Remedial Law Review Lecture and Recitation Notes

Glenn Tuazon, 4-A

Atty. Tranquil Salvador
SY 2010-11
Table of contents
1. CIVIL PROCEDURE
2. CRIMINAL PROCEDURE
3. EVIDENCE
4. SPECIAL PROCEEDINGS
PART I: CIVIL PROCEDURE

Jurisdiction
Stuff to take note of in jurisdiction:
What is the definition of jurisdiction?
Jurisdiction over the case or the subject matter? (Subject matter
jurisdiction)
Jurisdiction over the person or the defendant?
Know the rules on filing fees.
N.B. vis--vis for criminal cases:
Definition the same, as conferred by law, except you have to add that
venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in
civil cases, where parties can agree on venue or it can be subject to
waiver.
Jurisdiction over the offense. This is essentially the same as
jurisdiction over subject matter.
Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Filing fees are not necessary.

What is the definition of jurisdiction?
o The power of the court to hear, try, or decide the case
o As conferred by law
How will the court know that it has jurisdiction?
o From the allegations of the complaint.
Where do you take jurisdiction over the case?
o Conferred by law as well.
o Study BP 129, amended by RA 7691.
Do not assume that RA 7691 tells all. There are other
laws too.
What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is: Value
is > 20K (OMM), > 50K (MM)
Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
MTC. Ejectment is always under MTC,
regardless of the claim over unpaid rentals.
Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
RTC, based on assessed value (not FMV)
which is over 50K. Recovery of possession
does not necessarily mean ejectment (ex.
Accion publiciana).
Value is determined by assessed value if it
involves right, title, or interest
Ouano case?
There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
o 2. Amount incapable of pecuniary estimation
Examples: rescission, reformation of contract, specific
performance
Is expropriation capable of pecuniary estimation?
Expropriation is always filed with the RTC.
Though the subject matter is capable of
pecuniary estimation, the action is
exclusively instituted in the RTC.
What about declaratory relief?
RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality.
There is no such thing as determination of
value; just a determination of validity.
What about support?
Even if its amount can be determined, the
law confers it to the Family Courts.
Foreclosure of mortgage?
Two views: one says that its always with the
RTC, because it only covers the security of
the property. The original action is always
for recovery of money.
The other view is that it must be governed by
the value of the security.
o 3. Family cases/marriage
Includes support, annulment, nullity, etc.
o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K (OMM) or 400K
(MM)
The original text gives lower values. When was it
adjusted?
Original costs took effect March 25, 1994
1999 adjusted OMM from 100K to 200K
2004 adjusted both MM and OMM to 400K
and 300K respectively
Always take note of the word exceeding so the exact
amount is for the lower court.
o 6. Probate of will, determination of inheritance same amounts
Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?
No. The rules on summary procedure
explicitly exclude probate proceedings.
Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.
So the not exceeding 100K (OMM) and not
exceeding 200K (MM) only applies for
summary proceedings. But it explicitly
excluded probate proceedings.
What is the jurisdiction of the MTC over small
claims?
Not exceeding 100K.
o 7. Admiralty cases same amounts
In determining the 300K/400K, can you include damages, interest,
attorneys fees, litigation costs, etc?
o NO. Only limit the amount to the demand or the claim.
o But remember that there can be a principal action for
damages, in which the amount of damages claimed
determines the amount. This is not covered by RA 7691, this
is covered by 95-9-94.
Small claims
o What is the amount?
Not exceeding 100K.
o Is there a distinction between OMM and MM in small
claims?
No.
o What should be included in the 100K?
The claim itself.
Exclusive of damages
What if the principal action is for damages?
Does not apply. Actions for damages are
not covered by small claims actions,
because these have to be ascertained.
These are not akin to sum-of-money cases.
o Does it cover quasi-delicts?
Yes. (Covers: fault/negligence, quasi-contract, or
contract)
o What if it arises from commission of an offense?
Yes for the civil aspect of such (fault/negligence).
Just remember that when you file a criminal case, the
civil aspect is likewise filed (unless reserved, waived,
or filed ahead). So it cannot be the subject of small
claims.
o Do you need a lawyer to file the complaint? Do you need
to prepare a regular complaint.
No need for a lawyer. There is also a standard form
provided.
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
This is still open for discussion, and is not yet clear.
Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court or court of summary procedure.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and
consuls
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment
N.B. Its original jurisdiction is exclusive as regards
annulment of judgment of RTC
o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS
Actions against members of the Bar [concurrent with
IBP];
actions against ambassadors, public ministers,
consuls, etc.;
constitutionality of treaties, laws, proclamations, etc.;
declaratory relief only when there is a question of
constitutionality
o Appellate:
decision of CA, decision of CTA en banc, decision of
SB, decision of RTC on pure questions of law;
REMEMBER this motherhood statement: the only
way to go up to the SC is for petition for review on
certiorari (RULE 45). This applies to civil and criminal
cases, except if the penalty in a criminal case is
death, RP, of life imprisonment.
Jurisdiction over the person of the defendant:
o 1. Voluntary appearance
By submitting to the jurisdiction of the court; ex.
Appearing in court or filing an answer or filing motion
for extension of time without disputing the courts
jurisdiction
o 2. Proper service of summons
Rule 14
Filing fees:
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?
You include interest, damages, attorneys fees etc.
pay everything that you allege for court fees
But for jurisdictional purposes, just the principal claim
o Rule #3:
Sun Insurance
Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o Rule #4:
Alday v. FGU Insurance
Permissive counterclaims require docket fees
The claim does not arise from the principal
action, but involves the same parties. This
could easily have been filed separately.
Compulsory counterclaims do not require docket fees
BUT read Korean Technologies case of 2009 this
is how you answer the question whether compulsory
counterclaims require filing fees
From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.
But in practice, based on an SC Resolution,
the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.
Alday: Payment of filing fees for compulsory
counterclaims is not required. But you have
to take note of Korean Technologies now
o Lien on the judgment?
If there are damages granted to the complainant, but
there has been lack of payment of filing fees. The
payment of docket fees is a lien on the damages.
What if the claim has already ripened upon the
filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for a
lien on the judgment?
Proton Pilipinas v. Banque Nacional
There was a claim that has ripened but was
not included, and there were interests that
would ripen once the action is pending.
SC said that a claim ripened during the
pendency of the case, it can be a lien on the
judgment.
But if you did not allege it, the court cannot
grant an award because you did not pay
docket fees.
o What is the rule on deficient or insufficient payment of
filing fees?
Rivera v. Del Rosario
You have to pay full filing fees. The deficiency must
not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.
Jurisdiction is not automatically lost. Clerk of court
makes a deficiency assessment.
There must be no intention to defraud.
Thornton:
o Husband filed for habeas corpus in RTC Makati to recover
child from wife
o What are the two kinds of habeas corpus?
N.B.: there are two kinds of habeas corpus custody
of minors and regular habeas corpus in the Rules of
Court
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?
N.B.: Effectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SC everywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor Habeas
Corpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper period,
but the complaint was amended to add additional defendants
beyond the 1 year period. Does the court still have
jurisdiction?
o After the lapse of the year period for ejectment, has the
claim prescribed?
No. N.B. One year period is not prescriptive period.
You just file action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
o HELD: MTC still had jurisdiction for ejectment (based on
original complaint.)
Oca:
o Repetition of Tijam v. Sibonghanoy estoppel by laches. After
active participation in a case, you cannot question the courts
jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
Usually decisions of QJA go up to the CA under Rule 43. What are
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the
Office of the President
o 2. CTA decisions, under amended rules, appealable to the
CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
Mijares:
o Which court has jurisdiction over enforcement of foreign
judgments?
RTC, because enforcement of foreign judgments are
incapable of pecuniary estimation.
ALWAYS, regardless of amount of judgment, since it
is not based on the amount of the claim.
In this type of action, you dont need to prove the facts
again, etc.
o Marcoss group that docket fees must be based on the
value/amount of the claim, which is up to the Billions. Is
this correct?
This rule applies to money claims against an estate,
but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o How do you impugn a judgment?
Lack of notice
Lack of jurisdiction
Collusion
Fraud
o What is the rule on Arbitral awards?
These must be should be enforced or recognized
An arbitral award is not a foreign judgment (Under
ADR Rules)
Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o But when you talk about appeals, no need to consider
hierarchy. The law already makes a decision for you.
Actions
What are the kinds of actions?
o Civil
Protection or enforcement of a right, or prevention or
redress of a wrong
Two types?
Ordinary
Special
o Criminal
Once the information is in court, only then does it
become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o Special proceedings
Establishes a right, status, or condition
Are civil actions always based on a cause of action?
o No.
Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action like declaratory relief does not need
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach MOST IMPT!
Is splitting cause of action a ground for MTD?
o No it is Res Judicata and Litis Pendentia
Can there be joinder of cause of action?
o Yes.
o BUT it is not mandatory.
Does there have to be just one breach or numerous violations?
o Numerous.
o For every cause of action, there is one breach.
o For as many breaches as there are, there are as many causes
of action.
If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) are there multiple causes of
action?
o No. Just one, because claims for damages are incidents of the
one breach (failure to pay).
There are three promissory notes, with amounts of 50K, 100K, and
200K, and there is just one loan. There was failure to pay. How
many causes of action do you have?
o Three PNs, three causes of action.
Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law Rule 3 Section 6)
Can you join ordinary civil actions with special civil actions?
o No.
Can you join two special civil actions?
o No. Because they have their own special rules.
Can you join recovery of sum of money and ejectment?
o No. Ejectment is summary proceeding, so it has its own rules.
What is the totality rule?
o When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is waivable.
o Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?
Its lost. So its better to file a separate action in this
scenario.
Is misjoinder of cause of action a ground for its dismissal?
o No, it will NOT cause dismissal of the principal action.
It is severed and these proceed with separately.
Although there can only be separate proceeding when
there is separate filing.
o The court is not duty-bound to proceed with it, especially when
it appears that it has no jurisdiction.
What is a special civil action?
o Covered by special rules.
Parties
Who can be parties to an action?
o Natural persons
o Juridical persons
o Those authorized by law
What is the general rule?
o All those with capacity can be a party.
o For natural persons, that is the age of majority.
Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-ad-
litem.
o A minor can sue, a minor can be sued if assisted.
What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?
Judicial separation of property
Abandonment
Exclusive property of spouses
Involving practice of profession
What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?
No. Sec. 18 provides that the court will provide
assistance.
When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
[Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The James Yap rule they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.
What is sufficient age and discretion? Recent
ruling says age of majority.
Should not be a transient. Must reside therein.
Can a foreign corporation sue and be sued?
o If its an isolated transaction, a foreign corporation can sue and
be sued.
o If its doing business but not licensed, it CANNOT sue, but can
be sued.
o If its doing business and is licensed, it can sue and be sued.
Service of summons to a domestic corporation?
o Rule 14, Sec 11
How do you serve summons to a foreign corporation?
o Resident agent one named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
How do you serve summons?
o Depending on the entity they have different rules.
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o Province executive head (governor)
o City city mayor
o Municipality municipality mayor
Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only it uses party as a
generic term, so it can encompass any party impleaded, if he
will benefit or be injured.
Does this concept of real party in interest apply to all cases?
o No. The concept of real party in interest will only apply to
private suits.
o Does it apply to a taxpayer suit?
No. Locus standi applies here.
o Does it apply to criminal cases?
[Not answered, but I think not]
o What is the difference from legal standing/locus standi?
This is from public suit filed by a private party. There
is a broader policy concern here, even if there can be
benefit or injury as well.
o A Congressman does not believe in the act of the
President, so he questions it as part of his legislative
prerogative. Is he a RPII?
No. Locus standi applies as well.
Thus, differentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of this
act, you suffered injury.
o You do NOT use legal standing in private suits. Only in public
suits.
Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one
needs complete determination of the case.
Who is an indispensable party?
o If not impleaded, there can be no final determination.
o N.B. The codal does not use the word complete. So they are
compulsorily joined.
What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?
Yes. The court can issue a valid judgment, although
not complete.
o Can you then proceed against the other one, though not
impleaded at first?
Yes.
What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.
o [Neither necessary nor indispensable (?)]
o Can you sue X only?
Yes.
o Can there be judgment?
Yes, because the obligation is joint and several
(solidary).
o Can you sue Y later on, having recovered from X?
No, because you recovered already.
o Can you sue at the same time?
Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment
without impleading X. X is an indispensable party in this case.
What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead. There is no waiver UNLESS there is an order to
implead from the court.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo). If despite this
order to implead, the plaintiff did not comply, the case should
be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and renders
a decision?
The judgment is null and void.
When is there substitution of parties in a civil case? There are
three.
o 1. Death
Who should die?
Any party. The law does not distinguish.
This is the most common.
o 2. Change of holder of public position (death, resignation,
removal, cease to hold position)
This is a very limited application, since it just applies
to public officers.
o 3. Transfer of interest
What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death
(IMPT)
o Why does the law need to say this?
Because there are actions that are extinguished by
death. Examples are actions that are purely personal
to the party
Give examples.
Ex. Contract for Michael Jackson to sing in a
party.
Ex. Receipt of a widow of support. When
she dies, the support from widowers estate
is gone.
What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
When is the 30 day period counted?
From the FACT of death, and not from the
knowledge thereof.
o 2. Give names and addresses of the legal representatives
Who should be legal representatives?
Legal heirs, administrator, or executor
N.B. The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).
o 3. Court orders substitution and for the substitute to appear
There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act
accordingly.
Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C and
D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally Es heirs as well
does not change the result.
o This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by this
improper automatic substitution.
o [Non-recitation question what is the effect if E is
necessary? If E is indispensable?]
Relate the provisions above. If necessary, you can
subsequently file a suit against Es heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D.
What are the requisites for substitution of public officer?
o 1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the
action sued against
o 3. There is substantial need to continue the action
Substitution is no automatic. What are needed to be done to
substitute the new public officer?
o 1. Give notice to the new public officer
o 2. Opportunity to be heard for the new officer
Mere fact that he is inclined to continue the action of
the predecessor is not enough
Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B
assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer of
interest?
Yes.
o Can the court order that C be impleaded?
Yes. But there is no substitution here. C is just
joined.
o How then can there be substitution?
The court has to order a substitution, not mere
impleading. BOTTOM LINE: there has to be a court
order.
In case of death of a defendant in a sum of money case, will there
be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o This is the special rule against sum of money cases.
o Ratio for this?
Because you ultimately deal with the executor or
administrator anyway.
But its wrong to say there is substitution, because the
law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?
1. The DEFENDANT must die
2. It must be a sum of money case based on contract
o What if the plaintiff dies?
The general rule will apply, even if its a sum of
money case.
Indigents Algura v. Local Government of Naga: Resolves the
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o If the indigent fits within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.
What is the Rule 141 requirement?
Gross income + family income does not
exceed twice of monthly minimum wage
And owns real property whose FMV is less
or equal to PHP 300K
o If he doesnt, he falls under Rule 3, Sec. 21 and must apply for
indigent status. (Indigency test) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?
Yes, but under the indigency test.
If you are declared an indigent, you do not pay filing fees. But
what happens when there is a judgment?
o There is a lien, as regards filing fees.
What is the rule on stenographic notes?
o It is free. There is no lien on the judgment.
What happens when the court finds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?
The court can order execution.
o What if you fail to pay or ignore the execution?
The court can dismiss the case, for failure to comply
with an order of the court.
Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards the
property.
o A notice of lis pendens will only lie if it is a right, title, or interest
over real property. Outside of this, you cannot avail of a notice
of lis pendens.
Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
PDIC:
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v. Natanauan:
o There is no res judicata between recovery of possession and
nullity of deed of sale.
o Requisites of res judicata?
A) Former judgment final
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of action
Venue
Do not make the mistake of confusing venue and jurisdiction in civil
procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
file it is different.
There was an agreement to development of a piece of land in
Tanay, Rizal to become a memorial park. The duty of the owner
(living in Quezon City) of the piece of land is to provide property.
The duty of the developer (located in Pasig) is to dig up the land,
put drainages, etc. The owner of the land died, and the heirs are
now substituting for their father. They want to rescind the
agreement to develop. Where do they file?
o There are two steps in venue problems. First, determine: is it
a real action or a personal action?
Its a personal action. It involves rights and
obligations of parties, although the subject matter
involves land.
o Where do you file it?
At the option of the plaintiffs. Either in their principal
residence (Quezon City) or the defendants (Pasig)
o Which court has jurisdiction?
RTC, because it is an action incapable of pecuniary
estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word principal before plaintiff and
defendant, so that the plaintiffs will not file the case before far-
flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the
principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
Its not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o But the mere filing and payment of fees (for multiple properties
in various areas) can be paid in one office, as long as it can be
established that it covers all areas. But the actual sale will only
be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o But if it is for collection of a sum of money, file it as a personal
action.
Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise.
On specific venues, as provided by law
o Give an example.
Actions for Quo warranto if the Solicitor general
commences it, in can be in the SC, CA, or RTC of
Manila
o What if you want to file an action for perpetuation of
testimony?
This is covered by Rule 24 (deposition before action
or pending appeal).
Special rule: Place of residence of any expected
adverse party or defendant
o What about adoption?
Where the prospective adoptive parents reside
o What about probate?
Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
General rule: RTC where the minor is supposed to be
found
Thornton: But if unknown or cannot be found, in the
CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu.
Plaintiff resides in Makati, defendant in QC. Where do you
file it?
In the MTC of Cebu. Residence in general does not
matter.
o What if I file it in Makati?
Yes.
But what will you expect?
Motion to dismiss on the ground of wrong
venue, coming from the defendant.
But what if there was no motion to dismiss, and in
the answer, there was no allegation of improper
venue?
There is waiver on the rules of venue.
Remember Rule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raise
these grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional
venue.
o If there are words of exclusivity (ex. can only be filed in Cebu,
waiving all other venues), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)
In this case, the stipulation on venue in the principal
agreement (PN) applies to the accessory contract,
which is the surety agreement which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue, or he
decided to waive it. Can the judge later motu propio dismiss the
case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of America)
Summary procedure
1. Filing of the complaint
o In summary procedure, after filing the complaint, what can
the court do?
A) Dismiss the case outright
B) Issue summons
o What is the responsive pleading?
Answer.
Can you file a MTD?
In general, no. It is a prohibited pleading.
When do you file the answer?
10 days, not the usual 15.
o Can the plaintiff file a reply?
No. Its also a prohibited pleading.
o What if there is no answer?
The plaintiff can file a motion for the court to render
judgment.
A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
Period of 30 days.
o What happens here?
The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
Yes, the court can, if it is convinced at this point in
time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step
3. Submission of judicial affidavits or position papers
o Is there a hearing in summary proceeding or trial?
No hearing, no trial.
o Within how many days do you submit affidavits?
Within 10 days
o Can the court render judgment?
General rule: 30 days from the filing of the last
pleading
NOT submission for resolution, but
submission of the last pleading
Exception: 15 days, if the court asks for further
clarificatory documents
What are the prohibited pleadings?
o 1. MTD
Except lack of jurisdiction over subject matter
Or failure to refer to lupon
o 2. Reply
o 3. Bill of particulars
o 4. MR or MNT
o 5. Petition for relief from judgment
o 6. Motion to declare in default
o 7. Third party complaint
o 8. Memoranda
o 9. Dilatory motions for postponement
Does this cover motion for cancellation of
hearing?
If is not dilatory. But be careful with this,
because the judge has to determine first if it
is dilatory.
o 10. Motion for extension of time
o 11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o 12. Interventions
J alique v. Dandan:
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
Pascual v. J ovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?
YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in
the plaintiffs or defendants behalf.
o What happens when the plaintiff is absent in preliminary
conference?
Case is dismissed
o What happens when the defendant does not appear?
As if he didnt file an answer. The court can render
judgment.
o What is the stopgap?
Have an explanation OR send a representative
o Where does this rule come from?
Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.
Small claims
What should a plaintiff file?
o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
What happens after?
o Court files notice for defendant to submit response
o Defendant has 10 days to file a response
o What are the formal requirements?
There is already a form provided for the plaintiff and
defendant to fill in.
They just need to attach documents.
o Can there be a counterclaim in a small claim action?
Yes. As long as within jurisdiction of the court, and
arising from the same transaction, and does not
require joinder of third parties.
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
Yes. (Aldura)
o Will there be presentation of evidence?
Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
o Is there a preliminary conference?
None mentioned.
o Do the parties have to appear?
Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception. Failure to refer to the lupon is not an exception.
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) because there is no
plain, adequate, speedy remedy
Pleadings
What must be in the complaint?
o Claims a cause of action
o Must contain allegations brief and concise statement of
ultimate facts, devoid of evidentiary matters
You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o With particularity
As for mistake, how must it be alleged?
o With particularity
If its a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document
To show the court that this is where your cause of
action arises
o 2. You can reproduce the contents of the document in the
pleading en toto
(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?
1) When the adverse party is not a party to the
instrument
2) When there is an order for inspection and it is
refused
What is the effect of failure to specifically deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.

What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
For foreign corporation and service is done to
government official designated by law
What are the defenses available in answer?
o 1) Affirmative defense
If you only hypothetically admit, without raising
any defense, what happens?
In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
34)
This occurs when the answer does not
tender an issue or admits the material
allegations
o 2) Negative defense
Specific denial of facts alleged essential to the cause
of action.
What are the kinds of specific denial?
1) general denial
2) specific denial
3) disavowal of knowledge (lack of
knowledge and belief to form a specific
denial)

Is the counterclaim or cross-claim in a separate pleading?
o No.
What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of the
action
What is a permissive counterclaim?
o Arising from an event unrelated.
What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is a cross claim?
o Made against a person/party on the same side.
Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
Is there a period to answer a cross claim?
o 10 days
Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o Yes. You cannot just file a third party complaint.
o Who is usually the third party plaintiff?
The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.
This is the reason why there is need for leave of
court. You need to have the third party impleaded.
Why would you want a third party complaint?
To contribute or indemnify
o Classic case: car crash a hit b hit
c. C sued B. B sued A for
indemnification.
Subrogation
Any other similar ground
o What is the period to answer a third party complaint?
15 days, because it is treated as an entirely new
complaint

Is the reply a mandatory pleading?
o No.
What is the period to file a reply?
o 10 days.
What do you do in a reply?
o To controvert the new matters raised in the answer
What is the effect of failure to file a reply?
o All new matters stated in the answer are deemed controverted
o What is the reason for this?
[Didnt answer]
What happens after answer, etc?
o Pre-trial

