Professional Documents
Culture Documents
UST Remedial 2016
UST Remedial 2016
Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008
All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.
2013 Edition
A copy of this material without the corresponding code either proceeds from an illegal
source or is in possession of one who has no authority to dispose the same.
No. 01
TEAM: BAR-OPS
BIENVENIDO L. MABULAC II CHAIRPERSON
VICENTE JAN PLATON III VICE-CHAIRPERSON
APRIL V. ENRILE SECRETARY
ERIKA PINEDA ASST. SECRETARY
CARLO ARTEMUS V. DIAZ HEAD, FINANCE COMMITTEE
WILFREDO P. SUDIO JR. ASST. HEAD, FINANCE COMMITTEE
MHAE ANN V. RIVERA ASST. HEAD, FINANCE COMMITTEE
CLARABEL ANNE R. LACSINA HEAD, HOTEL ACCOMMODATIONS COMMITTEE
VANNESSA ANNE VIRAY ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
HAZEL M. NAVAREZ ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
ARWIN V. CABANTING HEAD, LOGISTICS COMMITTEE
NATHANIEL LIBERATO ASST. HEAD, LOGISTICS COMMITTEE
ACADEMIC OFFICIALS
Q: What is the extent of the rule-making power of the A: Yes. The power to stay proceedings is incidental to the
Supreme Court? power inherent in every court to control the disposition of
the cases on its dockets, considering its time and effort, and
A: It has the power to promulgate rules concerning that of counsel and the litigants. But if proceedings must be
a.) the protection and enforcement of constitutional stayed, it must be done in order to avoid multiplicity of
rights, suits and prevent vexatious litigations, conflicting
b.) pleading, practice, and procedure in all courts, judgments, and confusion between litigants and courts
c.) the admission to the practice of law, (Security Bank Corp. v Judge Manuel Victorio, 468 SCRA
d.) the integrated bar, and 609).
e.) legal assistance to the underprivileged (Art. VIII, Sec.
5, par. 5, 1987 Constitution) NATURE OF PHILIPPINE COURTS
A: Yes. The courts have the power to relax or suspend 1. Regular courts
technical or procedural rules or to except a case from their a.
Supreme Court
operation when compelling reasons so warrant or when the b.
Court of Appeals
purpose of justice requires it (Commissioner of Internal c.
Regional Trial Courts
Revenue v. Migrant Pagbilao, Corporation, G.R. No. 159593, d.
Metropolitan Trial Courts, Municipal Trial Courts
Oct. 12, 2006). in Cities, Municipal Trial Courts , Municipal Circuit
Trial Courts
Q: What are the reasons that would warrant the 2. Special courts
suspension of the rules of procedure? a. Sandiganbayan
COURTS OF GENERAL AND SPECIAL JURISDICTION A: These are courts whose proceedings are enrolled and
which are bound to keep written records of all trials and
Courts of General Courts of Special proceedings handled by them (Luzano v Romero et al L-
jurisdiction jurisdiction 33245, Sept. 30 1971). R.A. No. 6031 mandates all
Those with Those which have only a Municipal Trial Courts to be courts of record.
competence to decide special jurisdiction for a
on their own particular purpose or PRINCIPLE OF JUDICIAL HIERARCHY
jurisdiction and to take are clothed with special
cognizance of all cases, powers for the A higher court will not entertain direct resort to it unless
civil and criminal, of a performance of the redress desired cannot be obtained in the appropriate
particular nature. specified duties beyond courts (Santiago v. Vasquez, 217 SCRA 167).
(21 CJS Courts 3) which they have no
authority of any kind. The Supreme Court is a court of last resort and must so
(21 CJS Courts 3) remain if it is to satisfactorily perform the duty assigned to
it.
CONSTITUTIONAL AND STATUTORY COURTS Note: The Supreme Court may disregard the principle of hierarchy
of courts if warranted by the nature and importance of the issues
Constitutional Court Statutory Court raised in the interest of speedy justice and to avoid future
Created by the Created by law other litigations (Riano, Civil Procedure: A Restatement for the Bar, p. 38,
Constitution. e.g. SC than Constitution. 2009 ed).
e.g. CTA
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY
COURTS OF LAW AND EQUITY XPN: The doctrine does not apply where a third party claimant is
involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).
Courts of Law Courts of Equity
Any tribunal duly Any tribunal administering JURISDICTION
administering the laws of justice outside the law,
the land being ethical rather than The power and authority of a court to try, hear, and decide
jural and belonging to the a case and the power to enforce its determination (21 CJS,
sphere of morals rather 9)
than of law. It is grounded
on the precepts of Note: It derived from the Latin words juris and dico, which
literally means I speak of the law.
conscience and not on any
A: No, because only jurisdiction over the subject matter is A: It is the power or authority to hear and determine cases
conferred by substantive law. Jurisdiction over the parties, to which the proceeding in question belongs (Reyes v. Diaz,
issues and res is governed by procedural laws (Riano, Civil 73 Phil 484).
Procedure: A Restatement for the Bar, p. 139, 11th ed.).
Q: Can jurisdiction over subject matter be waived by
JURISDICTION OVER THE PARTIES stipulation?
HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED A: No. Jurisdiction over the subject matter cannot be
waived, enlarged or diminished by stipulation of the parties
It is acquired from the moment of filing the complaint, (Republic v Estipular, 336 SCRA 333).
petition or initiatory pleading (Davao Light & Power Co. v
CA, 204 SCRA 343). XPN: Estoppel by laches by failure to object to the
jurisdiction of the court for a long period of time and by
HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED invoking its jurisdiction in obtaining affirmative relief (Tijam
v. Sibonghanoy, 23 SCRA 29).
It is acquired either:
a. By his voluntary appearance in court and his Q: Distinguish jurisdiction over the subject matter from
submission to its authority jurisdiction over the person.
b. By valid service of summons
c. Other coercive process upon him (arrest in A:
criminal cases) Jurisdiction Over the Jurisdiction Over the
Subject Matter Person
Note: Jurisdiction over the defendant is not essential in actions in Determined by the Acquired by the filing of
rem or quasi in rem as long as the court has jurisdiction over the allegations of the complaint the petition in case of the
res (Herrera, Vol. I, p. 114, 2007 ed.).
(Riano, Civil Procedure: A plaintiff or by arrest (Rule
Restatement for the Bar, p. 113), by valid service of
Q: Does filing of pleadings seeking affirmative reliefs
144, 2009 ed.) summons or voluntary
constitute voluntary appearance?
submission to the courts
XPN: Where the real issues authority in case of the
A: GR: Seeking affirmative relief constitutes voluntary
are evident from the record defendant (Ibid. p. 158)
appearance, and the consequent submission of ones
of the case, jurisdiction over
person to the jurisdiction of the court.
the subject matter cannot
be made to depend on how
XPN: In the case of pleadings whose prayer is precisely for
the parties word or phrase
the avoidance of the jurisdiction of the court, which only
their pleadings (Herrera,
leads to a special appearance.
Vol. I, p. 2, 2007 ed.) e.g. in
ejectment cases in which
These pleadings are:
the defendant averred the
defense of the existence of
(1) In civil cases, motions to dismiss on the ground of lack of
tenancy relationship
jurisdiction over the person of the defendant, whether or
between the parties (Ibid
not other grounds for dismissal are included;
p.148)
(2) In criminal cases, motions to quash a complaint on the
Note: Tenancy relationship is
ground of lack of jurisdiction over the person of the not presumed and it is not
accused; and enough that it is alleged. There
must be evidence to prove that
(3) Motions to quash a warrant of arrest. it exists and that all its
elements are established
The first two are consequences of the fact that failure to (Salmorin v. Zaldivar, G.R. No.
file them would constitute a waiver of the defense of lack 169691, July 23, 2008).
of jurisdiction over the person. The third is a consequence Conferred by law which may It is sometimes made to
of the fact that it is the very legality of the court process be either the Constitution depend, indirectly at
forcing the submission of the person of the accused that is or a statute least, on the partys
the very issue in a motion to quash a warrant of arrest volition
(Miranda v. Tuliao, G.R. No. 158763, March 31, 2006).
Q: How is jurisdiction over the subject matter conferred? Note: The rule on exhaustion of administrative remedies and
doctrine of primary jurisdiction applies only when the
A: It is conferred by law, that is B.P. Blg 129, otherwise administrative agency exercises quasi-judicial or adjudicatory
function (Associate Communications and Wireless Services v.
known as Judiciary Reorganization Act. It does not
Dumalao, G.R. 136762, Nov. 21, 2002).
depend on the objection or the acts or omissions of the
parties or anyone of them (Republic v Sangalang, 159 SCRA
Q: What are the exceptions to the doctrine of exhaustion
515 (1988); PNB v Florendo, 206 SCRA 582, 1992).
of administrative remedies?
Q: What are the instances in which jurisdiction over the
subject matter cannot be conferred?
A: DQAEA
1. Where respondent official acted in utter disregard of
due process;
A:
2. Where the questions involved are purely judicial or a
1. By the administrative policy of any court;
legal one;
2. A courts unilateral assumption of jurisdiction;
3. When the controverted act is patently illegal or was
3. An erroneous belief by the court that it has jurisdiction;
performed without jurisdiction or in excess of
4. By the parties through a stipulation e.g. contract;
jurisdiction;
5. The agreement of the parties acquired through, or
4. When there is estoppel on the part of the
waived, enlarged or diminished by, any act or omission
administrative agency concerned;
of the parties;
5. When its application may cause great and irreparable
damage;
GR: Jurisdiction, once attached, cannot be ousted by 2. Public policy One cannot question the
subsequent happenings or events although of a character jurisdiction which he invoked, not because the
which would have prevented jurisdiction from attaching in decision is valid and conclusive as an adjudication,
the first instance, and the court retains jurisdiction until it but because it cannot be tolerated by reason of
finally disposes of the case. public policy (Filipinas Shell Petroleum Corp. v.
Dumlao, G.R. No. L-44888, Feb. 7, 1992).
XPNs:
1. SLASP
Where a subsequent statute expressly prohibits 3. A party who invokes the jurisdiction of the court
the continued exercise of jurisdiction; to secure affirmative relief against his opponents
2. Where the law penalizing an act which is cannot repudiate or question the same after
punishable is repealed by a subsequent law; failing to obtain such relief (Tajonera v. Lamaroza,
3. When accused is deprived of his constitutional G.R. No. L-48907, 49035, Jan. 19, 1982).
right such as where the court fails to provide
counsel for the accused who is unable to obtain Note: Under the Omnibus Motion Rule, a motion attacking a
one and does not intelligently waive his pleading like a motion to dismiss shall include all grounds then
constitutional right; available and all objections not so included shall be deemed
waived. Even in the absence of lack of jurisdiction raised in a
4. Where the statute expressly provides, or is
motion to dismiss, a party may, when he files an answer, still raise
construed to the effect that it is intended to the lack of jurisdiction as an affirmative defense because such
operate as to actions pending before its defense is not barred under the omnibus motion rule.
enactment;
5. When the proceedings in the court acquiring EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION
jurisdiction is terminated, abandoned or declared
void; The active participation of a party in a case and seeking of
6. Once appeal has been perfected; affirmative reliefs is tantamount to recognition of that
JURISDICTION OVER THE ISSUES Note: Where no employer-employee relationship exists between
the parties and no issue involved may be resolved by reference to
The power of the court to try and decide issues raised in the Labor Code, other labor statutes or any collective bargaining
agreement, it is the regular courts that has jurisdiction (Jaguar
the pleadings of the parties (Reyes v. Diaz, 73 Phil 484) or
Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22,
by their agreement in a pre-trial order or those tried by the 2008).
implied consent of the parties (Sec 2, Rule 18, Rules of
Court). 4. Forcible entry and unlawful detainer
The MTC has exclusive original jurisdiction. In such cases,
It may also be conferred by waiver or failure to object to when the defendant raises the question of ownership in his
the presentation of evidence on a matter not raised in the pleadings and the question of possession cannot be
pleadings. The issues tried shall be treated in all respect as resolved without deciding the question of ownership, the
if they had been raised in the pleadings (Sec 5, Rule 10, issue of ownership shall be resolved only to determine the
Rules of Court). issue of possession. All ejectment cases are covered by the
Rule on Summary Procedure and are within the jurisdiction
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION of the MTCs regardless of whether they involve questions
of ownership. The courts in ejectment cases may determine
Q: How is jurisdiction over the res acquired? questions of ownership whenever necessary to decide the
question of possession (Gayoso v. Twenty-Two Realty
A: It is acquired either by: SICS Development Corp., G.R. No. 147874, July 17, 2006;
1. The seizure of the property under legal process. Santiago v. Pilar Development Corp., G.R. No. 153628, July
2. As a result of the institution of legal proceedings, 20, 2006).
in which the power of the court is recognized and
made effective (Banco Espaol Filipino vs. 5. Authority to conduct administrative investigations over
Palanca, 37 Phil. 291). local elective officials and to impose preventive suspension
3. The court by placing the property of thing under over elective provincial or city officials
its custody (custodia legis). Example: attachment It is entrusted to the Secretary of Local Government and
of property. concurrent with the Ombudsman upon enactment of R.A.
4. The court through statutory authority conferring 6770. There is nothing in the Local Government Code of
upon it the power to deal with the property or 1991 to indicate that it has repealed, whether expressly or
thing within the courts territorial jurisdiction. impliedly, the pertinent provisions of the Ombudsman Act
Example: suits involving the status of the parties (Hagad v. Dadole, G.R. No. 108072, Dec. 12, 1995).
or suits involving the property in the Philippines
of non-resident defendants (Riano, Civil 6. Appeals involving orders arising from administrative
Procedure: A Restatement for the Bar, p.133, disciplinary cases originating from the Office of the
2009 ed.). Ombudsman
It may be appealed to the Supreme Court by filing a petition
JURISDICTION OF COURTS for certiorari within 10 days from receipt of the written
notice of the order, directive or decision or denial of the
1. Boundary dispute between municipalities motion for reconsideration in accordance with Rule 45 of
RTCs are courts of general jurisdiction. Since there is no the Rules of Court (Sec. 27, R.A. 6770).
legal provision specifically governing jurisdiction over
boundary disputes between a municipality and an 7. Public school teachers
independent component city of the same province, it Generally, the Ombudsman must yield to the Division
follows that RTCs have the power and authority to hear and School Superintendent in the investigation of
determine such controversy (Municipality of Kananga v. administrative charges against public school teachers
Madrona, G.R. No. 141375, Apr. 30, 2003). (Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008).
SUPREME COURT
A:
1. All cases involving the constitutionality of a treaty, international or executive agreement, or law;
2. Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions,
ordinances and other regulations;
3. A case where the required number of vote in a division is not obtained;
4. A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed;
5. All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution).
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed (St. Martin Funeral Home v. CA, G.R. No.
130866, Sept. 16, 1998).
COURT OF APPEALS
b. Family Courts;
b. a lesser penalty for offenses committed
c. RTC on the questions of constitutionality, on the same occasion or which arose from
validity of tax, jurisdiction involving questions of the same occurrence that gave rise to the
fact, which should be appealed first to the CA; offense punishable reclusion perpetua or
life imprisonment (Sec. 3, Rule 122).
d. Appeals from RTC in cases appealed from
MTCs which are not a matter of right. Automatic review in cases of death penalty rendered
by the RTC, in which case, it may decide on whether
2. Appeal from MTC in the exercise of its or not to affirm the penalty of death. If it affirms the
delegated jurisdiction (R.A. 7691). penalty of death, it will render a decision but will not
3. Appeals from Civil Service Commission; enter the judgment because it will then be
4. Appeals from quasi-judicial agencies under Rule forwarded to the SC
43;
5. Appeals from the National Commission on Note: Death penalty imposed by the RTC is elevated to the
Indigenous Peoples (NCIP); and Court of Appeals by automatic review while death penalty
6. Appeals from the Office of the Ombudsman in imposed by the Sandiganbayan whether in its original or
appellate jurisdiction is elevated to the Supreme Court for
administrative disciplinary cases (Mendoza-Arce v.
automatic review.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1. Petitions for issuance of writs of certiorari, Petitions for issuance of writs of certiorari, prohibition
prohibition and mandamus against the following: and mandamus against the RTCs and lower courts.
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2. Petitions for issuance of writ of kalikasan (Sec. 3,
Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
1. Petitions for habeas corpus and quo warranto; Petitions for issuance of writs of certiorari, prohibition
and and mandamus against the lower courts or bodies.
2. Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the lower
courts
With SC, SB and RTC
1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the of habeas data
action involves public data or government office
SANDIGANBAYAN
attorneys fees, litigation expenses and costs, or value of property in a. Law on written defamation or libel;
controversy exceeds P300,000 or P400,000 in Metro Manila (Sec. 19, b. Decree on Intellectual Property;
BP 129 as amended by R.A. 7691); and c. Violations of Dangerous Drugs Act
8. Intra-corporate controversies under Sec. 5.2 of the Securities and regardless of the imposable penalty
Regulation Code. except when the offender is under 16
and there are Juvenile and Domestic
Relations Court in the province.
4. Cases falling under the Family Courts in areas
where there are no Family Courts (Sec.24, B.P.
129).
5. Election offenses (Omnibus election code)
even if committed by an official with salary grade
of 27 or higher
Concurrent
With SC, SB and CA
1. Writ of amparo Petitions for the issuance of writ of amparo and
2. Writ of habeas data writ of habeas data
With SC
Actions affecting ambassadors and other public ministers and
consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower courts and
bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of environmental and
other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-
6-8-SC).
Special
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian
cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the
interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an action is misrepresentation which may be detrimental to the
capable of pecuniary estimation? interest of the public and/or the stockholders, partners,
members of the associations or organizations registered
A: The criterion is the nature of the principal action or the with the Security and Exchange Commission;
remedy sought. If it is primarily for the recovery of a sum of
money, the claim is considered capable of pecuniary b. Controversies arising out of intra-corporate or
estimation, and whether jurisdiction is in the MTCs or in the partnership relations, between and among stockholders,
RTCs would depend on the amount of the claim. members or associates, respectively; and between such
corporation, partnership or association and the state in so
However, where the basic issue is something other than the far as it concerns their individual franchise or right to exist
right to recover a sum of money, where the money claim is as such entity;
purely incidental to, or a consequence of, the principal
relief sought like specific performance suits and in actions c. Controversies in the election or appointments of
for support, or for annulment of a judgment or foreclosure directors, trustees, officers or managers of such
of mortgage, such actions are incapable of pecuniary corporation, partnerships or associations; and
estimation, and are cognizable exclusively by the RTCs
(Barangay Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005 d. Petitions of corporations, partnerships or associations
to be declared in the state of suspension of payments in
Q: What are the intra-corporate controversies that are cases where the corporation, partnership or association
within the jurisdiction of the RTC? posses sufficient property to cover all its debts but foresees
the impossibility of meeting them when they respectively
A: fall due or in cases where the corporation, partnership or
a. Cases involving devises or schemes employed by or association has no sufficient assets to cover its liabilities but
any acts, of the board of directors, business associates, its is under the management of a Rehabilitation Receiver or
officers or partnership, amounting fraud or Management Committee (Sec. 5.2, SRC).
for payment of money where the claim does not exceed principals, accomplices or accessories, punishable
P100,000 exclusive of interest and costs. with imprisonment not more than 6 years or
where none of the accused holds a position
classified as Grade 27 and higher (Sec. 4, P.D.
1606 as amended by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000
(Sec. 34, BP 129 as amended by R.A. 7691).
SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature
or aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified
which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane
person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are
Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive
jurisdiction of the Municipal Circuit Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims.
JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY
CONCILIATION
Katarungang Pambarangay Law Rule on Small Claims Cases Rules on Summary Procedure
Purpose / Object
To effect an amicable settlement of To provide a simpler and more To achieve an expeditious and
disputes among family and barangay inexpensive and expeditious inexpensive determination of the
members at the barangay level means of settling disputes cases defined to be governed by
without judicial recourse and involving purely money claims the Rules on Summary Procedure
consequently help relieve the courts of than the regular civil process
docket congestion. (Preamble of P.D.
1508) (1999 Bar Qestion)
Where to file
1. For disputes between residents of 1. Metropolitan Trial 1. Metropolitan Trial Courts
the same barangay: the dispute Courts 2. Municipal Trial Courts in Cities
must be brought for settlement in 2. Municipal Trial Courts in 3. Municipal Trial Courts
the said barangay. Cities 4. Municipal Circuit Trial Courts
2. For disputes between residents of 3. Municipal Trial Courts
different but adjoining barangays 4. Municipal Circuit Trial
and the parties agree to submit Courts
their differences to amicable
settlement: within the same city or
municipality where any of the
respondents reside at the election
of the complainant.
3. For disputes involving real
property or any interest when the
parties thereto agree to submit
their differences to amicable
settlement by an appropriate
lupon therein shall be brought in
the barangay where the real
property or larger portion thereof
is situated.
4. For disputes arising at the
workplace where the contending
parties are employed or at the
institution where such parties are
enrolled for study shall be brought
in the barangay where such
workplace or institution is located.
Cases Covered
Civil Cases
All disputes involving parties who Small claims cases civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer irrespective
municipality may be the subject of the payment or reimbursement of a of the amount of damages or
proceedings for amicable settlement in sum of money not exceeding unpaid rentals sought to be
the barangay. P100,000 exclusive of interest recovered. Where attorneys
and costs, either fees are awarded, the same
1. Purely civil in nature where shall not exceed P20,000; and
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for probate proceedings, where the
payment or reimbursement total amount of plaintiffs claim
of sum of money, or does not exceed P100,000 or
2. The civil aspect of criminal does not exceed P200,000 in
actions, either filed before Metro Manila, exclusive of
the institution of the interests and costs (A.M. No.
criminal action, or reserved 02-11-09-SC, Nov. 25, 2005).
upon the filing of the
criminal action in court,
pursuant to Rule 111 of the
Revised Rules of Criminal
Procedure.
TOTALITY RULE
Note: Under the present law, the totality rule is applied also to
cases where two or more plaintiffs having separate causes of
action against a defendant join in a single complaint, as well as to
cases where a plaintiff has separate causes of action against two or
more defendants joined in a single complaint. However, the causes
of action in favor of the two or more plaintiffs or against the two or
more defendants should arise out of the same transaction or series
of transactions and there should be a common question of law or
fact, as provided in Section 6 of Rule 3 (permissive joinder of
parties).
The totality rule is not applicable if the claims are separate and
distinct from each other and did not arise from the same
transaction. In the case of Flores v. Mallare Philips, the Supreme
Court did not apply the totality test where there are two claims
filed by Flores first against Ignacio Binongcal and the second cause
of action was against Fernando Calion for allegedly refusing to pay
an amount representing cost of truck tires.
Basis
When it is founded upon Founded on privity of
the privity of a real estate. contract such as damages,
That means that realty or claims of money, etc. (Paper
interest therein is the Industries Corporation of
subject matter of the action. the Philippines v. Samson,
G.R. No. L-30175, Nov. 28,
Note: It is important that the 1975).
matter in litigation must also
involve any of the following
issue:
1. Title
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage
6. Any interest in real
property (Riano, Civil
Procedure: A Restatement
for the Bar, p.122, 2009
ed.)
Venue
Venue of action shall be Venue of action is the place
commenced and tried in the where the plaintiff or any of
proper court which has the principal plaintiffs
jurisdiction over the area resides or any of the
wherein the real property defendants resides, at the
involved, or a portion election of the plaintiff (Rule
thereof is situated (Rule 4, 2 sec 2)
sec 1)
Q: What is the cause of action in an administrative case? FAILURE TO STATE A CAUSE OF ACTION
A: In an administrative case, the issue is not whether the Q: What are the differences between failure to state cause
complainant has a cause of action against the respondent, of action and absence or lack of cause of action?
but whether the respondent has breached the norms and
standards of the office (Riano, Civil Procedure: A A:
Restatement for the Bar, p. 84, 2009 ed.). Failure to state cause of Lack of cause of action
action
CAUSE OF ACTION VERSUS RIGHT OF ACTION Insufficiency in the Failure to prove or
allegations of the establish by evidence
Cause of Action Right of Action complaint ones stated cause of
It is the act or Right of a plaintiff to bring action
omission by which a an action and to prosecute As a ground for dismissal
party violates the that action until final Raised in a motion to Raised in a demurrer to
rights of another (Sec. judgment (Marquez v. dismiss under Rule 16 evidence under Rule 33
2, Rule 2) Varela, 92 Phil. 373) before a responsive after the plaintiff has
Requisites pleading is filed rested his case (Enojas v
1. The existence of a 1. There must be a good Comelec, 283 SCRA 232)
legal right of the cause (existence of a Determination
plaintiff cause of action) Determined only from Resolved only on the
2. A correlative duty 2. A compliance with all the the allegations of the basis of the evidence he
of the defendant to conditions precedent to pleading and not from presented in support of
respect ones right the bringing of the action evidentiary matters his claim. (Riano, Civil
3. An act or omission 3. Right to bring and (Riano, Civil Procedure: Procedure: A
of the defendant in maintain the action must A Restatement for the Restatement for the
violation of the be in the person Bar, p.206, 2011 ed.) Bar, p207, 2011 ed.)
plaintiffs right. instituting it (Albano,
(Agrarian Reform Remedial Law Reviewer, Q: Does lack of cause of action affect the jurisdiction of a
Beneficiaries p. 80 2010 ed.) court?
Association v.
Nicolas, G.R. No. A: No, it does not affect the authority of a court to hear and
168394, October 6, decide a given case, if the court has jurisdiction over its
2008) subject matter, over the parties therein, and in an action in
Nature rem, over the res (Herrera, Vol. I, p. 448, 2007 ed.).
It is actually Right of action which is
predicated on procedural in character is
substantive law or on the consequence of the
quasi delicts under violation of the right of the
NCC (Riano, Civil plaintiff (Riano, Civil
TEST OF SUFFICIENCY OF CAUSE OF ACTION Q: What are the conditions required in joinder of causes of
action?
Q: What is the test of sufficiency of the statement of a
cause of action? A:
1. The party shall comply with the rules on joinder of
A: parties;
1. Whether or not admitting the facts alleged, the court a. Right to relief arises out of the same transaction
could render a valid verdict in accordance with the or series of transaction
prayer of the complaint (Misamis Occidental II Coop., b. There is common question of law of law or fact
Inc. vs. David, 468 SCRA 63); 2. The joinder shall not include special civil actions
2. The sufficiency of the statement of cause of action must governed by special rules;
appear on the face of the complaint and its existence is 3. Where causes of action pertain to different venues, the
only determined by the allegations of the complaint joinder may be allowed in the RTC provided one of the
(Viewmaster Construction Corp. vs. Roxas, 335 SCRA causes of action falls within the jurisdiction of said court
540); and venue lies therein
4. Where claims in all causes of action are for recovery of
Note: The truth or falsity of the allegations is beside the point money, the aggregate amount claimed shall be the test
because the allegations in the complaint are hypothetically for jurisdiction (Sec 5, Rule 2).
admitted. Thus a motion to dismiss on the ground of failure to
state a cause of action, hypothetically admits the matters alleged in Note: A joinder of causes of action is only permissive not
the complaint. compulsory, hence a party may desire to file a single suit for each
of his claims. (Bar 1999, Riano, Civil Procedure: A Restatement for
SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS the Bar, p. 115, 2009 ed.)
Q: What is splitting a cause of action? (1999 Bar Question) Q: Is misjoinder of causes of action a ground for dismissal?
A: It is the act of instituting two or more suits on the basis A: No. A misjoined cause of action may, on motion of a
of the same cause of action (Sec. 4, Rule 2). It is the act of party or on initiative of the court, be severed and
dividing a single or indivisible cause of action into several proceeded with separately (Sec. 6 Rule 2).
parts or claims and bringing several actions thereon. The
rule against splitting of a cause of action aims to avoid Q: P sued A and B in one complaint in the RTC-Manila, the
multiplicity of suits, conflicting decisions and unnecessary cause of action against A being an overdue promissory
vexation and harassment of defendants. It applies not only note for P300,000 and that against B being an alleged
to complaints but also to counterclaims and cross-claims. balance of P300,00 on the purchase of goods sold on
credit. Does the RTC-Manila have jurisdiction over the
Q: What is the effect of splitting a cause of action? (1998 case? (2002 Bar Question)
Bar Question)
A: No, the RTC-Manila has no jurisdiction over the case. The
A: If two or more suits are instituted on the basis of the joinder of the causes of action against A and B is not
same cause of action, the filing of one or a judgment upon proper. For a joinder of causes of action against several
the merits in any one is available as a ground for the defendants to be proper, the joinder must comply with the
dismissal of the others (Sec. 4, Rule 2). rules on joinder of the parties under Sec. 6 of Rule 3. This
rule requires that the causes of action joined shoud arise
Q: What are the remedies available against it? (1999 Bar out of the same transactions and there exists a question of
Question) law or facts common to both. These requirements are not
met under the facts.
A: File a motion to dismiss, on the ground of litis pendentia
or if the first action has already been finally terminated, on Since the causes of action cannot be joined, each action
the ground of res judicata. must be the subject of a separate action. The totality rule
has no application under the facts of the case. The amount
JOINDER AND MISJOINDER OF CAUSES OF ACTION of each claim falls within the jurisdiction of the MTC.
Q: What is a joinder of causes of action? Q: Distinguish splitting of cause of action from joinder of
causes of action
A: It is the assertion of as many causes of action a party
may have against another in one pleading alone (Sec. 5, A:
Rule 2). Splitting of Cause of Joinder of Causes of
Action Action
part the subject of a alone (Sec 5, Rule 2, b. A contract of partnership having a capital three
separate complaint Rules of Court) thousand pesos or more but which fails to comply
(Bachrach v Icaringal, with the registration requirements is nevertheless
68 SCRA 287) liable as a partnership to third persons (Art. 1772
Prohibited. A party may Encouraged (no in relation to Art. 1768, NCC);
not institute more than sanction against non- c. Estate of a deceased person (Limjoco v. Intestate
1 suit for a single cause joinder of separate Estate of Fragante, G.R. No. L-770, Apr. 27, 1948);
of action (Sec 3, Rule 2, causes of action since a d. A legitimate labor organization may sue and be
Rules of Court) plaintiff needs only a sued in its registered name [Art. 242(e), Labor
single cause of action to Code of the Philippines];
maintain an action) e. The Roman Catholic Church may be a party and as
It causes multiplicity of It minimizes multiplicity to its properties, the archbishop or diocese to
suits and double of suits and which they belong (Versoza v. Hernandez, G.R. No.
vexation on the part of inconvenience on the L-25264, Nov. 22, 1926);
the defendant (Riano, parties. f. A dissolved corporation may prosecute and defend
Civil Procedure: A suits by or against it provided that the suits:
Restatement for the i. occur within three years after its dissolution;
Bar, p. 108, 2009 ed.) and
ii. the suits are in connection with the settlement
Q: Distinguish joinder of causes of action from joinder of and closure of its affairs. (Sec. 112, Corporation
parties (1996 Bar Question) Code)
may be sued for acts done against a person or persons (a) When one spouse becomes the guardian of the
in the Philippines, or may be sued in Philippine Courts. other;
5. If it does business in the Philippines without license, a
Philippine citizen or entity which has contracted with (b) When one spouse is judicially declared an
said corporation may be estopped from challenging the absentee;
foreign corporations corporate personality in a suit
brought before Philippine courts (Herrera, Vol. I, p. 510,
(c) When one spouse is sentenced to a penalty
2007 ed.).
which carries with it civil interdiction; or
Q: What is the rule on spouses as parties?
(d) When one spouse becomes a fugitive from
A: GR: Husband and wife shall sue and be sued jointly justice or is in hiding as an accused in a criminal
inasmuch as both are co-administrators of the community case.
property under the system of absolute community of
property, as well as the conjugal partnership property If the other spouse is not qualified by reason of
(Feria, Civil Procedure Annotated Vol. I, p. 231, 2001 ed.). incompetence, conflict of interest, or any other
just cause, the court shall appoint a suitable
XPN: person to be the administrator.
1. A spouse without just cause abandons the other or
fails to comply with his or her obligations to the REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES;
family with respect to marital, parental or property REPRESENTATIVES AS PARTIES; NECESSARY PARTIES;
relations (Arts. 101&108, Family Code). INDIGENT PARTIES; ALTERNATIVE DEFENDANTS
2. A spouse of age mortgages, encumbers, alienates or
otherwise disposes of his or her exclusive property Q: What are the kinds of parties in a civil action?
(Art. 111, FC).
