public or general interest and
more than thirt* *ears old9
b? 4he common reputation must have been ancient
>more than &D *ears old or one generation old?9
c? 4he reputation must have been one formed among
the class of persons who were in a position to have
some sources of information and to contribute
intelligentl* to the formation of the opinion9 and
4he common reputation must have been e1isting previous to
the controvers*.
Re,uisites for the admissibilit* of common reputation
respecting marriageE
a? 4he common reputation must have been formed
previous to the controvers*9 and
b? 4he common reputation must have been formed in
the communit* or among the class of persons who
are in a position to have sources of information and
to contribute intelligentl* to the formation of the
opinion.
Re,uisites for the admissibilit* of common reputation
respecting moral characterE
a? 4hat it is the reputation in the place where the
person in ,uestion is best known9
b? 4hat it was formed "nte ite$ $ot"$.
Character refers to the inherent ,ualities of the person7 rather
than to an* opinion that ma* be formed or e1pressed of him
b* others. Reputation applies to the opinion which others
ma* have formed and e1pressed of his character.
$onuments and inscriptions in public places ma* be
received as evidence of common reputation.
,ART O) T>E RES +ESTAE
Statements made b* a person while a startling occurrence is
taking place or immediatel* prior or subse,uent thereto with
respect to the circumstances thereof7 ma* be given in
evidence as part of the res gestae. So7 also7 statements
accompan*ing an e,uivocal act material to the issue7 and
giving it a legal significance7 ma* be received as part of the
res gestae.
Res gestae is from the Latin meaning Mthings doneN. As
applied to a crime7 res gestae means the complete criminal
transaction from its beginning or starting point in the act of
the accused until the end is reached.
4he general classes of declarations to which the term res
gestae is usuall* applied are >a? spontaneous statements7 and
>b? verbal acts.
S,ONTANEO(S
STATEMENTS
VERBAL A/TS
Statement or e1clamation
made immediatel* after
some e1citing occasion b*
a participant or spectator
and asserting the
circumstances of that
occasion as it is observed
b* him.
Btterances which
accompan* some act or
conduct to which it is
desired to give a legal
effect. <hen such act has
intrinsicall* no definite
legal significance7 or onl*
an ambiguous one7 its
legal purport or tenor ma*
be ascertained b*
considering the words
accompan*ing it7 and
these utterances thus enter
merel* as verbal part of
the act.
4he res gestae is the
startling occurrence
4he res gestae is the
e,uivocal act
Spontaneous e1clamation
ma* be prior to7
simultaneous with7 or
subse,uent to the startling
occurrence.
;erbal act must be
contemporaneous with or
must accompan* the
e,uivocal act to be
admissible.
*e"son for "'$issi%iit+0
4rustworthiness and
necessit*Sbecause
statements are made
instinctivel*7 and because
said natural and
spontaneous utterances are
more convincing than the
testimon* of the same
person on the stand.
*e"son for "'$issi%iit+0
4he motive7 character and
ob%ect of an act are
fre,uentl* indicated b*
what was said b* the
person engaged in the act.
*e(uisites for
"'$issi%iit+0
a? 4here must be a
startling occurrence9
b? 4he statement must
relate to the
circumstances of the
startling occurrence9
c? 4he statement must be
spontaneous.
*e(uisites for
"'$issi%iit+0
a? Act or occurrence
characteri@ed must be
e,uivocal9
b? ;erbal acts must
characteri@e or
e1plain the e,uivocal
act9
c? 2,uivocal act must be
relevant to the issue9
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BERT – NOTES in REMEDIAL LAW
145
d? ;erbal acts must be
contemporaneous
with e,uivocal act.
ENTRIES IN T>E /O(RSE O) B(SINESS
RE%isits :or a#missi9i$ityC
a? 2ntries must have been made at or near the time of
the transaction to which the* refer9
b? 2ntrant must have been in a position to know the
facts stated in the entries9
c? 2ntries must have been made b* entrant in his
professional capacit* or in the performance of his
dut*9
d? 2ntries were made in the ordinar* or regular course
of business of duties9
e? 2ntrant must be deceased or unable to testif*.
ENTRIES IN O))I/IAL RE/ORDS
2ntries in official records made in the performance of his
dut* b* a public officer of the hilippines7 or b* a person in
the performance of a dut* speciall* en%oined b* law7 are
prima facie evidence of the facts therein stated.
/OMMER/IAL LISTS AND T>E LI8E
2vidence of statements of matters of interest7 to persons
engaged in an occupation contained in a list7 register7
periodical7 or other published compilation is admissible as
tending to prove the truth of an* relevant matter so stated if
that compilation is published for use b* persons engaged in
that occupation and is generall* used and relied upon b*
them therein.
LEARNED TREATIES
A published treatise7 periodical or pamphlet on a sub%ect of
histor*7 law7 science or art is admissible as tending to prove
the truth of a matter stated therein if the court takes %udicial
notice7 or a witness e1pert in the sub%ect testifies that the
writer of the statement in the treatise7 periodical or pamphlet
is recogni@ed in his profession or calling as e1pert in the
sub%ect.
TESTIMON' OR DE,OSITION AT A )ORMER
TRIAL
4he testimon* or deposition of a witness deceased or unable
to testif*7 given in a former case or proceeding7 %udicial or
administrative7 involving the same parties and sub%ect
matter7 ma* be given in evidence against the adverse part*
who had the opportunit* to cross-e1amine him.
:f the witness has been sub%ected to cross-e1amination in a
former trial7 the rule is satisfied7 and the former testimon*
ma* now be used.
O,INION R(LE
82#2RAL RBL2E the opinion of a witness is not
admissible. 4he witness must testif* to facts within their
knowledge and ma* not state their opinion7 even on their
cross-e1amination.
2RC24:3#SE
!? O,INION O) E*,ERT WITNESS < 3n a matter
re,uiring special knowledge7 skill7 e1perience or
training which he possesses7 that is7 when he is an
e1pert thereon ma* be received in evidence. E#!ert
testi$on+ is not "'$issi%e "s to " $"tter not in
issue.
"? O,INION O) ORDINAR' WITNESSESE
a? 4he identit* of a person about whom he
has ade,uate knowledge9
b? A handwriting of a person with which he
has sufficient familiarit*9
c? 4he mental sanit* or a person with whom
he is sufficientl* ac,uainted9 and
d? 4he witnessC impression of the emotion7
behavior7 condition or appearance of a
person.
 *e"son0 it is for the court to for$ "n o!inion
concernin3 the f"cts in !roof of )hich e6i'ence is
offere'.
O,INION O) E*,ERT WITNESS
:t is sufficient that the following factors are presentE
a? 4raining and education9
b? articular7 first-hand familiarit* with the facts of
the case9 and
c? resentation of the authorities or standards upon
which his opinion is based.