Three important things:
o Signature, verification, and CNFS
What is the effect of a lawyer affixing his signature in a pleading?
o Indicates that he has read the pleading, and to the best of his
knowledge, the information is correct
o And that the filing of the same is not for the purposes of delay
There are some pleadings that are left unsigned. What happens?
o It has no legal effect at all.
o Is there a way to cure it?
If counsel can show it is due to mere inadvertence
and not for delay
o Will the court just give effect to the pleading or will it still
require actual signing?
[Didnt answer]
If a lawyer changes his address, what is his duty?
o Inform the court. Failure to do so may lead to disciplinary
action.
What are the contents of the verification?
o That the affiant has read the pleading and the allegations are
true. (Based on personal knowledge, not information and
belief or knowledge, information and belief)
Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
o Give examples:
Rule 45 (Petition for review on certiorari)
Rule 65 (Petition for certiorari)
Rules 57-61 (Provisional remedies)
Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
attach verification?
Although it can be cured, the court may dismiss a
pleading for failure to comply with procedural
requirements.
Who signs the verification?
o The party filing the pleading.
Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the partys father is to be buried on the day of
filing of the petition the court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
Can a minor sign?
o Must be assisted.
Can a married person sign by himself or herself?
o One spouse is enough, but only if there is common interest.
(N.B. but see note below)
For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)
TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
CNFS:
When is a CNFS required?
o For a complaint for other initiatory pleading
o So a compulsory counterclaim does not require a CNFS
What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
What are the contents of the form?
o Plaintiff/principal party shall certify under oath that he has not
filed a similar complaint involving the same issues in another
court, tribunal, QJ agency
o If there is any other pending claim, provide status
o If he learns about similar action, report fact within 5 days to the
court
Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o Indirect contempt (Failure to comply with order or process of
court)
o Administrative and criminal cases (since you lied under oath)
o Dismissal of the case
What if there is willful and deliberate forum shopping?
o (Meaning, its not only false, but you also deliberately disregard
it)
o Dismiss the case with prejudice
What kind of dismissal?
Summary dismissal cannot contest
o Placed in direct contempt without opportunity
BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of the
Vice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the first case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the first place, when the court
dismissed the initial case. The second case was whether the
court approved the compromise agreement in the first place.
These are different.
Solar
o Is the rule on personal service mandatory?
Yes. The rule is priority is by personal service. If you
cannot do it by personal service, you can do it by
registered mail, but you have to make an explanation.
o In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to allow
it was based on its reasonable discretion. BUT this is not the
rule.
Musa
o What are the material dates here?
Period only commences to run from date of receipt of
the decision
Date of filing of the MR
Date of receipt of denial of the MR
Amendments and supplements
There is amendment for civil cases and there is amendment for criminal
cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?
o Before an answer or within 10 days of service of reply
o What do you need to file?
NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to file?
Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
plea.
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
o Yes, but only as to matters of form, for as long as it will not
prejudice the rights of the accused
Dont forget that last bit!
o What is the test when it will prejudice the rights of the
accused, even if its a matter of form?
If the original defense of the accused will not change.
What is amendment to conform to evidence?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations, you
may file a motion to amend the pleading to conform to
evidence
There are two kinds of amendments to conform to evidence. What
are these?
o First kind no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind if the other party objects, the amendment is left
to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?
1. Yes, if it is a mere formal (typo) amendment
2. For bill of particulars, the court can either order
compliance OR an amendment
3. Motion to dismiss the court can either grant,
deny, or order an amendment
There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
amended and that is granted by the court, is there a need for
issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question of
amendment.
o HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that have
arisen.
o Can there be a supplemental complaint?
Yes
o Can there be a supplemental answer?
Yes
o Can there be a supplemental reply?
Yes
o Can there be a supplemental petition?
Yes
So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
o What is the exception?
Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
What is the difference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
May be filed without leave of court (before responsive
pleading)
o For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.
Always with leave of court
Default
N.B. 1: What is the rule on objections?
o General rule: all objections on grounds not raised in an answer
or motion to dismiss are deemed waived.
o What are the exceptions?
1. Lack of jurisdiction over SM
2. Res judicata
3. Litis pendentia
4. Prescription
o What is the fifth exception provided by jurisprudence?
5. Lack or absence of cause of action
This is different from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up: barred
forever
o In special proceedings a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
Called as in default in the 1964 Rules of Court
If the defendant fails to attend, the plaintiff can
present evidence ex parte
When do you know when a party is in default?
o 1. Did not file responsive pleading
o 2. There is proof of such failure
You have to show the return
How can you set aside an order of default?
o 1) File a motion on any of these grounds:
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?
Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?
YES. For all of these, you need extrinsic fraud.
How do you set aside an order of as in default [or allowance for
plaintiff to present evidence ex parte for the plaintiff]?
o Saguid: Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
No need. Youre already in pre-trial.
Can there be partial default?
o Yes.
o In a case where you file a case against A, B, C, D, and E. E
did not file an answer, while A to D did. Will A to D be
allowed to present evidence?
Yes.
o Will E be allowed to present evidence?
No. He is in default.
o Can A to Ds evidence be used against E or in favor of E?
Yes. In fact, E can still win the case along with the
others.
Can the court render a judgment after an order of default, without
presentation of evidence ex parte?
o Yes. This is a new provision introduced only in the 1997 Rules
of Civil Procedure.
o This has not been asked in the Bar examination yet. So be
careful.
Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o Can there be default in Summary Procedure?
No. When there is failure to file answer, there can be
judgment rendered by court.
o 2. Certiorari, Prohibition, etc. Some SCAs require a
comment, so there can be no declaration of default
Are there SCAs where there can be declaration of
default?
Yes, like interpleader where the special rules
are deficient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o Order of default failure to submit an answer, so the
defendant is declared in default
o Judgment by default after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendants defense, which he lost
o Remedy for an order of default?
Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
MR or MNT (FAME) within period for filing an
appeal
After the reglementary period (i.e. when there is entry
of judgment) Petition for relief from judgment
6 months from entry of judgment AND within
60 days from knowledge
If there is GADALEJ, Rule 65 certiorari
Remington Steel:
o When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other since there is no defense yet that would be
affected or altered by the amendment.
Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition for
certiorari.
o Amendment to conform to evidence What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?
Yes. It is valid, even if it is not consistent with what
was alleged.
Bill of particulars
Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
file a BOP?
When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint
that are not averred with sufficient particularity
o You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?
o The period is interrupted upon filing, but you always have at
least five days to file the answer after.
Deadline to file an answer is in 15 days. You received the
complaint December 1. You filed a motion on December 5. How
many days do you have?
o TWELVE, not eleven. You dont count the day causing the
interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3:
non-compliance with court order
What if the person fails to file an answer in the time left?
o Will be declared in default
Service and summons
Filing
What are the modes of filing?
o 1. Personal
o 2. Registered mail
Can there be filing by ordinary mail?
o None. Because here there is no way the court can find out
when you filed it.
o But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o PERSONAL: Stamped, dated, and signed by the clerk of court.
o REGISTERED MAIL: Pay for registry receipt and you have to
accomplish a return card
What is the proof that you personally filed?
o Primary: if the pleading is found in the records of the court.
o If it does not appear, you can present the received copy
What is your proof of registered mail filing?
o Registry receipt
o Affidavit of the person mailing
o Return card
Service
What are the modes of service?
o 1. Personal
o 2. Registered mail
o 3. Ordinary mail
What does rule 14 cover?
o 1. Covers party serving to another party,
o 2. party serving to court,
o 3. and the court itself serving notices (section 9)
If the person to whom you are serving is not available, then how do
you file substituted service?
o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.
o There should be proof of both failure of personal service and
service by mail.
o [This is different from substituted service of summons]
How do you prove service by ordinary mail?
o Affidavit
What is completeness of personal service?
o Actual delivery
What is completeness of registered mail?
o Actual receipt or 5 days after notice of postmaster
o whichever comes first
What about ordinary mail?
o 10 days after mailing
What are the proofs of personal service?
o Written acknowledgement
o Affidavit of the person serving
o Official return of server
This refers to service by the court
What are the proofs of registered mail?
o Registry receipt
o Return card
What are the proofs of ordinary mail?
o Affidavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
Take note that a return card is required by law to be filed, but in
practice, we do not.
What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?
Put an explanation why you did not serve it through
personal service
o What if you dont comply?
As if the pleading was not filed.
Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?
Yes.
Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
1) purpose is to molest other party
2) no need for the notice to protect the rights of the
parties who caused it
Payongayong:
o Priority of service is ALWAYS personal. If you cannot do it
personally, you give an explanation
o Same as filing priority is personal. Otherwise, you give an
explanation.
United Pulp:
o Hypothetical There is a principal who is out of the
Philippines, and he designates X as his attorney-in-fact.
Can X sign the certification against non-forum shopping?
In general, he cannot. But in this special case, he
can, because the principal is out of the country.
o What is the test?
Mere representation is not enough. There must be a
specific authorization and clear authority given in the
SPA that he can sign the CNFS.
Summons
Can personal service and substituted service work
simultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
Where?
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
efforts have been exhausted.
Is there a set of standards given by law on how
many times you have to try to serve?
A case says that it must be at least three
times on two different days.
o There has to be an explanation.
o Where will the explanation appear?
In the sheriffs return
Summons must be served within reasonable time. What do you
mean by this?
o For the sheriff, 15-30 days according to jurisprudence. After
the 30
th
day, the court will require the sheriff to submit the
return.
o Why is this important?
If you file a complaint and you dont see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with suitable
age or discretion. So these are two elements.
o A visitor or a transient cannot receive summons. But a house
helper can.
For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?
He must be in charge of receiving summons in the
office.
o What does in charge mean?
In charge of the office. President or manager.
For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o Memorize this. It is a closed list.
But for personal cases of an individual, will the office receive it for
you?
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted
service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?
Yes, but its very narrow. But there must a a) resident
spouse b) who was previously appointed as attorney-
in-fact.
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
Distinguish.
o Section 14: Defendant is unknown or his whereabouts are
unknown.
How do you do this?
Just publish.
Do you even have to try personal service?
No need for personal service (since you
dont know him or where he is).
In what kind of case?
Whatever kind of action, whether in rem or in
personam you can do it by publication, as
clarified by the SC.
Not just in rem or quasi in rem anymore.
How does publication in 14 differ from 15 and 16?
In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o Section 15: Extra-territorial service
Against who?
Against a defendant that does not reside in
the Philippines and is not found in the
Philippines.
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent
interest over property
What are the modes of service?
1. Personal service outside the Philippines
2. Publication AND service by registered
mail in his last known address
o N.B. Both must concur. Take note
of this.
3. Other modes deemed applicable by the
court
o Section 16: Temporarily absent
Can he be a resident of the Philippines?
Yes. But hes just temporarily absent.
What is the length of time needed here?
None provided
How do you do serve summons?
Any of those in Sec. 15.
Add: Substituted service, if there is
impossibility and there are earnest efforts to
serve.
What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
What is the proof of service of summons?
o Sheriffs return.
Note the rules on:
o Provinces
o Prisons
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack of
jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) it must be shown in the sheriffs return
Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because lack of jurisdiction is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
You can still do personal service, in case you find him
somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
Motions
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties.
But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
hearings.
o Absence of a notice of hearing has what effect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be filed in court and served to the other party
at least three days before the date of hearing. (Three day
notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days
from the filing of the motion
Ex. you file it December 6. The last date you can set
the hearing for is December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally.
But since 2008, this rule has been applied strictly.
Motion to dismiss
What are the kinds of dismissal in Civil Procedure?
o 1. There is a motion to dismiss in Rule 16, prompted by
defendant. MOST COMMON
o 2. But there is also a motion to dismiss in Rule 17, filed by the
very same plaintiff who filed.
Rule 17 also covers failure to prosecute, which is
another form of motion to dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter
jurisdiction?
It is the law that confers the right to hear, try,
and decide a case
The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minor age of majority
Corporation must be duly registered with SEC
Attorney in fact look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appear to state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
o 7. Litis pendentia
Same as RJ, but without
o 8. Prescription
o 9. Failure to comply with condition precedent
Ex. Failure to refer to Katarungang pambarangay
Is this waivable?
o YES. Because it is not
jurisdictional.
Ex. Earnest efforts to compromise
Ex. Exhaustion of administrative remedies
Does this fall under this ground?
o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except [F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
When can you file a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion.]
There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, filed alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will produce
the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
MTD.
This is a new feature of the 1997 Rules of Court. This
has never been asked in the Bar.
o What is the reason for this new rule?
Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o Why is such court attitude?
Because issues will be joined, and pre-trial sets in
where parties can compromise.
o What is the difference between filing a MTD and an
answer?
There is no preliminary hearing of defenses in a MTD.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?
No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended unless
you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused,
invoking judicial courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?
The court, subject to its discretion, can either dismiss
or remand it. There is no hard and fast rule.
Dismissal of Actions
What are the ways by which a plaintiff can dismiss a case?
o Filing a notice of dismissal any time before the answer is
served. Dismissal is a matter of right.
o What happens to the counterclaim?
There is no counterclaim yet, because there is no
answer.
o Can this case be re-filed?
Yes.
What is the exception?
Dismissed a second time under this section.
What if there is already an answer? See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?
It does not get dismissed. Pingga limits the dismissal
to the complaint, not the counterclaim. This
abandoned BA Finance rule.
Does this rule cover both permissive and
compulsory counterclaim?
Yes.
This is why the provision says that within 15
days, the party would have to manifest its
willingness to prosecute it in the same
action; otherwise it will be prosecuted in a
separate action.
Pre-trial
When is pre-trial conducted?
o Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintiff to move the case for pre-trial must be
done promptly
o BUT the 2004 guidelines say it must be within 5 days after the
last pleading has been filed
What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move for
pre-trial.
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
Expect two dates in one notice
o One setting the preliminary conference
o One setting the pre-trial itself
On the first day of pre-trial what is the order of the day?
o The court issues an order referring the case to a court-
annexed mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
30-60 days.
But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
o The Judge with all tact, patience, and impartiality, endeavor
to arrive at a settlement of the dispute
Confers with each party as to what is acceptable as a
compromise at the present stage
Judge talks to parties and their counsel separately
Judge talks to only parties
[stepped out]
What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?
Same effect as if you didnt appear at pre-trial.
Request for admissions: Rule 129 Section 4 Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the other
party, it becomes an admission.
Issues to be submitted for resolution
Documentary and testimonial evidence to be presented:
o One day examination of witness rule if you can direct,
cross, re-direct, and re-cross a witness in one day, do so.
(This is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence first.
o Evidence will be pre-marked.
What is the effect of failure to pre-mark?
You can no longer present the evidence if
you failed to pre-mark it.
Unless the court allows you in the interest of
justice, or if newly discovered.
o What if you fail to name the witness in court?
You cannot present the witness anymore.
What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on his behalf in pre-trial.
What happens next?
o Pre-trial order is issued by the court.
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
o What if it is a criminal case and the prosecution is absent.
What happens?
It will be re-scheduled.
o What if the accused is absent?
The prosecution CANNOT present evidence ex-parte
because it will violate the accused persons right to
confront witnesses.
o RULE 118. TAKE NOTE OF THIS. THIS IS THE
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against
him, what must be done?
It must be in writing and signed, by both the counsel
and accused.
No such requirement in civil admissions in pre-trial.
Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle and the new judge
who will hear, try, and decide the case is the trial judge
o This step happens when the Clerk of Court receives the
Mediators Report of a not settled mediation
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
Intervention
What is the concept of intervention?
o A third party takes part in a case between other parties
o Because he has a legal interest in the subject matter of the
case or he will be adversely affected by distribution/disposition
of property in custody of the court
What does the court look at?
o Legal interest of the intervener
o 1) Such intervention will not unduly delay or prejudice the
proceedings of the parties
o 2) Or if the right of the intervener can be protected in a
separate action
When can you intervene?
o You can intervene any time before rendition of judgment in the
trial court
o There is nothing in the rules talking about intervention in the
Appellate Court. But the court can exercise discretion to allow
intervention in the Appellate Courts.
After judgment, can there still be intervention?
o As a rule, no.
o But if the rule is an indispensable party, the court will allow
intervention even after judgment.
Can there be a complaint intervention or answer in intervention, or
a complaint against either/all of the original parties?
o Yes, for all.
Nordic:
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o There was a complaint filed by the crew members of the vessel
against the vessel in RTC Manila (sum of money case).
o The mortgagee sought to intervene in the sum of money case,
because it held a Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
Subpoena
Types of subpoena?
o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or
things
N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
Can the OMB issue a subpoena?
o Yes.
Can the office of the prosecutor issue?
o Yes.
Is the receipt of a subpoena by a respondent in a case filed before
the office of the prosecutor necessary for the office to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
Office of the Prosecutor is a statutory right, not constitutional
right. You can altogether dispense with it, or waive it. It is not
essential for DP.
o There is an express provision in Rule 112(D) that says failure
to receive the subpoena will not bar the prosecutor from
issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convict?
o The judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be
authorized by the SC to appear under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena as testificandum?
1. Witness is not bound thereby
What is an example of this?
o If the witness is not qualified. Ex
the witness is the spouse of the
person he/she is testifying against
2. Witness fees and kilometrage allowed by the Rules
were not tendered
Witness must live within 100 KM of the place
where hearing is conducted
You can also be arrested to compel you
o How do you quash a subpoena duces tecum?
1. Unreasonable and oppressive
2. Relevancy of the books, documents, etc. does not
appear
3. Failure to tender the costs of production
4. Kilometrage/witness fees Not in the duces
tecum part but you need the witness to appear too
5. Failure to describe with particularity N.B. not in
the rules
Can the clerk of court issue a subpoena in the absence of a judicial
action? (Note, this is not referring to investigation by a quasi-judicial
body.)
o No.
Depositions (Rule 23)
What can be subject of deposition?
o Any matter, as long as not privileged
o AND relevant
o What do you mean by not privileged?
When the witness is disqualified (e.g. attorney-client,
physician-patient, penitent-priest, husband-wife,
public office in related to State)
Ayala Land applied section one (see Modes notes). It explained how to
commence depositions.
o Can a judge before whom the action is pending take
depositions?
Yes. (Ayala Land)
o Before whom should deposition be taken?
If in the Philippines, 1. Judge, 2. Notary public, 3. Any
party authorized to administer oath, 4. The parties by
agreement/stipulation
In foreign country, 1. Embassy, legation, consular
officer/agent 2. One authorized by commission or
letters rogatory, 3. Stipulation of parties
o Dulay v. Dulay A brother duped his brother; both are
Filipinos. One brother is a naturalized American, and applied
for the latters naturalization. The US government approved it.
The later, once there, was made the trustee of the deposits of
the former. He spent the money. Filed case in Philippines.
Took deposition of bank manager in US. The local court
communicated the request with foreign authority (letters
rogatory communication by one judicial authority to another
to follow the rules of the latter). This is distinguished by
commission where a person is appointed commissioner; the
deposition is governed by Philippine rules.
o In this case, the court of Boston ignored the letters rogatory, so
they applied for deposition before a notary public. The local
court refused to accept, requiring a consular certification.
o The court here allowed because the letters were ignored and
there was no consular office in Boston, so they allowed
deposition before NY notary.
When is there need for leave of court?
o Whether an answer has been filed or not. When there is an
answer, you do not need leave of court, just notice. When
there is no answer yet, you need leave of court.
o Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
What is the process to take deposition?
o Rule 23, Sections 19-21.
o Who does the recording?
A stenographer, clerk, secretary under the direction
and supervision of the officer
o Then?
The deponent examines it and signs it
Can signing be waived?
Yes.
o After the signature, what next?
The officer certifies it first
Then files it in court with indication that it is authentic
and complete
If the procedure is not followed, what will happen? What is the
consequence?
o A party can file a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?
The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows its authentic and complete by personal
knowledge.
What are the uses of deposition?
o 1. Impeach testimony of witness
[For prior inconsistent statements]
o 2. Against other party (or officer of corporation that is another
party) for any purpose
o 3. Used in place of oral testimony if the deponent:
A) Lives more than 100 KM from the place of trial
except if the absence was procured by the party, or
out of the Philippines
B) Is dead
C) Unable to attend to due age, sickness,
imprisonment, etc.
D) Cannot compel attendance of witness through
subpoena
E) Exceptional circumstances
Can a subpoena be issued by reason of deposition taking to make
sure the deponent comes?
o Yes. Rule 21, Sec. 5
Can a deposition of a deceased person be presented in court? Is
this not hearsay?
o It can be presented, as long as it was subjected to cross
examine. It is hearsay, but it can be submitted.
o Is cross examination a necessity?
Yes. This is necessary to exempt it from the hearsay
rule.
If you take a deposition, are you compelled to present it in court?
o No.
If you use a part of a deposition, can the rest be presented?
o Yes.
Always distinguish between take and use.
Who are disqualified to be deposition officers? [Memorize; this has
not yet been asked]
o 1. Sixth degree of consanguinity from party/employees
o 2. Sixth degree of consanguinity counsel of parties/employees
o 2. Financially interested in the action
Re: irregularities on taking of deposition. What is the general rule
on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
Relevance or competency of evidence failure to
object is not a waiver
Unless a timely objection could have obviated the
defect
When is the period to object?
o The same as the period to file the responsive pleading.
o So to question direct: 10 days (period to file cross)
o To question cross: 5 days (period to file re-direct)
o To question re-direct: 3 days (period to file re-cross)
Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
No need, even if you do not reserve it during pre-trial.
J onathan Landoil
If you take a deposition of a person, do you still have to present
the person as a witness?
o You still have to present him in court, in general. Depositions
cannot take the place of actual physical testimony in court.
o If you fail to cross examine the witness in the deposition,
can you still cross-examine him in court?
Yes, you definitely can! Sabio
What are the consequences for non-compliance with order for
deposition?
o Can it be dismissed?
Yes, the court can dismiss. There can even be a
judgment by default
However, in the old case of Arellano, the court
dismissed the case due to refusal to be subjected to
deposition. But the SC said it was wrong. In this
case though, the matter subject to deposition is an
incidental matter only, not the main issue of the case.
Bottom line: it IS a possible result, but fall back on
materiality of the matter
Can the court regulate the deposition? (Ex. excluding certain
matters)
o Yes.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?
Annoy, embarrass, oppress memorize these
words
It is irrelevant
Depositions before action or pending appeal
What is perpetuation of testimony?
o See below
If there is no pending case can you take a deposition?
o No. You file a case for the perpetuation of a testimony
o So you file a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o Place where the expected adverse party resides
When could you apply for deposition pending appeal?
o Before judgment becomes final
o There is a pending case for certiorari, can you take a
deposition pending appeal?
No, certiorari is not an appeal
Interrogatories to parties
Distinguish Rules 23 and 25:
o Rule 23 Party or a witness, or any person for that matter
o Rule 25 Interrogatories to PARTIES. Always to parties.
How must the questions be answered?
o Rule 23 there is direct, cross, re-direct, and re-cross
o Rule 25 Just one set of questions to be answered by the
other party
Re: time to answer
o Rule 23 no fixed time to answer, because what dictates the
period is the officer (since they have to appear before the
officer)
o Rule 25 15 days from service thereof
Are the uses of the depositions the same?
o Between Rule 23 and 25, the same
What is the effect of failure to serve written interrogatories to
parties?
o You cannot compel the adverse party to testify if you did not
serve written interrogatories
o Can you call the adverse party to the witness stand?
YES! In general, YES. The answer is in Rule 132,
Sec. 12
It is different if you call on the witness the accused
himself (in a criminal case)
Request for admission
What is a request for admission?
o 1. Requesting to the other party that he admit the genuineness
of any material/relevant document
What else do you need to do?
Attach the document so it can be examined
Does an admission cover the contents of the
document?
No, just the genuineness so you do not
have to prove it exists and it is genuine
The contents can be up for contentions
Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
asked that the first party prepare a new list to submit
to the court within X days. Instead of submitting it to
court, the first party submitted a request for admission
to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
o 2. Or truth of any material and relevant matter
The admission must be directed to whom?
o The adverse party (Not the counsel it must be served to the
other party) (Duque)
o But the partys counsel may answer (Larada)
What if the other party fails to respond?
o Considered an implied admission
Who will suffer the cost?
o The other party who refused to admit, if it is eventually proven
to be genuine or true
o But in the meantime, advanced by the party requesting
Producing or inspection of things/documents
What do you apply for?
o Request that a party produce and permit inspection of
documents, papers, objects, other tangible things
o OR to allow entrance into a place under control of the latter
and allow inspections, etc.
Is production of documents the same as subpoena duces tecum?
o No.
Is production required for presentation of secondary evidence?
o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a specific
document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
evidence?
o No, youre not required. It is a mode of discovery a way of
discovering evidence. If you like what you see, you still have
to go through the process of presenting it in court.