3. The regime of separation of property governs the A:
property relations between spouses (Art. 145, FC). 1. Real parties in interest
4. Art. 135. Any of the following shall be considered 2. Indispensable parties
sufficient cause for judicial separation of property: 3. Representatives as parties
(a) That the spouse of the petitioner has been 4. Necessary parties
sentenced to a penalty which carries with it civil 5. Indigent parties
interdiction; 6. Pro-forma parties
(b) That the spouse of the petitioner has been Q: Who is a real party in interest?
judicially declared an absentee;
A: He is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails
(c) That loss of parental authority of the spouse of
of the suit (Sec. 2 Rule 3).
petitioner has been decreed by the court;
Note: To be a real party-in-interest, the interest must be real,
(d) That the spouse of the petitioner has abandoned which is a present substantial interest as distinguished from a mere
the latter or failed to comply with his or her expectancy or a future, contingent subordinate or consequential
obligations to the family as provided for in Article interest (Rayo v. Metrobank, 539 SCRA 571). It is an interest that is
101; material and direct, as distinguished from a mere incidental
interest in the question (Samaniego v. Aguila, 334 SCRA 439).
(e) That the spouse granted the power of Q: Who is an indispensable party?
administration in the marriage settlements has
abused that power; and A: Those without whom no final determination can be had
of an action (Sec. 7, Rule 3).
(f) That at the time of the petition, the spouses have
been separated in fact for at least one year and Q: What are the tests to determine whether a party is an
reconciliation is highly improbable. indispensable party?
Q: What is the rule on indigent litigants? Q: What are the requisites of permissive joinder of
parties?
A: If the applicant for exemption meets the salary and
property requirements under Sec. 19, Rule 141, then the A:
grant of the application is mandatory. However, if the trial 1. Right to relief arises out of the same transaction or
court finds that one or both requirements have not been series of transactions (connected with the same subject
met, then it would set a hearing to enable the applicant to matter of the suit);
prove that the applicant has no money or property 2. There is a question of law or fact common to all the
sufficient and available for food, shelter and basic plaintiffs or defendants;
necessities for himself and his family as provided in Rule 3,
Sec. 21. In that hearing, the adverse party may adduce Note: There is a question of law in a given case when the doubt or
countervailing evidence to disprove the evidence presented difference arises as to what the law is on a certain state of facts;
by the applicant; after which the trial court will rule on the there is a question of fact when doubt arises as to the truth or the
falsehood of alleged facts. (Manila Bay Club Corp. v. CA, et al., G.R.
application depending on the evidence adduced. In
No. 110015)
addition, Section 21 of Rule 3 also provides that the adverse
party may later still contest the grant of such authority at
Q: When may the court order the joinder of a necessary
any time before judgment is rendered by the trial court,
party? (1998 Bar Question)
possibly based on newly discovered evidence not obtained
at the time the application was heard (Algura v. LGU of
A: If the reason given for the non-joinder of the necessary
Naga, G.R. No. 150135, Oct. 30, 2006).
party is found by the court to be unmeritorious, it may
order the pleader to join the omitted party if jurisdiction
Q: What does the authority include, if one is authorized as
over his person may be obtained. The failure to comply
an indigent party?
with the order of the court to include a necessary party,
without justifiable cause, shall be deemed a waiver of the
A: An exemption from the payment of:
claim against such party (Sec. 9, Rule 3).
1. Docket fees and other lawful fees
2. Transcript of stenographic notes (Sec. 21, Rule 3).
MISJOINDER AND NON-JOINDER OF PARTIES
Note: The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any judgment Q: Is the misjoinder or non-joinder of an indispensable
rendered in the case favorable to the indigent, unless otherwise party a ground for the dismissal of the action or
provided (Sec. 21, Rule 3). annulment of judgment?
Q: Who is a pro forma party? A: No. The Rules prohibit the dismissal of a suit on the
ground of non-joinder or misjoinder of parties and allows
A: One who is joined as a plaintiff or defendant, not the amendment of the complaint at any stage of the
because such party has any real interest in the subject proceedings, through motion or on order of the court on its
matter or because any relief is demanded, but merely own initiative (Sec. 11, Rule 3; Republic v. Sandiganbayan,
because the technical rules of pleadings require the G.R. No. 152154, July 15, 2003). However, when the order
presence of such party on the record (Samaniego vs. Agulia, of the court to implead an indispendable party goes
G.R. No. 125567, June 27, 2000). unheeded, the court may order the dismissal of the case.
The court is fully clothed with the authority to dismiss a
COMPULSORY AND PERMISSIVE JOINDER OF PARTIES complaint due to the fault of the plaintiff as when, among
others, he does not comply with the order of the court (Sec.
Q: When is there a compulsory joinder of parties? 3, Rule 17; Plasabas vs. CA, GR No. 166519; Riano, Civil
Procedure: A Restatement for the Bar p. 223, 2009 ed.).
A: The joinder of parties becomes compulsory when the
one involved is an indispensable party. Clearly, the rule CLASS SUIT
directs a compulsory joinder of indispensable parties.
(Riano, Civil Procedure: A Restatement for the Bar, p. 222, Q: What is a class suit?
2009 ed)
A: It is an action where one or some of the parties may sue
Note: The presence of all indispendable parties is a condition sine for the benefit of all if the requisites for said action are
qua non for the exercise of judicial power. It is precisely when an complied with. (Riano, Civil Procedure: A Restatement for
indispensable party is not before the court that the action should the Bar, p. 236, 2009 ed)
be dismissed. Thus, the plaintiff is mandated to implead all the
indispensable parties, considering that the absence of one such
Q: What are its requisites?
party renders all subsequent action of the court null and void for
want of authority to act, not only as to the absent parties but even
as to those present. One who is a party to a case is not bound by A:
any decision of the court; otherwise, he will be deprived of his right 1. Subject matter of the controversy is one of common or
to due process (Sepulveda, Sr. v. Pelaez, 450 SCRA 302). general interest to many persons;
2. Parties affected are so numerous that it is
impracticable to bring them all before the court;
3. Parties bringing the class suit are sufficiently numerous against the estate of a deceased person (Sec. 20, Rule
or representative of the class and can fully protect the 3).
interests of all concerned (Sec. 12 Rule 3); and
4. Representatives sue or defend for the benefit of all Note: The substitute defendant need not be summoned. The order
(Sec.12, Rule 3) of substitution shall be served upon the parties substituted for the
court to acquire jurisdiction over the substitute party (Riano, Civil
Procedure: A Restatement for the Bar, p. 232, 2009 ed.). If there is
Q: On January 4, 1988, a complaint for damages
notice of death, the court should await appointment of legal
amounting to more than One and a half billion pesos representative; otherwise, subsequent proceedings are void.
(P1.4Billion) was filed in the name and on behalf of the
relatives or heirs of the victims of the worst sea disaster in Q: What is the purpose and importance of substitution of
history, the sinking of the vessel Dona Pas caused by its the deceased?
collision with another vessel. The complaint characterized
the action as a class suit, prosecuted by 27 named A: The purpose behind the rule on substitution of parties is
plaintiffs on their behalf and in representation of the the protection of the right of every party to due process. It
approximately 4,000 persons who are all close relatives is to ensure that the deceased would continue to be
and legal heirs of the passenger of the Dona Paz. Is this a properly represented in the suit through the duly appointed
proper class suit? legal representative of the estate (Torres v. Court of
Appeals, 278 SCRA 793; Vda. De Salazar v. Court of Appeals,
A: This is not a proper class suit because the interest of 250 SCRA 305)
each of the plaintiffs is limited to the damages being
claimed by him. Q: What is the effect of non-compliance with the rules on
substitution?
Note: Even if the parties are numerous, there must be a
community of interest for a class suit because the subject matter of
the controversy must be of common interest among all of them. If A: GR: It renders the proceedings of the trial court infirm
the class suit is not proper, the remedy of the parties is either to because the court acquired no jurisdiction over the person
bring suit individually or join them all as parties under the rule on of the legal representative (Brioso v. Rili-Mariano, G.R. No.
permissive joinder of parties. 132765, Jan. 31, 2003). Non-compliance therewith results
in the undeniable violation of the right to due process of
SUITS AGAINST ENTITIES WITHOUT JURIDICAL those who, though not duly notified of the proceedings, are
PERSONALITY substantially affected by the decision rendered therein
(Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23, 1995).
Q: What is the rule on suits against entities without
juridical personality? XPN:
1. Even if there is non-compliance with the rules on
A: When two or more persons not organized as an entity substitution but the heirs themselves voluntarily
with juridical personality enter into a transaction, they may appeared, participated in the case and presented
be sued under the name by which they are generally or evidence in defense of deceased defendant, the
commonly known. In the answer of such defendant, the action does not deprive the court of jurisdiction
names and addresses of the persons composing said entity (Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23,
must all be revealed (Sec. 15, Rule 3). 1995).
Note: Persons associated in an entity without juridical personality, 2. In ejectment cases where the counsel fails to inform
however, cannot sue under such name. the court of the death of his client and thereby
results to the non-substitution of the deceased by
EFFECT OF DEATH OF PARTY LITIGANT his legal representatives, the action does not
deprive the court of jurisdiction. The decision of the
Q: What is the effect of the death of a party upon a court is nevertheless binding upon the successors-
pending action? (1999 Bar Question) in-interest of the deceased. A judgment in an
ejectment case may be enforced not only against
A: defendants but also against the members of their
1. Purely personal action the death of either of the family, their relatives, or privies who derived their
parties extinguishes the claim and the action is right of possession from the deceased defendant
dismissed. (Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23,
2. Action that is not purely personal claim is not 1995 citing Florendo Jr. v. Coloma, G.R. No. L-60544,
extinguished and the party should be substituted by his May 19, 1984).
heirs, executor or administrator. In case of minor heirs,
the court may appoint a guardian ad litem for them. Q: What actions survive the death of a party? (2000 Bar
3. Action for recovery of money arising from contract and Question)
the defendant dies before entry of final judgment it
shall not be dismissed but instead shall be allowed to A:
continue until entry of judgment. A favorable judgment 1. Actions and obligations arising from delicts (Aguas v.
obtained by the plaintiff shall be enforced in the Llemos, G.R. No. L-18107, Aug. 30, 1962);
manner provided in the rules for prosecuting claims
2. Ejectment case (Tanhueco v. Aguilar, G.R. No. L-30369, Q: Can a complaint be dismissed by the court motu
May 29, 1970); proprio based on improper venue?
3. Actions for the recovery of money, arising from a
contract, express or implied (Sec. 20, Rule 3); A: No. Improper venue is not one of the grounds wherein
4. Actions to recover real and personal property against the court may dismiss an action motu proprio (Universal
the estate; Corp. vs. Lim, G.R. No. 154338, Oct. 5, 2007). Unless and
5. Actions to enforce liens thereon; and until the defendant objects to the venue in a motion to
6. Actions to recover damages for an injury to person or dismiss, the venue cannot be truly said to be improperly
property and suits by reason of the alleged tortuous laid, because the venue although technically wrong may be
acts of the defendant (Board of Liquidators v. Kalaw, acceptable to the parties for whose convenience the rules
G.R. No. L-18805, Aug. 14, 1967). on venue have been devised (Dacuycuy vs. Intermediate
Appellate Court, 195 SCRA 641).
VENUE
Note: An order denying a motion to dismiss is merely interlocutory.
VENUE VERSUS JURISDICTION The normal remedy is to file an answer and interpose the ground
as an affirmative defense, go to trial and appeal from the adverse
judgment. However, if the denial is tainted with grave abuse of
Q: Distinguish venue from jurisdiction. (2006 Bar
discretion amounting to lack of jurisdiction, the remedy is certiorari
Examination) and prohibition. (Emergency Loan Pawnshop v. Court of Appeals,
353 SCRA 89)
A:
Venue Jurisdiction VENUE OF REAL ACTIONS
The place, or Power of the court to
geographical area where hear and decide a case The venue is local, hence the venue is the place where the
an action is to be filed real property involved or, any portion thereof, is situated.
and tried (Manila (Sec. 1, Rule 4)
Railroad Company v
Attorney General, 20 Phil VENUE OF PERSONAL ACTIONS
523).
May be waived by: Cannot be waived The venue is transitory; hence the venue is the residence of
1. Failure to object the plaintiff or defendant, at the option of the plaintiff.
through a motion to (Sec. 2, Rule 4)
dismiss or through an
affirmative defense. Q: A, a resident of Lingayen, Pangasinan ssued X, a
2. Stipulation of the resident of San Fernando, La Union in the Regional Trial
parties. Court of Quezon City for the collection of a debt of P1
Procedural Substantive million.
May be changed by the Cannot be the subject of X did not file a motion to dismiss for improper venue but
written agreement of the the agreement of the filed his answer raising therein improper venue as an
parties parties affirmative defense. He also filed a counterclaim for P80,
Establishes a relation Establishes a relation 000.00 against A for attorneys fees and expenses for
between plaintiff and between the court and litigation. X moved for a preliminary hearing on said
defendant, or petitioner the subject matter. affirmative defense. For his part, A filed a motion to
and respondent. dismiss the counterclaim for lack of jurisdiction. Rule on
GR: Not a ground for a It is a ground for a motu the affirmative defense of improper venue. (1998 Bar
motu proprio dismissal proprio dismissal (Riano, Question)
Civil Procedure: A
XPN: In cases subject to Restatement for the Bar, A: There is improper venue. The case is for a sum of money
summary procedure p. 210, 2009 ed.). is a personal action. It must be filed in the residence of
(Riano, Civil Procedure: A either the plaintiff, which is in Pangasinan, or of the
Restatement for the Bar, defendant, which is in San Fernando, La Union. (Sec. 2, Rule
p. 210, 2009 ed.). 4).
Note: In civil cases, venue is not a matter of jurisdiction. (Hrs. of VENUE OF ACTIONS AGAINST NON-RESIDENTS
Lopez v. de Castro, 324 SCRA 591, 2000) Venue becomes
jurisdictional only in a criminal case. In the latter case, where the Q: Where should the action be commenced and tried if
information is filed not in the place where the offense was the defendant is a non-resident?
committed, the information may be quashed for lack of jurisdiction
over the offense charged (Sec 3 Rule 117, Rules of Court).
A:
1. Defendant does not reside but is found in the
Philippines:
a. Personal actions shall be commenced and tried in
the court of the place where the plaintiff resides
b. Real actions shall be commenced and tried in the (b) Suppose the parties did not stipulate in the loan
court of the place where the property is located agreement as to the venue, where A can file his
(Riano, Civil Procedure: A Restatement for the Bar, complaint against X?
p.203, 2009 ed.).
(c) Suppose the parties stipulated in their loan
2. Defendant does not reside and is not found in the agreement that venue for all suits arising from this
Philippines: contract shall be the courts in Quezon City, can A file
a. If the action affects the personal status of the his complaint against X in Pasay City? (1997 Bar
plaintiff the action may be commenced and tried Question)
in the court of the place where the plaintiff resides.
b. If it involves any property of the non-resident A:
defendant the action may be commenced and (a) Yes, because the stipulation in the loan agreement
tried where the property or any portion thereof is that the parties agree to sue and be sued in the City
situated (Sec. 3, Rule 4). of Manila does not make Manila the exclusive venue
thereof. (Sec. 4, Rule 4) Hence, A can file his
WHEN THE RULES ON VENUE DO NOT APPLY complaint in Angeles City where he resides. (Sec. 2,
Rule 4).
Q: In what instances does the rule on venue of action
inapplicable? (b) If the parties did not stipulate on the venue, A can file
his complaint either in Angeles City where he resides
A: or in Pasay City where X resides.
1. In cases where a specific rule or law provides
otherwise (e.g. an action for damages arising from (c) Yes, because the wording of the stipulation does not
libel). make Quezon City the exclusive venue
2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue PLEADINGS
(Sec. 4, Rule 4).
Pleadings are the written statements of the respective
EFFECTS OF STIPULATIONS ON VENUE claims and defenses of the parties submitted to the court
for appropriate judgment (Sec.1, Rule 6).
Q: What is the rule on the stipulations on venue?
KINDS OF PLEADINGS
A: The parties may agree on a specific venue which could
be in a place where neither of them resides (Universal Q: What pleadings are allowed by the rules? (1996 Bar
Robina Corp. vs. Lim, 535 SCRA 95). The parties may Examination)
stipulate on the venue as long as the agreement is in
writing, made before the filing of the action, and exclusive A:
as to the venue. (Sec.4[b], Rule 4) 1. Complaint
2. Answer
Note: A stipulation on venue is void and unenforceable when it is
3. Counterclaim
contrary to public policy. (Sweet Lines v. Teves, G.R. No. 28324,
Nov. 19, 1978)
4. Cross-claim
5. Reply
Q: What makes a stipulation on venue exclusive? 6. Third party (fourth-party etc.) complaint (Sec 2, Rule 6)
Q: What are the two kinds of defenses that may be set Q: What is negative pregnant?
forth in the answer?