Before one ma* be allowed to testif* as an e1pert witness7
his ,ualification must first be established b* the part*
presenting him7 i.e.7 he must be shown to possess the special
skill or knowledge relevant to the ,uestion to which he is to
e1press an opinion. Common sub%ects of e1pert testimon*E
handwriting7 t*pewritten documents7 fingerprints7 ballistics7
medicine7 value of properties and services.
/>ARA/TER EVIDEN/E
Character evidence7 as a general rule7 is not admissible in
evidence because the evidence of a personCs character does
not prove that such person acted conformit* with such
character or trait in a particular occasion. 21ceptionsE
a? :n criminal cases7 the prosecution ma* not at the
outset prove the bad moral character of the accused
which is pertinent to the moral trait involved in the
offense charged. :f the accused7 however7 in his
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BERT – NOTES in REMEDIAL LAW
146
defense attempts to prove his good moral character
then the prosecution can introduce evidence of such
bad moral character at the rebuttal stage.
b? Also in criminal case7 the good or bad moral
character of the offended part* ma* alwa*s be
proved b* either part* as long as such evidence
tends to establish the probabilit* or improbabilit* of
the offense charged.
c? :n civil cases7 the moral character of either part*
thereto cannot be proved unless it is pertinent to the
issue of character involved in the case.
d? :n both civil and criminal cases7 the bad moral
character of a witness ma* alwa*s be proved b*
either part* but not evidence of his good character7
unless it has been impeached.
<ith respect to the nature or substance of the character
evidence which ma* be admissible7 the rules re,uire thatE
a? <ith respect to the accused7 such character
evidence must be pertinent to the moral trait
involved in the offense charged9
b? <ith respect to the offended person7 it is sufficient
that such character evidence ma* establish in an*
reasonable degree the probabilit* or improbabilit*
of the offense charged7 as in prosecutions for rape
or consented abduction wherein the victimLs
chastit* ma* be ,uestioned7 and in prosecution for
homicide wherein the pugnacious7 ,uarrelsome or
trouble-seeking character of the victim is a proper
sub%ect of in,uir*9 and
c? <ith respect to witnesses7 such character evidence
must refer to his general reputation for truth7
honest* or integrit*7 that is7 as affecting his
credibilit*.
R(LE ON E*AMINATION O) A />ILD WITNESS
;A&M& NO& 002<05<S/=
A,,LI/ABILIT' O) T>E R(LE
Bnless otherwise provided7 this Rule shall govern the
e1amination of child witnesses who are victims of crime7
accused of a crime7 and witnesses to crime. :t shall appl* in
all criminal proceedings and non-criminal proceedings
involving child witnesses.
MEANIN+ O) J/>ILD WITNESSN
An* person who at the time of giving testimon* is below the
age of !- *ears. :n child abuse cases7 a child includes one
over !- *ears but is found b* the court as unable to full*
take care of himself or protect himself from abuse7 neglect7
cruelt*7 e1ploitation7 or discrimination because of a ph*sical
or mental disabilit* or condition.
/OM,ETEN/' O) A />ILD WITNESS
2ver* child is presumed ,ualified to be a witness. 0owever7
the court shall conduct a competenc* e1amination of a child
(on+ %+ the &u'3e, or court) 7 motu propio or on motion of a
part*7 when it finds that substantial doubt e1ists regarding
the stabilit* of the child to perceive7 remember7
communicate7 distinguish truth from falsehood7 or appreciate
the dut* to tell the truth in court. 4he court has the dut* of
continuousl* assessing the competence of the child
throughout his testimon*.
E*AMINATION O) A />ILD WITNESS
4he e1amination of a child witness presented in a hearing or
an* proceeding shall be done in open court. Bnless the
witness is incapacitated to speak7 or the ,uestion calls for a
different mode of answer7 the answers of the witness shall be
given orall*. 4he part* who presents a child witness or the
guardian ad litem of such child witness ma*7 however7 move
the court to allow him to testif* in the manner provided in
this Rule.
LIVE<LIN8 TV TESTIMON' O) A />ILD WITNESS
;SE/& 23=
4he prosecutor7 counsel or the guardian ad litem ma* appl*
for an order that the testimon* of the child be taken in a
room outside the courtroom and be televised to the
courtroom b* live-link television.
4he court ma* order that the testimon* of the child be taken
b* live-link television if there is a substantial likelihood that
the child would suffer trauma from testif*ing in the presence
of the accused7 his counsel or the prosecutor as the case ma*
be. 4he trauma must be of a kind which would impair the
completeness or truthfulness of the testimon* of the child.
4he child shall therefore testif* in a room separate from the
courtroom.
VIDEOTA,ED DE,OSITION O) A />ILD WITNESS
4he prosecutor7 counsel7 or guardian ad litem ma* appl* for
an order that a deposition be taken of the testimon* of the
child and that it be recorded and preserved on videotape. 4he
%udge shall preside at the videotaped deposition of a child.
3b%ections to deposition testimon* or evidence and the
grounds for the ob%ection shall be stated and shall rule upon
at the time of the taking of the deposition.
4he videotaped deposition shall be preserved and
stenographicall* recorded. 4he videotape and the
stenographic notes shall be transmitted to the clerk of the
court where the case is pending for safekeeping and shall be
made a part of the record. 4he videotaped deposition and
stenographic notes shall be sub%ect to a protective order.
:f7 at the time of trial7 the court finds that the child is unable
to testif*7 the court ma* admit into evidence the videotaped
deposition of the child in lieu of his testimon* at the trial.
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BERT – NOTES in REMEDIAL LAW
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After the original videotaping but before or during trial7 an*
part* ma* file an* motion for additional videotaping on the
ground of newl* discovered evidence.
>EARSA' E*/E,TION IN />ILD AB(SE /ASES
A statement made b* a child describing an* act or attempted
act of child abuse7 not otherwise admissible under the
hearsa* rule7 ma* be admitted in evidence in an* criminal or
non-criminal proceeding sub%ect to the following rulesE
a? Before such hearsa* statement ma* be admitted7 its
proponent shall make known to the adverse part*
the intention to offer such statement and its
particulars to provide him a fair opportunit* to
ob%ect. :f the child is available7 the court shall7 upon
motion of the adverse part*7 re,uire the child to be
present at the presentation of the hearsa* statement
for cross-e1amination b* the adverse part*. <hen
the child is unavailable7 the fact of such
circumstance must be proved b* the proponent.
b? :n ruling on the admissibilit* of such hearsa*
statement7 the court shall consider the time7 content
and circumstances thereof which provide sufficient
indicia of reliabilit*.
4he child witness shall be considered unavailable under the
following situationsE
a? :s deceased7 suffers from ph*sical infirmit*7 lack of
memor*7 mental illness7 or will be e1posed to sever
ps*chological in%ur*9 or
b? :s absent from the hearing and the proponent of his
statement has been unable to procure his attendance
b* process or other reasonable mean.
<hen the child witness is unavailable7 his hearsa* testimon*
shall be admitted onl* if corroborated b* other admissible
evidence.