N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 25-
27
Physical and mental examination
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio
issue it. The other modes, you have to apply for.
What is required?
o 1. Also upon motion
o 2. And with good cause shown
When can it be done?
o When the physical or mental condition of a party is in
controversy
o Ex. Guardianship, Physical Injuries,
What does in controversy mean?
o It has to be one of the main issues of the case, not just a side
matter.
o It does not have to be the only issue, but it has to be in issue.
What is the consequence if the copy of the examination is given to
the party examined?
o There is a waiver of the privilege
o That requesting party can now also ask for previous or
subsequent examination on the same matters of the requested
party
o It must refer to the same condition. So if the examination was
on the other partys head for mental examination, she can only
ask for similar reports on the mental condition of that party.
What if the requested party refuses?
o The court may make an order for delivery of the report
o If by chance, that other partys physicians were allowed to
testify, their testimonies can be excluded.
What is the effect of the requested party requesting for a copy of
the report made or taking the deposition of the examining
physician?
He waives any privilege in that action or another action involving the
same controversy, as regards testimony of other examining persons,
whether before or after
N.B. Privilege of doctor-patient only applies to civil case, not criminal
case
Consequences of non-compliance
If there is refusal to answer, what are the consequences?
o 1. The case can be dismissed if he is plaintiff
o 2. If the defendant, judgment by default
o 3. Pleadings can be stricken out
o 4. Held in contempt
He can be arrested
When does arrest as a consequence not apply?
Request for physical or mental examination

Segue: deposition in other proceedings
Can you use modes of discovery in criminal actions?
o Yes.
Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is not yet trial.
o You can call witnesses even before trial and obtain their
testimony.
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.
For prosecution examination before trial can only be
done in the court where the action is pending because
the law wants it to be harder for prosecution.
For the accused, it should be made before either any
judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say its deposition. But its akin to such,
according to Supreme Court decision.
Does physical and mental examination as a mode of discovery
apply in criminal trial?
o Its inherent.
Trial
Both civil and criminal procedures will not provide for conduct in
examination of a witness. Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents
before the defendant.
o [Check for midterms: can there be reverse order if it is a civil
case?]
Can there be judgment without trial?
o When parties agree on facts
o [spaced out]
What are the grounds for cancellation of hearing (actually,
postponement)?
o 1. His presence is indispensable and illness is excusable
N.B. it does not say the party must be indispensable;
just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court delegated authority to receive
evidence
1. There are default proceedings
2. Ex parte
Examples of ex parte proceedings?
o Default
o Application of indigent
o As in default [did not appear
during PT]
3. Parties agree in writing
Can an adoption case proceeding be delegated to the clerk of
court for reception of evidence?
o No.
o Always with the judge
Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testificandum. If it is a subpoena
duces tecum, there must be order by court.
Can the clerk of court resolve objections raised in an ex parte
proceeding?
o No.
o Just note the objections, and forward to the judge.
o The other party is not there who will object?
Well, the clerk of court just has to note it down if
clearly objectionable.
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for courts information for court
to render judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
Yes, as long as within the order of reference (his
authority)
Can he resolve objections?
o Yes.
o N.B. this distinguishes him from a clerk of court
When are commissioners mandatory?
o Expropriation mandatory in second stage
o Partition only optional
If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
What is the rule on objections?
o 10 days from filing of report, parties can object to the findings
of the report
o BUT, must make it before the commissioner during
proceedings, if these can be made by then otherwise, will not
be considered by the court
Who shoulders the cost?
o The losing party, in general. But the court may apportion
Can the commissioner punish non-compliance with contempt?
o No. Its the court that appointed the commissioner that can do
that.
Consolidation
What is the difference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being filed
There was a case where the court allowed for the consolidation of cases
in two different judicial regions even when it was not even an issue in
the case!
Demurrer to evidence
When do you apply for demurrer?
o In civil, when plaintiff has completed presentation of evidence
o In criminal, when the prosecution rests its case
o When is this exactly?
After formal offer of evidence
Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you file leave, is it okay?
Nothing really wrong, but youre just delaying your
case.
o In criminal cases, can you file demurrer without leave of
court?
Yes, but if it is denied, the consequences are serious.
If there is no leave, and demurrer is denied
accused waives the right to present evidence
If there is leave of court, and demurrer is denied
accused can still present evidence
What is your remedy of the losing party defendant if the demurrer
is granted? (civil)
o Can still appeal, because demurrer is a final disposition of a
case.
If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?
Yes, you can file. As long as there is an order, you
can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?
File certiorari
But in criminal demurrer, can you file for certiorari after denial of
the MR?
o You cannot appeal a denial or file for certiorari until final
disposition of the case.
Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-file.
o But is it reviewable by appeal?
No. It is an acquittal. Double jeopardy has set in.
o But is it reviewable by another mode?
Petition for Certiorari (Rule 65)
Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he files it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This effect does not apply to criminal cases
P v. Cachola: N.B. In a bar exam, demurrer was once coined as
motion to dismiss on the ground of insufficiency of evidence. This
case used the very same terms.
Judgment on the pleadings
When is there judgment on the pleadings?
o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
partys pleading
What do the material allegations mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
difference is with that concept
Who files a motion for judgment on the pleadings?
o The plaintiff, always
Can there be partial judgment on the pleadings on this ground?
o No. Its ALWAYS a full judgment on the pleadings.
o N.B. This is different from summary judgment, where there can
be partial or complete summary judgments.
Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
If youre the plaintiff, when can you file a motion for judgment on
the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?
Yes under Rule 18, Section 2g.
But as a rule of strategy, file it upon first chance to do
so.
o Can you file a motion for judgment on the pleadings after
pre-trial?
Yes. But this is really belated.
If youre the defendant, when can you file?
o Anytime.
Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But its still, ultimately with the parties consent. So in the
end, the judge still cannot grant it on his own.
Summary judgment
What is summary judgment?
o There is no genuine issue as to a material fact. Memorize this
phrase.
What is the difference between this and the answer does not
tender an issue?
o There is no issue as to a material fact (note: not on the issues)
But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable. X
owes Y 500K. Y sues X. X claims its not yet due! Is this
something that would lead to summary judgment or judgment on
the pleadings?
o Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but its actually
sham or fictitious.
o Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
Judgments
What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modified once final and executory
What are the exceptions?
o 1. Nunc pro tunc
antedated judgment, when delay or error is due to the
courts fault
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain finality like
support
Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o No.
Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it. He must have
authority [missed this]
Is filing of memoranda by the parties (after the trial, after
submission of evidence) required/mandatory?
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation there are two judgments:
1. Authority to expropriate
2. Just compensation
o Ex. Summary judgment (one case has several judgments
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
What is the difference between a separate judgment from a several
judgment?
o Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
Motion for reconsideration
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?
Cannot be extended
This rule has never been changed. You cannot file an
extension on an MR
o So whats the remedy?
Some lawyers suggest filing a supplement. But
actually, there must be a new event or fact that arises
to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the
judgment (ex. just one of the issues).
Distinguish an MR from an MNT.
o The grounds are different. In MNT, the grounds are FAME and
newly discovered evidence.
What fraud is needed here?
Extrinsic fraud.
What is mistake?
Mistake of fact in good faith
If theres a mistake of law, the remedy is an
MR, not MNT
What is newly discovered evidence?
1. It must be material
2. It was not available during trial despite
exercise of due diligence
3. If considered by the court, it could
later/change the result
o What are the grounds for MR?
1. Evidence not sufficient to support the judgment
2. Excessive damages
3. Decision contrary to law
What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o Rules 40 and 41 (ordinary appeal) covered by Neypes ruling
o Rule 42 (petition for review) no need for Neypes ruling,
because the provision itself provides for it
o Rule 43 (review of QJA) no need as well
o Rule 45 (petition for review on certiorari) 15 day period for
MR is counted already in the period to file an appeal
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41
(ordinary appeal)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
o Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are different periods as well
In the MNT in trial court: 15 days from judgment
In the CA: for as long as its an active case (no need
to wait for a judgment in the CA)
Is there a MNT in the SC?
o Rule 56
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that
it should do it in the interest of justice.
Petition for relief
How many kinds of petition for relief do we have?
o 1. From judgment
o 2. From denial of appeal
Where do you file it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal:
A lawyer forgot to file an appeal on time. He filed late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground
o You file an MR.
o Why?
You file a petition for relief from denial of appeal if you
were prevented from filing it. Here, he was not.
What is the time period for filing petition for relief?
o Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
o BUT NOT more than 6 months after entry of judgment/order
o N.B. both periods must apply
The sixty days can only move around the six months.
If you found out the day before six months expire, you
are left with one day, not 60 days.
Can you file a petition for relief from judgment when there is still
an available remedy of MR, MNT, or appeal?
o No. As long as there are still available reliefs, you cannot
resort to petition for relief from judgment. Take note, that there
must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal.
Where else does FAME apply?
o 1. MNT
o 2. Petition for relief from judgment/denial of appeal
o 3. Motion to reconsider order of court in pre-trial declaring that
the plaintiff can present evidence ex parte due to failure of the
defendant to appear in pre-trial
o 4. Motion to lift order of default
What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud
Prescribes 4 years from time of discovery
o 2. Lack of jurisdiction (covers both SM and person)
N.B. This is the only provision that uses lack of
jurisdiction both ways
Mr. X died, leaving an estate. Juan claims to be the sole heir. The
estate court adjudicated the entire estate in favor of Juan.
Judgment became final and executory. After 2 months, the rest of
the heirs who learned of the judgment came forward and filed a
motion to set aside the judgment. Court denied the motion to set
aside the judgment. So they went to the CA on an annulment of
judgment. (N.B. a petition for annulment of judgment is an original
action; it is not an appeal. You file this for a decision of the MTC, to the
RTC and for a decision of the RTC, to the CA.) Did they use the
proper remedy for filing petition for annulment of judgment in the
CA and not petition for relief to the court that issued the judgment?
(Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may file a
petition for relief from judgment, it is an action in rem. It
requires publication, so the heirs have been notified and
deemed as parties.
o 2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
relief, since it falls within the period.
Execution
When is execution a matter of right?
o Judgment is final and executory USUAL CASE
Ex. period appeal has already lapsed
When is execution a matter of discretion?
o For good reasons, when t is not yet final and executory
o Execution of several, separate, or partial judgment
Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then to
the SC. Who issues the writ of execution?
The RTC the court of original jurisdiction
o Are there instances wherein the writ will be issued by an
appellate court, or a court other than that of original
jurisdiction?
In the interest of justice, you can apply to the
appellate court. But the general rule is that it is still
the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
instance?
When it exercises original jurisdiction.
Where do you file a motion for execution?
o File it in the court that rendered the judgment.
o Can it be filed with the appellate court?
Same with above.
Do you need to file a bond to apply for discretionary execution?
o The obligor need to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file a
supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?
Proof showing good reason
o What are examples when discretionary execution vest?
1. Perishable goods
2. Old age + sickness [?]
Intramuros: Discusses when the judgment becomes final and
executory. A final judgment or order is one that finally disposes of a
case. This is the only thing that could be subject to execution.
What is the difference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.
Should the writ of execution conform to the dispositive portion?
o Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the
judgment. (Intramuros)
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued as
a matter of right?
o No. You cannot stay it anymore even with a bond. Its a
matter of right.
o What is the exception?
Get an injunction or TRO, claiming GADALEJ.
What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other judgments
saying its immediately executory
Can an MR stay a motion for execution?
o The provision only says an appeal can stay a judgment
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
Mina: Discretionary execution can be entertained by
the RTC.
Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
Is a motion for execution indispensable before the court can
execute?
o Yes, even for those immediately executory in nature.
o Cagayan de Oro: A lawful levy for execution is needed before
there can be a sale can be effected.
o Can the court motu propio issue a writ of execution?
OCA v. Corpuz: Court on its own, cannot issue a writ
of execution without motion of another party
What is revival of judgment by an independent action?
o If you went beyond 5 years from entry of judgment, but are still
within the prescriptive period, you can file an independent
action to execute.
When can you file a motion for execution?
o Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?
YES. This is the flat prescriptive period for
judgments.
Death after judgment:
o If the judgment oblige dies, then the executor/administrator
applies for execution
o If the judgment obligor dies, and judgment is for recovery of
real/personal property there is a lien over his property
o What if levy has already been effected?
Proceed to sale of the property to satisfy the
judgment.
o What if the judgment is for money, not property?
File a claim against the estate
Section 8: Contents.
o Do the contents have to always be there?
No. Only to the extent applicable.
Money judgments
o Payment must be in what form?
In cash.
o Payment must be made to whom?
To the judgment obligee, if available
What if he is not available?
To his representative
What if he is not available?
To the sheriff
o Can payment be effected not by cash (Ex. check or PN)?
Certified bank check is allowed
Or any other form of payment acceptable to the latter
o What if there is no cash?
Go to
Levy on real or personal property
o What will be disposed first?
Choice of judgment obligor
If he doesnt make a choice, personal property is
prioritized over real property
o What if there is no property?
Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
5 days from receipt of notice. The custodian/manager
has 5 days to report if there is money.
o What does the court do next?
It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
No.
Specific acts
o If the court requires the obligor to do something, but he
refuses, what happens?
The court can require another person to perform it.
o If the other person does not comply?
The court may consider that it has been DEEMED
complied with.
Give an example.
The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o Can an order for demolition be given along with the writ of
execution?
No. It is punitive in nature, so there must be a
hearing.
o When can there be contempt?
ONLY applies for special judgment, and there is
refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land
If you mortgaged your Family Home, will it still be
exempt from execution?
[See last sentence?]
What are homestead lands?
Public lands given to people giving them a
chance to cultivate
o Libraries of professionals not beyond 300K
o Furniture for the family not beyond 100K
o Beasts of burden (up to 3)
o Tombstones
What about mausoleums?
No.
o [Among others]
When can you apply for a motion for execution?
o Section 14. This also tells you the life of the writ.
o What is the life of the writ?
5 years, before it expires.
Sec. 15-34:
o Important parts:
Requirements of sale
Certificates of sale
Redemption
Redemption period
Who will be in possession of the property sold in
public sale
Who will be entitled to fruits/profits of the property
What if after participating in the sale, you are unable
to take possession of the property remedies
o What are the requirements for sale?
TWO NOTICE REQUIREMENT: one to the judgment
obligor, one to the public
Public posting in conspicuous places, or
even by publication
What if it is a perishable good or personal
property?
Perishable goods within reasonable time
(no strict timeframe)
Personal property at least 5 days notice
Real property within 20 days
o N.B. not at least
What if the assessed value of the real
property exceeds 50,000, what is needed?
o There must be publication
Should you notify the judgment obligor?
Perishable goods just notice before the
sale
In all cases, notice at least 3 days before the
sale
What time must the sale be?
9 am to 2 pm, and it must be in the office of
the Clerk of Court. But usually, it is done
outside the hall of justice
What if it is personal property capable of
delivery?
It must be done in the place where the
property is located
o Is a certificate of sale mandatory for personal properties
capable of manual delivery?
No, it is not.
For real properties, you need a certificate of sale.
What are the contents of a certificate of sale?
1. Particular description of the real property
sold
2. Price paid for each distinct parcel or lot
3. Whole price paid
4. Statement that right of redemption expires
1 year from the date of registration of the
certificate of sale
registered with the ROD
o Can you redeem personal property sold on public sale?
No. Personal properties cannot be redeemed, only
real properties.
Who can redeem?
The judgment obligor can redeem
Who else?
Those who have interest on the property,
either by credit, encumbrance
(redemptioners)
What is the distinction?
Judgment obligor always has a period of 1
year, non-extendable
Once the judgment obligor redeems, no
further redemption is allowed.
Redemptioners may redeem, but it may
again be redeemed from them within 60
days by another redemptioner
What about the redemptioners?
o Their rights were never
extinguished. It still exists, over the
property.
If the judgment obligor does not redeem,
can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
property.
o Who has possession during redemption period?
Obligor.
o Who is entitled to fruits and profits?
Obligor.
N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
o How must redemption be made?
It must be willingness and intention coupled with
tender of payment. Willingness and intention without
tender is not enough.
Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held to
be invalid.
Beyond the redemption period, can it still be
redeemed?
It is not anymore redemption as
contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.
Amount subject to sale + interest + taxes, if
before the one year period; however, after
the period is over, the amount can be
dictated by the parties freely.
o I purchased property in a public sale, but someone with a
better interest came forward, so I wasnt able to get
possession and transfer of the property. But I already
parted with my money, and paid the sheriff. What should I
do?
1. You can recover its value in the same action or
separate action
2. You can have the judgment revived in the name of
the purchaser he steps into the shoes of the
judgment obligee.
In this case, he can execute just like any
other judgment obligee.
[So if he cannot pay, he can levy, and if not,
he can garnish.]
In execution, you need to remember the word satisfaction. Sections
44 and 45 have this end in mind. The books of the case will not be
closed, even if you won, if judgment has not yet been fully satisfied.
What are the remedies of the judgment obligee is the writ of
execution as returned shows that the judgment has not been
satisfied?
o 1. Call the judgment obligor and have him examined in court,
through subpoena
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena
What if in the course of examination, we find that
he owes the obligor?
He can then be charged.
o 3. Pay directly to the sheriff, and the sheriff issues a proper
receipt
o 4. Amortization payments
o 5. Court appoints a receiver
Akin to the provisional remedy on receivership
This is the only provisional remedy that can be given
by the court even after judgment
The reason: to preserve the property.
o 6. If it is later discovered that the obligor has an interest over a
property, the court can order a sale
The property must be within the place in which
proceedings are had
o 7. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor, the obligee could
ask for an order to have the property sold for a period of 120
days. If there is sale within this period, the obligee (!) will be
the one penalized (odd).
What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court
Every 30 days, the sheriff has to report on the status
of the writ
o 2. Written acknowledgement of the judgment obligee or
counsel
o 3. When there is an endorsement on the face of the records of
the case
Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
What are the effects of domestic judgment? (MEMORIZE)
o 1. As against a specific thing, condition/status/relationship of a
person conclusive upon it
Where a will has been probated, is death of the
party conclusive?
Its only presumed
o 2. Res judicata
Baretto v. CA: Two aspects of RJ 1. judgment bars
the prosecution of the same claim, demand, or cause
of action, 2. Precludes the re-litigation of a particular
fact or issue in another action between the same
parties in a different claim or cause of action
o 3. Preclusion of issues/conclusiveness of judgment
As to other litigation actually and necessarily included
therein
What are the effects of foreign judgment?
o 1. Conclusive as a specific thing
o 2. Presumptive evidence of rights between parties
How do you enforce foreign judgments?
o 1. File a verified petition in the RTC
o 2. There was jurisdiction of the court over the subject matter
and over the parties
o 3. Prove the law of that jurisdiction
How do you impugn that foreign judgment?
o 1. Want of jurisdiction/notice to party
o 2. Collusion
o 3. Fraud
o 4. Clear mistake of law/fact
How about foreign arbitral awards?
o You file an action for recognition. It is not a foreign judgment.
Appeals
[*NOTE for Bar review: check your Appellate Practice notes. Theyre better,
for these sections]
What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41)
o 2. Petition for review
o 3. Petition for review on certiorari
What are the ordinary appeals?
o Notice of appeal
o Record on appeal
When is there record on appeal?
o Multiple appeals
o Special proceedings
What are the periods?
o Notice of appeal 15 days
o Record on appeal 30 days
Can you extend the period of 15 days?
o Not extendable
o But if you file an MR and it is denied, following Neypes, you
get a fresh period
Can you extend the period of 30 days?
o No
o Except when there is an authorized alteration or modification of
the record
Where do you file a notice of or record on appeal if you are in the
MTC going up to the RTC?
o MTC. Always on the court that issued the judgment.
What is a record on appeal?
o Its a sequential compilation of the pleadings, orders, etc. of the
judge.
o Unlike a notice of appeal, which is just a statement when you
received the decision, that you paid appeal docket fees within
period, and you intend to appeal
If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because its only been decided on once, and will be reviewed
for the first time.
o As opposed to Petition for Review this deals with cases that
have been twice decided on.
What is the procedure in the CA?
o Filing of appellants and appellees brief. The procedure is
found in Rule 44, not 41.
Period for filing of briefs?
o 45 days, appellants brief
o 45 days, appellees brief
o 20 days, for reply
o N.B. For the MTC RTA ordinary appeal, the periods for the
memoranda are 15 days and 15 days, respectively
When does the court of original jurisdiction totally lose
jurisdiction, during appeal?
o When all the periods for appeal have expired
o Or when all the parties have appealed in due time
What are the two kinds of petition for review?
o Rule 42
o Rule 43 (quasi judicial agencies)
o What about petition for review of the decisions of the
Prosecutor?
It is technically not a petition for review because it is
for criminal procedure, and is in the executive branch
When does Rule 42 apply?
o There is denial in the MTC, and then denial in the RTC, and
then it goes up to the CA through Petition for Review.
o What about summary proceedings in the MTC?
When you lose in the MTC, you cannot file an MR.
BUT you can appeal to the RTC, then petition for
review to the CA.
o What about small claims in the MTC?
You cannot MR or appeal a small claims decision. It
is final and executory. But if there is GADALEJ, you
can go up to through a petition for certiorari.
When does Rule 43 apply?
o When the body with original jurisdiction is a quasi-judicial
agency
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?
Yes, you can ask for one during the reglementary
period.
o Can you ask for a second extension?
General rule is that no further extensions are allowed,
except for the most compelling reasons.
What are the requirements of a Rule 42?
o 1. It must be verified MEMORIZE
o 2. Attach a copy of the decision or a duplicate original
o 3. Affidavit of material dates (date of receipt of decision, date of
filing of MR, date of denial of MR)
o 4. Parties, issues, grounds relied upon, errors, explanation if
service is other than personal
o What are some of the causes that will dismiss your case?
1. If the jurat does not comply with the requirements
of the notarial law
2. Failure to attach registry receipt
What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?
Because it came from a QJA. So the court will not be
able to verify if the issued resolutions, etc. are
genuine
Is the enumeration in Rule 43 of QJAs exclusive?
o No.
o Can the decision of the Office of the President be reviewed
by the CA?
Yes.
o Can the decision of the HLURB be reviewed by the CA?
No. By express provision, it must go through the
President before the CA.
o NLRC by the CA?
Yes, but under Rule 65, not 43
o DARAB by the CA?
Yes.
o CTA by the CA?
No. It must be CTA en banc, then SC.
The only way to go up to the SC is through Petition for Review on
Certiorari.
o Except: In a criminal case where the punishment is Life
Imprisonment, Death, or RP you go to the SC through
Ordinary Appeal
Petition for Review on certiorari what is the period?
o 15 days.
o Can there be extension?
ONLY ONE extension for 30 days, for good reason
o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?
NOPE. You only get one extension.
Rules 44-56 CA
How is jurisdiction acquired over persons for original cases filed in
CA?
o Service of order/resolution or voluntary submission to the
courts jurisdiction
o What does service of order or resolution mean?
Akin to Rule 13 service
o What if there was an effort to serve and it was not
received? Is the court deemed to have acquired
jurisdiction?
No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.
Can you seek an annulment of judgment of an
MTC decision?
Yes. You file annulment in the RTC.
Can you seek an annulment of judgment of a CA
decision?
No. Fall back to the usual rule that you can
only go up to the SC through Rule 45.
o Can the justices hear the case?
Yes. Alternatively, it can ask the RTC to receive
evidence.
Preliminary conference is the equivalent of pre-trial in the CA. Whether
it is an original or appealed case, the CA can set it for preliminary
conference.
o What is the effect if the appellant is absent here?
The appeal will be dismissed. This is provided in
Rule 50.
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this.
Ex. paid docket fees outside of reglementary
period, even if you filed the appeal within the
period; failed to file within the reglementary
period
Ex. failure to file an appellants brief
o Can the parties stipulate on the facts?
Yes, if it is an original action, or there is a grant of
new trial on the ground for newly discovered evidence
(Note: newly discovered evidence is the only ground
for the CA; FAME is not included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
But if the CA feels that there is a need for the parties
to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o 2. Do you hear motions in the CA?
While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
party.
BUT in the Court of Appeals, motions in the CA need
not be heard (same with the SC)
Comply with minimum requirements of Rule 44 and 50.
o What if you dont have an assignment of errors?
Your appeal will be dismissed.
o What if you dont comply with court circulars?
Dismissed.
Rule 51 provision on judgment. (For trial courts, it is Rule 36.)
<spaced out>
Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
TC reglementary period within receipt of adverse
decision
CA from the time appeal is perfected and as long as
the CA has jurisdiction
Rule 56 Supreme Court
Remember Sec. 1 and 3. Memorize the cases that will be originally filed
in the SC.
What are the cases that can be originally filed in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary
actiosn against members of the Bar/bench, against
ambassadors, consuls, other public ministers, etc.
But if you file a case against a member of the Bench,
it will be referred to the Court Administration. If
against a member of the Bar, it will be referred to the
IBP.
o Found in the Constitution: Constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
What do you need to follow for original cases?
o Rule 46 original cases
o PLUS: Rule 48 (preliminary conference), Rule 49 (oral
argument), Rule 51 (judgment), Rule 52 (MR)
o Is there a MNT?
No.
For appealed cases to the Supreme court, what is the mode?
o Rule 45 the only way to go up to the Supreme Court
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment),
Rule 52 (MR)
o Is there oral argument?
No.
Rule 57 attachment
Manguila: citing Davao Light and Power. Question is when should
jurisdiction over the defendant vest?
o Distinguish between issuance and implementation of the writ of
attachment to determine when jurisdiction is needed over the
defendant.
o Remember you could file an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
upon motion.
o To answer the question: there are three stages for attachment