A: It is a form of denial which, at the same time, involves an
A: affirmative implication favorable to the opposing party. It is
1. Negative defenses specific denial of the material facts in effect an admission of the averment to which it is
or facts alleged in the pleading essential to establish the directed. It is said to be a denial pregnant with an
plaintiffs cause of action (Sec. 5, Rule 6). admission of the substantial facts in the pleading
2. Affirmative defenses allegation of a new matter which responded to (Regalado, Remedial Law Compendium, Vol. I,
while hypothetically admitting the material allegations p. 177, 2005 ed.). A denial in the form of a negative
in the pleading would nevertheless prevent or bar pregnant is an ambiguous pleading, since it cannot be
recovery by the claiming party. It is in the nature of ascertained whether it is the fact, or only the qualification
confession and avoidance that is intended to be denied. (Galofa v. Nee Bon Sing, G.R.
No. L-22018, Jan. 17, 1968)
Q: What are insufficient denials or denials amounting to
an admission? Example: An assertion of a defendant which questions the
amount of money involved in a bank account but does not
A: deny its existence, when such is the issue in the case, is said
1. General denial to have admitted the existence of such bank account. The
2. Denial in the form of a negative pregnant (Riano, Civil denial of the amount of money deposited is pregnant with
Procedure: A Restatement for the Bar, p.327, 2009 ed.) an admission of the existence of the bank account.(Republic
of the Philippines v. Sandiganbayan, G.R. No. 152154, July
NEGATIVE DEFENSES 15, 2003)
Q: What are the two kinds of counterclaims? How are they venue but filed his answer raising therein improper venue
different? (2007 Bar Question). as an affirmative defense. He also filed a counterclaim for
P80, 000.00 against A for attorneys fees and expenses for
A: litigation. X moved for a preliminary hearing on said
Compulsory Permissive Counterclaim affirmative defense. For his part, A filed a motion to
Counterclaim dismiss the counterclaim for lack of jurisdiction. Rule on
One which arises out It does not arise out of the motion to dismiss the counterclaim on the ground of
of or is necessarily nor is it necessarily lack of jurisdiction over the subject matter. (1998 Bar
connected with the connected with the Question).
transaction or subject matter of the
occurrence that is the opposing partys claim A: The motion to dismiss on the ground of lack of
subject matter of the jurisdiction over the subject matter should be denied. The
opposing partys claim counterclaim for attorneys fees and expenses of litigation
(Sec.7, Rule 6) is a compulsory counterclaim because it necessarily arose
It does not require It may require for its out of and is connected with the complaint. In an original
for its adjudication adjudication the action before the Regional Trial Court, the counterclaim
the presence of presence of third parties may be considered compulsory regardless of the amount.
third parties of over whom the court (Sec. 7 of Rule 6).
whom the court cannot acquire
cannot acquire jurisdiction EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS
jurisdiction DISMISSED
Barred if not set up Not barred even if not
in the action (Sec. 2, set up in the action Q: What is the effect of the dismissal of a complaint on the
Rule 9) counterclaim?
Need not be Must be answered,:
answered; No Otherwise, default A:
default 1. If no motion to dismiss has been filed, any of the
Not an initiatory Initiatory pleading grounds for dismissal under Rule 16 may be pleaded as
pleading. an affirmative defense in the answer, and in the
Need not be Must be discretion of the court, a preliminary hearing may be
accompanied by a accompanied by a had thereon as if a motion to dismiss has been filed
certification against certification against (Sec. 6, Rule 16). After hearing, when the complaint is
forum shopping and forum shopping and dismissed, the counterclaim, compulsory or permissive
certificate to file whenever required by is not dismissed.
action by the law, also a certificate 2. When the plaintiff himself files a motion to dismiss his
Lupong to file action by the complaint after the defendant has pleaded his answer
Tagapamayapa. Lupong with a counterclaim. If the court grants the motion, the
Tagapamayapa dismissal shall be limited to the complaint. It shall be
(Santo Tomas without prejudice to the right of the defendant to
University v. Surla, prosecute his counterclaim in a separate action unless
G.R. No. 129718, Aug. within 15 days from notice of the motion, manifests his
17, 1998) preference to have his counterclaim resolved in the
The court has Must be within the same action (Sec. 2, Rule 17).
jurisdiction to jurisdiction of the 3. When the complaint is dismissed through the fault of
entertain both as court where the case the plaintiff and at a time when a counterclaim has
to the amount and is pending and already been set up, the dismissal is without prejudice
nature (Sec. 7, Rule cognizable by regular to the right of the defendant to prosecute his
6; Ibid p.331) courts of justice counterclaim in the same or separate action (Sec. 3,
otherwise, defendant Rule 17; Riano, Civil Procedure: A Restatement for the
will have to file it in Bar, p. 340, 2009 ed.).
separate proceeding
which requires Q: Fe filed a suit for collection of P387,000 against Ramon
payment of docket in the RTC of Davao City. Aside from alleging payment as a
fee defense, Ramon, in his answer, set up counterclaims for
P100,000 as damages and P30,000 as attorney's fees as a
Note: In an original action before the RTC, the counterclaim may result of the baseless filing of the complaint, as well as for
be considered compulsory regardless of the amount (Sec. 7, Rule P250,000 as the balance of the purchase price of the 30
6). units of air conditioners he sold to Fe. Suppose that
instead of alleging payment as a defense in his answer,
Q: A, a resident of Lingayen, Pangasinan sued X, a Ramon filed a motion to dismiss on that ground, at the
resident of San Fernando, La Union in the Regional Trial same time setting up his counterclaims, and the court
Court of Quezon City for the collection of a debt of P1 grants his motion. What will happen to his counterclaims?
million. X did not file a motion to dismiss for improper (2008 Bar Question)
Note: Leave of court is necessary in third (fourth, etc.) party A: No. Neither an appeal nor a petition for certiorari is the
complaint in order to obviate delay in the resolution of the proper remedy from the denial of a third-party claim. Since
complaint, such as when the third-party defendant cannot be the third-party claimant is not one of the parties to the
located, or when unnecessary issues may be introduced, or when a action, he could not, strictly speaking, appeal from the
new and separate controversy is introduced. (Herrera, Vol. I, p. order denying its claim, but should file a separate
705, 2007 ed) reinvindicatory action against the execution creditor or a
complaint for damages against the bond filed by the
XPN: In cases covered by small claims, a Motion to Q: What is the rule regarding the signature and address?
Dismiss is a prohibited pleading which admits no
exception (SC En Banc Resolution dated October 27, A: The complaint must be signed by the plaintiff or counsel
2009 in A.M. No. 08-8-7-SC) while in cases covered by representing him indicating his address. This address should
summary procedure, a Motion to Dismiss may be filed not be a post office box. An unsigned pleading produces no
only either on the ground of lack of jurisdiction over legal effect. However, the court may, in its discretion, allow
the subject matter or upon failure to refer the dispute such deficiency to be remedied if it shall appear that the
to the Lupon Tagapamayapa as required by the LGC. same was due to mere inadvertence and not intended for
delay (Sec. 3, Rule 7).
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration of a Q: When may a counsel be subjected to appropriate
judgment, or for reopening of trial. desciplinary measures?
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, A: When counsel:
affidavits, or any other paper. 1. Deliberately files an unsigned pleading
6. Memoranda. 2. Signs a pleading in violation of this Rule
7. Petition for certiorari, mandamus, or prohibition 3. Alleges scandalous or indecent matter therein
against any interlocutory order issued by the court. 4. Fails to promptly report to the court a change of
8. Motion to declare the defendant in default. his address
9. Dilatory motions for postponement.
10. Reply. VERIFICATION AND CERTIFICATION AGAINST FORUM
11. Third-party complaints. SHOPPING
12. Interventions (Sec.14 of A.M. No. 08-8-7-SC).
Q: How are pleadings verified?
PARTS OF A PLEADING
A: It is verified by an affidavit. This affidavit declares that
Q: What are the parts of a pleading? the:
1. Affiant has read the pleading; and
A: 2. Allegations therein are true and correct of his
1. Caption personal knowledge or based on authentic records (Sec. 4,
2. Body sets forth its designation, the allegations of the Rule 7)
partys claims or defenses, the relief prayed for, and the
date of the pleading. Note: Verification is not necessary in pleadings, except when
a) paragraphs otherwise specifically required by law or rule (Sec. 4, Rule 7).
b) headings
c) relief Q: What is the significance of verification?
d) date
3. Signature and address A: it is intended to secure an assurance that the allegations
4. Verification (in several cases) in a pleading are true and correct and not the product of
5. Certification against forum shopping the imagination or a matter of speculation, and that the
pleading is filed in good faith. The absence of a proper
verification is cause to treat the pleading as unsigned and
dismissible. (Chua vs. Torres, 468 SCRA 358; Riano, Civil
Procedure: A Restatement for the Bar, p. 60, 2009 ed)
Q: What are the pleadings that must be verified? (1996 Carpio v Rural Bank of Sto Tomas Batangas, G.R. No.
Bar Question) 153171, May 4, 2006)
Q: What is the effect of submission of a false certification? XPN: However, the Court has also stressed that the rules on
forum shopping, which were designed to promote and
A: It shall constitute indirect contempt of court, without facilitate the orderly administration of justice, should not
prejudice to the corresponding administrative and criminal be interpreted with such absolute literalness as to subvert
actions. (Sec. 5, Rule 7) its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to
Q: What is the effect of non-compliance with the the contents of the certification. This is because the
undertakings? requirement of strict compliance with the provisions
regarding the certification of non-forum shopping merely
A: It has the same effect as the submission of false underscores its mandatory nature in that the certification
certification. Hence, such failure shall constitute indirect cannot be altogether dispensed with or its requirements
contempt of court without prejudice to the corresponding completely disregarded. It does not thereby interdict
administrative and criminal sanctions. (Sec. 5, Rule 7) substantial compliance with its provisions under justifiable
circumstances (Cavile v. Heirs of Clarita Cavile, 448 Phil 302,
Q: If there a party commits forum shopping, would the 2003).
two cases filed be dismissed?
Q: When should the rule on forum shopping be invoked?
A: If the forum shopping is not considered willful and
deliberate, the subsequent case shall be dismissed without A: GR: It should be raised at the earliest opportunity in a
prejudice, on the ground of either litis pendentia or res motion to dismiss or a similar pleading (Regalado, Remedial
judicata. However, if the forum shopping is willful and Law Compendium, Vol. I, p. 171, 2010 ed.).
deliberate, both (or all, if there are more than two) actions
shall be dismissed with prejudice (Chua v. Metropolitan XPNs: It may be invoked in later stages only if the violation
Bank & Trust co. G.R. No. 182311, August 19, 2009). arises from or will result in:
1. The loss of jurisdiction over the subject matter;
Q: Is belated filing allowed by the courts? 2. The pendency of another action between the same
parties for the same cause;
A: GR: No. The lack of certification against 3. Barring of the action by a prior judgment; or
forum shopping is generally not curable by the submission 4. The Statute of Limitations has been crossed (Young
thereof after the filing of the petition. v. Keng Seng, G.R. No.143464, Mar. 5, 2003).
XPN: In certain exceptional circumstances, the Court has Q: Mayor Miguel of Koronadal City filed an action against
allowed the belated filing of the certification. In Loyola v. RD Corporation for the annulment of the deed of absolute
Court of Appeals, et al. (245 SCRA 477 [1995]), the Court sale over several real properties of Koronadal City with
considered the filing of the certification one day after the the RTC. He alleges irregularities thereto but the RTC
filing of an election protest as substantial compliance with dismissed the petition because the certification against
the requirement. In Roadway Express, Inc. v. Court of forum shopping was signed by the City Legal Officer of City
Appeals, et al. (264 SCRA 696 [1996]), the Court allowed the of Koronadal and not by Mayor Miguel. Is the RTC correct?
filing of the certification 14 days before the dismissal of the
petition. In Uy v. LandBank, supra, the Court had dismissed A: Yes. It is the mayor, not the City Legal Officer, who has
Uys petition for lack of verification and certification the authority to file suits for the recovery of funds and
against non-forum shopping. However, it subsequently property on behalf of the city even without the prior
reinstated the petition after Uy submitted a motion to authorization from the Sanggunian. Here, Mayor Miguel
admit verification and non forum shopping certification. In had the authority to institute the action against RD
all these cases, there were special circumstances or Corporation. However, being the proper party to file such
compelling reasons that justified the relaxation of the rule suits, Mayor Miguel must necessarily be the one to sign the
requiring verification and certification on non- certification against forum-shopping, and not the City Legal
forum shopping. Officer, who, despite being an official of the City, was
merely its counsel and not a party to the case (City of
Note: Any liberal application of the rule on attachment of Caloocan v. CA, G.R. No. 145004, May 3, 2006).
certification against forum shopping has to be justified by ample
and sufficient reasons that maintain the integrity of, and do not Q: What is the rule when the plaintiff is a juridical person?
detract from, the mandatory character of the rule (Bank of the
Philippine Islands v. Court of Appeals, G.R. No., 168313, October 6,
2010). A: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation, may be
Q: Is substantial compliance allowed by the courts? executed by properly authorized person. This person may
be a lawyer of a corporation. As long as he is duly
A: GR: No. The rule is that the certificate of non-forum authorized by the corporation and has personal knowledge
shopping must be signed by all the petitioners or plaintiffs of the facts required to be disclosed in the certification,
in a case and the signing by only one of them is insufficient. such may be signed by the authorized lawyer. (National
Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil
Procedure: A Restatement for the Bar, p. 70, 2009 ed)
Q: Corporation XYZ is the petitioner in a civil case. FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND
Alexander, president of corporation XYZ, signed the OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL
certification against forum shopping in behalf of said DOCUMENTS OR ACTS
corporation without presenting any proof of authority
from the corporation. Is the certification against forum Q: What is the rule in making averments of FRAUD or
shopping valid? If not, how may it be cured? MISTAKE?
A: No. When the petitioner in a case is a corporation, the A: The circumstances constituting such fraud or mistake
certification against forum shopping should be signed by its must be stated with particularity (Sec. 5, Rule 8). These
duly authorized director or representative. The authorized particulars would necessarily include the time, place, and
director or representative of the corporation should be specific acts of fraud committed against him (Riano, Civil
vested with authority by a valid board resolution. A proof of Procedure: A Restatement for the Bar, p. 98, 2009 ed).
said authority must be attached with the certification (PAL
v. FASAP, G.R. No. 143088, Jan. 24, 2006). Q: How about in making averments of malice, intent,
knowledge or other conditions of the mind of a person?
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING
A: The circumstances constituting such may be averred
Q: What is the effect of lawyers signature? generally (Sec.5, Rule 8).
A: The signature of counsel constitutes: Q: The complaint alleged that the defendant acted in bad
1. A certificate by him that he has read the pleading; faith, arbitrarily, illegally, wrongfully and in violation of
2. That to the best of his knowledge, information and law. However, it did not contain any averment of facts
belief there is good ground to support it; and showing that defendants acts were done in the manner
3. That it is not interposed for delay (Sec. 3, Rule 7) alleged. Does the complaint state a cause of action?
ALLEGATIONS IN A PLEADING A: No, because it does not state the ultimate facts
constituting the plaintiffs cause of action. The allegations
MANNER OF MAKING ALLEGATIONS that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully and in violation of law are mere conclusions of
Q: What is the rule when making a pleading? fact or conclusions of law. (Remitere v. De Yulo 16 SCRA
251).
A: Every pleading shall contain in a methodical and logical
form a plain, concise and direct statement of the ultimate Q: What is the rule in pleading an official document or
facts, omitting the statement of mere evidentiary facts. act?
(Sec. 1, Rule 6)
A: It is sufficient to aver that the document was issued in
Q: What are Ultimate facts? compliance with law. With respect to an act, it is likewise
sufficient to allege that the act was done also in compliance
A: They refer to the essential facts of the claim. A fact is with law (Sec. 9, Rule 8; Riano, Civil Procedure: A
essential if it cannot be stricken out without leaving the Restatement for the Bar, p. 98, 2009 ed)
statement of the cause of action insufficient. (Ceroferr
Realty Corporation vs. Court of Appeals, 376 SCRA 144) PLEADING AN ACTIONABLE DOCUMENT
Q: What is condition precedent? A: It is one which is the basis of an action or a defense. e.g.
A promissory note in an action for collection of a sum of
A: It refers to matters which must be complied with before money
a cause of action arises (Riano, Civil Procedure: A
Restatement for the Bar, p. 97, 2009 ed) Q: How are actionable documents pleaded?
Q: What is the rule on conditions precedent?