SE*(AL AB(SE S>IELD R(LE
a? 4he following evidence is #34 AD$:SS:BL2 in an*
criminal proceeding involving alleged child se1ual
abuseE
a. 2vidence offered to prove that the alleged
victim engaged in other se1ual behavior9 and
b. 2vidence offered to prove the se1ual pre-
disposition of the alleged victim.
b? 2RC24:3#E 2vidence of specific instances of se1ual
behavior b* the alleged victim to prove that a person
other than the accused was the source of semen7 in%ur*7
or other ph*sical evidence shall be admissible.
,ROTE/TIVE ORDERS
rotection of privac* and safet* - An* videotape or
audiotape of a child that is part of the court record shall be
under a protective order. 4he court ma*7 motu propio or on
motion of an* part*7 the child7 his parents7 legal guardian7 or
the guardian ad litem7 issue additional orders to protect the
privac* of the child.
O))ER AND OB.E/TION ;R(LE 112=
O))ER O) EVIDEN/E
4he court shall consider no evidence which has not been
formall* offered. 4he purpose for which the evidence is
offered must be specified.
W>EN TO MA8E AN O))ER
 testimon* of a witness - the offer must be made at the
time the witness is called to testif*.
 Documentar* and ob%ect evidence shall be offered after
the presentation of a part*Ts testimonial evidence. Such
offer shall be done orall* unless allowed b* the court to
be done in writing.
OB.E/TION
 3b%ection to evidence offered orall* must be made
immediatel* after the offer is made.
 3b%ection to a ,uestion propounded in the course of the
oral e1amination of a witness shall be made as soon as
the grounds therefor shall become reasonabl* apparent.
 An offer of evidence in writing shall be ob%ected to
within three >&? da*s after notice of the offer unless a
different period is allowed b* the court. :n an* case7 the
grounds for the ob%ections must be specified.
 Groun's for o%&ection0 Ce"rs"+; Ar3u$ent"ti6e;
5e"'in3; ,ise"'in3; Inco$!etent; Irree6"nt; Best
e6i'ence rue; P"roe e6i'ence rue; ?uestion h"s no
%"sis
RE,ETITION O) AN OB.E/TION
<hen it becomes reasonabl* apparent in the course of the
e1amination of a witness that the ,uestions being
propounded are of the same class as those to which ob%ection
has been made7 whether such ob%ection was sustained or
overruled7 it shall not be necessar* to repeat the ob%ection7 it
being sufficient for the adverse part* to record his
continuing ob%ection to such class of ,uestions.
R(LIN+
4he ruling of the court must be given immediatel* after the
ob%ection is made7 unless the court desires to take a
reasonable time to inform itself on the ,uestion presented9
but the ruling shall alwa*s be made during the trial and at
such time as will give the part* against whom it is made an
opportunit* to meet the situation presented b* the ruling.
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STRI8IN+ O(T O) AN ANSWER
Should a witness answer the ,uestion before the adverse
part* had the opportunit* to voice full* its ob%ection to the
same7 and such ob%ection is found to be meritorious7 the
court shall sustain the ob%ection and order the answer given
to be stricken off the record. 3n proper motion7 the court
ma* also order the striking out of answers which are
incompetent7 irrelevant7 or otherwise improper.

TENDER O) E*/L(DED EVIDEN/E
 :f documents or things offered in evidence are e1cluded
b* the court7 the offeror ma* have the same attached to
or made part of the record.
 :f the evidence e1cluded is oral7 the offeror ma* state
for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimon*.
NotC S%-rm /o%rt R%$ings as o: Dcm9r 2010 –
inc$%##
REVISED R(LES ON S(MMAR' ,RO/ED(RE
(,e1C, ,1C "n' ,C1C)
/ASES /OVERED B' T>E R(LE
1= /IVIL /ASES
a. All cases of forcible entr* and unlawful
detainer irrespective of the amount of damages
or unpaid rentals sought to be recovered.
b. All other cases7 e1cept probate proceedings
where the total amount of the plaintiffLs claim
does not e1ceed !DD7DDD outside7 or "DD7DDD
in $etro $anila7 e1clusive of interest and
costs.
2= /RIMINAL /ASES
a. ;iolation of Bouncing Checks Law >B ""?9
b. ;iolation of traffic laws7 rules and regulations9
c. ;iolations of rental laws9
d. All other criminal cases where the penalt*
prescribed b* law for the offense charged is
imprisonment not e1ceeding ) months or a fine
not e1ceeding !7DDD or both7 irrespective of
other imposable penalties7 accessor* or
otherwise7 or of the civil liabilit* arising
therefrom9 and in offenses involving damages
to propert* through criminal negligence7 where
the imposable fine does not e1ceed !7DDD.
e. :n offenses involving damage to propert*
through criminal negligence7 where the
imposable fine does not e1ceed !D7DDD.DD
 #oteE 4he Rule shall not appl* in a civil case where the
cause of action is pleaded with another cause of action
sub%ect to the ordinar* procedure7 nor to criminal case
where the offense charged is necessar* related to
another criminal case sub%ect to the ordinar* procedure.
E))E/T O) )AIL(RE TO ANSWER
 Should the defendant fail to answer the complaint
within !D da*s from service of summons7 the court
shall $34B R3:3 or 3# $34:3# of the
plaintiff7 shall render %udgment as ma* be
warranted b* the facts alleged in the complaint and
limited to what is pra*ed for therein.
 4his is without pre%udice to the applicabilit* of Sec.
8, *ue 1< if there are two or more defendants.
,RELIMINAR' /ON)EREN/E AND
A,,EARAN/ES O) ,ARTIES
 a preliminar* conference shall be held not later than
&D da*s after the last answer is filed. 4he rules on
pre-trial in ordinar* cases shall be applicable to the
preliminar* conference unless inconsistent with the
provisions of the Rule.
 4he failure of the plaintiff to appear in the
preliminar* conference shall be cause for the
dismissal of his complaint. 4he defendant who
appears in the absence of the plaintiff shall be
entitled to %udgment on his counterclaim. All cross-
claims shall be dismissed.
 :f a sole defendant shall fail to appear7 the plaintiff
shall be entitled to %udgment as warranted b* the
allegations in the complaint and limited to the
reliefs pra*ed for therein. 4he Rule shall not appl*
where one of two or more defendants sued under a
common cause of action who had pleaded a
common defenses shall appear at the preliminar*
conference.