1. Court issues order granting application
2. Writ of attachment issues pursuant to the order
3. Implementation of the writ
FOR THE FIRST TWO STAGES, jurisdiction over the
defendant is not yet required because it is an ex parte
application. However, when you are implementing
the writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?
You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.
Either personal or substituted service.
Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasi-
contract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud
What if claim is recovery for sum of money only?
No. You could only apply for attachment if
the defendant is about to depart with intent
to defraud.
o 2. Embezzlement/abuse of trust by one with a fiduciary
relationship
For all intents and purposes, this is estafa
o 3. Action to recover property and there is willful fraudulent
concealment of the property
o 4. Fraud in contracting the obligation or fraud in the
performance thereof most asked ground
First: If not for the fraud, the other party would not
have entered into the transaction
Second: In the manner of the performance, it was
fraudulent
o 5. Action against a person who removes/conceals property
Unlike (3), this is directed against a person
o 6. Defendant is a non-resident
Fraud not required here, because he can leave at any
time
How do you discharge an attachment?
o 1. Most common: post a counter-bond
When do you post a counter-bond?
Can be posted after enforcement of the writ.
You cannot anticipate its enforcement.
o 2. Improper, irregular, or excessive attachment
What is improper?
Grounds are not present in the case
What is irregular?
Wrong process.
When can this be raised?
ANYTIME, even before enforcement.
Can you recover damages?
o Yes, Section 20 if there is improper, irregular, or excessive
attachment.
o Section 20 applies to all provisional remedies except support
pendent lite.
o Where can you apply for it?
In the trial court; during or after trial.
You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
attachment?
1. With best evidence obtainable, fact of loss or injury
2. Amount thereof
o Can actual damages cover unrealized profits?
Yes. But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?
Prove that the wrongful attachment was with malice or
bad faith.
o How about attorneys fees?
Generally, attorneys fees cannot be awarded when
moral or exemplary damages are not granted.
Exception: when a party incurs expenses to lift
wrongfully issued writ of attachment.
Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the
debtor intended to defraud the creditor by contracting the debt. The
fraud must be related to the execution of the agreement and must have
been the reason that induced the party to give consent.
o If the writ of attachment is issued for a ground that is also the
cause of action of the plaintiff, the only way to dissolve it is to
post a counter bond.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?
No.
Rural Bank of Sta. Barbara: A motion to release property from
attachment was treated as a third party claim (can also be found in Rule
57, Sec. 14). Works as the same manner as a third party claim, except
for one difference: [READ THIS CASE TO CLARIFY]
o Usually, in execution The applicant posted a bond when he
applied for a writ of attachment (to cover whatever damages
defendant will suffer due to attachment) By reason of a third
party claim, with no bond, the process will be suspended. Now
it is the burden of the applicant to post another bond to cover
the third partys damages.
o In attachment more or less the same procedure. The third
party claim suspends the attachment procedure. But the right
of the third party claimant in execution in attachment could be
vindicated in the same or in a separate action. In execution, it
could only be done in a separate action.
o Why?
Because in execution, the judgment is already final.
o In Rural Bank, a motion was filed to release property from
attachment, giving affidavit of title to the sheriff. The court said
that the filing of the motion can be deemed the same as a third
party claim (because 3P claim must be filed with sheriff). It can
also be treated as a form of intervention.
Case: Levy on attachment duly registered takes preference over a prior
unregistered sale. The preference created by attachment is not
defeated by the subsequent registration (to the attachment) of a prior
sale, because attachment is a proceeding in rem.
Magaling v. Ong: Irregular and improper issuance of attachment.
When the attachment is challenged for being illegally or improperly
issued, there must be a hearing.
o The hearing embraces the right to present evidence, and also
the establishment of rights of other parties.
o Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o The discharge of an attachment, whether through counterbond
or irregular, improper, or excessive can only be done through
hearing.
Security case: Two ways to secure discharge of attachment. 1) Party
whose property or his representative has been attached can post a
security. 2) Said party can show that the attachment has been
improperly or irregularly issued. Mere posting of counter bond does not
discharge the attachment. There should be a specific resolution for the
discharge.
Contents of affidavit for attachment?
o 1. Cause of action
o 2. Statement that the grounds apply
o 3. There is no sufficient security
What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of execution?
o If there is money duly garnished or obtained through sale of
perishable goods, the money will be applied.
o If not sufficient, use real or personal property that has been
attached. But these properties have to be sold on public sale.
Procedure is consistent with Rule 39.
What if the properties attached are not sufficient to satisfy the
judgment?
o Court proceeds with ordinary execution to cover the balance.
Rule 58 - Injunction
N.B. Rule 58 has been amended on Dec 2007. It was amended
alongside Rules 41 and 65.
What was affected by the amendment?
o Rule 48, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for
injunction?
o Yes. There could be a principal action for injunction. There is
a distinction made in this case between principal action and
preliminary injunction:
o Principal action seeks a judgment for a final injunction which
is separate and distinct from
o Preliminary injunction object is just to preserve status quo
Greenfield, Dela Cruz v. DECS: What are the requisites for a PI?
o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material
and substantial
o 3. There is an urgent and permanent necessity for the writ to
prevent serious damage
Types of PI?
o 1. Preliminary injunction to prohibit or stop (status quo ante)
o 2. Preliminary mandatory injunction an injunction which
requires you to do something or perform something that you do
not ordinarily want to perform, in order to maintain the status
quo
Estares: A writ of PI based only on initial and incomplete evidence
is this allowed? What kind of evidence is required?
o You dont need to present your entire case. Only a sampling of
evidence is needed, to give the court an idea to justify why you
need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o No. Its an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o If great and irreparable injury, court can issue a TRO ex parte
(without notice and hearing) for 20 days.
When stations where there is an executive judge, or the presiding judge
of a single-sala court, there can be an issuance of a 72-hour TRO ex
parte if the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury
Can an injunction have an effect if enforced outside the judicial
district? (ex. enforced in Makati and Mandaluyong, and the judge
is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has
been issued
o The posting of a bond in connection with PI does not operate
to relieve the party obtaining the injunction from paying
damages the bond only gives additional protection in favor of
the defendant
o So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.
A court issued a writ of PI. What is the duty of the court in relation
to the main case?
o The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.
Aquino: Dissolution of the injunction, even if it was obtained in good
faith, it amounts to a determination that it was wrongfully obtained. A
right of action against the bond accrues.
Garcia: Posting of a bond is a condition sine qua non to issue a writ of
PI.
Borromeo: Where the parties stipulated in their credit agreement, PN,
contract, etc., that the mortgagee has the right to foreclose in case of
default, this defeats any future claim for the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount.
Mere allegation of payment without showing actual payment is
not basis for issuance of PI.
o 2. Mere claim/allegation that the interest is unconscionable or
excessive does not justify issuance of the PI unless the legal
interest is paid.
What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or extrajudicial
foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
What are the two kinds of TRO?
o 72 hour TRO can only be issued by executive judge of a
multi-sala court, or presiding judge of single sala court
Without notice and hearing
Can these 3 days become 20 days?
Yes, after raffle and it is assigned to a
regular court judge, who can now conduct a
summary hearing to determine w/n it must
extend the TRO from 3 to 20 days.
o Normal 20 day TRO issued by a regular court judge after
raffle
Without notice and hearing
Great and irreparable injury
Can a 20 day TRO be extended?
No, it automatically expires w/ or w/o a
period.
Unless you obtain a preliminary injunction
Can a preliminary injunction be issued without notice and
hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or
preliminary injunction.
If you file a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition
for certiorari (60 days)?
No more.
Before the 2007 amendment, you can ask for a 15
day extension. This was removed already.
How can you dissolve a writ of PI?
o Is insufficiency a ground to dissolve a PI?
NO. It just a ground to deny, not to dissolve
o 1. File affidavits showing there is no reason for the PI
o 2. File a counterbond + an affidavit showing that he will suffer
more damage than applicant will
Is a counterbond enough?
No
Is the statement enough?
No
Rule 59 Receivership
The only provisional remedy that can be applied for post-judgment and
even if it is already final and executory.
Grounds:
o 1. Property is in danger of being lost
o 2. Property is in danger of being wasted/dissipated
Or Stipulation in a mortgage contract and the security
in the mortgage is not enough to cover the value of
the application
o 3. Preserve property during pendency of appeal, dispose of it
according to judgment, aid execution if execution unsatisfied,
carry judgment into effect
o 4. Other reasons the court finds convenient
Requires a bond
How do you dissolve the bond?
o 1. Show no cause
o 2. Post a counterbond
Rule 60 Replevin
Can property held as evidence in criminal case be subject to a writ
of replevin?
o Superlines: NO. In the affidavit of the affiant, the property is
not subject of custodia legis, execution, or attachment. The
deprivation, to be validly subject to replevin, must be illegal or
unlawful.
o Property can be said to be in custodia legis, not only when it is
in official custody, but if it pursuant to a legal order in a case
Can one quash a writ of replevin?
o Of course, it may be quashed or dissolved
o How do you dissolve?
1. If you want to regain immediately custody or
possession, you just simply post a counter-bond
[take note of this]
2. Attack the sufficiency of the replevin
Here, you cannot effect an immediate
release
What is the value of the bond?
o THIS IS THE ONLY PROV REM WHERE THE
BOND/COUNTER BOND IS DOUBLE THE VALUE OF THE
PROPERTY.
What are the contents of the affidavit?
o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
When can replevin be applied for?
o You can only apply for this AT ANY TIME BEFORE AN
ANSWER.
o For the other provisional remedies, you can apply anytime
while the action is pending (or for receivership, even after)
What is your remedy after an answer is filed?
o You file an attachment, but the effects are different.
o What are the differences?
1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
personal are attached to secure the judgment
2. In replevin, when the writ is served, the sheriff
takes possession, and delivers it to the applicant
(unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff
and delivered to the court; for real property, the sheriff
annotates at the dorsal portion of the title.
Note that the main action is recovery of possession of property. The
issuance of a writ of replevin is just a provisional remedy.
Can there be a principal action for replevin as a provisional
remedy?
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can file any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
Pinggol: A replevin bond was deemed invalid because the officer who
signed the bond is without authority to do so from his company.
Danao: Can you subject to replevin a motor vehicle in custody of
another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here,
ex. Bureau of Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
In attachment and replevin, there are rules for third party claims.
What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third
party claimant can vindicate his right in the same or a separate
action. In Rule 39, a third party claimant can only vindicate his
right in a separate action, because judgment is final and
executory.
o What is the rule on intervention (Rule 19)?
You can intervene anytime before judgment. But this
only applies to trial courts.
What about appellate courts?
You can still intervene, but subject to the
appellate courts sound discretion.
Rule 61 Support pendente lite
This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
needs money.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages
from a bond while the action is pending.
o So what is the rule if you are wrongfully compelled to give
support?
You dont recover damages. You ask for
reimbursement.
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of
execution even when there is no final judgment:
1. Support pendente lite
2. Indigent (which the court finds that you are not an
indigent and requires you to give filing fees)
What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
o If the action is still pending, you can apply for reimbursement in
the same action.
o If there is a judgment already, you can apply for it in a separate
court proceeding.
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
Rule 62 Interpleader
Can there be a counterclaim in an interpleader case?
o Yes.
Stuff to remember:
o In the interpleader case, the one filing the case was not
violated. There was no breach.
o The person filing the action can either have an interest which is
not in conflict with the claiming parties, or has no interest at all.
Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest is entitled to a lien on the judgment award
What is the difference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.
Rule 63 Declaratory relief
Almeda: Enumerated the requisites of declaratory relief:
o 1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o 2. The terms of the documents are doubtful and require judicial
construction
o 3. There must have been no breach of the documents in
question
o 4. Actual justiciable controversy
o 5. Ripe for judicial determination
o 6. Adequate relief is not available
Bottomline: purpose is for interpretation and determine validity. Its not
about constitutionality.
o Also, there must be no breach
What if there is breach?
o There will be conversion to an ordinary civil action. This is the
only such action that can be converted.
Do you need to pay filing fees when it is converted?
o Yes, you need.
Which court has original jurisdiction?
o RTC.
o What if there is an allegation of unconstitutionality?
The RTC has no exclusive jurisdiction; you can file it
elsewhere like the SC. The RTC only has exclusive
jurisdiction if it is a pure question of declaratory relief
An action for declaratory relief must be dismissed if there is a pending
action for unlawful detainer.
Malana: Reiterates that declaratory relief presupposes no actual
breach.
Second paragraph of Sec. 1: -- covers other similar remedies
o Removal of cloud
o Quieting of title
o Reformation of instrument
When can you reform?
There must be mutual mistake.
Can there be execution in a declaratory relief case?
o Yes, nothing prevents the filing of a counterclaim in a
declaratory relief, and there can be execution pursuant to this.
Rule 64 Review of judgments and Final orders of COMELEC/COA
1. This is actually a petition for certiorari. If you file under Rule 64, it will
be named a Petition for Certiorari
2. The period to file a petition for certiorari under Rule 64 is 30 days,
non-extendable.
o But the period can be interrupted, if an MR is allowed. In
which case, you get the remaining period.
3. This has a limited application; it only covers decisions by the
COMELEC and COA.
NOTE: For 43 and 64, all the attachments are certified true copies.
The reason is you involve Quasi Judicial Agencies.
Rule 65 Petition for certiorari, mandamus, prohibition
First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
65: you do not talk about Rule 65. You have to fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required GADALEJ. No plain, available,
speedy ordinary remedy.
o It is the same as certiorari.
Certiorari whose decision can you question?
o Judicial or QJA
Prohibition whose decision can you question?
o Judicial, QJA, or ministerial
What is the difference between prohibition and mandamus?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X
received the advance of the contract price, and X did not build the
house, can you compel his performance by mandamus?
o No; it is not ministerial. It is a contractual obligation specific
performance.
Can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
In prohibition, you cannot prohibit an act that has already been
performed. It is already moot.
Quo Warranto
Who commences an action for quo warranto?
o Liban: Generally commenced by the government.
o 1. President, directing the Sol-Gen
o 2. Sol-Gen, in the name of the government, when he has good
reason to believe
o 3. Upon the relation of another person, telling the Sol-Gen to
institute the action
What is the special requirement if it is upon the
relation of another person?
There must be approval by the court. If not
approved by the court, the Sol-Gen will not
file.
o 4. The person instituting quo warranto in his own behalf must
show that he is entitled to the office in dispute.
This is where the person aggrieved himself files (Sec
5)
What should he show?
1. His claim
2. And that he is entitled to the office
When can you file it?
o 1. Usurpation
o 2. Public officer who does or suffers an act constituting ground
to forfeit office
o 3. Association not duly incorporated
Quo warranto is also available if a government
corporation has offended against its chapter.
It is a prerogative writ, where the government can exercise its right to
demand proof of what right a person has over office
What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?
If it is the Sol-Gen who institutes the action, it can be
filed in the courts of the City of Manila
What is the period to institute an action for quo warranto?
o One year from happening of the event
Can you recover damages from a quo warranto judgment?
o One year from entry of judgment
A person who is declared by the court to be entitled to an office should
require delivery of books, papers, documents in the possession of the
usurper if he refuses, he can be liable for contempt.
If there is a dispute between and among the Board of Directors of a
private corporation, one group claiming that they have been
usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be filed in the regular
courts (RTC) having original jurisdiction.
Rule 67 Expropriation
If it involves a government facility which is subject of
expropriation, how much deposit do you need to give?
o Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general. If it is personal property, assessed
[double check]
o Gingoyon: The government must pay at least the proffered
value, not the assessed value. (RA 8974 the deposit for
immediate possession is proffered value.)
Who can expropriate?
o National government
o LGU
o Instrumentality of government
Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is inferior domain.
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?
1. Public use, public purpose, public welfare
2. [xxx]
3. Just compensation
4. Valid and definite offer previously made to owner
but not accepted
Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet
o Once there is an order for expropriation, it can no longer be
withdrawn
Government entered property (took it) and caused demolition of
improvements. But before there was order for expropriation, the
government said huwag na lang. Can the government withdraw?
o Yes. But it is liable for damages.
If there a subsisting contract between government and the private
person, there can be no expropriation contrary to that contract.
Determination of just compensation is a judicial function.
NPC v. Manubay: Is traversing a lot with transmission lines, is there
expropriation or easement fees?
o There is expropriation
Mactan Cebu Airport: When you say public purpose, it must be the
purpose stated, and not another purpose, even if public too
o The acquisition of government of property is limited to the
public purpose stated, because it is not a simple purchase in
fee simple, unlike normal purchase of property.
Rule 68 Foreclosure
Two kinds of foreclosure?
o Judicial foreclosure (Rule 68)
o Extrajudicial (Act 3135)
What is the diff?
o Rule 68 you have to file a case, just like any other action; you
have to pay filing fees
o Act 3135 you file a verified petition before the office of the
clerk of court, who is the ex-officio sheriff
When is the EJF scheduled?
After paying of incidental fees and fees for
publication
What is diff between JF and execution?
o When there is award of JF, the mortgagor continues to be in
possession of the property.
o In execution, the obligor continues to be in possession of the
property.
o What about Banking Law?
In Banking Law, the possession is different. If the
lender is a bank and the borrower/mortgagor is an
individual the one in possession after foreclosure
sale is the purchaser or the bank, if it purchased.
o What about Act 3135?
After foreclosure, the mortgagor still possesses.
Under the lender is a banking institution follow the
Banking law.
What is the redemption period in JF?
o Equity of redemption: period 90-120 days.
o This is just the general rule. If there is a law giving a longer
period of redemption for the mortgagor, then that prevails.
o In execution in Rule 39?
Redemption is one year.
o In Act 3135?
Redemption is one year.
o Bank as lender and mortgagor/borrower is a corporation?
90 days or registration of certificate of sale, whichever
comes first.
Metrobank v. Tan:
o Involves filing of a civil case involving annulment and
cancellation of an EJF sale.
o The general rule in redemption not enough to manifest intent
to redeem. It must be accompanied by actual and
simultaneous tender of payment. (This also applies even to
redemption in execution.)
What constitutes payment for purposes of redemption?
o 1. The price which the purchaser paid for the property
o 2. Interest of 1% per month on the purchase price
o 3. Amount of any assessment or taxes which the purchaser
may have paid on the property
o 4. Interest of 1% per month on such assessment
Distinguish a legal redemption from conventional redemption?
o Legal redemption is one that is within the period provided for
by law.
o Conventional redemption beyond the redemption period, and
you still want to redeem, and you would like to agree on a
different price
Governed by contractual law. So the redeemer
cannot insist on the calculation above
Metrobank case:
o When the complaint to enforce a repurchase, if filed within the
redemption period is treated as an offer to redeem and will
have the effect of preserving the right of redemption.
Take note of the 2007 SC Circular re: TRO and injunction of
foreclosures [discussed in Rule 58]
Different types of sale of property?
o 1. Ordinary execution sale
Governed by Rule 39
o 2. Judicial foreclosure sale
Rule 68
o 3. Extrajudicial foreclosure sale
Act 3135
What is the jurisdiction of courts in JF?
o Any right title or interest over real property depends on
assessed value. So decide whether its RTC or MTC.
Rule 69 Partition
In the last five years, there were questions in the Bar exam, but they
involved EJ partition, not J partition.
Compare an EJP from a JP?
o JP covered by Rule 69
You must implead all the co-owners because
everyone is an indispensable party
o EJP covered by Rule 74
What are the two stages in JP?
o 1. Determination of existence of a co-ownership
The co-ownership is created by agreement of the
parties or by operation of law
o 2. Partition of the property
Who institutes action for JP?
o Any co-owner
What is the role of the commissioner?
o There is a need to refer the matter to a commissioner. But
remember that under this rule, it is NOT mandatory. If the
parties agreed, the matter will not be referred.
Step-by-step example of JP:
o There is a co-ownership created by death (inheritance)
o An action was instituted under Rule 69.
o The provision of law does not provide for an answer. But in the
absence of rules, there is an answer. So file one.
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment
based on the stipulation of the parties.
o If there is lack of agreement, refer to commissioners.
Examples of EJP:
o 1. Affidavit of self-adjudication
o 2. EJP upon a notarized public instrument
o 3. Even if there is petition for JP, but the parties agreed, it will
be treated as an EJP
Needs publication
Do you need a bond?
o For JP, no.
o For EJP, yes, for personal property.
Requisites of EJP?
o 1. There is no will
o 2. There is no debt
o 3. If there are minors, there is appointment of guardians
Until what period can you contest the distribution of the estate
under EJP?
o Within a period of 2 years.
Can you contest a JP?
o Paramount rights cannot be prejudiced, even if there is
judgment already
Can JP cover both real and personal properties?
o Yes.
Rule 70 Forcible entry and unlawful detainer
Distinguish.
o Forcible entry possession by reason of force, intimidation,
strategy, threat, or stealth
o Unlawful detainer previous lawful possession but by violation
of K or expiration of the period, it became unlawful
What is the most important allegation in FE cases?
o Prior physical possession
What is the most important requirement in UD cases?
o A demand letter is a specific requirement
o 1. There is a demand to pay unpaid rentals or comply
o 2. AND vacate
There must always be a demand to vacate
o What if the demand letter is defective?
The complaint can be dismissed. A defective demand
letter is jurisdictional.
Can you touch on the question of ownership in FE and UD cases?
o But only to preliminarily determine who is entitled to
possession.
o But the determination is not binding /prejudicial to future
questions of ownership.
Salient portions of procedure:
o In ejectment cases, unlike ordinary cases, the court can
dismiss the case outright.
o Absence of an answer will not lead to default, but a judgment
of the court. No need to declare the defendant in default.
o There is a Preliminary conference, just like summary
procedure. But after preliminary conference even without
position papers, the court can render judgment if it is already
satisfied.
o Third chance to make a decision: 30 days from filing of last
judicial affidavit or position paper
How do you stay execution of the MTC decision?
o 1. File notice of appeal and pay filing fees
o 2. Post a supersedeas bond
Covers arrearages
o 3. Pay the monthly rentals before the trial court
Can you file an MR in an ejectment case?
o No, it is a prohibited pleading.
o Dont file an MR, file a notice of appeal.
Are you entitled to a provisional remedy?
o Yes. You can apply for a TRO or preliminary mandatory
injunction so you can recover possession in the pendency of
the case.
o But you have to file it within 5 days from filing of the complaint.
In the rule on property, it says 10 days.
What prevails: 5 days.
Can you appeal?
o Yes. The appeal will be elevated to the RTC.
o The decision of the RTC, once final, is executory and cannot
be stayed.
o Even an appeal will not stay the execution.
o Benedicto v. CA: If you can get a preliminary injunction or
TRO from the next level court, it can be stayed.
What is the mode of appeal from RTC decision in exercise of its
appellate jurisdiction?
o Petition for review
o Can you file an MR before you file a petition for review?
Yes, because RTC is an appellate court and not
subject to rules of summary procedure.
Rule 71 Contempt
What is direct contempt?
o An act of disrespect in the presence of, or so near the court of
a judge
o It MUST be within the four corners of his office
o Ex. Refusal to take the witness stand or refuses to take an
oath. Or wearing shorts in court. Or your phone keeps ringing.
What is the nature of direct contempt?
o Direct contempt is summary. You will not be asked to explain.
Distinguish from indirect contempt.
o Contempt which is in violation of order or process of court.
Ex. failure to comply with subpoena of court.
o There is notice and hearing.
How do you charge?
o For direct contempt, there is no need to charge. You just need
to disobey or disrespect.
o For indirect contempt, there are two ways:
1. Formal charge of the judge motu propio
2. Upon a verified complaint filed and docketed
separately
I have a main case pending in an RTC branch in Makati. I obtained
a preliminary injunction but the other party refused to comply.
Can you file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:
Let them proceed separately
File a motion to consolidate.
What is your remedy for direct contempt?
o Its executory, so you can stay its execution by posting a bond.
o File a petition for certiorari or prohibition.
What is your remedy for indirect contempt?
o Its executory, so you can stay its execution by posting a bond.
o Remedy is an appeal.
What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days. Fine
not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day. Fine not
exceeding 200.
Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.
What is difference between criminal and civil contempt?
o Criminal contempt disrespect of the court/judiciary
o Civil contempt violation of right of other party
o Can there be administrative contempt? See below (QJAs)
In case of absence of rules in QJA, what is the rule?
o Venue is where the contemptuous act was performed
o Rules of Court apply

PART II: CRIMINAL PROCEDURE

What is the rule on venue and jurisdiction?
o VENUE IS JURISDICTIONAL. The place of commission
determines jurisdiction.
o Contrast with civil law where these are separate concepts.
o The crime of stabbing was committed in Makati; where can
it be filed?
ONLY in the courts of Makati.
o What is the exception?
Transitory and continuing offenses, wherein one or
more of the elements happened in more than one
venue.
Ex. Estafa, where the elements may be committed in
different places (ex. misappropriation in one place
and damage in another).
Ex. BP22 either place of issue, or where the check
bounced
Can an offense be committed outside the Philippines yet be filed
here?
o Yes.
o 1. Exceptions under article 2 of the RPC
o 2. Under the Human Security Law (Sec. 49)
Covers acts of terrorism
Even if the act was committed outside the Philippines
(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)
Act against Philippine citizens or against a specific
ethnic group.
But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o No, its not an exception, even if there are instances like the
Ampatuan case being heard in Manila instead of
Maguindanao, or Mayor Sanchez case being heard in Pasig
instead of Laguna.
o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o Where is this rule allowing transfer of hearing found?
Found in the Constitution, and subject to approval of
the SC.
What is the jurisdiction of courts under RA 7691?
o RTC: Penalty exceeds six years imprisonment, w/n committed
in MM or outside MM does not matter at all.
Regardless of fine or accessory penalty.
o MTC: Penalty does not exceed six years imprisonment.
o What if the penalty consists of just a fine?
SC Circular 09-94
If the fine exceeds 4,000 pesos, RTC has jurisdiction.
If it does not exceed 4,000 pesos, the MTC has
jurisdiction.
What is the jurisdiction of Special Agrarian Court?
o This is important because there can be a penalty for its
violation.
o DAR court has exclusive jurisdiction over all matters pertaining
to the DAR Law
Exception to DARs exclusive and original jurisdiction
are matters pertaining to just compensation which
goes to the courts
Also and more importantly the RTC as special
Agrarian Reform Courts also has exclusive and
original jurisdiction for prosecution of all criminal
cases under the DAR Law
What is the jurisdiction of the Sandiganbayan?
o 1. The accused is at least a Salary Grade 27 employee.
o 2. And the office must be a constitutive element of the offense.
o Can you be charged of offenses falling under the RPC?
Yes.
Can there be instances when you are not SG27 and still be under
the SB jurisdiction?
o Yes, if there is an express provision.
o Serrano: UP Student Reagent is a public officer under the
SBs jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the first
part of 4a only covers officials SG27 and above, the second
part covers officers whose positions may not be SG27 and
higher, but who are by express provision of law are placed
under the SB.
Sec 4a(1g) gives the SB jurisdiction over officers in
State-owned universities [Student Reagent is part of
the board]
What if the public officer is not SG27 but the office was a
constitutive element of the offense? Which court has jurisdiction?
o Regular courts, subject to appeal before the SB.
o Because the SB has both original and appellate jurisdiction.
What if there is one public officer falling under the SB jurisdiction
and the other is not?
o They can both be charged as co-accused under the SB if at
least one is SG27.
o Esquivel v. OMB: There was a session in Sanggunian
involving both a Municipal Mayor and a Barangay Captain.
The MM was charged in the SB (since he was SG27) and the
Brgy. Captain was charged as co-accused, even if he was not
SG27. HELD: Valid, because at least one of the co-accused
was SG27.
What if a co-accused is a private party?
o Yes, the SB can have jurisdiction over him.
Which court has jurisdiction to file hold departure orders?
o Monejar: An MTC court CANNOT. Only an RTC can issue a
hold departure order.
o Circular 39-97 Hold Departure Orders by RTC only apply to
offenses cognizable by second level courts.
o But there are instances when the DOJ Secretary can issue
a hold departure order, right?
Yes, but this is not under the law but under the
powers of the Executive.
There must be probable cause for the DOJ to issue
one.
o What is the difference between a HDO and a watch list?
HDO prevents you from leaving.
Watch list youre only being watched, but you can
leave.
What determines jurisdiction of the court?
o It is determined by the allegations in the information
o And any one of the ingredients of the offense or the offense
itself must be committed within the territorial jurisdiction of the
court.
What is the concept of a prohibited second MR?
o As a rule, a second MR is a prohibited pleading.
o Padiola: Such motion is prohibited and will not be allowed
except 1) for ordinarily persuasive reasons and 2) only after
express leave has been obtained.
o A wrong mode of appeal under Rule 56 will cause the
dismissal of the case.
o Does dismissal of a criminal charge cover dismissal of an
administrative case?
No. It does not prevent the continuation of an
administrative action.
The degree of evidence is different (proof beyond
reasonable doubt and substantial evidence)
What is the jurisdiction of the OMB?
o Covers any act of malfeasance/misfeasance or omission by a
public officer.
o It does not have to be in related to an office. The mere fact
that you are a public officer means that the OMB has
jurisdiction.
o Is the OMB a court?
No, its an investigative body.
What is the difference between the powers of investigation of the
OP and the OMB?
o Unlike the Office of the Prosecutor, which can only act upon an
affidavit complaint, while the OMB can investigate upon:
Own initiative, even without a formal complaint
Inquiry into acts of government
o Method of filing a complaint before the OMB is direct, informal,
speedy, and inexpensive. Just sufficient information is
needed.
Which has primary jurisdiction to prosecute cases cognizable by
the SB OP or the OMB?
o The OMB. The OMB has primary jurisdiction over cases
cognizable by the SB. He can take over at whatever stage of
investigation by another prosecutor.
What is the Office of the Special Prosecutor?
o The OSP is merely a component of the office of the OMB and
may only act upon authority by the OMB.
o Without authority, the OSP cannot file an information
o The OMBs power to prosecute carries with it the power to file
an information
How do you review the decisions of the OMB?
o If it is a criminal case and there is GADALEJ, you go to the SC.
o Ordinarily, it can be reviewed by the CA under Rule 43 (for
QJAs).
o Which decisions of the OMB in administrative cases are
unappellable?
Those imposing penalty of public censure, reprimand,
suspension of not more than 1 month, or fine of not
more than 1 month salary
Can a case be dismissed outright by the OMB?
o Yes, for want of palpable merit.
Can the OMB prosecute cases within the jurisdiction of regular
courts?
o The powers granted to the OMB are very broad, so it can.
Who represents the people during trial?
o Office of the Prosecutor.
Who represents the people during appeals?
o Solicitor general
What is controlling in determining the age of a child in conflict with
the law?
o Remember, below 15 years of age, he is exempt
o 15 to below 18, exempt if without discernment
If with discernment, go through juvenile law
o What controls is NOT the age at the time of promulgation of
judgment, but the age at the time of commission of the offense.
Rule 110 institution of criminal actions
If for purposes of jurisdiction of courts, there is no need to distinguish
between MM and Outside MM (OMM), for purposes of institution of the
criminal complaint, you will have to distinguish between MM/Chartered
City (CC) and OMM.
MM/CC OMM/OCC
Requiring PI Office of the Prosecutor Office of the Prosecutor
Not requiring PI Office of the Prosecutor Provincial
Prosecutor/MTC
Falling under Rule
on summary proc.
(ex. BP22)
Office of the Prosecutor Provincial
Prosecutor/MTC