A: By setting forth:
A: When a claim is subject to a condition precedent, the 1. The substance of such document in the pleading and
compliance of the same must be alleged in the pleading. attaching said document thereto as an exhibit or
Otherwise it will be a ground for dismissal under Rule 16, 2. Said document verbatim in the pleading (Sec. 7, Rule
Sec. 1[j]: that a condition precedent for filing a claim has 8).
not been complied with. (Riano, Civil Procedure: A
Restatement for the Bar, p. 97, 2009 ed) Note: A variance in the substance of the document set forth in the
pleading and the document annexed thereto does not warrant the
dismissal of the action (Convets, Inc. v. National Development Co.,
G.R. No. L-10232, Feb. 28, 1958). However, the contents of the
document annexed are controlling.
SPECIFIC DENIALS 27 of the original document, and such order is refused (Rule 8, Sec.
8). It is not also required when the action is not to recover usurious
Q: What are the kinds of specific denial? interest as when usuruios interest is being raised as a defense in a
collection case.
A: Note: Only the requirement of an oath is excused in the 3
1. Absolute denial defendant specifies each material instances mentioned (not a party to the instrument, refusal to
allegation of fact the truth of which he does not admit comply with an inspection order, and suit not based on recovery of
and, whenever practicable, shall set forth the substance usurious interest). Specific denial must still be pleaded. Hence,
of the matters upon which he relies to support his even if the party made an oath, or when an oath is excused but a
denial. general denial is made, then it is still deemed as an admission of
2. Partial denial defendant denies only a part of an the genuineness and due execution of the document.
averment. In this kind he shall specify so much of it as is
true and material and shall deny only the remainder. EFFECT OF FAILURE TO PLEAD
3. Disavowal of knowledge defendant alleges that he is
without knowledge or information sufficient to form a FAILURE TO PLEAD DEFENSES AND OBJECTIONS
belief as to the truth of a material averment made in
the complaint (Riano, Civil Procedure: A Restatement for Q: May defenses not pleaded in a motion to dismiss or in
the Bar, p. 325, 2009 ed.). the answer still be raised?
EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS A: GR: No, they are deemed waived.
Q: What is the effect of failure to make specific denial? XPNs: These defenses may be raised at any stage of the
proceedings even for the first time on appeal:
A: Material averments except as to the amount of 1. Lack of jurisdiction over the subject matter
unliquidated damages, not specifically denied are deemed
Note: It may however, be barred by laches.
admitted. If the allegations are deemed admitted, there is
no more triable issue between the parties and if the
2. Litis pendentia
admissions appear in the answer of the defendant, the
3. Res judicata; and
plaintiff may file a motion for judgment on the pleadings
4. Statute of limitations (Sec. 1, Rule 9)
under Rule 34 (Riano, Civil Procedure: A Restatement for
the Bar, p. 324, 2009 ed.).
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM
WHEN A SPECIFIC DENIAL REQUIRES AN OATH
Q: May a compulsory counterclaim or cross-claim not set
Q: When must a specific denial be coupled with an oath?
up in the answer still be raised subsequently?
A:
A: GR: A compulsory counterclaim or cross-claim not set up
a. A denial of an actionable document (Sec. 8, Rule 8)
in the answer is deemed barred (Sec. 2, Rule 9).
b. A denial of allegations of usury in a complaint to
recover usurious interest (Sec. 11, Rule 8)
XPN: If the compulsory counterclaim or cross-claim is an
after-acquired counterclaim, that is, such claim matured
Note: An answer raising a specific denial based on the above
grounds is deemed to be under oath if it contains a verification. after filing of the answer, it may be pleaded by filing an
amended answer or a supplemental answer or pleading
Q: A and B entered into a contract to sell whereby A will (Sec. 9, Rule 11).
deliver to B the parcel of land upon payment of the
Note: Counterclaims or cross-claims omitted through oversight,
purchase price. Upon full payment, A demanded the
inadvertence, or excusable neglect or when justice requires may be
delivery of the land. However, before the contract of sale set up by amendment before judgment. Leave of court is necessary
was executed, B died. Hence, A filed an action for specific (Sec. 10, Rule 11).
performance against S, the son of A presenting the
contract to sell. S made a specific denial of the actionable DEFAULT
document but it was not made under oath. Is S said to
have admitted the existence and genuineness of the WHEN A DECLARATION OF DEFAULT IS PROPER
contract to sell?
Q: When may a party be declared in default? (1999 Bar
A: No. it is not required for S to make a specific denial Question)
under oath because he is not a party to the instrument.
(Rule 8, Sec. 8, par. 2). It is only when the adverse party is a A: A party may be declared in default when he fails to
party to the written instrument when specific denial under answer within the time allowed therefor, and upon motion
oath is required. of the claiming party with notice to the defending party,
and proof of such failure. (Sec.3 Rule 9)
Note: Denial under oath is also not required when there is an order
for inspection issued by the court, i.e. inspection order under Rule
Note: The court has no authority to motu proprio declare the EFFECT OF A PARTIAL DEFAULT
defendant in default. A motion to declare the defending party must
be filed by the claiming party before a declaration of default is When a pleading asserting a claim states a common cause
made by the court. The rule is clear, Sec. 3 of Rule 9 provides
of action against several defending parties, some of whom
upon motion of the claiming party (Riano, p. 351, 2009 ed)
answer and the others fail to do so, the court shall try the
case against all upon the answers thus filed and render
EFFECT OF AN ORDER OF DEFAULT
judgment upon the evidence presented (Sec 3, Rule 9).
Q: What are the effects of an order of default? (1999 Bar
EXTENT OF RELIEF
Question)
The judgment shall not exceed the amount or be different
A:
in kind from that prayed for nor award unliquidated
1. The party declared in default loses his standing in court
damages [Sec. 3(d), Rule 9]. However, if the court orders
and prevents him from taking part in the trial [Sec. 3(a),
submission of evidence, unliquidated damages may be
Rule 9];
awarded based on such.
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
proceedings [Sec. 3 (a), Rule 9]. It is submitted that he
may participate in the trial, not as a party but as a
Q: When is default not allowed?
witness; and
3. A declaration of default is not an admission of the truth
A:
or the validity of the plaintiffs claims (Monarch
1. Actions for annulment;
Insurance v. CA, G.R. No. 92735, June 8, 2000).
2. Declaration of nullity of marriage and legal separation
[Sec. 3(e), Rule 9]; and
RELIEF FROM AN ORDER OF DEFAULT
3. In special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer is
Q: What are the reliefs available from an order of default?
required to be filed.
(1998 Bar Question)
Note: A motion to declare defendant in default is a prohibited
A: pleading in Summary Procedure, Small Claims and Environmental
1. After notice of order and before judgment The Cases.
defendant must file a verified motion to set aside the
order of default upon proper showing that: FILING AND SERVICE OF PLEADINGS
a. His failure to answer was due to fraud,
accident, mistake or excusable negligence; and Q: What papers are required to be filed with the court and
b. That he has a meritorious defense [Sec. 3(b), served with the adverse party?
Rule 9]. (2000 & 1999 Bar Question)
A: JuReO-PleWrit-NADOS
2. After judgment and before judgment becomes final and 1. Judgment
executory He may file a motion for new trial under 2. Resolution
Rule 37. He may also appeal from the judgment as 3. Order
being contrary to the evidence or the law (Talsan 4. Pleading subsequent to the complaint
Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 5. Written motion
169919, Sept. 11, 2009) 6. Notice
7. Appearance
3. After the judgment becomes final and executory he 8. Demand
may file a petition for relief from judgment under Rule 9. Offer of judgment or
38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 10. Similar papers (Sec.4, Rule 13).
12, 1992) (2006, 1998 Bar Question)
Q: What papers are required to be filed?
4. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be A: PAM-NOJA
considered to have acted with grave abuse of discretion 1. Pleadings
amounting to lack or excess of jurisdiction and when 2. Appearances
the lack of jurisdiction is patent in the face of the 3. Motions
judgment or from the judicial records, he may avail of 4. Notices
the special civil action of certiorari under Rule 65 5. Orders
(Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 6. Judgments
12, 1992) 7. All other papers (Sec. 3, Rule 13)
Q: What are those required to be served to the adverse Q: Distinguish filing from service of pleadings and other
party? papers.
PERSONAL SERVICE Q: What are the priorities in modes of service and filing?
Q: How is personal service done? A: Whenever practicable, the service and filing shall be
done personally.
A: By:
1. Delivering personally a copy to the party or his counsel; Except with respect to papers emanating from the court, a
2. Leaving a copy in counsels office with his clerk or with a resort to other modes must be accompanied by a written
person having charge thereof; or explanation why the service or filing was not done
3. Leaving the copy between 8 a.m. and 6 p.m. at the personally (Sec. 11, Rule 13).
partys or counsels residence, if known, with a person
of sufficient age and discretion residing therein if no Note: A violation of this rule may be cause to consider the paper as
person found in his office, or if his office is unknown, or not filed (Sec. 11, Rule 13).
if he has no office (Sec. 6, Rule 13).
Note: The explanation must be satisfactory and acceptable to the
court. Otherwise, the court has the discretion to consider the
pleading, etc., as not having been filed. (Solar Team Enterprises, Q: What is a notice of lis pendens?
Inc. v. Judge Ricafort, 35 Phil. 404)
A: In an action affecting title or right of possession of real
WHEN SERVICE IS DEEMED COMPLETE property, the plaintiff and the defendant, when affirmative
relief is claimed in his answer, may record in the office of
Q: When is service deemed complete? the registry of deeds of the province in which the property
is situated a notice of the pendency of the action.
A:
1. Personal service upon actual delivery. Note: Only from the time of filing such notice for record shall a
2. Service by ordinary mail upon expiration of 10 days purchaser, or encumbrancer of the property affected thereby, be
after mailing, unless the court otherwise provides. deemed to have constructive notice of the pendency of the action,
3. Service by registered mail upon actual receipt by the and only of its pendency against the parties designated by their
addressee, or 5 days from the date he received the first real names (Sec.14, Rule 13).
notice of the postmaster, whichever date is earlier (Sec.
10, Rule 13). AMENDMENT
4. Substituted service at the time of such delivery (Sec. 8,
Rule 13). Q: How are pleadings amended?
Q: What are the proofs of service? Q: What is the rule on substantial amendments?
2. The cause of action or defense is substantially altered Q: Distinguish an amended pleading from a supplemental
(Guiang v Nadayag, 214 SCRA 355, 1992). pleading
SUMMONS (RULE 14) Q: Can a domestic private juridical entity be served with
summons?
NATURE AND PURPOSE OF SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM AND QUASI IN REM A: Yes. In such case, service may be made on the president,
managing partner, general manager, corporate secretary,
Q: What is the nature of summons? treasurer, or in-house counsel (Sec. 11, Rule 14)
A: It is the writ by which the defendant is notified of the Q: If the defendant is a foreign private juridical entity, can
action brought against him (Gomez vs. Court of Appeals, it be served with summons?
G.R. No. 127692, March 10, 2004). An important part of
that notice is a direction to the defendant that he must A: Yes, provided it has transacted business in the
answer the complaint within a specified period, and that Philippines, in which case, service may be made on its: (1)
unless he so answers, plaintiff will take judgment by default resident agent designated in accordance with law for that
and may be granted the relief applied for (Sec. 2, Rule 14; purpose, or, (2) if there be no such agent, on the
Riano, Civil Procedure: A Restatement for the Bar, p. 411 , government official designated by law to that effect, or (3)
2005 ed) on any of its officers or agents within the Philippines (Sec.
12, Rule 14).
Note: When the service has been completed, the server shall,
within five (5) days therefrom, serve a copy of the return, Q: How about a foreign private juridical entity which is
personally or by registered mail, to the plaintiffs counsel, and shall NOT registered in the Philippines?
return the summons to the clerk who issued it, accompanied by
proof of service (Sec. 4, Rule 14)
A: If the foreign private juridical entity is not registered in
If summons is returned without being served, the server shall also the Philippines or has no resident agent, service may, with
serve a copy of the return on the plaintiffs counsel stating the leave of court, be effected out of the Philippines through
reasons for the failure of service, within five (5) days therefrom any of the following means:
(Sec. 5, Rule 14).
a) By personal service coursed through the appropriate
Q: When can an alias summons be issued? court in the foreign country with the assistance of the
Department of Foreign Affairs;
A: If a summons is returned without being served on any or
all of the defendants or if the summons has been lost, the b) By publication once in a newspaper of general
clerk, on demand of the plaintiff, may issue an alias circulation in the country where the defendant may be
summons (Sec. 5, Rule 14) found and by serving a copy of the summons and the
court order by-registered mail at the last known address
Q: What are the purposes of summons? of the defendant;
may be made by publication once a week in a newspaper and order of court must also be sent by registered mail
of general circulation of the place where the defendant to the last known address of defendant; or
may be found (A.M. No. 11-3-6-SC dated March 15, 2011) 3. Any other manner the court may deem sufficient. (Sec.
15, Rule 14)
Q: Can summons be served by mail?
Note: In the case of Carriaga v. Malaya, 143 SCRA 441, summonses
A: No. It cannot be served by mail but it can be done as a were sent by registered mail to defendants who were residing
complementary to service of summons by publication but it abroad. The Court upheld the validity of the service of summons
and stress that the third mode of extratteritorial service was
does not mean that service by registered mail alone would
substantially complied with in this case.
suffice. (Regalado, Remedial Law Compendium, Vol. I, p.
242, 2005 ed)
SERVICE UPON PRISONERS AND MINORS
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
Q: How is service of summons upon a prisoner made?
UNKNOWN OR WHERE HIS WHEREABOUTS ARE
UNKNOWN
A: Service shall be effected upon him by the officer having
the management of such jail or institution who is deemed
The rule in Sec. 14 of Rule 14 authorizes summons by
deputized as a special sheriff for said purpose (Sec. 9, Rule
publication in any action and the rule obviously does not
14).
distinguish whether the action is in personam, in rem, or
quasi in rem. The tenor of the rule authorizes summons by
Q: How is service of summons upon minors made?
oublication whatever the action may be as long as the
identity of the defendant is unknown or his whereabouts
A: Service shall be made upon him personally and on his
are unknown (Santos v. PNOC Exploration, Corporation, 566
legal guardian if he has one, or if none, upon his guardian
SCRA 272)
ad litem whose appointment shall be applied for by the
plaintiff. In the case of a minor, service may also be made
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
on his father or mother (Sec. 10, Rule 14).
PHILIPPINES
PROOF OF SERVICE
Q: When may a person be deemed to be temporarily
outside the Philippines?
Q: How is proof of service done?
A: If he has residence or place of business in the
A: It shall be made in writing by the server and shall set
Philippines, and because he cannot be served within a
forth the manner, place, and date of service; shall specify
reasonable time because of his absence in the Philippines,
any papers which have been served with the same; and
this absence would now trigger the application of the rule
shall be sworn to when made by a person other than a
on substituted service of summons (Montalban v. Maximo,
sheriff or his deputy (Sec 18, Rule 14).
22 SCRA 1070)
Note: Absence in the sheriffs return of a statement about the
EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED impossibility of personal service is not conclusive proof that the
service is invalid. The plaintiff may submit proof of prior attempts
Q: Can a non-resident defendant who is not found in the at personal service during the hearing of any incident assailing the
country be served with summons? validity of the substituted service. Also, the impossibility of service
may be established by evidence. (Herrera, Vol. I, pp. 926-927, 2007
A: Yes, but only in cases of extra-territorial service under ed)
any of the following situations:
1. The action affects the personal status of the plaintiff Q: How is proof of service by publication done?
2. The action relates to, or the subject of which is the
property within the Philippines on which the defendant A: It is done through the following:
has or claims a lien or interest, actual or contingent 1. Affidavit of the printer, his foreman or principal clerk,
3. The action in which the relief demanded consists, business or advertising manager, to which affidavit a
wholly or in part, excludes the defendant from any copy of the publication shall be attached; and
interest therein 2. Affidavit showing the deposit of a copy of the summons
4. When the property of the defendant has been attached and order for publication in the post office (Sec. 19, Rule
in the Philippines. 14).
Q: What is the effect of not meeting the requirements on particularity to enable him properly to prepare his
hearing and notice of the hearing? responsive pleading. If the pleading is a reply, the motion
must be filed within 10 days from service thereof (Sec. 1,
A: In that case, the motion will be considered as a mere Rule 12).
scrap of paper which the court has no right to receive and
the trial court has no authority to act upon. Service of a Q: What is a bill of particulars?
copy of a motion containing a notice of the time and the
place of hearing of that motion is a mandatory A: It is a more definite statement consisting of amplification
requirement, and the failure of movants to comply with or more particularized outline of a pleading, and being in
these requirements renders the motions fatally defective the nature of a more specific allegation of the facts recited
(Vette Industrial Sales Co., Inc. vs. Cheng, G.R. Nos. 170232- in the pleading. (Sec. 3, Rule 12; Herrera, Vol. I, p. 865, 2007
170301, Dec. 5, 2006). ed)
A: It is taken or granted at the instance and for the benefit A: Its purpose is to aid in the preparation of a responsive
of one party, and without notice to or contestation by any pleading. An action cannot be dismissed on the ground that
party adversely affected. (Regalado, Remedial Law the complaint is vague or definite (Galeon v. Galeon, G.R.