8ATAR(N+AN+ ,AMBARAN+A' (&ecs. *((
522, 7:))
S(B.E/T MATTER )OR AMI/ABLE SETTLEMENT
4he lupon of each baranga* shall have authorit* to bring
together the parties actuall* residing in the same
municipalit* or cit* for amicable settlement of all disputes
2RC24E
!? <here one part* is the government or an*
subdivision or instrumentalit* thereof9
"? <here one part* is a public officer or emplo*ee7
and the dispute relates to the performance of his
official functions9
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&? 3ffenses punishable b* imprisonment e1ceeding
one >!? *ear or a fine e1ceeding (7DDD9
'? 3ffenses where there is no private offended part*9
(? <here the dispute involves real properties located
in different cities or municipalities unless the
parties thereto agree to submit their differences to
amicable settlement b* an appropriate lupon9
)? Disputes involving parties who actuall* reside in
baranga*s of different cities or municipalities7
e1cept where such baranga* units ad%oin each other
and the parties thereto agree to submit their
differences to amicable settlement b* an
appropriate lupon9
+? Such other classes of disputes which the resident
ma* determine in the interest of %ustice or upon the
recommendation of the Secretar* of /ustice9
-? An* complaint b* or against corporations7
partnerships7 or %uridical entities. 4he reason is that
onl* individuals shall be parties to baranga*
conciliation proceedings either as complainants or
respondents9
.? Disputes where urgent legal action is necessar* to
prevent in%ustice from being committed or further
continued7 speciall* the followingE
a? A criminal case where the accused is
under police custod* or detention9
b? A petition for habeas corpus b* a person
illegall* detained or deprived of his libert*
or one acting in his behalf9
c? Actions coupled with provisional
remedies7 such as preliminar* in%unction7
attachment7 replevin and support pendente
litem9
d? <here the action ma* be barred b* the
statute of limitations9
!D? Labor disputes or controversies arising from
emplo*er-emplo*ee relationship.
!!? <here the dispute arises from the Comprehensive
Agrarian Reform Law9
!"? Actions to annul %udgment upon a compromise
which can be filed directl* in court.
4he court in which non-criminal cases not falling within the
authorit* of the lupon under the Code are filed ma*7 at an*
time before trial7 motu propio refer the case to the lupon
concerned for amicable settlement.
VEN(E
!? Disputes between persons actuall* residing in the same
baranga*9
"? 4hose involving actual residents of different baranga*s
within the same cit* or municipalit*9
&? All disputes involving real propert* or an* interest
therein where the real propert* or the larger portion
thereof is situated9
'? 4hose arising at the workplace where the contending
parties are emplo*ed or at the institution where such
parties are enrolled for stud*7 where such workplace or
institution is located.
 F%&ections to 6enue sh" %e r"ise' in the
$e'i"tion !rocee'in3s %efore the !unon3
%"r"n3"+; other)ise, the s"$e sh" %e 'ee$e'
)"i6e'. An+ e3" (uestion )hich $"+ confront the
!unon3 %"r"n3"+ in reso6in3 o%&ections to 6enue
herein referre' to $"+ %e su%$itte' to the
Secret"r+ of 2ustice, or his 'u+ 'esi3n"te'
re!resent"ti6e, )hose ruin3 thereon sh" %e
%in'in3.
W>EN ,ARTIES MA' DIRE/TL' +O TO /O(RT
!? <here the accused is under detention9
"? <here a person has otherwise been deprived or
personal libert* calling for habeas corpus
proceedings9
&? <here actions are coupled with provisional
remedies such as preliminar* in%unction7
attachment7 deliver* of personal propert*7 and
support pendente lite9 and
'? <here the action ma* otherwise be barred b* the
statute of limitations.
E*E/(TION
4he amicable settlement or arbitration award ma* be
enforced b* e1ecution b* the lupon within si1 >)? months
from the date of the settlement. After the lapse of such time7
the settlement ma* be enforced b* action in the appropriate
cit* or municipal court.
RE,(DIATION
An* part* to the dispute ma*7 within ten >!D? da*s from the
date of the settlement7 repudiate the same b* filing with the
lupon chairman a statement to that effect sworn to before
him7 where the consent is vitiated b* fraud7 violence7 or
intimidation. Such repudiation shall be sufficient basis for
the issuance of the certification for filing a complaint before
the court.
R(LE O) ,RO/ED(RE )OR SMALL /LAIMS
/ASES ;AM No& 06<6<5<S/? as amn##=
S/O,E AND A,,LI/ABILIT' O) T>E R(LE
4his Rule shall govern the procedure in actions before theE
a? $etropolitan 4rial Courts9
b? $unicipal 4rial Courts in Cities9
c? $unicipal 4rial Courts9 and
d? $unicipal Circuit 4rial Courts
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152
 for pa*ment of mone* where the value of the claim
D32S #34 2RC22D !DD7DDD.DD e1clusive of
interest and costs.
4he $4Cs shall appl* this Rule in all actions which areE
a? purel* civil in nature where the claim or relief
pra*ed for b* the plaintiff is solel* for pa*ment or
reimbursement of sum of mone*9 and
b? the civil aspect of criminal actions7 either filed
before the institution of the criminal action7 or
reserved upon the filing of the criminal action in
court7 pursuant to Rule !!! of the Revised Rules of
Criminal rocedure.
4hese claims or demands ma* beE
a? 5or mone* owed under an* of the followingE
!. Contract of Lease9
". Contract of Loan9
&. Contract of Services9
'. Contract of Sale9 or
(. Contract of $ortgage9
b? 5or damages arising from an* of the followingE
!. 5ault or negligence9
". Auasi-contract9 or
&. Contract9
c? 4he enforcement of a baranga* amicable
settlement or an arbitration award involving a
mone* claim covered b* this Rule pursuant to
Sec. '!+ of RA +!)D.
/OMMEN/EMENT O) SMALL /LAIMS A/TION
A small claims action is commenced b* filing with the court
anE
!? accomplished and verified Statement of Claim in
duplicate9
"? a Certification of #on-forum Shopping9
&? two >"? dul* certified photocopies of the actionable
document6s sub%ect of the claim9
'? the affidavits of witnesses and other evidence to
support the claim.
 -o e6i'ence sh" %e "o)e' 'urin3 the he"rin3 )hich
)"s not "tt"che' to or su%$itte' to3ether )ith the
C"i$, uness 3oo' c"use is sho)n for the "'$ission of
"''ition" e6i'ence. -o for$" !e"'in3, other th"n the
St"te$ent of C"i$ is necess"r+ to initi"te " s$"
c"i$s "ction.
RES,ONSE
4he defendant shall file with the court and serve on the
plaintiff a dul* accomplished and verified Response within a
non-e1tendible period of ten >!D? da*s from receipt of
summons. 4he response shall be accompanied b* certified
photocopies of documents7 as well as affidavits of witnesses
and other evidence in support thereof. #o evidence shall be
allowed during the hearing which was not attached to or
submitted together with the Response7 unless good cause is
shown for the admission of additional evidence. 1he
3roun's for the 'is$iss" of the c"i$, un'er *ue 1; of the
*ues of Court, shou' %e !e"'e'.
E))E/T O) )AIL(RE TO )ILE RES,ONSE
Should the defendant fail to file his Response within the
re,uired period7 and likewise fail to appear at the date set for
hearing7 the court shall render %udgment on the same da*7 as
ma* be warranted b* the facts.
Should the defendant fail to file his Response within the
re,uired period but appears at the date set for hearing7 the
court shall ascertain what defense he has to offer and
proceed to hear7 mediate or ad%udicate the case on the same
da* as if a Response has been filed.