So who can conduct a preliminary investigation?
o JUST the prosecutor.
The old rule which includes an MTC judge was
already amended.
o And the Ombudsman.
Can there be direct filing in a Metropolitan TC (METC)?
o No. Just a MTC (Municipal Trial Court).
What is the procedure in MM, requiring PI?
o The entire Rule 112, Sec. 3
What is the procedure in MM, not requiring PI?
o Only Rule 112, Sec 3(A)
On a BP 22 case, when is the prescriptive period deemed as
interrupted? Upon filing the case in court or filing of the case
before the Office of the Prosecutor?
o Note that prescription is 4 years for BP 22. When Act 3326
was passed on 4 Dec 1926, preliminary investigation was
conducted by Justices of the Peace (equivalent of MTC
before), and so when it was filed with the JOP for PI, then the
prescriptive period is interrupted.
o So by filing the case with the Office of the Prosecutor, it
interrupts the running of the period.
o (It cited a case where the SEC is investigating a violation of the
Securities Code, and it was deemed to have interrupted the
period.)
Who has control and supervision of a criminal case?
o The public prosecutor.
o So what are the 3-fold duties of a PP?
1. Conduct preliminary investigation
2. Prosecute a case
3. Conducting inquest proceedings, consistent with
Rule 112, Sec. 6
o It means that the public prosecutor must be there during the
case. If the prosecutor is absent, the hearing will be cancelled.
o A PP cannot come to court because he needed medical
attention. He was not able to inform the court that he
could not come. The accused counsel asked if he could
proceed even if the PP was absent, subject to the
prosecutors right to cross-examine the witness upon his
return. When the PP returned, he claimed the proceedings
were null and void. The other party said that the PP can
cross-examine anyway. Who is correct?
The PP. The proceedings were null and void
because he was not present.
o So even if the PPs presence is a mere passive presence, and
not an active presence, that is fine, because everything is still
under his control and direction.
What is the only exception?
o The private prosecutor can obtain a certification from the Chief
of the Prosecution Office to prosecute even in the absence of a
PP. This certification lasts until the end of the case.
What is the role of a private prosecutor?
o The private prosecutor intervenes for the private offended
party. He does not represent the people.
What is the rule on private offenses?
o Adultery and concubinage cannot just be instituted by anyone.
It must be the offended spouse. You would have to likewise
implead as accused the paramour or the partner (so both),
unless either is dead. If he has condoned, pardoned, etc. the
offense.
o Applies to seduction, abduction, and acts of lasciviousness.
Who can institute a rape case?
o The minor, the victim, parents, grandparents, guardian, State
in default
o The minor now can file alone, without assistance of parents
(esp. when the parents are the offender)
What about defamatory statements in connection with adultery or
concubinage?
o Can only be instituted by the offended party.
When is there sufficiency of information?
o Sections 7-12 are elaborations of Section 6.
o 1. Name of the accused
Full name (first and surname)
If his full name is not known?
Can use a nickname or appellation (Boy
Singkit)
What if there is no nickname or appellation?
Use John Doe or Jane Doe. For civil cases,
you use unknown owner or unknown heir
or whatever.
o 2. Designation of the offense by statute
Ex. murder, homicide, estafa
If there is no designated name of the offense, just say
Violation of Sec. 5 and 11 of the Dangerous Drugs
Law
Recent SC decision: Even in the absence of a
particular section, but the allegation in the information
shows that you know the nature of the offense, then
there is substantial compliance.
o .3. Qualifying and aggravating circumstances
Both should be alleged
If it is an aggravating circumstance, it must be
alleged. If it is not alleged but proven in trial, can
it be taken against the accused?
No.
Even more reason for qualifying circumstances.
How about mitigating circumstances?
No, because it is part of the defense of the
accused.
o 4. Facts or circumstances constituting the offense.
Cause of accusation is the equivalent of a cause of
action in a civil case
The language of the information should be in a
language known to the accused.
What is the reason for this?
Rule 116 says that the accused must be
properly informed of the nature and cause of
accusation against him to make a proper
arraignment and plea.
o 5. Date of commission
Do you need to provide the specific date of
commission of the offense?
No need. Just an approximation is needed.
Exception: if the date is a material element of the
offense.
Election offense
Infanticide
Is date a material element of the offense of rape?
No.
o 6. Place
Need to show that it is committed within the territorial
jurisdiction of the court
But for offenses like trespass to dwelling, violation of
domicile, election cases, arson, etc. where the place
of commission is material, you have to allege it with
particularity
o 7. Name of the offended party
Place it there, if it is known
If it is a crime against property, you describe the
property so that you will know who the offended party
is
What if it is later on discovered?
It can be inserted in the information
Only one offense per information.
Is there an exception?
o Yes. If there are multiple offenses in one information and the
accused fails to object, each offense proved can be used
against him.
Can you amend an information?
o Yes.
Can you substitute an information?
o Yes.
o We always remember amendment, but forget about
substitution.
When can you amend or substitute?
o Whether a matter of form or substance, there can be
amendment if it is before plea.
o Can you still change the substance of an information after
a plea?
No.
o Can you still change a matter of form after a plea?
Yes, as long as it will not prejudice the right of the
accused. Memorize this whole phrase.
What is the test to know w/n it will prejudice the
rights of the accused?
If the original defense of the accused will
have to be changed due to the change in the
formal amendment.
Ex. The original case is for rape, except that
in the formal amendment, it was alleged that
the age should have been 17 and not 18 due
to a typo. This will prejudice the rights of the
accused.
What is downgrading and exclusion?
o Downgrading is lessening the offense (ex. robbery to theft,
murder to homicide, seduction to acts of lasciviousness)
o Exclusion is removing from the information
o When must downgrading or exclusion take place?
Before plea.
o What are the requirements for exclusion or downgrading?
1. Upon motion of prosecution
2. With leave of court
3. With consent of the offended party
What is difference between exclusion before plea and discharge of
the accused as State witness?
o If exclusion no need to submit an affidavit. In discharge, you
have to.
o In exclusion before plea, double jeopardy has not yet attached
so you can be charged again later on.
o In discharge as State witness, it is tantamount to an acquittal
so double jeopardy sets in.
What is substitution?
o The information will be substituted with a new one to be filed, if
the prosecution cannot prove the offense charged in the prior
information
o The accused will not be released until a new information has
been filed as a substitute
Rule 111 civil liability in criminal cases
Once a criminal action is instituted, the civil is likewise instituted
Exceptions?
o 1. Reserved
When is reservation not allowed?
BP 22 cases
When can reservation take place?
Any time before the prosecution commences
with presentation of evidence considering
the circumstances of the case. Take note of
the underlined part because the timeline is
not a strict rule.
o 2. Waived
o 3. Instituted ahead of the criminal case
When is there need for filing fees?
o Moral, nominal, exemplary, temperate damages require filing
fees.
o Actual damages do not require filing fees.
o For BP 22, what is the rule?
For EVERYTHING claimed, even liquidated and
actual damages (this is the face value of the check).
Can you consolidate a Writ of Amparo case with a civil case?
o No.
Can you consolidate a Writ of Amparo case with an admin case?
o No.
Can you consolidate a Writ of Amparo case with a criminal case?
o Yes.
o Follow the general rule: if the civil case was instituted ahead of
the criminal case, the civil case is interrupted in whatever stage
and the criminal case proceeds until judgment.
o And there is an option to consolidate.
What are kinds of acquittal?
o 1. Based on reasonable doubt
o 2. Did not commit the crime
o 3. Purely civil
o 4. The acts from which the civil liability arises from were not
committed
What is a prejudicial question?
o A criminal case will be suspended when there is a pending civil
case which must be suspended until the prejudicial question is
resolved.
What are the requisites?
o 1. The civil action was filed first
o 2. The resolution of the civil action is determinative of the
criminal action
Give an example of a prejudicial question.
o Can trespassing be only committed against the owner of a
property?
No. {Check this} So you need not file a civil case to
determine who owns the property first.
o Theft determine first who owns the property
o Who determines whether there is a prejudicial question?
The court.
o What will be suspended?
The criminal case.
Where do you file a motion to suspend on the ground of prejudicial
question?
o 1. The court
o 2. The prosecutor, conducting PI
When do you file the motion?
o Anytime before the prosecution rests is case
Can an administrative case suspend a criminal case on the ground
of prejudicial question?
o No.
Can another criminal case suspend a criminal case on the ground
of prejudicial question?
o No.
If there is an independent civil case filed before the criminal case,
is the independent civil case suspended?
o No.
If there is a criminal case filed ahead, do you need to reserve the
independent civil action?
o No. YOU DO NOT RESERVE AN INDEPENDENT CIVIL
ACTION.
Can it proceed side by side with a criminal case?
o Yes.
o Compare with a reserved civil action (i.e. not
independent).
It cannot proceed side by side.
What is an independent civil action?
o One that can proceed independent of a criminal case
o Arts. 31-34
o Art. 2176
Must an independent civil action be reserved?
o No need to be reserved, and it will not be suspended
If the civil action was instituted ahead of the criminal, and there
was a judgment stating that there was no civil liability, is the
offended party barred from filing another criminal action?
o No.
Rule 112 Preliminary investigation
What is PI?
o Where the prosecutor determines whether there is probable
cause to file a case against a respondent
Distinguish from inquest?
o Inquest is conducted by an inquest prosecutor, when one is
caught under the three exceptional circumstances provided in
law
Who can conduct preliminary investigation?
o City prosecutors, and their assistants, Provincial prosecutors
and their assistants
o OMB, and if they authorize the Special Prosecutor he can too
What is the procedure for PI?
o 1. After receiving affidavit-complaint, the prosecutor will
determine within 10 ten days whether there is probable cause
Raffle
Assigned to assistant prosecutor
o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days
In practice there can be a reply or rejoinder, but this is
not provided by the rules
o 4. Optional clarificatory hearing
o 5. Resolution
Who prepares the resolution?
The Assistant prosecutor
Is it the city prosecutor or the assistant
prosecutor?
Assistant prosecutor prepares it, and then
the city prosecutor approves it
City prosecutor has discretion to dismiss the
complaint, file the information himself, or ask
another assistant/State prosecutor to file it
o Regardless of recommendation
Can a resolution be issued by an assistant
prosecutor even without approval of the City
prosecutor?
No.
What if the City prosecutor does not
agree with the recommendation of the
assistant prosecutor?
o He has discretion to reverse it.
If the assistant prosecutor believes that there is
probable cause, he prepares a resolution AND an
information. Information is filed in court and
resolution served to the parties. If he does not find
that there is probable cause, he only prepares a
resolution. But regardless, no resolution can be
issued without the approval of the City or Provincial
prosecutor.
Can you file a complaint with the OMB?
o Yes, and he will then investigate. He can also motu propio
investigate.
o Can the NBI conduct preliminary investigation?
No (?)
Is service of a subpoena and receipt thereof necessary for the
Office of the Prosecutor to obtain jurisdiction over the
respondent?
o No.
o There is still no case filed against him, just an investigation.
o Even if he does not get to file a counter affidavit, there can still
be a resolution issued against him.
X is arrested, accused of possessing illegal drugs, without a
warrant. What is the procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have
them proceed with inquest
If X applies for preliminary investigation, what
happens?
You sign a waiver of Art. 125 of RPC
Will X be released?
If he applies for bail.
Where does X apply for PI?
Before the inquest prosecutor.
Where do you apply for bail?
With the Executive Judge. (This is a trade
secret)
What is the procedure if someone is arrested for vagrancy, without
warrant?
o Note that vagrancy does not need preliminary investigation, so
the information can be directly filed with the MTC.
o Can you apply for bail?
Yes, because you were already arrested.
You were sued for slight physical injuries in MM, and it was not in
flagrante delicto, so it was on the basis of affidavit complaint.
What happens?
o There is no need for preliminary investigation.
o So the prosecutor will determine probable cause, then will file
the information in court.
o Is there a need for the respondent to file a counter affidavit
here, and is there need for preliminary investigation?
No.
When are inquest proceedings applicable?
o It must be due to a warrantless arrest:
A. In flagrante delicto
B. A crime has been committed and the police officer
has personal knowledge that the person committed
the crime
C. Escaped from confinement or escape
o Also, it must be for an offense that requires PI (at least 4y, 2m,
1d)
If no need for PI, just file affidavit-complaint to the
office of the prosecutor. (Because only 3A is
required)
o How do we distinguish (A) from (B)?
First kind the arresting officer was there when the
crime was committed
Second kind the arresting officer has personal
knowledge
If a person is arrested with a warrant can he be placed on inquest?
o No.
What if he was arrested for an offense for which he was previously
charged, and then he escaped from detention and he was arrested
without a warrant?
o Inquest must be conducted.
How do you appeal a resolution?
o Within 15 days, file a Petition for Review to the DOJ.
o Must the petition be verified?
Yes.
o Can the period be extended?
No.
o If the DOJ decision is adverse, to where do you go?
Rule 43, to the CA
(Or Rule 65, to the CA if there was GADALEJ)
Only to the SC if its the OMB
(Or Office of the President if punishable by reclusion
perpetua or higher)
o Can you have the DOJ review the resolution if the offense
in question does not require a PI?
No. This is clear in the circular. The offense must
require, for its charging, at least preliminary
investigation OR has gone through reinvestigation.
What is reinvestigation?
There was a regular PI, and you were not
satisfied with it, so one files for a
reinvestigation with the Office of the
Prosecutor or in court.
This is not provided in the rules.
Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6 years
(and PI is for 4y,2m,1d)
Once the information is filed in court, what can the judge do?
o 1. Issue a warrant of arrest, after personally determining the
existence of probable cause
o 2. Dismiss the case for absence of probable cause
o 3. The case can call for a hearing to determine probable cause
So what are the options for a judge in an RTC case?
o Just these three.
What about the MTC? Distinguish:
o A. Not exceeding 6y, but more than 4y,2m,1d:
See above [the three options]. So its like the RTC.
o B. Below 4y,2m,1d, more than 6m
Same as three above, but the issuance of the warrant
is up to the discretion of the court. If the court
believes the offense is not so grave, it may not issue
a warrant and will just issue summons.
o C. Not more than 6m, falling under the rule on SP
The court cannot issue a warrant of arrest. Instead,
the court requires you to file a counter affidavit
So when does the court issue a warrant of arrest?
Only when there is failure by the accused to
appear in court despite repeated notice
What is an example of a crime involving summary
procedure?
BP 22
When can you file a motion for determination of probable cause?
o After filing of information, but before the judge has acted on it
o Can you file after issuance of a warrant of arrest?
No.
Will the filing of a petition for review suspend the issuance of a
warrant of arrest?
o No. The mere filing of a petition for review will not suspend the
issuance of a warrant of arrest.
o What it suspends is the arraignment.
o For how long?
60 days suspension of arraignment.
Rule 113 Arrest
Does the arresting officer need to show the warrant of arrest?
o 1. Inform cause of arrest
o 2. And that a warrant had been issued for his arrest
o Exception to this?
1. Flees/forcible resistance
2. Informing the accused imperils the arrest
What is the duty of the arresting officer if the arrest is without a
warrant?
o 1. State authority to arrest
o 2. Cause of the arrest
o Exceptions to this?
1. Engaged in commission of the offense
2. Pursued immediately after offense
3. Flees/forcible resistance
4. Informing accused imperils arrest
What about arrest by a private person?
o 1. State cause of arrest
o 2. And intent to arrest him
What are the other circumstances where there can be arrest
without warrant?
o 1. Judicial bondsman may arrest him to surrender accused to
court
o 2. Attempt to depart the country
o 3. Person who has been lawfully arrested and has escaped
After arrest what do you do?
o 1. Bring him to the police station
o 2. He will be incarcerated until he files for bail
What if he does not apply for bail?
He will stay in the city jail in the pendency of
the case.
If its a non-bailable offense, its a different
procedure.
Just wait for arraignment.
What if he applies for bail?
He is released from the city jail and he has
responsibility to attend arraignment/appear
o 3. Afterwards, there will be an arraignment
What if a person is arrested without a warrant?
o 1. Brought to the nearest police station
o 2. Inquest proceeding will be done
Brought to the Prosecutors Office
o 3. The inquest prosecutor can either release you or keep you
in detention
When the inquest prosecutor releases you, does
this mean your case is dismissed?
No. You are released for preliminary
investigation.
This just means the affidavit-complaint of the
police officer used as basis for inquest will
be filed with the prosecutor as an ordinary
case.
What if the prosecutor says detain?
You can either apply for preliminary
investigation or not.
What if you apply for preliminary
investigation?
o You sign a waiver of Art. 125.
o Can you then apply for bail?
Yes. You file it with the
executive judge.
After waiver of 125, what is the next step?
o Go to preliminary investigation.
What if you did not ask for a preliminary
investigation?
o An information can be filed
o Afterwards, there is arraignment
Rule 114 Bail
When does bail apply?
o Whenever there is deprivation of liberty
When is bail a matter of right?
o Before conviction, whether MTC or RTC
Except for cases punishable by RP, LI, DP
o After conviction, if MTC
When is it a matter of discretion?
o After conviction, if RTC
What are the types of bail?
o 1. Cash bond
In a cash bond, how much is deposited in court?
The full amount
Who receives it?
Municipal, city, or provincial treasurer or the
CIR
Clerk of court where the case is pending
o 2. Corporate surety
Just pay the premium
o 3. Property bond
What is the most important requirement for a
property bond?
The owner must be resident of the
Philippines
Registration of the lien must be done within 10 days
from approval of the bond
Does the accused need to be the owner of the
property?
No.
o 4. Recognition
Can you be released on your own recognizance?
Yes.
What are the stipulations in a bond?
o 1. Bond is effective upon approval and unless cancelled
o 2. Accused must appear in court if required
o 3. Failure to appear in trial is deemed a waiver
Trial can proceed in absentia
o 4. Bondman must surrender accused to the court for final
judgment
From when and up until when is a bail in force?
o From approval, until promulgation of judgment by the RTC
o Whether originally filed there or on appeal
N.B. thus if the case started in the MTC, you filed for
and were given bail, it can continue up to appeal in
the RTC
< Kira notes follow. Thanks, Kira>
Rule 113

People v. Laguio requisites inflagrante delicto; a 2007 case
1. Person to be arrested must execute an overt act that he has
committed, actually committing, or attempting to commit
2. Overt act is done within the presence or within the view of the
arresting person or officer

Presentation of the informer/informant is not indispensable in the
prosecution of a criminal case.

Hot pursuit only applies:
1. Offense has just been committed (If there is just an attempt, or the
person is just committing, hot pursuit will not apply)
2. No requirement that it be done in the presence of the officer. It is
only required that the arresting officer with an independent and
personal assessment has probably cause to believe that a crime
has been committed.

Rule 114

Issues with grant of bail:
1. The General Garcia issue He was charged of plunder with the
Sandiganbayan, which is a non-bailable offense. He is not entitled
to bail. He has no right to bail, as a rule. But they can file a petition
for bail. Then he entered into a plea bargain. (When can you enter
into plea bargain? ANS: At any time before trial. You can enter into
plea of guilt to lesser offense during arraignment, or even after
arraignment but before trial, or during pre-trial.) Here the plea
bargain to a lesser offense of corruption was entered into after trial.
Is he now entitled to bail?
a. When there is conviction, are you still entitled to bail? As
a rule, no. But when you appeal the conviction, you can
still apply for bail, as long as the decision is not final and
executory, assuming that it is a bailable offense. In this
case, the bail is a matter of discretion to the court.
b. When the judgment has become final and executory, can
you still apply for bail? As a rule, no.
c. What are the requirements for a plea of guilty to a lesser
offense?
i. Notice to prosecutor
ii. Consent of offended party
d. If the trial court convicted you of an offense which is
bailable (original charge was non bailable offense), the
bail should be applied with the appellate court.

Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail
for Non-Bailable Offenses
1. Petition for Bail:
a. Case: Governor Leviste shot his aid. On advice of
counsel, he surrendered and was charged only with
homicide. It is a bailable offense. He can avail of bail, as a
matter of right. It was in the RTC, before conviction, the
offense is punishable not by reclusion perpetua, death, or
life imprisonment. Homicide is punishable with reclusion
perpetua. But then the information was withdrawn, and he
is now charged with murder a non bailable offense. He
will be arrested. Is he now entitled to bail? ANS. NO. But
he can file a petition for bail. Here, the court granted his
petition for bail. The court was convinced the evidence of
guilt against him was not strong. Trial proceeded and
there was promulgation of judgment, that he was guilty not
of murder, but of homicide. Can Leviste apply for bail
now? ANS: He is entitled to bail as a matter of discretion.
b. Lets say you were charged with offense where bail is a
matter of right (e.g. estafa), but then convicted. You can
apply for bail, but it is a matter of discretion.
c. What is the nature of a hearing for the petition for bail?
ANS: Summary.
d. Can we dispense with a hearing for bail? (When the judge
thinks malakas un kaso ng prosecution)? ANS: NO. You
cannot dispense with and ignore hearing for bail.
e. Can there be joint summary hearing of petitions for bail?
YES.
f. Is an arraignment a prerequisite to a petition for bail? NO.
Although the judge in the Ampatuan case required the
accused to be arraigned before allowing the petition for
bail. There is nothing irregular here though, the counsel for
the accused allowed it. The very moment there is a
deprivation of liberty, you can apply for bail.
2. Bail as a Matter of Right
a. Basta nasa MTC, bailable as a matter of right.
b. In RTC, bailable as matter of right if:
i. Before conviction
ii. And not punishable by reclusion perpetua, death,
or life imprisonment.
c. The judge cannot deny bail that is matter of right; he can
only increase amount of bail. Maceda case
3. Bail as a Matter of Discretion
a. In RTC
i. Conviction
ii. And not punishable by reclusion perpetua, death,
or life imprisonment
iii. And not accompanied by the ff instances, if the
penalty exceeds 6 years:
1. Recidivist, habitual delinquent, etc
2. Previously escaped from legal
confinement
3. Committed offense while under
probabtion, parole
4. Flight-risk
5. Undue risk that he may commit crime
during pendency of appeal
b. Where will you apply?
i. If appealed, before transmission of records: to
RTC
ii. If appealed, and the RTC conviction changed
nature of offense from non bailable to bailable: to
appellate court
c. Bail as a matter of discretion has an enumeration of
certain disqualifiers.
i. If convicted, beyond 6 years, and with
disqualifiers bail denied
ii. If convicted, beyond 6 years, and no disqualifiers
bail is matter of discretion
iii. If convicted, less than 6 years bail matter of
right
iv. If convicted, less than 6 years, and with
disqualifiers bail matter of discretion, but court
will impose higher bail because of disqualifiers

Mabutas v. Perello requirements for hearing for applications for bail
1. Bail as a matter of discretion is different from the exercise of
discretion in petitions for bail
2. Bail is a matter of judicial discretion that remains with the judge. A
hearing on application for bail is mandatory, whether bail is matter
of right or matter of discretion.
3. In case application for bail is filed, judge is entrusted with ff duties:
a. In all cases whether bail is matter of right or discretion,
notify prosecutor of application for bail or allow him to give
his recommendation
b. When bail is matter of discretion, conduct hearing on
application, regardless or not whether prosecutor wants to
present evidence that guilt is strong
c. Decide whether evidence of guilt is strong based on
summary evidence of the prosecution
d. If guilt is not strong, discharge accused on approval of bail

What if charged with murder, petition for bail granted, then convicted of
homicide? Entitled to bail as matter of discretion. The issue of whether
evidence of guilt is strong is not relevant, because that only applies if the
offense is non bailable.