Compendium, p. 264, 2009 ed) No. L-30380, Feb. 28, 1973).
It is one which does not require that the parties be heard Note: The purpose of the motion is not to enable the movant to
and which the court may act upon without prejudging the prepare for trial. Where the movant is to enable him to prepare for
rights of the other party. This kind of motion is not covered trial, the appropriate remedy is to avail of the discovery procedures
from Rules 23 to 29 and even of a pretrial under Rule 18 (Riano,
by the hearing requirement of the Rules (Sec. 2, Rule 15;
Civil Procedure: A Restatement of the Bar, p. 307, 2009 ed.).
Riano, Civil Procedure: A Restatement for the Bar, p. 79,
2009 ed.).
Q: What are the instances when a bill of particulars is
allowed?
They are usually permissible in procedural matters and also
in situations and under circumstances of emergency; and
A:
an exception to a rule requiring notice is sometimes made
1. When the allegations are indefinite and uncertain that
where notice of the resulting delay might tend to defeat
the nature cannot be understood therefrom;
the objective of the motion (Sarmiento vs. Zaratan, G.R No.
2. When the allegations are so vague that they do not
167471, Feb. 5, 2007). An example is a motion to set the
appear therefrom in what capacity a party sues or
case for a pre-trial
issued;
3. When the allegations are uncertain as to time, place,
PRO-FORMA MOTIONS
quantity, title, person, or any other matter required to
be pleaded with certainty;
It is that which does not comply with the rules on motion
4. When the allegations are faulty in duplication, setting
and is considered as one filed merely to delay the
out two grounds for a single claim;
proceedings (Marikina Development Corp., v. Flojo, G.R. No.
5. When denials are so indefinite and uncertain that it
110801, Dec. 8, 1995). Such motion, if filed, is not entitled
cannot be understood what is denied and what is
to judicial cognizance, and does not stop the running of the
admitted;
period for filing the requisite pleading. (Cruz v. CA, 388
6. Particulars of details of computation of bank account
SCRA 72)
were allowed; technicalities are frowned upon; or
7. Conclusions of law deceit, machination, false
MOTIONS FOR BILL OF PARTICULARS
pretenses, misrepresentations and threats are
conclusions of law and mere allegations thereof without
Q: What are the 3 options available to the defendant upon
a statement of the facts to which such terms have
receipt of the complaint?
references are not sufficient (Herrera, Vol. I, p. 868,
2007 ed)
A:
1. Filing of a motion for bill of particulars
Q: When is a bill of particulars improper?
2. Filing of a motion to dismiss
3. Filing of an answer to the complaint (Riano, Civil
A: It is improper on matters:
Procedure: A Restatement for the Bar, p. 305, 2009
1. specified with particularity;
ed.)
2. within partys knowledge;
3. irrelevant to allegations of complaint; or
Q: When can a motion for a bill of particulars be availed
4. which are more properly ascertainable by discovery
of? (2003 Bar Examination)
(Herrera, Vol. I, p. 869, 2007 ed)
A: Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter
which is not averred with sufficient definiteness or
Q: How may a bill of particulars be filed? court had already denied the motion on the day of its
filing, stating that the allegations of the complaint were
A: It may be filed either through a separate or an amended sufficiently made.
pleading (Sec. 3, Rule 12).
1. Did the judge gravely abuse his discretion in acting
Q: Is a motion for bill of particulars available only to a on the motion without waiting for the hearing set for
complaint? the motion?
2. If the judge grants the motion and orders the
A: No, it is not only directed to a complaint. It is a motion plaintiff to file and serve the bill of particulars, can
that applies to any pleading which in the perception of the the trial judge dismiss the case if the plaintiff does
movant contains ambiguous allegations (Riano, Civil not comply with the order? (2008 Bar Question)
Procedure: A Restatement for the Bar, p. 79, 2009 ed.).
A:
Q: What are the requirements for the motion? 1. No. Sec. 2, Rule 12 authorizes the court to either deny
or grant said motion outright or allow the parties an
A: Aside from the requirements for a motion as set forth in opportunity to be heard. The court is not mandated to
Rule 15, the motion shall point out: conduct a hearing.
1. The defects complained of 2. Yes. Sec. 4, Rule 12 authorizes the court to order the
2. The paragraphs wherein they are contained striking out of the pleading affected, hence the
3. The details desired (Sec 1, Rule 12) dismissal of the complaint. To the same end is the
provision of Sec. 3, Rule 17 when the plaintiff fails to
ACTIONS OF THE COURT comply for no justifiable cause with any order of the
court or with the Rules.
Q: What are the actions taken by the court regarding the
motion for bill of particulars? EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING
A: The court may either: Q: What is the effect of a motion for bill of particulars on
1. Deny it outright; the period to file a responsive pleading?
2. Grant it outright; or
3. Allow the parties the opportunity to be heard (Sec. 2, A: After service of the bill of particulars or of a more
Rule 12). definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading within the
COMPLIANCE WITH THE ORDER AND EFFECT OF NON- period to which he was entitled at the time of filing his
COMPLIANCE motion, which shall not be less than five (5) days in any
event (Sec. 5, Rule12).
Q: When must compliance with the order be effected?
MOTION TO DISMISS
A: If the motion is granted, either in whole or in part, it
must be effected within ten (10) days from notice of the GROUNDS
order, unless a different period is fixed by the court (Sec. 3,
Rule 12). Q: May a court motu proprio dismiss a case?
Q: What is the effect of non-compliance with the order of A: GR: No. A motion must be filed by a party thereto.
a bill of particulars?
XPN:
A: 1. Those cases where the court may dismiss a case motu
1. If the order is not obeyed or in case of insufficient proprio (i.e. lack of jurisdiction over the subject matter;
compliance therewith, the court: litis pendentia; res judicata; and prescription) (Sec. 1,
a. May order the striking out of the pleading or the Rule 9)
portion thereof to which the order is directed; or 2. Failure to prosecute (Sec. 3, Rule 17); and
b. Make such order as it may deem just (Sec. 4, Rule 3. Rule on Summary Procedure (Sec. 4, 1991 Revised Rule
12) on Summary Procedure).
2. If plaintiff is disobedient, his compliant will be stricken
off and dismissed (Sec. 3, Rule 17) Q: What are the types of dismissal of actions?
3. If defendant is disobedient, his answer will be stricken
off and his counterclaim dismissed, and he will be A:
declared in default upon motion of the plaintiff (Sec. 4, 1. Motion to dismiss before answer under Rule 16;
Rule 17; Sec. 3, Rule 9). 2. Motion to dismiss under Rule 17 (Upon notice by
plaintiff; upon motion of plaintiff; due to fault of
Q: Within the period for filing a responsive pleading, the plaintiff);
defendant filed a motion for bill of particulars that he set 3. Demurrer to evidence after plaintiff has completed the
for hearing on a certain date. However, the defendant was presentation of his evidence under Rule 33; and
surprised to find on the date set for hearing that the trial 4. Dismissal of an appeal.
Q: What are the grounds for a motion to dismiss under 10. That a condition precedent for filing the claim has not
Rule 16? been complied with (Sec. 1, Rule 16).
3. That venue is improperly laid; XPN: A motion to dismiss does not admit the:
4. That the plaintiff has no legal capacity to sue; a.) truth of mere epithets of fraud;
b.) allegations of legal conclusions;
Note: The issue of the plaintiffs lack of legal capacity to sue c.) an erroneous statement of law;
cannot be raised for the first time on appeal where the d.) mere inferences or conclusions from facts not stated;
defendant dealt with the former as a party in the proceeding. e.) mere conclusions of law;
f.) allegations of fact the falsity of which is subject to
5. That there is another action pending between the same judicial notice
parties for the same cause; g.) matters of evidence
h.) surplusage and irrelevant matter
Note: Litis pendentia requires concurrence of the following i.) scandalous matter inserted merely to insult the opposing
requisites:
party
j.) legally impossible facts
a. Identity of the parties or at least such parties representing
the same interest in both actions; k.) facts which appear unfounded by a record incorporated
b. Identity of rights asserted and reliefs prayed for, being in the pleading, or by a document referred to
founded on the same facts l.) general averments contradicted by more specific
c. Identity with respect to the two preceding particulars, such averments. (Tan v. Court of Appeals, 356 Phil. 555)
that any judgment that may be rendered in the pending
case would amount to res judicata in the other case (Lim Q: Is laches considered a ground for dismissal of action?
vs. Vianzon, G.R. No. 137187, Aug.3, 2006).
A: Under paragraph (h) of Rule 16, where a claim or
6. That the cause of action is barred by a prior judgment or demand set forth in the plaintiffs pleading has been paid,
by the statute of limitations; waived, abandoned, or otherwise extinguished, the same
may be raised in a motion to dismiss. The language of the
rule, particularly on the relation of the words "abandoned"
Note: The requisites of res judicata include:
and "otherwise extinguished" to the phrase "claim or
a. The former judgment must be final demand deemed set forth in the plaintiffs pleading" is
b. The court which rendered it has jurisdiction over the broad enough to include within its ambit the defense of bar
subject matter and the parties by laches. However, the elements of laches must be proved
c. Judgment must be on the merits or disproved through the presentation of evidence by the
d. There must be identity of parties, subject matter and parties (Pineda v. Heirs of Eliseo Guevarra, G.R. No.
causes of action 143188).
Res judicata as a ground for dismissal is based on two Q: When should a motion to dismiss be filed?
grounds, namely: (1) public policy and necessity, which
makes it to the interest of the State that there should be A: GR: It should be filed within the time for but before filing
an end to litigation republicae ut sit litium; and (2) the the answer to the complaint or pleading asserting a claim
hardship on the individual of being vexed twice for the (Sec. 1, Rule 16).
same cause neme debet bis vexari et eadem causa.
(Fels, Inc. vs. Prov. of Batangas, G.R. No. 168557, Feb. 19, XPN: Even after an answer has been filed, the defendant
2007). can still file a motion to dismiss, with leave of court, on the
following grounds:
7. That the pleading asserting the claim states no cause of 1. lack of jurisdiction over the subject matter of the claim;
action 2. litis pendentia;
3. res judicata;
8. That the claim or demand set forth in the plaintiff's 4. prescription of action; or
pleading has been paid, waived, abandoned, or otherwise 5. where evidence that would constitute a ground for
extinguished; dismissal is discovered during the trial.
Q: When can the grounds for motion to dismiss be remedy (Riano, Civil Procedure: A Restatement for the Bar,
pleaded as affirmative defense? p. 319, 2009 ed.).
A: If no motion to dismiss has been filed, any of the EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN
grounds for dismissal provided for in the Rules may be GROUNDS
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had Q: Can a complaint still be refiled after a motion to dismiss
thereon as if a motion to dismiss had been filed. is granted by the court?
The dismissal of the complaint shall be without prejudice to A: Yes, if the complaint was dismissed on the following
the prosecution in the same or separate action of a grounds and upon compliance with the requirements to
counterclaim pleaded in the answer (Sec. 6, Rule 16). remedy of the defect:
1. That the court has no jurisdiction over the person of the
Q: Is motion to dismiss a responsive pleading? defending party;
2. That the court has no jurisdiction over the subject
A: No, it is not a pleading at all. It is subject to the omnibus matter of the claim;
motion rule since it must raise all objections available at the 3. That venue is improperly laid;
time of the filing thereof. 4. That the plaintiff has no legal capacity to sue;
5. That there is another action pending between the same
RESOLUTION OF MOTION parties for the same cause;
6. That the pleading asserting the claim states no cause of
Q: What are the three courses of action which the trial action;
court may take in resolving a motion to dismiss? 7. That a condition precedent for filing the claim has not
been complied with
A:
1. Dismiss the action or claims; WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES
2. Deny the motion; or
3. Order the amendment of the pleading (Sec. 3, Rule 16). Q: When can the grounds for motion to dismiss be
pleaded as an affirmative defense?
Note: The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable. In every A: If no motion to dismiss has been filed, any of the
case, the resolution shall state clearly and distinctly the reasons grounds for dismissal provided for in the Rules may be
therefor. (Sec. 3, Rule 16)
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
thereon as if a motion to dismiss had been filed.
DISMISSED
The dismissal of the complaint shall be without prejudice to
Q: What are the remedies of the plaintiff when the
the prosecution of a counterclaim pleaded in the answer in
complaint is dismissed?
the same or separate action (Sec. 6, Rule 16).
A: If the dismissal is without prejudice, the plaintiff may re-
BAR BY DISMISSAL
file the complaint. If the dismissal is with prejudice, the
plaintiff may file an appeal. (Riano, Civil Procedure: A
Q: What are the instances when a complaint can no longer
Restatement for the Bar, p. 319-320, 2009 ed)
be re-filed after the court grants a motion to dismiss?
REMEDIES OF THE DEFENDANT WHEN THE MOTION IS
A:
DENIED
1. Cause of action is barred by prior judgment (Res
judicata)
Q: What are the remedies of the defendant when the
2. Bar by the statute of limitations (Prescription);
motion is denied?
3. Claim or demand has been paid, waived, abandoned, or
otherwise extinguished; and
A: File an answer within the balance of the period to which
4. Claim is unenforceable under the statute of frauds
he was entitled at the time of serving his motion, but not
less than five (5) days in any event. If the pleading is Note: In the 4 instances mentioned, the remedy would be to
ordered to be amended, he shall file his answer within the appeal the dismissal
period prescribed, unless the court provides a longer
period. If decision is adverse, appeal therefrom and raise as COMPLAINT CAN NO EXCEPTIONS TO
error the denial of the motion to dismiss. If there is grave LONGER BE RE-FILED OMNIBUS
abuse of discretion amounting to lack or excess of MOTION RULE
jurisdiction, certiorari or prohibition may lie under Rule 65. 1. Res judicata 1. Res judicata
If there is unlawful neglect of the performance of an act 2. Prescription 2. Prescription
which the law specifically enjoins, mandamus is the proper 3. Extinguishment of the 3. Litis pendentia
claim 4. Lack of
DISMISSAL OF ACTIONS
DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE; DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM; DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Dismissal upon notice by plaintiff (Sec. Dismissal upon motion of plaintiff (Sec. Dismissal due to fault of plaintiff (Sec.
1, Rule 17) 2, Rule 17) 3, Rule 17)
A complaint may be dismissed by the After service of the answer or a motion 1. If, for no justifiable cause, the
plaintiff by filing a notice of dismissal at for summary judgment by the adverse plaintiff fails to appear on the
any time before service of the answer or party. date of the presentation of his
of a motion for summary judgment. evidence in chief on the
Upon such notice being filed, the court complaint.
shall issue an order confirming the 2. If the plaintiff fails to
dismissal. Unless otherwise stated in the prosecute his action for an
notice, the dismissal is without unreasonable length of time
prejudice, except that a notice operates (nolle prosequi).
as adjudication upon the merits when 3. If the plaintiff fails to comply
filed by a plaintiff who has once with the Rules or any order of
dismissed in a competent court an the court (Sec. 2, Rule 17).
action based on or including the same
claim. Note: The plaintiffs failure to appear at the
trial after he has presented his evidence and
rested his case DOES NOT WARRANT the
Since there is no answer yet filed by the GR: It is without prejudice to the right of Dismissal upon motion of the defendant
adverse party, no counterclaim defendant to prosecute his or upon the court's own motion is
recoverable counterclaim in a separate action. without prejudice to the right of the
defendant to prosecute his
XPN: Unless within 15 days from notice counterclaim on the same or separate
of the motion he manifests his action
preference to have his counterclaim
resolved in the same action (Sec. 2, Rule
17).
Q: When does the notice of dismissal become executory? an action based on or including the same claim (two
dismissal rule) (Sec.1, Rule 16).
A: It is executory as of the date the notice is filed by the
plaintiff and not the date the court issues the order Q: When does the two-dismissal rule apply?
confirming the dismissal because such dismissal by the
plaintiff, if filed before an answer or a motion for summary A: It applies when the plaintiff has:
judgment has been served upon him, is a matter of right. 1. Twice dismissed the actions;
(Riano, Civil Procedure: A Restatement for the Bar, p. 263, 2. Based on or including the same claim; and
2009 ed) 3. In a court of competent jurisdiction (Riano, Civil
Procedure: A Restatement for the Bar, p. 265, 2009 ed.).