,RO>IBITED ,LEADIN+S AND MOTIONS
a? $otion to dismiss the complaint9
b? $otion for a bill of particulars9
c? $otion for new trial7 or for reconsideration of a
%udgment7 or for reopening of trial9
d? etition for relief from %udgment9
e? $otion for e1tension of time to file pleadings7
affidavits7 or an* other paper9
f? $emoranda9
g? etition for certiorari7 mandamus7 or prohibition
against an* interlocutor* order issued b* the court9
h? $otion to declare the defendant in default9
i? Dilator* motions for postponement9
%? Repl*9
k? 4hird-part* complaints9 and
l? :nterventions.
A,,EARAN/ES
4he parties shall appear at the designated date of hearing
2RS3#ALLH. Appearance through a representative must
be for a 6"i' c"use. 4he representative of an individual-
part* mustE
!? not be a law*er9 and
"? must be related to or ne1t-of-kin of the individual-
part*.
 2uri'ic" entities sh" not %e re!resente' %+ " ")+er in
"n+ c"!"cit+.
4he representative must be authori@ed under a Special
ower of Attorne* to enter into an amicable settlement of
the dispute and to enter into stipulations or admissions of
facts and of documentar* e1hibits.
E))E/T O) )AIL(RE TO A,,EAR
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5ailure of the plaintiff to appear shall be cause for the
dismissal of the claim without pre%udice. 4he defendant who
appears shall be entitled to %udgment on a permissive
counterclaim.
5ailure of the defendant to appear shall have the same effect
as failure to file a Response. 4his rule shall not appl* where
one of two or more defendants sued on a common cause of
action appear.
5ailure of both parties to appear shall cause the dismissal
with pre%udice of both the claim and counterclaim.
>EARIN+H D(T' O) T>E .(D+E
At the beginning7 the %udge shall read aloud a short
statement e1plaining the nature7 purpose and the rule of
procedure of small claims cases and shall e1ert efforts to
bring the parties to an amicable settlement of their dispute.
An* settlement or resolution of the dispute shall be reduced
into writing7 signed b* the parties and submitted to the court
for approval.
Settlement discussions shall be strictl* confidential and an*
reference to an* settlement made in the course of such
discussions shall be punishable b* contempt.
)INALIT' O) .(D+MENT
After the hearing7 the court shall render its decision on the
same da* and the same shall be final and unappealable and if
it is in favor of the plaintiff7 the %udgment shall be e1ecuted
upon his motion.
R(LES O) ,RO/ED(RE )OR ENVIRONMENTAL
/ASES (A@ 4o. 0(,A,B,&))
S/O,E AND A,,LI/ABILIT' O) T>E R(LE
4hese Rules shall govern the procedure in civil7 criminal and
special civil actions before the R4Cs and $4Cs involving
enforcement or violations of environmental and other related
laws7 rules and regulations.
/IVIL ,RO/ED(RE
,RO>IBITION A+AINST TEM,ORAR'
RESTRAININ+ ORDER AND ,RELIMINAR'
IN.(N/TION
21cept the Supreme Court7 no court can issue a 4R3 or writ
of preliminar* in%unction against lawful actions of
government agencies that enforce environmental laws or
prevent violations thereof e1cept the Supreme Court.
,RE<TRIAL /ON)EREN/EH /ONSENT DE/REE
;SE/& 3? R(LE 1=
 4he %udge shall put the parties and their counsels under
oath7 and the* shall remain under oath in all pre-trial
conferences.
 4he %udge shall e1ert best efforts to persuade the parties
to arrive at a settlement of the dispute. 4he %udge ma*
issue a consent decree approving the agreement between
the parties in accordance with law7 morals7 public order
and public polic* to protect the right of the people to a
balanced and healthful ecolog*.
 2vidence not presented during the pre-trial7 e1cept
newl* discovered evidence7 shall be deemed waived.
 C3#S2#4 D2CR22 refers to a %udiciall*-approved
settlement between concerned parties based on public
interest aspect in environmental cases and encourages
the parties to e1pedite the resolution of litigation.
,RO>IBITED ,LEADIN+S AND MOTIONS ;SE/& 2?
R(LE 2=
a? $otion to dismiss the complaint9
b? $otion for a bill of particulars9
c? $otion for e1tension of time to file pleadings7
e1cept to file answer7 the e1tension not to e1ceed
fifteen >!(? da*s9
d? $otion to declare the defendant in default9
e? Repl* and re%oinder9 and
f? 4hird part* complaint.
$otion for postponement7 motion for new trial and petition
for relief from %udgment shall onl* be allowed in certain
conditions of highl* meritorious cases or to prevent a
manifest miscarriage of %ustice. 4he satisfaction of these
conditions is re,uired since these motions are prone abuse
during litigation.
$otion for intervention is permitted in order to allow the
public to participate in the filing and prosecution of
environmental cases7 which are imbued with public interest.
etitions for certiorari are likewise permitted since these
raise fundamentall* ,uestions of %urisdiction.
TEM,ORAR' ENVIRONMENTAL ,ROTE/TION
ORDER ;TE,O=
1e$!or"r+ En6iron$ent" Protection Fr'er (1EPF) / refers
to an order issued b* the court directing or en%oining an*
person or government agenc* to perform or desist from
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performing an act in order to protect7 preserve or rehabilitate
the environment.
4he 423 shall be issued it appears from the verified
complaint with a pra*er for the issuance of an
2nvironmental rotection 3rder >23? that the matter is of
e1treme urgenc* and the applicant will suffer grave in%ustice
and irreparable in%ur*. 4he applicant shall be e1empted from
the posting of a bond for the issuance of a 423.
4he e1ecutive %udge of the multiple sala court before raffle
or the presiding %udge of a single-sala court as the case ma*
be7 ma* issue e1 parte a 423 effective for onl* sevent*-
two >+"? hours from date of the receipt of the 423 b* the
part* or person en%oined. <ithin said period7 the court where
the case is assigned7 shall conduct a summar* hearing to
determine whether the 423 ma* be e1tended until the
termination of the case.
4he court handling the case shall periodicall* monitor the
e1istence of acts that are the sub%ect matter of the 423 and
ma* lift the same at an* time as circumstances ma* warrant.
An "!!ic"nt is e#e$!t fro$ the !ostin3 of " %on'. =hie the
1EPF $"+ %e issue' e# !"rte, this is $ore of the e#ce!tion.
1he 3ener" rue on the con'uct of " he"rin3 !ursu"nt to
'ue !rocess re$"ins.
.(D+MENT AND E*E/(TION ;R(LE 3=
An* %udgment directing the performance of acts for the
protection7 preservation or rehabilitation of the environment
shall be e1ecutor* pending appeal B#L2SS restrained b*
the appellate court.
:t ma* not be sta*ed b* the posting of a bond and the sole
remed* lies with the appellate court. 4he appellate court can
issue a 4R3 to restrain the e1ecution of the %udgment and
should the appellate court act with grave abuse of discretion
in refusing to act on the application for a 4R37 a petition for
certiorari under Rule )( can be brought before the Supreme
Court.