What if charged with murder, petition for bail granted, then conviction of
murder? Cant apply for bail; the nature of offense is non bailable.
Obviously having been convicted, the evidence of guilt is strong.

What if convicted of offense not punishable of imprisonment beyond 6 years,
is it still a bail as a matter of discretion? (That which is alleged is different
from what is proven. Rule 120) It is now bail as matter of right.

For purpose of judge determining if bail if excessive must consider
parameters laid down in Section 9
But for purposes of recommending bail by prosecutor they have their own
administrative list

Where to File Bail:
1. You were arrested in Kamagong (Makati), the case was filed in
Makati. Action pending in same province/city where he was
arrested.
a. Apply in court where case is pending
b. In absence or unavailability of judge, in any court in the
area
2. Person arrested in Marikina, case pending in QC. Can person file
for bail in QC? NO. Because when you arrested in Marikina, you
will be taken to nearest police station in Marikina. So youll apply
there in Marikina.
3. If youre in Cavite, but the case is pending in Makati, but you
havent been arrested, you cant apply for bail in Cavite.
4. Arrested in Ilocos, case pending in Manila. He applied for bail in
Ilocos and was granted. Later the records were sent to Manila.
a. Should the records be sent to Manila? ANS: Yes.
b. Is the judge in Manila obligated to accept the bail? ANS:
Hes not required. He can require a new bail.

Expat is out on bail, he always leave every few weeks, can he do that?
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs
without securing such approval, he can be arrested without a warrant.

If accused is charged with vagrancy and has been in detention for almost 2
years, what should the judge do with the accused?

In a voluntary surrender, you do not need a certificate of arrest, for an
application for bail.

The DNA Rule
1. Can a person who has already been convicted and serving
sentence, apply for DNA examination? ANS: Yes
2. If the court finds after DNA evidence that the person serving
sentence is not guilty, what will the court do? ANS: Person serving
sentence must apply for habeas corpus.

Rule 115 Rights of the accused
How did the court apply presumption of innocence in P v.
Dimalanta?
o When circumstances lead to two or more inferences, one or
more leading to innocence and one or more leading to guilt,
the former should prevail.
To be informed of the nature and cause of accusation against him:
o Get an authorized interpreter if the accused does not speak
Filipino/English
When can a counsel de officio be appointed?
o 1. During arraignment
o 2. During trial
o 3. Before records are elevated on appeal (accused informed of
right to counsel by clerk of court at this point)
o 4. In the CA
When the accused signed his appeal by himself
Or accused is in prison
o 5. In the SC have their own guidelines
Right against self-incrimination
What is the concept of chain of custody in the DNA rule?
o Usually its a concept that is connected with drugs, as re:
possession of seized item from the scene of the crime
o For purposes of evidence, it is considered for tampering or
authenticity of the sample. If the sample has been tampered
with, you cannot get an accurate result.
What are the ways by which a laboratory can be accredited?
o See Rules on DNA Evidence 7c
What is the rule on filiation?
o DNA results that exclude from paternity are conclusive
o If the value of probability of paternity is less than 99.9% -
merely corroborative
o If the value is 99.9% or higher it is a disputable presumption
o Why is it just a disputable presumption?
Because you can still argue that it would have been
physically impossible for one to do it, or there is no
access, and that there is someone who could have
similar DNA makeup (twins, for instance).
o Differentiate corroborative from cumulative evidence?
Corroborative proving same point, but different kind
and character of evidence
Cumulative Same kind and character, proving
same point
Right to be present in the course of the proceedings
o What is the consequence of his absence in the hearing?
There can be a trial in absentia if there already is
arraignment and the accused is unjustifiably absent
o When is his presence mandatory?
The general rule is the he must be present at all
stages of the proceeding.
o Can this be waived?
Yes.
o Where and when should it be waived?
There should be a stipulation in the conditions of bail.
So as a rule, it cannot be waived.
o What if the private complainant is absent?
Its fine.
The right to public trial
o General rule is that the trial is public
o When can the public be excluded?
Found in Rule 119, Sec 21. (offensive to
decency/public morals)
o Does public trial include public viewing on TV or radio
broadcast?
No. It opens room for lawyers to grandstand.
o Also recognized in evidence:
Speedy trial
o How many kinds of speedy trial?
1. Speedy disposition of the case (constitutional law)
2. Right to speedy trial (criminal law)
o What is the difference?
In the Crim Pro concept, you can invoke it anytime
before during trial.
In Constitution, any time as long as the action is
pending.
o What is the remedy for speedy trial under the
Constitution?
Habeas Corpus
Because your continuous detention has no more legal
basis
o What if its in criminal procedure?
Certiorari
Prohibition
Mandamus
o Rule 119 has a computation. How long is the maximum
time between arraignment to trial?
80 days
If you dont follow number days, you could expect a
MTD on ground of violation of right to speedy trial
o Entire period of trial?
180 days
o But why are a lot of cases that do not commence in time,
and are not dismissed due to violation of this right?
Because of the exclusions.
o What are the exclusions?
1. Other proceedings:
Mental/physical examination of accused
Other criminal chargers
Extraordinary remedies against interlocutory
orders
Pre-trial proceedings, as long as not
exceeding 30 days
Orders of inhibition or change/transfer of
venue
Prejudicial question
Any period not exceeding 30 days when the
accused is actually under advisement
2. Absence or unavailability of an essential witness
Absent whereabouts unknown
Unavailability whereabouts known
3. Mental incompetence or physical inability of the
accused to stand trial
4. Prosecution dismissed information upon motion
and then filed another charge for the same case the
time limit between the dismissal and the subsequent
charge
5. There is a co-accused over whom the court has not
acquired jurisdiction or for whom time for trial has not
run and no motion for separate trial is granted
6. Continuance granted by the court motu propio or
on motion
Memorize this list. Rule 119 Sec 3.
o Cases:
In one case, Pre-trial happened after 7 years. Delay
was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion
But as a rule, extraordinary remedies must
not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.
In another case, there were 20 postponements. The
witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o What is VCO?
Vexatious, capricious, oppressive
VCO delays violate the right to speedy trial
Right to confront witnesses presented against him
o Basically, can cross examine
Compulsory processes
o Can apply for subpoena ad testificandum and duces tecum
Right to modes of discovery
o Can apply modes of discovery in criminal cases.
o Rule 119, Secs. 12, 13, 15 Conditional examination of
witnesses for the prosecution/accused. This is the equivalent
of Rule 23 depositions in criminal trial.
o Purposes for prosecution:
1. Sick or infirm, or unavailable
2. or the witness is about to depart.
o Purposes for accused:
1. Sick or infirm or unavailable
2. or more than 100km
o What is the difference if it will be availed of prosecution or
accused?
Prosecution: ONLY in the court where the action is
pending
Accused: Before any judge, member of the Bar in
good standing, and if ordered by a superior court
directing an inferior court
Right to testify on his own behalf
o Can the accused testify for the prosecution?
Yes, but he can refuse
o Can a party in a criminal case be asked a question that
would raise civil liability but not criminal liability?
[Answer unclear, but since its purely civil, I think the
witness can be compelled]
Right to appeal
o Will be discussed below (Rule 122-125)
Rule 116 Arraignment and Plea
What comes first, plea or arraignment?
o Arraignment, where the information is read against him
o Can the arraignment be dispensed with? (Ex. by an
accused that does not want to hear the information)
Never. You cannot waive the arraignment.
o Can the arraignment or reading be in a language different
from what the accused knows?
No. It must be in a language known to the accused.
What about a belated arraignment? (P v. Trinidad)
o This happened when they realized that there was no
arraignment. There was a belated arraignment that was
validated because the lawyer had an opportunity to cross
examine and the lawyer actively participated in the
proceedings.
What are the kinds of pleas?
o 1. Plea of guilty
A. Plea of guilty to lesser offense
Until when can you do this?
o At very latest, pre-trial
o At trial, cannot plea guilty to lesser
offense
B. Plea of guilty to capital offense
Punishable by death.
What is required?
o Conduct searching inquiry to see if
it is voluntary and if he understands
the plea
What does it entail?
o 1. Background check (age,
education, socio-economic
conditions)
o 2. Conduct of custodial
investigation
o 3. Explain the nature of the offense
and extenuating circumstances to
the accused
Hearing after the plea
C. Plea of guilt to a non-capital offense
Should there be a hearing?
o Its not mandatory
D. Improvident plea
What is an improvident plea?
o Plea of guilty without fully
understanding consequences of the
plea
o X pleaded guilty to homicide. He
didnt know that if he pleaded
guilty, there wont be any hearing
anymore. Can he withdraw the
improvident plea?
Yes.
When can it be withdrawn?
o Any time before judgment of
conviction becomes final (after
appeal)
What are the further actions of the court
in case of an improvident plea?
o If the sole basis of conviction is the
improvident plea, it is remanded for
further proceedings in the trial
court. (Ex. the SC sends it back to
the RTC)
o If the conviction is supported by
other evidence, the SC will render
judgment
o 2. Plea of non-guilty
A. Conditional plea
What is this equivalent to?
o Its akin to a plea of not guilty
B. Refusal to enter a plea
The court assumes its not guilty
Can a representative enter a plea of not
guilty?
o No. The accused must be the one
to enter the plea.
[Should the accused be present during
promulgation of judgment?]
o Yes.
o Is there an exception to this rule?
Yes, for light offenses.
The accused can be
represented.
C. Direct plea of not guilty
D. Say guilty but present exculpatory evidence
When is there suspension of arraignment?
o 1. Accused suffers from unsound mental condition
o 2. Prejudicial question
o 3. Petition for review pending with DOJ
Not exceed 60 days
o 4. Pending incidents:
A. Motion to quash
B. Motion for inhibition
C. Motion for bill of particulars
Can there be a bill of particulars in a
criminal case?
o Yes. Apply before enter of plea.
What is required?
o Identify defects and details desired
Rule 117 Motion to quash
Why do you file motion to quash?
o To quash the information because it is defective or the court
has no jurisdiction.
Differentiate from provisional dismissal:
o In P.D., there is no questioning of the information. In fact, it is
valid and charges a proper offense and the court has
jurisdiction over the SM and the person.
What is the effect of a grant of a MTQ?
o Dismissal of the case.
o Is it always dismissal?
Court can order amendment. [No period provided.]
Amendment is a remedy, but it has a narrow
application. It does not apply to all grounds.
Can a case dismissed by a MTQ be re-filed?
o As a general rule, yes.
o It depends on the ground.
o When can it not be re-filed?
1. Prescription
2. Double jeopardy
Can a prosecution file a MTQ?
o No. The applicable remedy is substitution of information.
When a case is dismissed provisionally, what is the effect?
o The case is temporarily dismissed.
Ex. This case is dismissed for 30 days
o It can be revived (dont use re-file because the dismissal was
just provisional)
o Who will ask for provisional dismissal?
1. The prosecution
With consent of accused
If there is no consent of accused, is it a
provisional dismissal?
o No. A dismissal without the
consent of the accused would lead
to double jeopardy (obtains finality).
2. Or the accused
Is the prosecutions consent required?
o No. Even without consent, its still a
provisional dismissal. As long as it
doesnt pass the time leading to
permanence.
o When can you ask for provisional dismissal?
Any time.
For a dismissal to take effect in MTQ, do you need to wait for a
lapse of time?
o There is still a period to seek a remedy after. Ex. You can file
an MR.
o After this period, it can be re-filed. (Except for the two
exceptional grounds.)
For a provisional dismissal to be permanent, what is the period
required?
o Beyond 6 years 2 years
o 6 years or less 1 year
o When will this period begin to run?
Upon receipt of notice, by the accused (given by the
code)
But this has been supplemented by Lacson: Period
can only start upon receipt of notice by the public
prosecutor
Rationale: because it is the public
prosecutors duty to revive the case
What are the grounds for a MTQ?
o 1. Facts stated do not constitute an offense
The elements of the offense are not there
But is it possible that while not constituting an
offense, you can be liable for another offense?
Can this be the proper ground of a MTQ?
Its possible. This is not a ground for a MTQ.
Ex. Charged with qualified theft, but
relationship was not alleged. You file a
MTQ. The court can order an amendment to
show relationship. The court cannot quash
because there is an offense alleged in the
information.
o 2. Officer who filed the information had no authority to do so.
There was a case in the Sandiganbayan. There
was a motion for reinvestigation and it was
granted. The Special Prosecutor amended it and
re-filed it. Can he do that?
No. He has no authority; it is not within his
powers.
Ex. a Prosecutor with authority only extending to
Bulacan cannot file an information in Makati.
If a State prosecutor is appointed as Acting city
prosecutor, does he have authority to approve/file
the information prepared by the asst. prosecutor?
Yes as long as he is properly appointed by
the DOJ.
o 3. Lack of jurisdiction over the person of the accused
Accused has not voluntarily surrendered
Or Accused not arrested
o 4. More than one offense was charged in the information
How do you know if there is more than one
offense?
Ex. murder can you kill a person twice?
No.
Ex. rape you can rape someone multiple
times. For instance X raped Y five times.
How many informations should you file?
o Five.
What if ten checks bounced?
o Ten informations, because each is
an offense in its own.
o 5. Criminal liability has been extinguished by prescription
Recall that there is prescription of crimes and
prescription of penalties.
To which does this ground apply to?
Prescription of crimes. In prescription of
penalties, there is already a judgment.
o 6. Contains averments that if were true, would constitute a
legal excuse or justification
Ex. Self-defense
o 7. Double jeopardy
What are the requisites?
1. Court of competent jurisdiction
2. Valid information
3. Plea
4. Conviction, acquittal, or dismissal without
express consent of the accused
What are examples of dismissal without the
express consent of the accused?
Ex. failure to prosecute
What about motion to dismiss prompted by the
accused on the ground of violation of right to
speedy trial?
It is tantamount to an acquittal and thus
leads to DJ. This is an exception to the
general rule
What about a demurrer to evidence which is
granted by the court?
It is also tantamount to an acquittal and thus
leads to DJ. Another exception.
What about a motion for determination of
probable cause filed by the accused and granted
by the court?
No, this is not an exception. There is no
plea yet. There is no dismissal without
express consent of the accused.
Compare motion to dismiss from motion to quash.
o Re: court actions
o Motion to dismiss:
The court can grant, deny, or order an amendment
o Motion to quash:
The court could only order amendment if its a defect
that can be corrected by such amendment.
UNLIKE in motion to dismiss, regardless of
the ground, the court has a free hand: can
grant, deny, or order amendment.
Whereas here, the court has to order an amendment
before denying/granting, on some grounds.
o Re: refiling
o Motion to dismiss:
In general, it can be re-filed.
Except:
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
o Motion to quash:
In general, it can be re-filed.
Except:
1. Prescription
2. Double jeopardy
o Re: objections not raised
o Motion to dismiss:
In general, grounds not raised are waived.
Except for:
1. Lack of jurisdiction over the SM
2. Prescription
3. Litis pendentia
4. Res judicata
o Motion to quash:
In general, grounds not raised are waived.
Except for:
1. Does not constitute an offense
2. Prescription
3. Double jeopardy
4. Lack of jurisdiction over the offense
When will double jeopardy not set in?
o 1. When there is a supervening event.
o 2. Facts constituting graver charge only were discovered after
a plea was entered
o 3. Plea of guilty to lesser offense was made without consent of
prosecutor
Except?
For purpose of plea bargaining, the private
offended party was notified but did not
appear during arraignment
And the offense is necessarily included in
the offense charged
Rule 118 Pre-trial
Can there be compromise?
o Basic rule: you cannot compromise criminal action
o But you can compromise the civil aspect of the case
But when you compromise the civil liability, it does not
lead to the dismissal of the criminal case
What do you need?
Affidavit of desistance by the offended party.
This is as to the civil aspect.
The prosecution has to move for the dismissal of the
case
o If the prosecution moves for dismissal, does double
jeopardy set in?
Check the requisites. If there is plea, double jeopardy
sets in. If there is none, double jeopardy will not.
Can the admissions of the accused be used against him in the
proceedings?
o Yes, if it is in writing and signed by the accused and his
counsel.
Absences and appearances:
o The rule of absences in pre-trial (in civil case) does not apply in
criminal cases.
o The pre-trial will be reset.
If the witness is absent, the court can rely on
compulsory processes
If the accused in absent
1. There is forfeiture of bail
2. There will be a warrant of his arrest
[Distinguish cancellation from forfeiture of bail]:
Cancellation
o Voluntary surrender or death.
o It is automatically cancelled upon
acquittal, conviction, or dismissal of
the case against him without
express consent of the accused.
Forfeiture failure to appear
What is the procedure?
The court will order the bondsman to
produce the accused within 30 days. If he
fails to do so, the bail will be forfeited.
What is your remedy for forfeited bail?
Appeal
Is it mandatory?
o There is pre-trial before Clerk of Court
Can there be stipulations?
o Yes
Can there be marking of documents?
o Yes
Rule 119 Trial
What is the order of trial?
o Prosecution
o Defense
o [fill in]
o Can it be reversed?
Yes, when there is self defense and other exculpatory
defenses
Discharge of the accused as state witness requisites?
o 1. There is no direct evidence
So for this, you have no one who can point to the
perpetrator.
What is the opposite of direct evidence?
Circumstantial evidence
o 2. There is absolute necessity for the evidence
o 3. Could be corroborated in its material points
o 4. Not the most guilty
o 5. Not convicted of a crime involving moral turpitude
When can an application for discharge be made?
o Before the prosecution rests its case
o What does the applicant need to do or submit?
Submitting sworn affidavit
o What happens to the statement?
Becomes part of the evidence of prosecution
o What happens to the accused?
Becomes acquitted
o If the application is denied, what happens to the
statement?
Its inadmissible
Compare with requisites for discharge under Witness Protection
Program?
o The requisites are the same.
o But the mode of application is different you file it with the
DOJ, not with the court. (Yu v. RTC of Tagaytay)
o Does double jeopardy set in, if under WPP?
No, because there is no plea.
So he can be prosecuted afterwards (!)
When do you file a demurrer to evidence?
o Civil after plaintiff has completed presentation of evidence
o Criminal after the prosecution rests
Do you need leave of court?
o In criminal: you dont need to, but there are serious
consequences if you do not secure leave.
If you file with leave of court and its denied, the
accused can still present evidence
If you file without leave of court and its denied, the
accused will not be able to present evidence there
will be a judgment
o In civil: no need for leave of court
In criminal cases, if the demurrer is denied, can you file a petition
for certiorari?
o No. You cannot file a petition for certiorari. You have to wait
for judgment.
Whats the effect of a grant of demurrer in a civil case?
o Its a final disposition of the case.
o In a criminal case?
Its a dismissal. It amounts to an acquittal.
Rule 120 Judgments
What should a judgment contain?
o Offense you have committed
o Penalty to be imposed
o Participation, whether principal, accomplice, accessory
o Aggravating or mitigating circumstances
o If acquitted, whether:
Complete non-liability
Reasonable doubt
Or if the facts from which the civil liability might rise
from were not committed
Does the prosecution have remedy against an acquittal?
o Note than an acquittal is immediately executory.
o But if there is GADALEJ (P v. Hernandez) you can file for
certiorari
Before you challenge an acquittal this way, you have
to secure consent of the Solicitor General
And this is only for exceptional circumstances
How do you promulgate judgment?
o The accused should be present during promulgation
Except if it is a light offense
Or else he forfeits his remedies
o There is a period within 15 days from promulgation of
judgment within this period he has to explain why he was
absent
o If he is in jail, to whom is the notice served?
The warden
o If he is out on bail?
The bondsman
o If he is at large?
Notice sent to last known address
Is there promulgation in appellate courts?
o Yes.
o When duly certified by the division, and then forwarded to the
clerk of court, who will give notice of promulgation on paper
Can a judgment be modified?
o Yes, before it is final and executory
Rule 121-5 NT/MR/Appeals
Is there a record of appeal on criminal cases?
o No.
Is there ordinary appeal (notice of appeal)?
o Yes.
Ordinary appeal
Criminal: X was charged with acts of lasciviousness (within MTC
jurisdiction). MTC renders judgment. Who reviews it?
o RTC, through notice of appeal filed with the MTC. (RULE 122)
o Compare/contrast with Civil:
MTC RTC, through notice of appeal. (RULE 40)
Or MTC RTC, through record of appeal (not
available in criminal cases)
What is the procedure in the RTC for criminal cases, when acting
as appellate court?
o Parties submit their memoranda (Rule 122, Sec 9)
o Compare/contrast with Civil:
Same. Parties submit memoranda.
Criminal: Court of original jurisdiction is the RTC, and he was
convicted for homicide. Appeal?
o Go to the Court of Appeals, through Notice of appeal filed with
the RTC.
o Compare/contrast with RTC in civil action:
Go to the CA, through Notice of appeal filed with
RTC. OR file a record of appeal.
So still the same.
o What is the procedure followed by the CA in criminal
cases?
File appellants brief (Rule 124), within 30 days
File appellees brief, within 30 days
Reply brief, within 20 days
o Compare/contrast with civil cases:
45/45/20 days
Petition for review
How does it reach the CA on petition for review?
o If the original case was filed in the MTC.
o MTC RTC CA
What about civil cases?
o Found in Rule 42.
o Still MTC RTC CA
Criminal: Review by the Supreme Court, if the penalty is not
punished by death, life, or reclusion perpetua: from where should
it come from?
o From the CA or the SB only
o Use Rule 45, whether civil or criminal. Again, the general rule
is that you cannot go up to the SC except through petition for
review on certiorari.
o In civil, from where can you come from?
RTC, CA, SB, CTA en banc, etc.
RTC, penalty is death, based on the law (although it cannot be
implemented). How do you appeal?
o There is automatic review to the Court of Appeals, even in the
absence of a notice of appeal.
o The case is with the CA. What can the CA do?
If it finds for death again, it can render judgment but
not enter it.
o What happens after?
The CA will certify the case to the SC.
The penalty is life/RP. Is it covered by automatic review?
o No. You need notice of appeal. CA
o The Court of Appeals found in favor of life/RP. Can it
render and enter a decision?
Yes.
o How do you appeal this?
This is the singular instance where you file a NOTICE
OF APPEAL with the Court of Appeals.
Can there be a valid judgment even if the judge who rendered the
judgment was not the same one who heard the case?
o Yes.
Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not
appeal when there are multiple accused, and there is a favorable
judgment, it could benefit the non-appealing accused.
o However, in this case, the accused invoking this provision
actually filed an appeal, but it was dismissed due to a
technicality.
When is as appeal deemed to be abandoned?
o When the accused jumps bail, escapes, or fails to file an
appellants brief.
Counsel-de-officio:
o The general rule is the accused is given the choice to retain a
counsel de parte (of his choice)
o If he cannot afford one, the court appoints a counsel de officio
o One can be appointed during arraignment, or for the rest of the
trial.
o Can a counsel de officio be named in the Court of
Appeals?
Yes, when the accused signed his own appeal. Also,
when he was not assisted by counsel.
o Can the SC appoint a counsel de officio for the accused?
Yes, the SC can, but this is not provided for in the
rules.
Rule 126 Searches and seizures
The search warrant said an undetermined amount of shabu. The
original case was for marijuana. Will this be enough for the police
officers to conduct a search?
o Yes, even if the amount was not specified. What is required is
that the object of the search be described with particularity.
Quantity is not required.
The police officer was armed with a search warrant. But before
implement or enforcing it, on plain view, he saw illegal firearms.
Can there be a valid search?
o Yes. Plain view exception applies, even if there is a search
warrant.
Where could you apply for a search warrant?
o You apply to the court, following the rule on territoriality.
Can it be possible to apply in a court outside of the place where
the crime was committed?
o Yes, for compelling reasons.
o What can be a compelling reason?
Its a question of fact, but an example is when he is a
public officer of that locality and there is doubt that a
search warrant can be properly applied for.
Is application for a search warrant a criminal action?
o No. It is a special judicial process.
Can it become one?
o No. You need an information because the application for a
search warrant will not evolve into an information.
Where do you file for quashal of search warrant?
o In the court wherein it was applied for if there is no case yet
o If there is a case, in the court where the case is pending
Who determined probable cause for search warrants?
o The judge. Not the prosecutor.
o Wherelse is probable cause required, apart from
application for search warrant?
Preliminary investigation
Rule 113, warrantless arrest (personal knowledge that
crime has been committed)
Warrant of arrest
Search and seizure
o What is required for the judge to do?
Personal examination and determination by the judge
of the complainant/applicant and witnesses.
It does not involve mere submission of affidavits.
Give an example of a search based on a warrant, where the place
is described with particularity.
o Ex. if its an apartment, you give the number of the apartment.
o What if its a stretch of apartments, and what was
indicated is apartment B, but what was searched was
apartment C. Was there a valid search?
No.
o But was the search warrant valid?
Yes. The search warrant can be valid, but the
implemented was invalid.
o There were illegal items seized from apartment C. How
can you prevent these goods from being used in a
criminal trial?
Motion to suppress.
o Differentiate motion to quash from motion to suppress.
Motion to quash is before implementation of the
search warrant.
Motion to suppress is after implement and before
presentation in court.
What if there is no way to describe with particularity the place, esp.
when it is a province?
o Its possible to say kilometer 30. But this cant apply for cities
or municipalities.
To whom must a search warrant be served?
o The lawful occupant.
o In the absence of the lawful occupant?
To a relative.
o In the absence of the occupant or relative?
To two witnesses of sufficient age and discretion
residing in that locality.
When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the
premises where they were seized
What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit
inventory makes him liable for contempt.
Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For
normal crimes, it can be done in court or police station or
wherever.)
o The person must make a physical science report to track the
chain of custody.
What is the rule as to search and arrest?
o The general rule is that the arrest must come before the search
and seizure.
o Or, the search and seizure must be contemporaneous to
arrest.
If you apply for a search warrant in QC, can it be applied outside of
the territorial jurisdiction?
o If its a violation of the DDL, IP code, illegal possession of
firearms, illegal gambling, heinous crimes, AML, violation of
tariff and customs code.
o You have to apply before an executive judge before the City of
Manila or Quezon City. This will be effective anywhere in the
Philippines.
Re: Seizure of fake goods (ex. fake Adidas) What is the role of
the private party?
o The private party can submit documents and pleadings to
support the application of the NBI.
The place of manufacture of the fake goods is in Cavite, and place
of sale is in San Juan. Where do you apply?
o Either place.
Rule 127 Provisional remedies
What is the general rule?
o Provisional remedies in civil procedure are applicable to
criminal procedure.
What about replevin?
o Does not apply because it can only be filed before an answer,
but in a criminal case, there is no answer.
What are the grounds?
o 1. The accused is about to abscond or depart with intent to
defraud
o 2. Claim for money or property that has been embezzled with
abuse of trust (estafa)
o 3. Accused resides outside
o 4. Accused has concealed/removed/disposed his property