Q: When does the notice of dismissal operate as
adjudication on the merits?
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD- and embody in a single document the issues of fact and law
PARTY COMPLAINT involved in the action, and such other matters as may aid in
the prompt disposition of the action. (Herrera, Vol. I, p.
Q: What is the effect of dismissal upon a counterclaim, 1074, 2007 ed)
which was already pleaded?
Q: When is pre-trial conducted?
A:
1. If a counterclaim has already been pleaded by the A: After the last pleading has been served and filed, it shall
defendant prior to the service upon him of the plaintiffs be the duty of the plaintiff to promptly move ex parte that
motion to dismiss, and the court grants the said motion the case be set for pre-trial (Sec.1, Rule 18).
to dismiss, the dismissal shall be limited to the complaint
since it does not carry with it the dismissal of the Particularly, the motion is to be filed within (5) days after
counterclaim (Sec. 2, Rule 17) the last pleading joining has been served and filed
(Administrative Circular No. 3-99, Jan. 15, 1999).
Note : The dismissal shall be without prejudice to the right of
the defendant to prosecute his counterclaim. Note: If the plaintiff fails to file a motion within the given period,
the branch clerk of court shall issue a notice of pre-trial. (A.M. No.
2. The defendant if he so desires may prosecute his 03-1-09-SC, July 13, 2004)
counterclaim either in a separate action or in the same
action. Should he choose to have his counterclaim Q: What do you mean by last pleading?
resolved in the same action, he must notify the court of
his preference within fifteen (15) days from notice of the A: The last permissible pleading that a party can file is the
plaintiffs motion to dismiss. reply to the answer to the last pleading asserting a claim.
This claim could be the original complaint, the counter-
Q: Jeannie filed a suit for collection of P387,000 against claim, cross-claim, or third-party complaint.
Ron in the RTC of Manila. Aside from alleging payment as
a defense, Ron in his answer, set up counterclaims for If an answer is filed and served in response to these claims,
P100,000 as damages and P30,000 as attorneys fees as a the pleading in response to these answers is the reply
result of the baseless filing of the complainant, as well as (Sarmiento vs. Juan, 120 SCRA 403) which is to be filed
for the P250,000 as the balance of the purchase price of within ten (10) days from the service of the pleading
the 30 units of air conditioners he sold to Jeannie. responded to (Sec. 6, Rule 11).
Suppose Rons counterclaim for the unpaid balance is
P310,000, what will happen to his counterclaims if the Note: Where the last pleading has not yet been served and filed,
court dismisses the complaint after holding a preliminary the case is not yet ready for pre-trial (Pioneer Insurance & Surety
Corporation vs. Hontanosas, 78 SCRA 439). However, the last
hearing on Rons affirmative defenses? (2008 Bar
pleading need not be literally construed as one having been
Question) served and filed. For purposes of the pleading, the expiration of the
period for filing the last pleading without it having been served and
A: The dismissal of the complaint does not involve the filed is sufficient (Riano, Civil Procedure: A Restatement for the Bar,
dismissal of the counterclaims of Ron. The rule on the p. 366, 2009 ed)
matter is clear. The dismissal of the complaintshall be
without prejudice to the prosecution in the same or NATURE AND PURPOSE
separate action of a counterclaim pleaded in the answer
(Sec. 6, Rule 16). The rule does not make a distinction Q: What is the nature of pre-trial?
between a compulsory and a permissive counterclaim. A
similar rule applies under Secs. 2 and 3, Rule 17. A: It is mandatory (Sec. 2, Rule 18).
Q: What rule governs the dismissal of counterclaim, cross- Q: Is a motion for pre-trial subject of a hearing?
claim, or third-party complaint?
A: No, this motion is an ex parte motion. This means that
A: The rule on the dismissal of a complaint applies to the the motion need not be the subject of a hearing (Riano,
dismissal of any counterclaim, cross-claim, or third-party Civil Procedure: A Restatement for the Bar, p. 366, 2009 ed)
claim. A voluntary dismissal by the claimant alone by notice
pursuant to Sec. 1, Rule 17 shall be made before a Q: What are the purposes of pre-trial?
responsive pleading or a motion for summary judgment is
served or, if there is none, before the introduction of A: The court shall consider the following purposes:
evidence at the trial or hearing (Sec. 4, Rule 17). 1. Possibility of an amicable settlement or of a submission
to alternative modes of dispute resolution;
PRE-TRIAL 2. Simplification of the issues;
3. Necessity or desirability of amendments to the
It is a procedural device by which the court is called upon, pleadings;
after the filing of the last pleading, to compel the parties 4. Possibility of obtaining stipulations or admissions of
and their lawyers to appear before it, and negotiate an facts and of documents to avoid unnecessary proof;
amicable settlement or otherwise make a formal statement 5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of issues to a Q: What is the effect of a partys failure to appear during
commissioner; the pre-trial? (1992 Bar Question)
7. Propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a A: Plaintiffs failure to appear during the pre-trial shall be a
valid ground therefore be found to exist; cause for dismissal of the action, with prejudice, unless
8. Advisability or necessity of suspending the proceedings; otherwise ordered by the court. Defendants non-
and attendance during the pre-trial shall be a cause to allow the
9. Such other matters as may aid in the prompt disposition plaintiff to present evidence ex parte and the court to
of the action (Sec. 2, Rule 18). render judgment on the basis thereof (Sec. 5, Rule 18).
Q: May the parties directly ask each other questions on Note: The plaintiff can appeal from the order of dismissal.
issues? Accordingly, it is only when the order of dismissal is without
prejudice that the remedy is to re-file the complaint (Sec. 1(g), Rule
41.)
A: No. During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties and all questions The defendant may move for the reconsideration of the order and
or comments by counsel or parties must be directed to the if the denial is tainted with grave abuse of discretion, he may file a
judge. The purpose of this is to avoid hostilities between petition for certiorari. (Riano, Civil Procedure: A Restatement for
the parties (A.M. No. 03-109-SC, July 13, 2004). the Bar, p. 368, 2009 ed)
PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE Civil Procedure: A Restatement for the Bar, p. 371, 2009
ed.).
Q: When should the parties file with the court and serve If all efforts to settle fail, the trial judge shall endeavor to
on the adverse party their pre-trial briefs? achieve the other purposes of a pre-trial like, among
others, obtaining admissions or stipulations of fact. To
A: They shall file their respective pre-trial briefs in such a obtain admissions, the judge shall ask the parties to submit
manner as shall ensure their receipt thereof at least three whatever depositions have been taken under Rule 23, the
(3) days before the date of the pre-trial (Sec. 6, Rule 18). answers to written interrogatories under Rule 25 and the
answers to request for admissions by the adverse party
Q: What should a pre-trial brief contain? under Rule 26. He may also require the production of
documents or things requested by a party under Rule 37
A: and the results of the physical and mental examination of
1. A statement of their willingness to enter into amicable persons under Rule 28 (A.M. No. 03-1-09-SC, July 13, 2004).
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof; Q: Explain the One Day Examination of Witness Rule and
2. A summary of admitted facts and proposed stipulation Most Important Witness Rule.
of facts;
3. The issues to be tried or resolved; A: In the pre-trial, the court shall ask the parties to agree on
4. The documents or exhibits to be presented, stating the the specific dates for continuous trial, adhere to the case
purpose thereof; flow chart determined by the court and use the time frame
5. A manifestation of their having availed or their for each stage setting the trial dates. Adherence to the One
intention to avail themselves of discovery procedures or Day Examination of Witness Rule shall be required where
referral to commissioners; and the witness shall be fully examined in one (1) day only,
6. The number and names of the witnesses, and the subject to the courts discretion during the trial on wheter
substance of their respective testimonies and the or not to extend the examination for justifiable reasons.
approximate number of hours that will be required by
the parties for the presentation of their respective Where no settlement has been effected, the court shall
witnesses (Sec. 6, Rule 18). follow the Most Important Witness Rule, where the court
shall determine the most important witnesses and limit the
Q: What is the legal effect of representations and number of such witnesses and require the parties and/or
statements in the pre-trial brief? counsels to submit to the branch clerk of court the names,
addresses and contact numbers of the witnesses to be
A: The parties are bound by the representations and summoned by subpoena. Note however, that the court may
statements in their pre-trial. Hence, such representations also refer the case to a trial by commissioner under Rule 32
and statements are in the nature of judicial admissions in (A.M. No. 03-109-SC, July 13, 2004).
relation to Sec. 4 Rule 129 of the Rules of Court.
Q: What is a pre-trial order?
Q: What is the effect of failure to file a pre-trial brief?
A: An order issued by the court upon termination of the
A: It shall have the same effect as failure to appear at the pre-trial. Under A.M. No. 03-109-SC, the pre-trial order shall
pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). Hence, if it is be issued within ten (10) days after termination of the pre-
the plaintiff who fails to file a pre-trial brief, such failure trial.
shall be a cause for dismissal of the action. If it is the
defendant who fails to do so, such failure shall be a cause Q: What are the contents of a pre-trial order?
to allow the plaintiff to present his evidence ex parte.
A: The order recites in detail the following:
Note: The dismissal of the complaint for failure to file pre-trial brief
is discretionary on the part of the trial court. (Ramos v. Spouses 1. The matters taken up in the conference;
Lavendia, G.R. No. 176706, Oct. 8, 2008) 2. The actions taken thereon;
3. The amendments allowed to the pleadings;
Q: Should there be a termination of pre-trial for failure to 4. The agreements or admissions made by the parties as
settle on the ground that the parties cannot settle the to any matters considered.
case?
Note: These admissions embodied in the pre-trial order are binding
A: None. The judge should not allow the termination of a upon the parties and conclusive upon them.
pre-trial simply because of the manifestation of the parties
that they cannot settle the case. Instead, he should expose
the parties to the advantages of pre-trial. He must also be
mindful that there are important aspects of the pre-trial
that ought to be taken up to expedite the disposition of the
case (Ramos vs. Spouses Lavendia, G.R No. 176706; Riano,
Alternative Dispute Resolution Act of 2004 (Republic Act Q: What is an alternative dispute resolution system?
9285) and Special Rules of Court on Alternative Dispute
Resolution (A.M. No. 07-11-08-SC) A: It means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
Q: What are the other modes of solving disputes aside presiding judge of a court or an officer of a government
from an adversarial proceeding before the court? agency in which a neutral third party participates to assist
in the resolution of issues, which includes arbitration,
A: mediation, conciliation, early neutral evaluation, mini-trial,
1. Alternative Dispute Resolution (ADR) or any combination thereof. (Sec.3a of R.A. No. 9285)
a. Arbitration
i. Domestic Arbitration Note: Its purposes are to:
1. Actively promote party autonomy in the resolution of disputes
ii. Construction Disputes
or the freedom of the parties to make their own arrangements
iii. International Commercial Arbitration to resolve their disputes;
b. Mediation 2. Achieve speedy and impartial justice; and
c. Conciliation 3. Unclog court dockets.
d. Early Neutral Evaluation
e. Mini-trial Q: What are the cases in which the ADR law does not
2. Court-Annexed Mediation apply?
3. Appellate Court Mediation
4. Judicial Dispute Resolution A:
5. Katarungang Pambarangay Law 1. Labor disputes covered by the Labor Code
2. The civil status of persons
Q: What is the State policy in alternative dispute 3. The validity of marriage
resolution? 4. Any ground for legal separation
5. The jurisdiction of courts
A: The state policy in ADR is to actively promote party 6. Future legitime
autonomy in the resolution of disputes or the freedom of 7. Criminal liability
the parties to make their own arrangements in resolving 8. Those which by law cannot be compromised
their disputes. (Sec. 2, R.A. 9285: The Alternative Dispute
Resolution Act of 2004)
A:
Arbitration Mediation Conciliation Early Neutral Mini-Trial
Evaluation
Definition
It is a voluntary It is a voluntary A process whereby It is a process It is a structured
dispute resolution process in which an the parties request a wherein parties dispute resolution
process in which impartial and third person or and their lawyers method in which
one or more neutral third party persons to assist are brought the merits of a case
arbitrators, (mediator), selected them in their together early in a are argued before a
appointed in by the disputing attempt to reach an pre-trial phase to panel comprising of
accordance with parties, facilitates amicable settlement present senior decision
the agreement of communication and of their dispute summaries of their makers with or
the parties, or rules negotiation, and arising out of or cases and receive without the
promulgated assists the parties in relating to a a non-binding presence of a
pursuant to R.A. reaching a contractual or other assessment by an neutral third person
9285, resolve a voluntary legal relationship experienced, after which the
dispute by agreement (Art. 1 [3], neutral person, parties seek a
rendering an award. regarding a dispute. UNCITRAL Model with expertise in negotiated
It results in the Law on Conciliation) the subject or the settlement.
adjudication of a substance of the
dispute. dispute.
Functions
Arbitrator acts as Mediator does not A conciliator Early neutral Panel renders a
out-of-court judge render an award participates only in Evaluator assesses decision based on
and settles the but only arranges the preliminary or reviews the the merits of the
dispute extra- the facts to be steps of facilitating issues submitted arguments of the
judicially. negotiated so that discussion between by the parties and parties.
parties can come to the parties and tenders its
He makes a a compromise helps them frame evaluation which is
determination of agreement. the issues for non-binding.
the facts and discussion.
applies the law to He assists the
those facts to parties in reaching a
resolve a dispute mutually agreeable
independently of settlement of their
the actual result dispute through
desired by the direct negotiations.
parties. He actively
participates in
resolving the
dispute, and then
gives an opinion.
Effect of decision
The award may be The decision or He does not render a The assessment is It need not be
final and binding if opinion is not decision. The dispute not binding upon confirmed by the
so agreed by the binding on the is left to be settled the parties. courts.
parties and to be parties. It is by the parties
executory, it must recommendatory in themselves.
first be confirmed nature. The
by the RTC. mediator merely
suggests a solution
to the dispute.
Arbitration Q: What are the instances which will not prevent the court
from referring the parties to arbitration?
Q: What is the form of an arbitration agreement?
A: The court shall not decline to refer some or all of the
A: A contract to arbitrate a controversy thereafter arising parties to arbitration for any of the following reasons:
between the parties, as well as a submission to arbitrate an
existing controversy shall be in writing and subscribed by a. Not all of the disputes subject of the civil action may be
the party sought to be charged, or by his lawful agent (Sec. referred to arbitration;
4, R.A. 876).
b. Not all of the parties to the civil action are bound by the
Q: What is the remedy of a party to an action filed in court arbitration agreement and referral to arbitration would
in violation of an arbitration agreement? result in multiplicity of suits;
A: A party to a pending action filed in violation of the c. The issues raised in the civil action could be speedily and
arbitration agreement, whether contained in an arbitration efficiently resolved in its entirety by the court rather than in
clause or in a submission agreement, may request the court arbitration;
to refer the parties to arbitration in accordance with such
agreement. (Rule 4.1) d. Referral to arbitration does not appear to be the most
prudent action; or
Q: When must such request be made to the court?
e. The stay of the action would prejudice the rights of the
A: If the arbitration agreement exists (arbitration clause) parties to the civil action who are not bound by the
before the action is filed, the request for referral shall be arbitration agreement.
made not later than the pre-trial conference. After the pre-
trial conference, the court will only act upon the request for The court may, however, issue an order directing the
referral if it is made with the agreement of all parties to the inclusion in arbitration of those parties who are not bound
case. If there is no existing arbitration agreement at the by the arbitration agreement but who agree to such
time the case is filed but the parties subsequently enter inclusion provided those originally bound by it do not
into an arbitration agreement (submission agreement), object to their inclusion. (Rule 4.7)
they may request the court to refer their dispute to
arbitration at any time during the proceedings. (Rule 4.2) Q: Is summons required to be served under the Special
ADR Rules?