RELIE)S IN A /ITIGENDS S(IT
An* 5ilipino citi@en in representation of others7 including
minors or generations *et unborn7 ma* file an action to
enforce rights or obligations under environmental laws.
:f warranted7 the court ma* grant to the plaintiff proper
reliefs which shall include the protection7 preservation or
rehabilitation of the environment and the pa*ment of
attorne*Ls fees7 costs of suit and other litigation e1penses. :t
ma* also re,uire the violator to submit a program of
rehabilitation or restoration of the environment7 the costs of
which shall be borne b* the violator7 or to contribute to a
special trust fund for that purpose sub%ect to the control of
the court.
,ERMANENT ENVIRONMENTAL ,ROTE/TION
ORDER
4he court ma* convert the 423 to a permanent 23 or
issue a writ of continuing mandamus directing the
performance of acts which shall be effective until the
%udgment is full* satisfied.
4he court ma*7 b* itself or through the appropriate
government agenc*7 monitor the e1ecution of the %udgment
and re,uire the part* concerned to submit written reports on
a ,uarterl* basis or sooner as ma* be necessar*7 detailing the
progress of the e1ecution and satisfaction of the %udgment.
4he other part* ma*7 at its option7 submit its comments or
observations on the e1ecution of the %udgment.
WRIT O) /ONTIN(IN+ MANDAM(S
C3#4:#B:#8 $A#DA$BS is a writ issued b* a court in
an environmental case directing an* agenc* or
instrumentalit* of the government or officer thereof to
perform an act or series of acts decreed b* final %udgment
which shall remain effective until %udgment is full* satisfied.
4he concept of continuing mandamus was originall*
enunciated in the case of Concerne' *esi'ents of ,"ni"
B"+ 6s. ,,4A, G* 1:198:/9<, 4ec. 1<, 2..<. 4he Rules
now codif* the <rit of Continuing $andamus as one of the
principal remedies which ma* be availed of in
environmental cases.
STRATE+I/ LAWS(IT A+AINST ,(BLI/
,ARTI/I,ATION
S4RA428:C LA<SB:4 A8A:#S4 BBL:C
AR4:C:A4:3# >SLA? refers to an action whether
civil7 criminal or administrative7 brought against an* person7
institution or an* government agenc* or local government
unit or its officials and emplo*ees7 with the intent to harass7
ve17 e1ert undue pressure or stifle an* legal recourse that
such person7 institution or government agenc* has taken or
ma* take in the enforcement of environmental laws7
protection of the environment or assertion of environmental
rights.
A legal action filed to harass7 ve17 e1ert undue pressure or
stifle an* legal recourse that an* person7 institution or the
government has taken or ma* take in the enforcement of
environmental laws7 protection of the environment or
assertion of environmental rights shall be treated as a
SLA.
:n a case is a SLA the defendant ma* file an answer
interposing as a defense that the case is a SLA. 4he
hearing on the defense of a SLA shall be summar* in
nature. 4he part* filing the action assailed as a SLA shall
prove b* preponderance of evidence that the action is not a
SLA and is a valid claim.
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4he defense of a SLA shall be resolved within thirt* >&D?
da*s after the summar* hearing. :f the court dismisses the
action7 the court ma* award damages7 attorne*Ls fees and
costs of suit under a counterclaim if such has been filed. 4he
dismissal shall be with pre%udice. :f the court re%ects the
defense of a SLA7 the evidence adduced during the
summar* hearing shall be treated as evidence of the parties
on the merits of the case. Since a motion to dismiss is a
prohibited pleading7 SLA as an affirmative defense
should be raised in an answer along with other defenses that
ma* be raised in the case alleged to be a SLA.
S,E/IAL ,RO/ED(RE B ,RO/EEDIN+
WRIT O) 8ALI8ASAN ;WO8=
4he writ is a e1traordinar* remed* available to a natural or
%uridical person7 entit* authori@ed b* law7 peopleCs
organi@ation7 non-governmental organi@ation7 or an* public
interest group accredited b* or registered with an*
government agenc*7 on behalf of persons whose
constitutional right to a balanced and healthful ecolog* is
violated7 or threatened with violation b* an unlawful act or
omission of a public official or emplo*ee7 or private
individual or entit*7 involving environmental damage of
such magnitude as to pre%udice the life7 health or propert* of
inhabitants in two or more cities or provinces.
4hose who ma* file for this remed* must represent the
inhabitants pre%udiced b* the environmental damage sub%ect
of the writ to be filed with the SC or CA. 4he applicant is
e1empted from !"+$ent of 'oc9et fees.
,RO>IBITED ,LEADIN+S AND MOTIONS
a? $otion to dismiss9
b? $otion for e1tension of time to file return9
c? $otion for postponement9
d? $otion for a bill of particulars9
e? Counterclaim or cross-claim9
f? 4hird-part* complaint9
g? Repl*9 and
h? $otion to declare respondent in default.
DIS/OVER' MEAS(RES
A part* ma* file a verified motion for the following reliefsE
a? 3cular :nspection - the court ma* order an*
person in possession or control of a designated
land or other propert* to permit entr* for the
purpose of inspecting or photographing the
propert* or an* relevant ob%ect or operation
thereon.
b? roduction or inspection of documents or
things - the court ma* order an* person in
possession7 custod* or control of an*
designated documents7 papers7 books7
accounts7 letters7 photographs7 ob%ects or
tangible things7 or ob%ects in digiti@ed or
electronic form7 which constitute or contain
evidence relevant to the petition or the return7
to produce and permit their inspection7 cop*ing
or photographing b* or on behalf of the
movant.
WRIT O) /ONTIN(IN+ MANDAM(S
A writ issued b* a court in an environmental case directing
an* agenc* or instrumentalit* of the government or officer
thereof to perform an act or series of acts decreed b* final
%udgment which shall remain effective until %udgment is
full* satisfied. 1he !etition sh" cont"in " s)orn
certific"tion of non/foru$ sho!!in3.
1= +RO(NDS )OR /ONTIN(IN+ MANDAM(S
a? <hen an* agenc* or instrumentalit* of the
government or officer thereof unlawfull*
neglects the performance of an act which the
law specificall* en%oins as a dut* resulting from
an office7 trust or station in connection with the
enforcement or violation of an environmental
law rule or regulation or a right therein9
b? <hen an* agenc* or instrumentalit* of the
government or officer thereof unlawfull*
e1cludes another from the use or en%o*ment of
such right.
2= REA(ISITES /ONTIN(IN+ MANDAM(S
a? 4here must be a clear legal right or dut*9
b? 4he act to be performed must be practical9
c? Respondent must be e1ercising a ministerial
dut*9
d? 4he dut* or act to be performed must be in
connection with the enforcement or violation
of an environmental law7 rule or regulation or a
right9 and
e? 4here is no other plain7 speed*7 and ade,uate
remed* in the ordinar* course of law.