PART III: EVIDENCE

When did the Rules on Evidence take effect?
o July 1, 1989
What is evidence?
o Evidence is the means, sanctioned by the Rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Not all concepts of evidence will require presentation of evidence.
What are there?
o Ex. Judicial notice
o Ex. Judicial admissions
When youre required to present evidence, there are three kinds:
o 1. Object
o 2. Documentary
o 3. Testimonial
Whether its object, documentary or testimonial, what is required?
o They have to pass the test of admissibility (Rule 128, Sec. 3)
When is evidence admissible?
o When it is relevant and competent
o What is relevant?
Has direct relation to the fact in issue
o What is competent?
Not excluded by the rules on evidence
o What are not competent give examples
Those excluded by the Best Evidence Rule
Those seized without valid warrant and without a valid
exception
Those violating the Parol Evidence Rule (contents in
the written document are presumed to be the
repository of all the matters agreed upon by the
parties)
Differentiate direct from circumstantial evidence.
o Direct: prove a matter without need for inference or
presumption
o Circumstantial: facts, from which the existence of another fact
may be inferred as a necessary or probable consequence
o When is testimonial evidence direct evidence?
When the witness was able to perceive the matter
being testified upon
o Can circumstantial evidence be the basis for conviction?
Yes. As long as there is more than one circumstance
and each is proven.
o Can circumstantial evidence be basis for identification?
Yes.
What is positive evidence?
o Evidence that proves something happened. (I saw him stab
person X) or (I did not see him stab person X)
What is negative evidence?
o Evidence where the witness was there, but he did not perceive
anything. (I was there in the scene, but I did not notice
anything happen.)
What is primary evidence?
o Best available evidence to establish the fact in issue
o What is an example of primary evidence?
Best Evidence Rule
The secondary evidence here is photocopy, recital of
the contents, or testimony as to its contents.
What is weightier, physical evidence or testimonial evidence?
o Physical evidence.
Note: exceptions to the hearsay rule are not absolute. They can be
contested or impugned.
o How do you destroy the exception?
Destroy the requisites.
Ex. was it audible? was he aware that he was going
to die?
Is there primary evidence in object evidence?
o Yes. If you want to present a car, present the actual itself.
o What is the secondary evidence?
A car of the same model, same type, etc. which will
aid the court in understanding the object involved.
Is there primary evidence in testimonial evidence?
o Yes. A person who had personal knowledge.
o What is the secondary evidence?
Hearsay. N.B. but note that the codal does not
expressly tag hearsay as secondary evidence
although it is. When asked in the bar what secondary
evidence is, give the answer for documentary
evidence to be sure.
What is prima facie evidence?
o That which suffices to prove a fact, until contradicted by other
evidence
o But can it establish a conviction?
[not answered]
o What is the difference between prima facie evidence and
disputable presumption?
Prima facie evidence arises from a fact that would
sufficiently create a reasonable belief that an act
alleged has arisen
Disputable presumption arises from Rule 131
N.B. they are the same in such that these
can be controverted
What is conclusive presumption?
o It cannot be controverted
o But can you attack a fact that leads to a conclusive
presumption?
Yes.
o Give an example of a conclusive presumption.
Tenant cannot deny the title of his landlord
Distinguish between preponderance of evidence and proof BRD:
o Preponderance Court determines superior weight of
evidence; for civil cases
o Proof BRD Moral certainty, conviction will arise from an
unprejudiced mind; for criminal cases
Are the rules of evidence uniformly applied in all our courts?
o Yes.
o Trade disputes in DTI?
No.
o NLRC exercising QJ functions?
No. You dont need best evidence available here
(can use photocopies, thats fine)
o What does except if otherwise provided by law?
If otherwise provided, then the uniform application will
not extend to that.
Ex. Agrarian cases
Rule 130, sec. 26/27: compromise rules are not the
same in civil and criminal cases
Character evidence: there is also difference in civil
and criminal cases
Two witness rule in treason
What is relevancy?
o Has relation to fact in issue as to induce belief in its existence
or non-existence
What about collateral facts?
o General rule, not relevant
o EXCEPT, when the collateral matters establish probability or
improbability of the fact in issue
o Give an example.
In rape, the accused can point to the character of the
supposed victim to prove that there is probability that
the intercourse was consensual.
N.B. You can only use character evidence if there is a
character trait involved in the offense charged.
Judicial notice
When is it mandatory?
o 1. States existence, territorial extent, political history, forms
of government, symbols of nationality
o 2. Law of nations, admiralty, maritime courts of the world, and
their seals
o 3. Political constitution and history of the Philippines, official
acts of legislative, executive, judicial departments of
Philippines
o 4. Laws of nature, measure of time, geographical divisions
Why are these mandatory?
o Because they have already been established. They cannot be
disputed anymore.
o No need to introduce evidence anymore.
Can the court take judicial notice of rentals?
o No. The court cannot take judicial notice of factual matters.
Is the court bound to take judicial notice of municipal orders?
o The court is obliged to take judicial notice of law, but not
ordinances.
o What about memorandum circulars issued by
departments?
No. The court is not expected to take notice of these
less important matters.
What is covered by discretionary judicial notice?
o 1. Matters of public knowledge
Examples:
Ex. death of Corazon Aquino
o 2. Capable of unquestionable demonstration
What is this?
If repeated in a regular manner, it will
establish that fact.
Examples:
Mathematical computation
Statistics
Effects of poison, etc.
Do surveys fall under this?
No, because methods change, samples
change, etc.
o 3. Ought to be known to judges due to their judicial function
Can a judge take judicial notice of proceedings
pending in other courts?
No.
Hes not bound to know all the cases filed.
What about pending cases in his own sala?
No.
Unless he takes the consent of the parties.
When can there be taking of judicial notice?
o During trial on any matter and with hearing
o After trial and before judgment same, but only on matters
decisive of a material issue in a case
o After appeal same, but only on matters decisive of a material
issue in a case
Can every matter be subject of judicial notice?
o Yes, during the hearing.
o You are not limited to the enumerations provided in law.
What is the need for a hearing?
o Propriety of taking judicial notice
There was an insurance recovery claim, dated September 2009. It
was not alleged in the claim that the loss happened on the day
Ondoy struck Manila. Can the other party request the court to take
judicial notice (or can the court motu propio take judicial notice) of
this fact?
o Yes.
Judicial admissions:
o Statement made as to a fact in issue made in a pleading
o Do you need proof as to judicial admissions?
No.
o When is there a judicial admission?
When there is a pending proceeding
o What are covered?
1. Statements in pleadings (ex. complaint or answer)
2. Statements made during testimonial presentation
3. Depositions or other documents
4. Pre-trial
5. Documents submitted in court
o Can they be withdrawn?
Yes, when
There was no intent to make such an
admission
Or there was palpable mistake
Rule 130
N.B. The rules on admissibility are applicable to object, documentary,
and testimonial evidence alike.
What is object evidence?
o Those addressed to the senses of the court
An object is presented so that the court can perceive it.
What if it is immobilized ex. real property or personal properties
attached?
o Ocular inspection
Is a photograph object evidence?
o [not answered]
Do you need the photographer to identify the picture?
o Yes.
o Or a person who can attest to its exactness and accuracy.
o What must be proved?
That it is an accurate representation of what
happened.
As to production and circumstances under which they
were produced.
Prove who operated the camera, the ability of the
camera to capture the scene, etc.
o Prove all these first before going into the contents of the
photograph.
What about videos?
o Similarly, lay down the basis, before presenting the contents
What is a paraffin test?
o See definition
o Are the results conclusive?
No. Its not 100% reliable.
Is a lie detector test 100% reliable?
o No. You can cheat it.
What is demonstrative evidence?
o Evidence that adds to or explains.
o Maps, charts, graphs, etc.
o Is it the same as demonstration?
No. Demonstration is when you ask for a re-
enactment or display of how an act was done or re:
facts.
Documentary evidence
If Blitz had a tattoo saying I love Jojo is this documentary
evidence?
o Yes.
If Blitz wrote on a shirt, saying Good luck! is this documentary
evidence?
o Yes.
Why are these documentary evidence?
o It can be in any material, as long as it is a writing or inscription.
o What about text mesage?
Yes.
It is ephemeral evidence
What is the Best Evidence Rule?
o When the subject of inquiry is the contents of a document, no
evidence is admissible other than the original document itself
o What if all you want to establish is the existence of a
document, do you need to present the original?
No. Because its not the contents of the document
that are in issue. You can present a copy.
N.B. However in practice, try to always present the
original.
o What is the original?
1. The one the contents of which are the subject of
inquiry
Is the copy made an original just because
the contents thereof are the subject of
inquiry?
o No. You still have to go to the
original.
Do you need to authenticate an original
document even if it appears to be an
original?
o Yes, even if it appears to be an
original.
2. Document is in two or more copies executed at or
about the same time with identical contents
Usual example is carbon copies
Computers that shoot straight through to the
Xerox machine, and then sign all
Or printing 5 copies of the same document,
and then sign all
What if I print and sign one, then make
my secretary produce four copies?
o The four copies are not originals
I executed a document by 8 counterparts
(ex. bills in set), signed four here in
Manila on Feb. 28 and shipped four to HK,
which were signed on Mar. 1. Are they all
original, even if executed in different
dates?
o Yes, they can be regarded as
originals.
o N.B. You have to stipulate in the
contract (execution by
counterparts) that even if not
executed on or about the same
time, they are all originals.
3. Entry is repeated in the regular course of business,
one copied from another at or near the time of the
transaction
N.B. this refers to entry not execution, but
you do not sign the books
o Does execution in number 2 include formalities like
notarization and affixing signature?
It depends on what form is required from the contract.
What are the exceptions to the Best Evidence Rule?
o 1. The original has been lost, destroyed, or cannot be
produced in court
Not through the fault or bad faith of the offeror
Must there be exercise of diligence?
Yes, the offeror must attempt to procure the
original
In cases of loss or destruction, can you present
secondary evidence?
Yes. You need to lay the basis first.
What do you need to do?
o 1. Prove that the document exists
and it was duly executed
o 2. Prove cause of unavailability
The actual presentation of secondary
evidence will only come after laying the
basis.
What are the types of secondary evidence that
you can present?
1. Copy of the document
2. Recital of its contents in an authentic
document
o Ex. Secretarys certificate, in case
of loss of the minutes
o Ex. There is a mother contract, and
there is a Memorandum of
Agreement containing the basic
terms
o Ex. A demand letter
o Must it be a verbatim copy or is
paraphrasing fine?
Verbatim copy
3. Testimony of a witness
Must it be in this order?
Yes. Follow this order.
o 2. Original is in the adverse partys custody or control
What are the requisites?
1. Document exists
2. There is reasonable notice to produce it
given to the other party
3. There is failure to produce
Does this lead to presentation secondary
evidence?
Yes
o 3. Original constitutes voluminous documents
Requisites?
1. Prove voluminous nature of the
documents, which cannot be examined in
court without great loss of time
2. Provide access to the other party to the
original documents
What must be proved by these documents?
The fact sought to be established must be
the general result of the whole
What if the voluminous documents are financial
documents for the past 20 years, and the fact
sought to proved is the profit/gain for this period?
You can present a summary because you
are proving the general result of a whole.
What do you need to present?
You just need to present a summary of the
documents
When do you need to present the original?
When the contents thereof are the subject of
the inquiry no matter how voluminous they
are.
o 4. Original which is in the custody of a public officer or
recorded in a public office
Can you present the original?
No, because its in the custody of that officer
or office.
What do you present?
A certified true copy given by the public
officer in custody thereof.
Give an example.
NSO Birth Certificate.
What is the Parole Evidence Rule?
o When the contents of a document are reduced to writing, it is
considered as containing all the terms agreed upon as
between the parties and their successors in interest.
o No other evidence of such terms can be presented.
What are the exceptions?
o 1. Intrinsic ambiguity, mistake, or imperfection in the written
agreement
Must it be ambiguous on its face?
No. The ambiguity must be intrinsic.
Give an example.
In a will, the testator said I give half my
property to my son Buboy. When the will
was being probated, it turns out there were
two sons with the nickname Buboy.
What mistake is contemplated?
Mistake of fact, and the mistake was mutual
What do you do with the contract?
o Reform.
o When do you not reform?
When there was no
meeting of the minds.
Example, X thought it was
the property in Batangas,
Y thought it was the
property in Cavite.
Give an example.
o Contract of sale of property. X
thought it was Batangas, Y thought
it was Batangas. But it was actually
in Cavite.
Give an example of imperfection in the written
agreement?
The provision says that the offended party
must pay damages, when it fact, the offender
must pay.
Another: X and Y entered into a contract of
sale of property, over a Batangas property.
But the technical specifications provided
were those of the Cavite property.
o 2. The failure of the written agreement to express the true
intent and agreement of the parties
Give an example.
X approached Y, asking for money for tuition
fee of his son. X said he intended to
mortgage his property. Y asked him to sign
a document, but that contract provided for an
absolute sale.
o 3. Validity of the written agreement is at issue
Can a contract void on its face be made valid by
presentation of extraneous evidence?
No. This provision does not contemplate
contracts that are by nature void, to make
them legal.
o 4. Existence of other terms agreed to by the parties/their
successors-in-interest after execution of the written agreement
Give an example.
There is an original contract and it was
amended from a 20-year agreement to a 10-
year agreement
Testimonial evidence
Who can become witnesses?
o Those who can perceive, and in perceiving, can make their
perceptions known to others
o Two steps:
1. Perceiving
2. Making known this perception to others
How can you make your perception known to another?
o You must be able to communicate it
o Can a deaf-mute testify? A blind person?
Yes, as long as they can communicate.
Who are disqualified?
o 1. Those whose mental condition, at the time of presentation,
is such that they cannot intelligently make known their
perception to others
X perceived. Then X became insane. Then X had
a lucid interval during presentation of witness.
Can X testify?
Yes. The requirement is during his/her
presentation.
What is the presumption?
That a witness is of sound mind.
What is the exception?
o He was publicly known as insane or
committed in a mental institution.
o 2. Children whose mental maturity makes them incapable of
perceiving the facts and relating them truthfully
Under the Child Witness Rule (CWR), who
determines the competency of the child to testify?
The judge, who conducts a competency
examination
Is competency dictated by the age of the
child?
o No. Mental maturity dictates, even
prior to the Child Witness Rule.
Who is a child witness under the CWR?
Accused
Victim
Witness
To what type of cases does it apply to?
Criminal and non-criminal proceedings
What is a comfort object/person?
One that puts the child at ease, like a doll or
a pillow
Can you ask leading questions to a child?
YES.
What is the special requirement?
o Give notice to the other party
o And the judge must approve it first
Can you use live-link TV?
Yes, so the child will not be able to see the
accused.
Ex. The child is in another room from the
judge/accused, etc.
Who is a facilitator?
Appointed by the court to ask the questions
to the child as to not pressure/harass the
child
Can depositions be taken?
Yes.
How are the documents in these proceedings
treated?
Considered confidential, not open to the
public
o 3. DQ by marriage (sec. 22)
What is prohibited here? What does it cover?
Any testimony, for or against the spouse,
during marriage
What matters are covered?
All matters
Even confidential matters?
o Yes.
o After dissolution of the marriage, it
can fall under sec. 24 (privileged
communication)
What are exempted?
1. Civil case between the parties
o Does this extend to ascendants
and descendants?
No.
2. Criminal case of one spouse against the
other
o Does this extend to ascendants
and descendants?
Yes.
Does it survive even after termination of the
marriage?
No. The DQ only lasts during marriage.
Are these DQs waivable?
Yes.
o 4. Dead mans statute
What is the DMS?
Party/assignors of parties/beneficiaries
cannot testify as to matters of fact occurring
before the death or insanity of the other party
What must be the nature of the action?
Claim against the estate of the deceased
person or a person of unsound mind
What about documentary evidence that will prove
the claim?
Not covered by DMS. This prohibition only
extends to oral testimony.
o 5. Privileged communication:
See below
A. Marital privilege
o If a third party chanced upon the conversation, is it
covered by the privilege?
No, the third party is not covered.
o Is there agency is privileged communication (Ex. H and W
were talking and H told a third party that the matter being
discussed is disclosed)?
No, it doesnt extend to third parties.
o Does attorney-client extend to third parties?
Yes, it can extend to the secretary, stenographer, or
clerk.
B. Attorney-client
o What does it cover?
Any advice or communication in the course of or in
view to professional employment
o Differentiate in the course of and in view to?
In the course of already retained
In view to preparatory
o X asked advice from Atty. Y, asking what the requirements
are to form a corporation. Is this covered by the privilege?
No.
o X said that he had problems with his corporation, giving
particular details, names of incorporators, reasons,
details, and what are the requirements. Is this covered?
Yes, even if you are not eventually retained.
o Does it recognize agency?
Yes. The privilege extends to secretary, clerk, or
stenographer.
o Can it be waived?
Yes.
o Note: if the relationship of the lawyer with the person is a
business relationship, you cannot invoke the privilege.
C. Doctor-patient
o Can you invoke this privilege in a criminal case?
No, even if it would blacken your reputation. The
privilege only covers civil cases.
o Who is covered?
Person must be a doctor of medicine, surgeon, or
obstetrician
What if he is an optometrist?
No, because he/she is not a doctor of
medicine
What if he is an ophthalmologist?
Covered
What about neurologist?
Covered
What about psychologist?
No, he must pursue further studies to be a
doctor
What about psychiatrist?
Covered
What is the key?
You must be a doctor of medicine.
Who is an obstetrician?
For pregnancy
Alternative medicine practitioners and
iridologists?
No.
o What are the requisites?
1. Civil case
2. Person is authorized to practice medicine, surgery,
or obstetrics
3. Acquired information in his professional capacity for
him to be able to give treatment or advice
4. Disclosure of the information would tend to blacken
the patients reputation
The privilege is only significant if you talk
about a pending case
C. Priest-Penitent
o A protestant religion does not require confession through
a priest. If a protestant approaches her pastor and asks
for a confession and discloses information in the course
thereof, can the pastor invoke the privilege?
No. It should be enjoined by the religious institution to
which he/she belongs.
Just like a Catholic confessing to a nun not covered
by the privilege.
o What if a group requires a public confession before a
crowd?
Not covered by the privilege.
o If confession was to simply ask for guidance from a
minister, is it covered?
No.
o Should the penitent be a member of that religious
institution to which the priest belongs to?
No. The priest will not ask anyway.
D. State Secrets
o Who is the subject of the privilege?
The public office, as regards State secrets
o Is this waivable?
Yes. It should be done by the court, after application.
E. Executive privilege
o See Neri case.
o Is this waivable?
Yes, by the president.
F. Secrecy of bank deposits
G. Non-disclosre of trade secrets
H. Non-disclosure of who you voted for
I. Newsmans privilege
o As to sources
J. Informers privilege
o As to identity
o You dont need to bring to the stand an informer
K. Filial privilege
o What is this?
Nobody may be compelled to testify against a direct
ascendant or descendant
o Is this waivable?
Yes.
In a criminal case, no de no descendant may be compelled to testify
against parents and grandparents, except:
o When the testimony is indispensable in a crime against the
descendant or by one parent against the other
Admissions and confessions
What is section 26?
o The act, declaration, or confession of a relevant fact may be
given in evidence against him
What is the rule on a third party?
o As a general rule, the statement of a third party cannot be used
against you, except when it falls under the exceptions
What are exceptions?
o 1. Co-agent or partner
o 2. Co-conspirator
o 3. Privies
What are the requisites for admission of co-partner or agent?
o N.B. these are more or less the same requisites in a
conspiracy
o 1. The admission should have been made during the existence
of the relationship
o 2. Done within the scope of the authority
Ex. if agent, it must be covered by the agency
o 3. Common interest
o 4. The relationship is established by other evidence other than
the admission
Ex. Special power of attorney, articles of partnership,
etc.
Admissions of a co-conspirator requisites?
o 1. Act/declaration relates to the conspiracy
This is common design
o 2. During the conspiracy itself
o 3. The conspiracy is established by independent evidence
Admission of privies requisites?
o 1. Privity between the parties, where one derives title from the
other
o 2. Declaration made the when the privy held the property
o 3. It must have been made as to title over the property
o Give an example:
X sold land to Y. While X holds the title to the
property, he made statements as regards his title to
the land. When Y holds the land, the statements
made by X can be used against her.
Do admissions of these third parties extend to court cases? Ex. Y
testified against X on the witness stand that it was X who was in
conspiracy with him.
o No, these rules do not extend to cases already in court,
because there is an opportunity to cross examine.
Is an offer of compromise admissible in evidence?
o In civil cases, an offer of compromise is not an implied
admission of liability it cannot be admitted as evidence
o In criminal cases, it is treated as an implied admission of
liability
o What is the exception for criminal cases?
When the law allows for compromise
Ex. criminal negligence
Quasi-offenses
o What about tax violations with penal sanctions?
Yes, these can be compromised.
o Is extending offer for medical assistance to the victim an
implied admission?
No.
o The JDR rule in criminal cases allows compromise where
(the court here in mediation offers compromise)?
Libel
Theft
Estafa
BP 22
Criminal negligence
o What is covered by the compromise?
Only the civil liability
But in practice, once you compromise the civil liability,
usually the prosecution is no longer interested
What is admission by silence?
o X was making statements in the radio against Y, a public
official. If Y does not react to the radio caller, is this an
admission by silence?
No. See requisite #1 below.
o What are the requisites?
1. Statement made in your presence or within your
observation
2. Fact would have naturally called for a reaction if not
true
3. To deny is proper under the circumstances
Ex. there were armed 5 men who were
speaking ill about X his silence may simply
mean that he is being prudent
Previous conduct as evidence
Mr. X and his group robbed BPI in Makati. X and his group were
also suspected of robbing BPI in Intramuros. He was caught, and
a case was filed against him. If there is a separate criminal case
involving the robbery in BPI Intramuros, can the facts surrounding
the Makati BPI robbery be appreciated?
o No, not to establish a different robbery. But you can use it to
establish any of the exceptions outlined below.
o Ex. The manner in which the robbery was conducted is the
same, showing a system.
Ms. Y married Mr. A. She obtained insurance. A died. She married
B. She obtained insurance. B died. She married C. She obtained
insurance. C almost died due to poisoning. Are the previous
deaths admissible?
o Yes, but only to establish intent.
What is the general rule as to prior conduct?
o Generally not admissible.
o What are the exceptions?
To establish intent, knowledge, identity, plan, system,
scheme, habit, custom, or usage, and the like.
What is the rule on unaccepted offer?
o An offer in writing to pay a sum of money or deliver a written
instrument/personal property, if rejected without valid cause, is
equivalent to actual production and tender
Hearsay rule and exceptions
What is the hearsay rule?
o A witness may only testify as to matters within his personal
knowledge
What is independent relevant statement?
o When the statement is the fact of issue, or when the statement
is circumstantial evidence of the facts in issue.
o During Erap impeachment, his former Secretary Espiritu
was placed on the stand and was asked about matters he
conversed about with Estrada. He started talking, and
there was an objection that is was hearsay. Is it hearsay?
No, its not hearsay. The conversation actually
happened and he can testify as to the conversation
and what happened.
But as to the truthfulness of these statements, they
have to be established separately.
What are the exceptions?
o 1. Dying declaration
o 2. Declaration against interest
o 3. Act or declaration about pedigree
o 4. Family reputation or tradition regarding pedigree
o 5. Common reputation
o 6. Part of res gestae
o 7. Entries in the course of business
o 8. Entries in official records
o 9. Commercial lists, and the like
o 10. Learned treatises
o 11. Prior testimony
Declarations Reputation Entries
Dying declaration As to pedigree Course of business
Declaration against
interest
Common reputation Official record
Declaration about
pedigree
Commercial lists
Res gestae Learned treatises

Dying declaration
o Requisites
1. The dying person is under the consciousness of his
impending death
2. Declaration relates to the facts/circumstances
pertaining to the death
3. He should eventually die
4. The recipient of the information should be
competent to testify
o Does this extend to civil cases?
Yes.
As long as it pertains to the circumstances regarding
his death.
o There is a dying person on the floor and he calls X. He
told X to tell his wife to handle his bank account, tell his
children to manage the properties, etc. Is this the proper
subject of a dying declaration?
No. It does not cover circumstances re: his death.
o What if he doesnt die?
It becomes part of res gestae
o What if the dying declarant made an ante-mortem
statement, in writing, be presented in evidence?
Yes, because this exception covers memoranda.
Declaration against interest
o Requisites?
1. The person is dead/unavailable
2. Made statement against his interest
3. Would not have made that statement had it not
been true
o Extends to declaration against pecuniary interest, proprietary
interest, criminal acts, etc.
o Why is this reliable?
Because by human nature, nobody will make a
prejudicial statement against himself
Act or declaration about pedigree
o Requisites?
1. The person is dead/unavailable
2. Made by a person related by birth or marriage
3. Declaration was made prior to the controversy
So there is no motive to falsify
4. The relationship between the declarant and the
person whose pedigree is in question is shown by
independent evidence
o Must the witness be related to the declarant?
No. He need not be.
But the relationship should be between the declarant
and the person whose pedigree is in question
Family reputation or tradition regarding pedigree
o Requisites?
1. There is controversy re: pedigree of any member of
the family
2. Reputation or tradition existed prior to the
controversy
3. Witness testifying must be a member of the family
of that person, by consanguinity or affinity
Or proved by family bibles, rings, etc.
o What is reputation?
How other people perceive one to be.
o Can reputation be wrong?
Yes.
This is different from character who one really is
o Who will testify?
A member of the family by marriage or consanguinity.
This is unlike declaration about pedigree.
o What else?
Family bibles, charts, rings, engravings, etc.
Common reputation
o What are covered?
1. Public knowledge of more than 30 years
This has a partner provision in documentary
evidence (ancient documents)
Give an example of public knowledge of
more than 30 years.
o There is a marker in the barangay
disclosing information on the
founding of the barangay.
o Sometimes it can border on history,
which will then become subject to
judicial notice
2. Reputation about marriage
How do you develop a reputation re:
marriage?
o When people perceive them to be
married. Ex. living in one house,
with children, etc. Even if this is not
true.
3. Reputation as to moral character
Entries made in the regular course of business
o Requisites?
1. The person is dead/unavailable
2. Made the entry in a position to know the facts, in
professional capacity
3. Entries made at or near the time of transaction
4. Done in the regular course of business
o Who is ideally the person testifying?
The one who actually made the entries. This
exception only applies if he/she is dead or unable to
testify.
o Who will then testify on his/her behalf if this occurs?
Person who is also in a position to know the facts
Entries in official records
o Requisites?
1. Made by public officer or person enjoined by law to
make entry
2. Made in performance of duty
3. Had sufficient knowledge of the facts, personally or
through official information
o Does the official have to be dead/unavailable?
No.
o How do you use this provision?
Secure a certified true copy, then you identify it and
present it in court
When do you present the original only?
If there is issue as to its genuineness
o Reason behind this provision?
As to not waste the time of the public official
Commercial lists
o Requisites?
1. Contained in published compilation
2. Generally relied upon by these persons
3. Statements are matters of interest to these persons
engaged in the occupation
o Why can you use this listing?
It is used by the members of the profession and it is
relied upon
o How do you use this?
Just present the commercial list, no need to present
the writer
o Give examples
SCRA (which is not an official publication, but used
and relied upon)
Buy and Sell paper NO. Because it is used, but
not reliable.
Stock Market listings
Learned treatises
o Covers history, science, law, and the arts ONLY
o So it wont cover billiards, or whatever
o How do you present?
1. Court takes judicial notice that the writer is an
expert recognized in his profession
2. Bring in an expert witness to testify that the writer is
an expert in his profession
Testimony/deposition of a witness
o Requisites?
1. Witness is dead/unable to testify
2. Identity of parties
3. Identity of issues
4. Opportunity to cross-examine prior case
Res gestae
o What are the kinds of res gestae?
A. Spontaneous statements
B. Verbal acts
o Requisites of spontaneous statements?
1. Startling occurrence
2. Spontaneous statements
3. Relating to the circumstances of the occurrence
o What is to be testified on?
His spontaneous statement
o Why is this reliable?
No time to fabricate
After 24 hours, is it still a startling occurrence?
Depends on how startled the person still is.
If he was able to go out malling already, etc.,
then there was time to fabricate.
o What are verbal acts?
Statements made contemporaneous to an equivocal
act and characterizing it
Give an example of an equivocal act.
X handed a wad of cash to Y. This can
mean anything.
Give an example of a contemporaneous act
characterizing the equivocal act.
I am lending this to you.
NOTE: If Y testified, its not hearsay because it was
told to him personally. If a third person who
overheard it testified, this is when the exception
applies.
Opinion rule
What is the opinion rule?
o It means that only an expert can give an opinion. An ordinary
witness cannot normally give an opinion.
What can an expert testify on?
o Skill, knowledge, expertise, or training
Is an academic degree required?
o No. Just the special skill, knowledge, expertise, or training.
Unless, of course, the knowledge or skill requires an academic
degree.
There are two kinds of experts:
o 1. Expert with personal knowledge of the facts
Ex. medico-legal officer who examined a dead body
o 2. Expert with no personal knowledge, only hypothetical facts
Can an ordinary witness give an opinion?
o General rule: no.
o Exceptions:
1. Handwriting of which he has sufficient familiarity
2. Identity of which he has adequate knowledge
Not required to know the name,
relationships, etc. Just as long as you can
sufficiently identify the person.
3. Mental sanity of person with whom you are
acquainted with
4. Impressions on emotion, behavior, condition,
appearance
Character evidence:
o Make sure you distinguish civil and criminal cases
o When is it applicable?
Only when there is a character trait in the offense
charged
Ex. for murder/homicide violence
Ex. for estafa honesty
Ex. for rape sexual perversity of accused
For victim, chastity
o What offenses have no character traits?
Those covered by special laws;
Ex. BP 22
Ex. illegal possession of firearms
How does character apply for criminal cases?
o Can the prosecution present the bad character of the
accused?
No.
What is the exception?
On rebuttal
This comes in after defendant completes his
presentation of evidence, and is left to the
discretion of the court
What about surrebutal?
o If there is rebuttal, the court will give
surrebutal
o Can the accused present his good character?
Yes, if there is a character trait involved in the offense
charged
o What about the victim?
You can present the good or bad moral character to
establish in any reasonable degree the
probability/improbability of the offense charged
Usually applied in rape cases
What about civil cases?
o There is no distinction. As long as there is an issue of
character in a case, you can present character evidence.
Can a witness good or bad character be presented?
o General rule: NO.
o Exception: when the witness character has been
impeached/impugned
Burden of proof and presumptions
Distinguish burden of proof from burden of evidence?
o Burden of proof sticks with the party from the beginning until
the end.
Ex. Breach of contract for damages burden starts
with the plaintiff and ends with the plaintiff
o Burden of evidence shifts
What is the difference between conclusive and disputable
presumptions?
o Conclusive presumptions cannot be rebutted
What are the conclusive presumptions?
o 1. Estoppel in pais
This is regular estoppel
Requisties:
1. Representation
2. Lack of knowledge in the other party
3. Reliance
Similar estoppel:
Estoppel by silence
Estoppel as to question of jurisdiction
o 2. Estoppel by deed
What does deed mean?
It means a written document
This has a very limited application: only covers a
landlord-tenant relationship
Upon signing the deed, it is a recognition of the
landlords title. You can only challenge it after.
What are common examples of disputable presumptions?
o 1. Presumption of innocence
When does this arise?
1. Only when charged of an offense
2. And one is an accused in that case
o 2. Presumption of regularity
When does this arise?
1. You are a public officer
2. Performing is official function
o 3. When a court renders a decision:
It acted within its jurisdiction
It passed upon all questions
o 4. On filiation
When a child is born within 300 hundred days of
termination of the first marriage AND before 180 days
after the solemnization of the second marriage it is
considered to be conceived from the first marriage
When a child is born within 300 hundred days of
termination of the first marriage AND after 180 days
after solemnization of the second marriage it is
considered to be conceived from the second marriage
What if the child is born after 300 days after
dissolution of the marriage?
There is no presumption
Whoever alleges legitimacy or illegitimacy
must prove it
o 5. Absence
What does absence for 7 years establish?
Death, for all purposes EXCEPT succession
When does succession open?
o After 10 years
What if the person is over 75-years old?
After 5 years is enough to establish death
WhaPert are the exceptional circumstances that
establish death in a shorter period?
1. Vessel or aircraft goes missing and he
was not heard of for 4 years
2. Person took part in armed hostilities and
missing for 4 years
3. Person under danger of death in other
circumstances and is missing for 4 years
What is the rule for marriage?
Can contract subsequent marriage after
absence for 4 years
What if the spouse disappeared under
exceptional circumstances?
o 2 years of absence is enough
Is declaration of presumptive death of the
spouse to contract subsequent marriage
a special proceeding?
o No.
o This is a summary procedure under
the Family Code
o 6. Survivorship for those who died due to calamity, wreck,
battle, or conflagration
Follow what rule?
Strength and age of the sexes
For what purpose can this be used?
ANY purpose except succession
Allowed for:
Insurance
Survivorship agreements
Conduct of proceedings in the courts
What is required before witnesses testify?
o Place the witness under oath or affirmation
o Oath imploring divine guidance
o Affirmation for those who dont believe in God
Whose duty is it to receive evidence?
o The judge
Can delegate to the clerk of court in certain instances
o How is it recorded?
1. By stenographer
2. By stenotype
3. By any other means of recording found suitable by
the court
What questions can you NOT ask to witnesses?
o Immaterial, irrelevant, impertinent questions
o Questions that expose him to criminal liability violates right
against self-incrimination
What if its only exposing him to civil liability?
You can ask the question
But not if it exposes him to criminal penalty
o Degrading or humiliating questions
What is direct examination?
o Examination-in-chief of the prosecution
o What is examination-in-chief?
One that establishes what the prosecution seeks to
prove
Evidence-in-chief is what your witness will testify on in
direct examination. So if you have eight witnesses,
you have eight evidences-in-chief
What is cross examination?
o 1. Test the accuracy and truthfulness of witness testimony
o 2. To elicit all information from the witness
What are the two ways to impeach the witness?
o 1. Prior inconsistent statement
o 2. Reputation of the witness for honesty/truth/integrity of the
witness is bad
o What matters can be raised, in general?
In general, only those raised in direct
What is re-direct examination?
o Allow a witness to explain matters raised in cross-examination
What is re-cross examination?
o To examine matters raised in re-direct
Are leading questions allowed?
o As a rule, not allowed in direct examination.
o When else can you ask leading questions?
1. Cross examination
2. On preliminary matters
Ex. Mr. X, you said a while ago you were an
employee of the petitioner corporation. Are
you an employee?
3. Witness is ignorant, child of tender years, feeble-
minded, or deaf-mute
And there is some difficulty to get direct and
intelligible answers
4. Unwilling or hostile witness
N.B. There must be a court declaration to
make a person a hostile witness
Who is a hostile witness?
o Adverse interest
o Unjustified reluctance to testify
o Misled the party into calling him
5. Adverse witness adverse party or
officer/director/managing agent of juridical person
who is an adverse party
What are the two kinds of memorandum?
o 1. Present recollection revived
o 2. Past recollection recorded
o When do these apply?
In both cases he knew, he was in charge, or he
prepared it. Thats why he can testify. So even if
there is no independent recollection, he can testify.
o What is the purpose?
To refresh his memory
o What is the evidence?
If the witness has independent recollection, then the
testimony is the evidence.
If he has no independent recollection, the
memorandum itself is the evidence. But it must be
taken with caution.
Authentication of documents
N.B. Whether public or private, the document must be authenticated.
What are the kinds of public documents?
o 1. Acts of sovereign authority
o 2. Documents duly acknowledged before a notary public
except wills
Not just notarized, but must be acknowledged
o 3. Private documents recorded in a public office
Ex. affidavit of adverse claim in a R.O.D.
What are private documents?
o All other documents not falling under the prior three
How do you authenticate acts of sovereign authority?
o Certified true copy or official publication
o If it is from a foreign country?
Certification from foreign service officer
How do you authenticate a duly acknowledged document before a
Notary Public?
o Certificate of acknowledgement of the document itself
o If by chance, your copy is lost, where do you go?
You could get a certified true copy from the RTC who
commissioned him to notarize documents (he submits
the books to the RTC)
How do you authenticate private documents recorded in a public
office?
o Can be proved by original record or a certified true copy
o Can there be a certificate of no record?
Yes.
How do you authenticate a private document?
o Genuineness of the handwriting
1. By anyone who saw the document executed or
written
2. Evidence of genuineness of the
signature/handwriting of the maker
What is an ancient document requisites?
o 1. Document existing for at least 30 years
o 2. Unblemished
o 3. In the custody of one who must be with possession over it
What is alteration?
o When there is one, you have to account for it
1. There is consent
2. There is knowledge
3. Did not change the meaning
Can you impugn judicial records?
o Yes.
o How?
1. Want of jurisdiction
2. Collusion
3. Fraud
Offer of evidence
What is the rule on formal offer?
o Evidence must be offered, or else the court will not consider it
as evidence
When is it made?
o After the documents as marked, and all the witnesses are
presented
Is offer of testimonial evidence the same?
o Its not, because its made before you present the witness
What is a continuing objection?
o Objection of the same character after the grant or denial of the
same objection
o A one-time statement covering objections of the same
character
o Does it have to be ruled upon by the court?
No.
What is proffer of evidence?
o This is tender of excluded evidence
o So for instance an excluded witness can still be presented
through an affidavit showing her qualifications and the
substance of her testimony so it can be considered on
appeal
Weight and sufficiency of evidence
What about administrative cases in QJAs?
o Substantive evidence
o Where else does this standard apply?
Investigations in the workplace
QJAs that proceed like the NLRC
Circumstantial evidence
o Can it be a basis of conviction?
Yes
There should be more than one circumstance
And when taken together, they form proof beyond
reasonable doubt
o Can it be the basis of identification?
Yes
Can the judge stop the presentation of evidence?
o Yes, if the judge feels there is no more need for additional
evidence;

PART IV: SPECIAL PROCEEDINGS

Jurisprudence
What is the jurisdiction of the probate court?
o It has limited jurisdiction
o Determination of whether the property must be included in the
inventory is included here.
Conveyance of a property by a decedent in his lifetime
requisites?
o All interested parties need to be notified
o To cause approval of conveyance
Who determines the titles of real properties included as part of the
estate?
o A probate court may hear and pass upon questions of
ownership when its purpose is to determine w/n the property
must be included in the inventory
o The determination is merely provisional
When the estate of partner has become insolvent, how must claims
against his separate property be prioritized?
o 1. Those owing to separate creditors
o 2. Those owing to partnership creditors
o 3. Those owing to partners by way of contribution
What I the rule on lease rentals being assessed after the death of
the person? i.e. There were unpaid rentals accrued from April
1993 to December 1998, but the decedent passed away in 1989. Do
these claims pass to the estate?
o No, because the rentals accrued after his death.
o The general rule is that heirs are bound by the contracts
entered into by the predecessor-in-interest.
o Except if non-transmissible by:
1. Nature
2. Stipulation
3. Provision of law
Sale of real property must it be with consent of court?
o Any disposition of estate property by an administration or
prospective heir pending final adjudication needs court
approval
o Unauthorized disposition can be annulled by the probate court
without need for separate action
o Can the intestate/probate court execute its order annulling
the sale?
It can. No need for separate court.
Settlement of estates
Where is the venue for the action?
o Philippine resident place of last residence at the time of his
death
X lived in Pampanga. But because of his
deteriorating mental condition, he stayed in QC
for treatment. Where is the probate proceeding
filed?
QC
o Resident of foreign country, but has property in the Philippines
in the place where the property is located
N.B. we generally do not say foreigner because they
cannot acquire real property except by intestate
succession
Settlement of estate of a person presumed dead how is the
estate dealt with?
o He is entitled to the balance of his estate after payment of
debts
o Balance may be recovered by mere motion in the same case
where he was declared presumptively dead
Requisites for extra-judicial settlement of estates?
o 1. No will
o 2. No debts
o 3. If there are minors they are represented by guardians ad
litem
How do you extra-judicially settle?
o 1. Through a public instrument
o 2. Affidavit of self-adjudication
One heir adjudicating the entire estate to his name
o 3. Stipulation in an action for judicial partition (Rule 69)
What is required for all three?
o Publication
Do you need a bond for extra-judicial settlement of estate?
o Yes, but only for personal properties
Can you still contest a settlement of estate, if you are an omitted
heir?
o Yes, two years thereafter
Allowance of a will what does it settle?
o Only as to due execution
o No will shall pass real or personal property unless proved and
allowed
What is the duty of a custodian of a will?
o 1. Within 20 days from knowledge of testators death, deliver
the will to the court having jurisdiction
o 2. Or present it to the executor named in the will
Distinguish probate of a will post-mortem and ante-mortem.
o Post-mortem
A. Executor, heir, administrator, or any interested
person can apply
B. Notice given to compulsory heirs
Notice given to all heirs too by publication
o Ante-mortem
A. The testator himself applies
B. Notice given to compulsory heirs
No notice to other heirs by publication
When there is probate of a will and there is no contest, what must
be done?
o In a notarial will, need just one subscribing witnesses
If there is a contest, all subscribing witnesses
o In a holographic will, one witness who knows handwriting and
signature of the testator
In the absence of such, expert witness
Who may petition for the allowance of a will?
o Executor, devisee, heir, any person interested
If the will is lost or destroyed, how can it be proved?
o 1. Establish its existence
o 2. It was fraudulently or accidentally lost/destroyed
o 3. Two credible witnesses
Can a will proved outside of the Philippines be allowed here?
o Yes. (Rule 77)
What determines jurisdiction?
o Value of the estate
o If in Metro Manila 400K is threshold
o If outside 300K is the threshold
o Can it be subject of summary proceeding?
No. Never.
What does the court issue thereafter?
o Certificate of allowance
Who cannot be executor or administrator?
o 1. Minor
o 2. Not a resident of the Philippines
o 3. Unfit to execute the provisions of the trust
Drunkenness, improvidence, conviction of offense
involving moral turpitude, etc.
To whom are letters of administration granted?
o 1. Surviving spouse or next of kin or those selected by them
o 2. Principal creditors
o 3. Persons they may select
Can petitions for administration be opposed?
o Yes.
o On what grounds?
1. Incompetency of the person prayed for
2. Contestants own right to be administrator
o To whom?
To contestant or another person prayed for
Who is a special administrator?
o Appointed when there is delay in appointment including
appeals on allowance/disallowance of a will
o Temporarily appointed until such
Can letters of administration be revoked?
o Yes.
o When?
1. If a will is discovered
2. If the administrator absconds
3. The administrator fails to render accounting
4. Unsuitable to discharge the trust
o Can he resign as administrator?
Yes
Can an executor/administrator have access over partnership
books?
o Yes. It only extends to a partnership but not a corporation,
because there is succession in corporation.
o Failure to comply with order of a court what is the
consequence?
Partner can be held in contempt
What is the requirement in terms of notice for money claims
against the estate?
o Court issues order to all persons with money claims against
the estate to file it with the clerk of court
o What is the period?
Not less than 6 months to not more than 12 months
from date of first publication
o General rule: All claims must be filed within the time limit, or
else it is forever barred.
Exception?
Except as counterclaim to any action an
administrator or executor may bring
What are the claims filed against the executor or administrator by
name?
o 1. Recovery of real/personal property
o 2. Claim for damages caused by the deceased
o 3. All other actions/claims that survive
What if the executor/administrator refuse to act to recover property
transferred in fraud of creditors?
o The creditors can do it, if they:
1. Pay expenses of the suit
2. Give security
The estate sometimes has debts. In this case, how must they be
paid?
o First, from the personal estate.
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims
o What is the time to pay the debts?
Not exceeding one year in the first instance
o Can it be extended?
Yes, for not more than six months
Can the court authorize sale/mortgage/encumbrance of real
property?
o Yes.
o When?
1. Personal estate is not sufficient to pay the debts.
2. Sale of personal property may injure business or
estate
and the testator did not make provision for payment
of the debt (for both)
When is there distribution?
o No distribution shall be allowed until payment of debt, funeral
expenses, giving of allowance to widow, admin expenses,
estate tax, etc.
Who can institute actions for escheats?
o The Sol-gen on behalf of the Republic.
o What does he do?
File petition in court where the deceased last resided
o If you an heir can you still recover an escheated property?
Five years from the date of such judgment
o Can a done (but not an heir) recover the property?
Yes, he is an interested party, because he claims a
right to the escheated party. He may appear or
oppose petition for escheat.
o What is the effect of a judgment in escheat?
Conclusive against all persons with actual or
constructive notice
But not against those who are not privies or parties
Guardianship
Where do you institute petition for guardianship?
o Where the minor or incompetent is found
In what particular court?
o Family courts
Who can petition?
o Relative, friend, other person
o Can the minor himself do so?
Yes, as long as he is at least 14 years old
Must a parent still apply for guardianship?
o If the property of the child exceeds P50K you need to petition
for petition for guardianship
When can the guardian sell or encumber the property of the ward?
o 1. The property of the estate is insufficient to maintain the ward
and his family
o 2. For education of the ward
o 3. For the benefit of the ward
Who is preferred to become the guardian?
o The natural parent of the ward
Trustees
Who is a trustee?
o Can be made to carry in effect the provisions of a will or a
written instrument
o Appointed/confirmed in the probate court
Adoption
There was a child who was left outside of the house of a childless
couple and having noticed that no one is claiming the child, the
couple adopted the child. But they secured a birth certificate and
filled in the childs details (simulation of birth), without applying for
legal adoption. The child grew up and when she applied for a visa
to the US, she was denied because she was found to not be the
natural child of the mother (who is sterile). What are implications
and what actions must be taken to correct the situation?
o 1. Petition for correction/cancellation of entries, because the
birth certificate is false
Where do you file it?
The place where the entry was made or
recorded
Who are the parties; who are impleaded?
Only the civil registrar (under the ROC)
Under jurisprudence, include the child as
well and the declared parent of the child, and
those who hereditary rights are affected (ex.
Grandparents)
o 2. Get certification that the child was neglected or abandoned
Do you need a judicial declaration that the child
was neglected or abandoned?
NO. You just need a certificate from DSWD from an
administrative proceeding. (Take note of this; new
law and never asked in the Bar.)
o 3. Legal adoption
What if the adopter is a foreigner?
He must have been residing in the
Philippines for at least 3 years
What are the other qualifications?
o 16 year age difference
o Note the others from Civil Law
notes
What kind of petition must be filed?
o Inter-Country Adoption
Where do you institute the action for adoption?
Family Court where the adoptee resides
If the adoptee has no residence
(abandoned), where the adopter resides
Habeas corpus
When can you file a Petition for Habeas Corpus?
o There must be 1. ARREST and 2. DETENTION
o What if it is mere disappearance?
H.C. does not apply
File a criminal case
What must be the nature of the arrest/detention?
o It must be unlawful or illegal. It cannot be pursuant to a valid
arrest/detention.
Detention in violation of the right to speedy disposition of cases,
and the petition for such is denied by the court, what can you do?
o File petition for Writ of H.C.
What is post-conviction petition for HC?
o Under rules on DNA evidence, even after conviction, if the
testing shows that there is no basis for the
conviction/detention, you can file petition for HC
Where can it be filed?
o RTC, CA, or SC
What is WHC on custody of minors?
o Not a regular WHC. Unlike in ordinary WHC where there is no
pre-trial, there is pre-trial here.
o See example below.
o X married Y, but were separated in fact. X requested Y for
some time with their child Z. Y allowed, but X never
returned Z. What is the remedy?
Habeas corpus on custody of minors.
What is the Writ of Amparo?
o Also instituted in the RTC, CA, SC
o Can be filed at any time of day or night
o Does not just extend to actual or committed acts, but also to
threatened acts
o Who can file it?
Not just the victim or family members
Extends to religious institutions or NGOs
What is the Writ of Habeas Data?
o Also instituted in RTC, CA, SC
Change of name
When can you ask for change of name?
o 1. Name is ridiculous, dishonorable, extremely hard to
pronounce
o 2. Change will avoid confusion
o 3. One has been continuously known as that name
o 4. Surname causes embarrassment and the desire to change it
is not for a fraudulent purpose
Can a person have the childs Filipino middle name dropped for
the purpose of integration with the Singaporean community?
o No.
Family home
Do you need a judicial declaration of a family home?
o No more. Its automatically constituted, under the Family
Code.
Appeal
Can appeal be taken from orders or judgments take in Special
Proceedings?
o 1. Allowance/disallowance of wills
o 2. Determines who are the lawful heirs of a deceased person
or distributive shares
o 3. Allows/disallows a claim, or claims presented on behalf of
the estate to offset a claim against it
o 4. Settlement of account of executor/admin/guardian
o 5. Final determination in lower court of rights of the party
appealing
o 6. Final order or judgment rendered in the case, affecting
substantial rights of appealing person, unless it is an order
granting/denying MBT/MR
Can the appointment of a Special Administrator be subject of
appeal?
o No.
What is the mode of appeal?
o Record on appeal