4he petition shall be filed with the Regional 4rial Court
e1ercising %urisdiction over the territor* where the actionable
neglect or omission occurred or with the Court of Appeals or
the Supreme Court. 4he petitioner shall be e1empt from the
pa*ment of docket fees.
:f warranted7 the court shall grant the privilege of the writ of
continuing mandamus re,uiring respondent to perform an
act or series of acts until the %udgment is full* satisfied and
to grant such other reliefs as ma* be warranted resulting
from the wrongful or illegal acts of the respondent. Bpon
full satisfaction of the %udgment7 a final return of the writ
shall be made to the court b* the respondent. :f the court
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finds that the %udgment has been full* implemented7 the
satisfaction of %udgment shall be entered in the court docket.
4he issuance of a 423 is made available as an au1illar*
remed* prior to the issuance of the writ itself. As a special
civil action7 the <oC$a ma* be availed of to compel the
performance of an act specificall* en%oined b* law. :ts
availabilit* as a special civil action likewise complements its
role as a final relief in environmental civil cases and in the
<3=7 where continuing mandamus ma* likewise be issued
should the facts merit such relief.
WRIT O) /ONTIN(IN+ MANDAM(S VS& WRIT O)
8ALI8ASAN
&ub#ect matter. Wo/Ma is directed against the unlawful
neglect in the performance of an act which the law
specificall* en%oins as a dut* resulting from an office7 trust
or station in connection with the enforcement or violation of
an environmental law rule or regulation or a right therein9 or
>a? the unlawful e1clusion of another from the use or
en%o*ment of such right and in both instances7 there is no
other plain7 speed* and ade,uate remed* in the ordinar*
course of law. A writ of kalikasan is available against
unlawful act or omission of a public official or emplo*ee7 or
private individual or entit*7 involving environmental damage
of such magnitude as to pre%udice the life7 health or propert*
of inhabitants in two or more cities or provinces. :n addition7
magnitude of environmental damage is a condition sine ,ua
non in a petition for the issuance of a writ of kalikasan and
must be contained in the verified petition.
+ho may file. A writ of contin%ing man#am%s is available
to a broad range of persons such as natural or %uridical
person7 entit* authori@ed b* law7 peopleLs organi@ation7
#837 or an* public interest group accredited b* or
registered with an* government agenc*7 on behalf of persons
whose right to a balanced and healthful ecolog* is violated
or threatened to be violated.
/espondent. 4he respondent in a petition for continuing
mandamus is onl* the government or its officers7 unlike in a
petition for writ of kalikasan7 where the respondent ma* be a
private individual or entit*.
6-emption from doc!et fees. 4he application for either
petition is e1empted from the pa*ment of docket fees.
Cenue& A petition for the issuance of a writ of continuing
mandamus ma* be filed in the followingE >a? the R4C
e1ercising %urisdiction over the territor* where the actionable
neglect or omission occurred9 >b? the CA9 or >c? the SC.
8iven the magnitude of the damage7 the application for the
issuance of a writ of kalikasan can onl* be filed with the SC
or an* station of the CA.
iscovery measures. 4he Rule on the <C$ does not
contain an* provision for discover* measures7 unlike the
Rule on <3= which incorporates the procedural
environmental right of access to information through the use
of discover* measures such as ocular inspection order and
production order.
amages for personal in#ury. 4he <C$ allows damages
for the malicious neglect of the performance of the legal
dut* of the respondent7 identical Rule )(. :n contrast7 no
damages ma* be awarded in a petition for the issuance of a
<3= consistent with the public interest character of the
petition. A part* who avails of this petition but who also
wishes to be indemnified for in%uries suffered ma* file
another suit for the recover* of damages since the Rule on
<3= allows for the institution of separate actions.
/RIMINAL ,RO/ED(RE
W>O MA' )ILE
An* offended part*7 peace officer or an* public officer
charged with the enforcement of an environmental law.
INSTIT(TION O) /RIMINAL AND /IVIL A/TION
<hen a criminal action is instituted7 the civil action for the
recover* of civil liabilit* arising from the offense charged7
shall be deemed instituted with the criminal action B#L2SS
the complainant
a? waives the civil action
b? reserves the right to institute it separatel*
c? institutes the civil action prior to the criminal
action.
 Bnless the civil action has been instituted prior to the
criminal action7 the reservation of the right to institute
separatel* the civil action shall be made during
arraignment.
ARREST WIT>O(T WARRANTH W>EN VALID
;SE/& 1? R(LE 11=
A peace officer or an individual deputi@ed b* the proper
government agenc* ma*7 without a warrant7 arrest a personE
a? <hen7 in his presence7 the person to be arrested has
committed7 is actuall* committing or is attempting
to commit an offense9 or
b? <hen an offense has %ust been committed7 and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it.
c? :ndividuals deputi@ed b* the proper government
agenc* who are enforcing environmental laws shall
en%o* the R2SB$4:3# 35 R28BLAR:4H
under Section &>m?7 Rule !&! of the Rules of Court
when effecting arrests for violations of
environmental laws.
,RO/ED(RE IN T>E /(STOD' AND DIS,OSITION
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O) SEIGED ITEMS
Custod* and disposition of sei@ed items shall be in
accordance with the applicable laws or rules promulgated b*
the concerned government agenc*.
:n the absence of applicable laws or rules promulgated b*
the concerned government agenc*7 the following procedure
shall be observedE
a? 4he apprehending officer having initial custod* and
control of the sei@ed items7 e,uipment7
paraphernalia7 conve*ances and instruments shall
ph*sicall* inventor* and whenever practicable7
photograph the same in the presence of the person
from whom such items were sei@ed.
b? 4hereafter7 the apprehending officer shall submit to
the issuing court the return of the search warrant
within five >(? da*s from date of sei@ure or in case
of warrantless arrest7 submit within five >(? da*s
from date of sei@ure7 the inventor* report7
compliance report7 photographs7 representative
samples and other pertinent documents to the public
prosecutor for appropriate action.
c? Bpon motion b* an* interested part*7 the court ma*
direct the auction sale of sei@ed items7 e,uipment7
paraphernalia7 tools or instruments of the crime.
4he court shall7 after hearing7 fi1 the minimum bid
price based on the recommendation of the
concerned government agenc*. 4he sheriff shall
conduct the auction.
d? 4he auction sale shall be with notice to the accused7
the person from whom the items were sei@ed7 or the
owner thereof and the concerned government
agenc*.
e? 4he notice of auction shall be posted in three
conspicuous places in the cit* or municipalit*
where the items7 e,uipment7 paraphernalia7 tools or
instruments of the crime were sei@ed.
f? 4he proceeds shall be held in trust and deposited
with the government depositor* bank for
disposition according to the %udgment.
BAIL
W>ERE TO )ILE
 Bail ma* be filed with the court where the case is
pending7 or in the absence or unavailabilit* of the
%udge thereof7 with an* regional trial %udge7
metropolitan trial %udge7 municipal trial %udge or
municipal circuit trial %udge in the province7 cit* or
municipalit*.
 :f the accused is arrested in a province7 cit* or
municipalit* other than where the case is pending7
bail ma* also be filed with an* Regional 4rial
Court of said place7 or if no %udge thereof is
available7 with an* metropolitan trial %udge7
municipal trial %udge or municipal circuit trial %udge
therein.
 :f the court grants bail7 the court ma* issue a hold-
departure order in appropriate cases.
D(TIES O) T>E /O(RT
Before granting the application for bail7 the %udge must read
the information in a language known to and understood b*
the accused and re,uire the accused to sign a written
undertaking7 as followsE
a? 4o appear before the court that issued the warrant
of arrest for arraignment purposes on the date
scheduled7 and if the accused fails to appear
without %ustification on the date of arraignment7
accused waives the reading of the information and
authori@es the court to enter a plea of not guilt* on
behalf of the accused and to set the case for trial9
b? 4o appear whenever re,uired b* the court where
the case is pending9 and
c? 4o waive the right of the accused to be present at
the trial7 and upon failure of the accused to appear
without %ustification and despite due notice7 the trial
ma* proceed in absentia.
ARRAI+NMENT
4he court shall set the arraignment of the accused within
fifteen >!(? da*s from the time it ac,uires %urisdiction over
the accused7 with notice to the public prosecutor and
offended part* or concerned government agenc* that it will
entertain plea-bargaining on the date of the arraignment.
,LEA<BAR+AININ+
3n the scheduled date of arraignment7 the court shall
consider plea-bargaining arrangements. <here the
prosecution and offended part* or concerned government
agenc* agree to the plea offered b* the accused7 the court
shallE
!? :ssue an order which contains the plea-
bargaining arrived at9
"? roceed to receive evidence on the civil aspect
of the case7 if an*9 and
&? Render and promulgate %udgment of
conviction7 including the civil liabilit* for
damages.
 Pe"/%"r3"inin3 is consi'ere' "t "rr"i3n$ent in or'er
to "6oi' the situ"tion )here "n initi" !e" is ch"n3e'
in the course of the tri" in 6ie) of " successfu !e"
%"r3"in.
,RE<TRIAL
After the arraignment7 the court shall set the R2-4R:AL
C3#52R2#C2 within thirt* >&D? da*s. :t ma* refer the case
to the branch clerk of court7 if warranted7 for a preliminar*
conference to be set at least three >&? da*s prior to the pre-
trial.
D(T' O) T>E .(D+E
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!? lace the parties and their counsels under oath9
"? Adopt the minutes of the preliminar* conference as
part of the pre-trial proceedings7 confirm markings
of e1hibits or substituted photocopies and
admissions on the genuineness and due e1ecution
of documents7 and list ob%ect and testimonial
evidence9
&? Scrutini@e the information and the statements in the
affidavits and other documents which form part of
the record of the preliminar* investigation together
with other documents identified and marked as
e1hibits to determine further admissions of facts as
toE
a. 4he courtLs territorial %urisdiction relative
to the offense>s? charged9
b. Aualification of e1pert witnesses9 and
c. Amount of damages9
'? Define factual and legal issues9
(? Ask parties to agree on the specific trial dates and
adhere to the flow chart determined b* the court
which shall contain the time frames for the different
stages of the proceeding up to promulgation of
decision9
)? Re,uire the parties to submit to the branch clerk of
court the names7 addresses and contact numbers of
witnesses that need to be summoned b* subpoena9
and
+? Consider modification of order of trial if the
accused admits the charge but interposes a lawful
defense.
A+REEMENTS OR ADMISSIONS < All agreements or
admissions made or entered during the pre-trial conference
shall be reduced in writing and signed b* the accused and
counsel9 otherwise7 the* cannot be used against the accused.
4he agreements covering the matters referred to in Section
!7 Rule !!- of the Rules of Court shall be approved b* the
court.
Rcor# o: -roc#ings& All proceedings during the pre-trial
shall be recorded7 the transcripts prepared and the minutes
signed b* the parties or their counsels.
,RE<TRIAL ORDER - 4he court shall issue a pre-trial
order within ten >!D? da*s after the termination of the pre-
trial7 setting forth the actions taken during the pre-trial
conference7 the facts stipulated7 the admissions made7
evidence marked7 the number of witnesses to be presented
and the schedule of trial. 4he order shall bind the parties and
control the course of action during the trial.
S(BSIDIAR' LIABILIT'
:n case of conviction of the accused and subsidiar* liabilit*
is allowed b* law7 the court ma*7 b* motion of the person
entitled to recover under %udgment7 enforce such subsidiar*
liabilit* against a person or corporation subsidiaril* liable
under Article !D" and Article !D& of the Revised enal
Code.
SLA,, IN /RIMINAL /ASES
Bpon the filing of an information in court and before
arraignment7 the accused ma* file a motion to dismiss on the
ground that the criminal action is a SLA.
4he hearing on the defense of a SLA shall be summar* in
nature. 4he part* seeking the dismissal of the case must
prove b* substantial evidence that his acts for the
enforcement of environmental law are a legitimate action for
the protection7 preservation and rehabilitation of the
environment. 4he part* filing the action assailed as a SLA
shall prove b* preponderance of evidence that the action is
not a SLA.
4he court shall grant the motion if the accused establishes in
the summar* hearing that the criminal case has been filed
with intent to harass7 ve17 e1ert undue pressure or stifle an*
legal recourse that an* person7 institution or the government
has taken or ma* take in the enforcement of environmental
laws7 protection of the environment or assertion of
environmental rights. :f the court denies the motion7 the
court shall immediatel* proceed with the arraignment of the
accused.
EVIDEN/E
,RE/A(TIONAR' ,RIN/I,LE
,rca%tionary -rinci-$ states that when human activities
ma* lead to threats of serious and irreversible damage to the
environment that is scientificall* plausible but uncertain7
actions shall be taken to avoid or diminish that threat.
<hen there is a lack of full scientific certaint* in
establishing a casual link between human activit* and
environmental effect7 the court shall appl* the precautionar*
principle in resolving the case before it. 4he constitutional
right of the people to a balanced and healthful ecolog* shall
be given the benefit of the doubt.
:n appl*ing the precautionar* principle7 the following
factors7 among others7 ma* be consideredE
a? threats to human life or health9
b? ine,uit* to present or future generations9 or
c? pre%udice to the environment without legal
consideration of the environmental rights of those
affected.
DO/(MENTAR' EVIDEN/E
hotographic7 video and similar evidence of events7 acts7
transaction of wildlife7 wildlife b*-products or derivatives7
forest products or mineral resources sub%ect of a case shall
be admissible when authenticated b* the person who took
the same7 b* some other person present when said evidence
was taken7 or b* an* other person competent to testif* on the
accurac* thereof.
2011 Bar Examinations
BERT – NOTES in REMEDIAL LAW
157
2ntries in official records made in the performance of his
dut* b* a public officer of the hilippines7 or b* a person in
performance of a dut* especiall* en%oined b* law7 are prima
facie evidence of the facts therein stated.