Q: May an arbitral award be made upon issues already
submitted before the court? A: No. The technical rules on service of summons do not
apply to the proceedings under the Special ADR Rules. A
A: Yes. Despite the pendency of the action referred to in court acquires authority to act on the petition or motion
Rule 4.1, above, arbitral proceedings may nevertheless be upon proof of jurisdictional facts, i.e., that the respondent
commenced or continued, and an award may be made, was furnished a copy of the petition and the notice of
while the action is pending before the court. (Rule 4.8) hearing. The burden of showing that a copy of the petition
and the notice of hearing were served on the respondent
Q: What are the requirements for the court to refer the rests on the petitioner. In instances where the respondent,
dispute to arbitration? whether a natural or a juridical person, was not personally
served with a copy of the petition and notice of hearing in
A: The request for referral shall be in the form of a motion, the proceedings, the method of service resorted to must be
which shall state that the dispute is covered by an such as to reasonably ensure receipt thereof by the
arbitration agreement. Apart from other submissions, the respondent to satisfy the requirement of due process. (Rule
movant shall attach to his motion an authentic copy of the 1.9)
arbitration agreement. The request shall contain a notice of
hearing addressed to all parties specifying the date and Q: What is the remedy of the aggrieved party after the
time when it would be heard. The party making the request dispute is referred by the court to arbitration? How about
shall serve it upon the respondent to give him the denial of the request for arbitration?
opportunity to file a comment or opposition within 15 days
from receipt (Rule 4.3) A: An order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a motion
Q: What are the grounds for opposition? for reconsideration, appeal or petition for certiorari. An
order denying the request to refer the dispute to
A: (a) there is no agreement to refer the dispute to arbitration shall not be subject to an appeal, but may be the
arbitration; and/or (b) the agreement is null and void; subject of a motion for reconsideration and/or a petition
and/or (c) the subject-matter of the dispute is not capable for certiorari. (Rule 4.6)
of settlement or resolution by arbitration in accordance
with Section 6 of the ADR Act. (Rule 4.4.)
Q: What is the remedy for the failure or refusal of another constituted, the court must exercise judicial restraint and
to comply with the arbitration agreement? defer to the competence or jurisdiction of the arbitral
tribunal by allowing the arbitral tribunal the first
A: The party may petition the court for an order directing opportunity to rule upon such issues. Unless the court,
that such arbitration proceed in the manner provided for in pursuant to a prima facie determination, that the
such agreement (Sec. 6, R.A. 876). arbitration agreement is null and void, inoperative or
incapable of being performed, the court must suspend the
Q: What is the effect of the petition filed before action before it and refer the parties to arbitration pursuant
commencement of the arbitration proceeding? to the arbitration agreement. (Rule 2.2; Rule 2.4)
A: Despite the pendency of the petition, the arbitral Q: What is the principle of separability of the arbitration
proceedings may nevertheless be commenced and clause?
continued until the rendition of an award, while the issue is
pending before the court (Rule 3.3, A.M. No. 07-11-08-SC). A: The Special ADR Rules recognize the principle of
separability of the arbitration clause, which means that said
Q: What is the effect of the petition filed after clause shall be treated as an agreement independent of the
commencement of the arbitration proceeding? other terms of the contract of which it forms part. A
decision that the contract is null and void shall not entail
A: Judicial recourse to the court shall not prevent the ipso jure the invalidity of the arbitration clause. (Rule 2.2)
arbitral tribunal from continuing the proceedings and
rendering its award. The court shall not enjoin the Q: Korea Technologies (KOGIES) entered into a contract
arbitration proceedings during the pendency of the petition with PGSMC for the supply and installation of LPG
(Rule 3.18(B), A.M. No. 07-11-08-SC). manufacturing plant. The contact was perfected in the
Philippines. After the installation of the plant, initial
Should the ruling of the arbitral tribunal declining its operation could not be conducted due to financial
jurisdiction be reversed by the court, the parties shall be difficulties. PGSMC issued checks for payment but was
free to replace the arbitrators or anyone of them in dishonored. Thus KOGIES threatened to file a criminal case
accordance with the rules that were applicable for the against the latter. Hence, PGSMC unilaterally cancelled
appointment of arbitrator sought to be replaced (Rule 3.12, their contract. KOGIES filed a Complaint for Specific
A.M. No. 07-11-08-SC). Performance against PGSMC alleging that it violated Art.
15 of their contact by unilaterally rescinding the contract
Q: What is the effect of the rendition of an arbitral award without resorting to arbitration. The arbitration clause in
before court decides on the petition from the arbitral their contract provides: The award rendered by the
tribunals preliminary ruling affirming its jurisdiction? arbitrators shall be final and binding upon both parties
concerned. Is the stipulation valid?
A: The petition shall become ipso facto moot and academic
and shall be dismissed by the RTC however, the dismissal A: Yes. The law of the place where the contract is made
shall be without prejudice to the right of the aggrieved governs. Therefore, our laws ought to govern. Nonetheless,
party to raise the same issue in a timely petition to vacate Art. 2044 of the Civil Code sanctions the validity of mutually
or set aside the award (Rule 3.21, A.M. No. 07-11-08-SC). agreed arbitral clause or the finality and binding effect of an
arbitral award. Art. 2044 provides, Any stipulation that the
Q: Is an order of the court referring the dispute to arbitrators award or decision shall be final is valid, without
arbitration appealable? prejudice to Arts. 2038, 2039 and 2040.
A: No. An order referring the dispute to arbitration shall be Arts. 2038, 2039 and 2040 above cited refer to instances
immediately executory and shall not be subject to a motion where a compromise or an arbitral award, as applied to Art.
for reconsideration, appeal or petition for certiorari. 2044, may be voided, rescinded, or annulled, but these
However, an order denying the request to refer the dispute would not denigrate the finality of the arbitral award. The
to arbitration shall not be subject to an appeal, but may be arbitration clause has not been shown to be contrary to any
the subject of a motion for reconsideration and/or a law, morals, or public policy. There is no reason why the
petition for certiorari (Rule 4.6, A.M. No. 07-11-08-SC). arbitration clause should not be respected and complied
with by both parties. There are no vices of consent shown
Q: What is the principle of competence competence?
in this case (Korea Technologies Co., Ltd. v. Lerma, G.R. No.
143581, Jan. 7, 2008).
A: The Special ADR Rules recognize the principle of
competence-competence, which means that the arbitral Q: Are foreign arbitral awards, while mutually stipulated
tribunal may initially rule on its own jurisdiction, including by parties to be final and binding, immediately
any objections with respect to the existence or validity of enforceable?
the arbitration agreement or any condition precedent to
the filing of a request for arbitration. When a court is asked A: No. Foreign arbitral awards cannot be implemented
to rule upon issue/s affecting the competence or immediately. Article 36 of the UNCITRAL Model Law
jurisdiction of an arbitral tribunal in a dispute brought specifies the grounds for an arbitral award to be recognized
before it, either before or after the arbitral tribunal is by a competent court. It can be gleaned that the concept of
a final and binding arbitral award is similar to judgments or described in Articles 2038, 2039 and 2040 applicable to
awards given by some of our quasi- judicial bodies, like the both compromises and arbitrations are obtaining, the
NLRC, whose final judgments are stipulated to be final and arbitrators award may be annulled or rescinded.
binding, but not immediately executory in the sense that Consequently, the decision of the Arbitration Committee is
they may still be judicially reviewed, upon the instance of subject to judicial review.
any party. Therefore, the final foreign arbitral awards are
similarly situated in that they need first to be confirmed by The proper recourse of petitioner from the denial of its
the RTC. Such arbitration clause does not operate to oust motion for reconsideration by the Arbitration Committee is
the court of its jurisdiction (Korea Technologies Ltd. v. to file either a motion to vacate the arbitral award with the
Lerma, G.R. No. 143581, Jan. 7, 2008). RTC, a petition for review with the CA under Rule 43, or a
petition for certiorari under Rule 65. The RTC will only have
Q: What is the period for filing a petition for the jurisdiction over an arbitral award in cases of motions to
confirmation, modification or vacation of an award? vacate the same. Otherwise, the CA retains jurisdiction in
petitions for review or in petitions for certiorari (Insular
A: The periods for filing a petition shall be: Savings Bank v. Far East Bank and Trust Company, G.R. No.
1. For confirmation at any time after the lapse of thirty 141818, June 22, 2006).
(30) days from receipt by the petitioner of the arbitral
award, he may petition the court to confirm that
award;
A:
Grounds for Vacating an Arbitral Award Grounds for Modifying or Correcting an Arbitral
Award
1. The award was procured by corruption, fraud, or 1. There was an evident miscalculation of figures,
other undue means; or an evident mistake in the description of any
2. There was evident partiality or corruption in the person, thing or property referred to in the
arbitrators or any of them; award;
3. The arbitrators were guilty of misconduct in 2. The arbitrators have awarded upon a matter not
refusing to postpone the hearing upon sufficient submitted to them, not affecting the merits of
cause shown, or in refusing to hear evidence the decision upon the matter submitted;
pertinent and material to the controversy; 3. The award is imperfect in a matter of form not
4. One or more of the arbitrators was disqualified to affecting the merits of the controversy, and if it
act as such and willfully refrained from disclosing had been a commissioner's report, the defect
such disqualifications or of any other misbehavior could have been amended or disregarded by the
by which the rights of any party have been court;
materially prejudiced; 4. To effect the intent of the award and promote
5. The arbitrators exceeded their powers, or so justice between the parties (Sec. 25, R.A. 876); or
imperfectly executed them, that a mutual, final and 5. Where the arbitrators have omitted to resolve
definite award upon the subject matter submitted an issue submitted for resolution (Rule 11.4B,
to them was not made (Sec. 24, R.A. 876). A.M. No. 07-11-08-SC).
6. The arbitration agreement did not exist, or is invalid
for any ground for revocation of a contract, or is
otherwise unenforceable; or
7. A party to arbitration is a minor or a person
judicially declared to be incompetent (Rule 11.4A,
A.M. No. 07-11-08-SC).
UNCITRAL Model Law on International Commercial 4. the award deals with a dispute not contemplated by or
Arbitration of the UNCITRAL in the New York Convention, not falling within the terms of the submission to
the Philippines committed itself to be bound by the Model arbitration, or it contains decisions on matters beyond
Law. In doing so, we have incorporated the Model Law in the scope of the submission to arbitration;
R.A. 9285 (ADR Act of 2004). A pertinent feature of R.A. 5. the composition of the arbitral tribunal or the arbitral
9285, applying and incorporating the UNCITRAL Model Law, procedure was not in accordance with the agreement of
is Sec. 24 which provides that the RTC does not have the parties or, failing such agreement, was not in
jurisdiction over disputes that are properly the subject of accordance with the law of the country where the
arbitration pursuant to an arbitration clause and mandates arbitration took place;
the referral to arbitration of such cases (Korea Technologies 6. the award has not yet become binding on the parties or
Ltd v. Lerma, G.R. No. 143581, Jan. 7, 2008). has been set aside or suspended by a court of the
country in which, or under the law of which, that award
Q: Can a foreign arbitral award be enforced in the was made;
Philippines under the Rules of Court on the recognition 7. the subject matter of the dispute is not capable of
and enforcement of foreign judgments (Rule 39)? Explain settlement by arbitration under our laws or the
briefly. (2007 Bar Question) recognition or enforcement of the award would be
contrary to our public policy. Any other ground raised
A: No. Foreign arbitral awards are not enforced as foreign shall be disregarded by the RTC (Art. 36, UNCITRAL
court judgments. They may be enforced under Sec. 44 of Model Law); or
R.A. 9285 (ADR Act of 2004). Under the said law, the United 8. the recognition or enforcement of the award would be
Nations Convention on the Recognition and Enforcement of contrary to public policy (Rule 12.4, A.M. No. 07-11-08-
Foreign Arbitral Awards (1958 New York Convention) shall SC).
govern the recognition and enforcement of arbitral awards
covered by the said Convention. The party relying on the Note: A Philippine court shall not set aside a foreign arbitral award
award or applying for its enforcement shall file with the RTC but may refuse its recognition and enforcement on any or all of the
the original or authenticated copy of the award and the grounds above (Rule 13.5, A.M. No. 07-11-08-SC).
arbitration agreement. The applicant shall establish that
the country in which foreign arbitration award was made is Mediation
a party to the New York Convention.
Q: What is mediation?
A foreign arbitral award, when confirmed by a court of a
foreign country, shall be recognized and enforced as a A: It is a voluntary process in which a mediator, selected by
foreign arbitral award and not as a judgment of a foreign the disputing parties, facilitates communication and
court. A foreign arbitral award, when confirmed by the RTC, negotiation, and assists the parties in reaching a voluntary
shall be enforced in the same manner as final and agreement regarding a dispute (Sec. 3q, R.A. 9285)
executory decisions of courts of law of the Philippines (Sec.
44, R.A. 9285). Q: May a party seek the assistance of a lawyer in
mediation proceedings?
Note: The recognition and enforcement of a foreign arbitral award
shall be governed by the 1958 New York Convention on the A: Yes. A party may designate a lawyer or any other person
Recognition and Enforcement of Foreign Arbitral Awards (the "New to provide assistance in the mediation. A waiver of this
York Convention") and the Special ADR Rules. The court may, upon right shall be made in writing by the party waiving it. A
grounds of comity and reciprocity, recognize and enforce a foreign waiver of participation or legal representation may be
arbitral award made in a country that is not a signatory to the New rescinded at any time (Sec. 14, R.A. 9285).
York Convention as if it were a Convention Award (Rule 13.4, A.M.
No. 07-11-08-SC).
Q: How is a mediated settlement agreement enforced?
Q: When may a foreign arbitral award be refused
A: After a successful mediation,
recognition and enforcement in our jurisdiction?
1. The mediated settlement agreement shall be prepared
by the parties through the assistance of their
A: At the request of the party against whom it is invoked, a
respective counsel, if any, and by the mediator.
foreign arbitral award may be refused recognition or
2. Parties and their respective counsels, if any shall sign
enforcement if that party furnishes proof that:
the settlement agreement. The mediator shall certify
1. a party to the arbitration agreement was under some
that he/she explained the contents of the settlement
incapacity;
agreement to the parties in a language known to
2. the said agreement is not valid under the law to which
them.
the parties have subjected it or, failing any indication
3. If the parties so desire, they may deposit such
thereon, under the law of the country where the award
settlement agreement with the appropriate Clerk of
was made;
Court of the RTC of the place where one of the parties
3. the party against whom the award is invoked was not
resides. Where there is a need to enforce the
given proper notice of the appointment of an arbitrator
settlement agreement, a petition may be filed by any
or of the arbitral proceedings or was otherwise unable
of the parties with the same court, in which case the
to present his case;
court shall proceed summarily to hear the petition, in
3. The answer to the complaint-in-intervention shall Note: A courts power to allow or deny intervention is
be filed within fifteen (15) days from notice of the circumscribed by the basic juridical procedure that only a person
order admitting the same, unless a different period is with interest in an action or proceeding may be allowed to
intervene. A court has no authority to allow a person, who has no
fixed by the courts (Sec.4, Rule 19).
interest in an action or proceeding, to intervene (Anonuevo v.
Intestate Estate of Jalandoni, 636 SCRA 440).
Note: A change in theory of the defense is not a proper
intervention. Intervention should not alter the theory of both This discretion, however, must be exercised judiciously and only
parties. after consideration of all the circumstances obtaining in the case.
Thus, where substantial interest of the movant in the subject
Q: When should an answer to a complaint-in-intervention matter is undisputed, a denial of a motion to intervene is an
be filed? injustice (Mago v. CA, 303 SCRA 600).
A: It shall be filed within fifteen (15) days from notice of the SUBPOENA
order admitting the same, unless a different period is fixed
by the court (Sec. 4, Rule 19). It is a process directed to a person requiring him to attend
and to testify at the hearing or the trial of an action, or at
Q: May intervention be allowed after judgment has been any investigation conducted under the laws of the
rendered by the court? (1991 Bar Question) Philippines, or for taking of his deposition (Sec. 1, Rule 21).
A: GR: After rendition of judgment, a motion to intervene is Note: Subpoena is a Latin term which literally means under the
barred, even if the judgment itself recognizes the right of pain of penalty.
the movant. The motion to intervene must be filed at any
time before rendition of judgment by the trial court (Sec. 2, Q: Distinguish subpoena from summons.
Rule 19). Hence, intervention after trial and decision can no
longer be permitted (Yau vs.Manila Banking Corporation, A:
G.R. No. 126731, July 11, 2002) Subpoena Summons
An order to appear and Writ notifying of action
XPNs: testify at the hearing or brought against
1. With respect to indispensable parties, intervention for taking deposition defendant (Cano-
may be allowed even on appeal (Falcasantos v. (Albano, Remedial Law Gutierrez v Gutierrez,
Falcasantos, G.R. No. L-4627, May 13, 1952); Reviewer, p.356, 2010 341 SCRA 670)
2. When the intervenor is the Republic (Lim v. Pacquing, ed.)
G.R. No. 115044, Jan. 27, 1995); May be served to a non- Served on the
party defendant
Note: Prescription does not lie against the State. The State is Needs tender of Does not need tender
not estopped by the inaction or mistakes of its agents. kilometrage, attendance of kilometrage and
fee and reasonable cost other fees
3. Where necessary to protect some interest which of production fee
cannot otherwise be protected, and for the purpose of (Albano, Remedial Law
preserving the intervenors right to appeal (Pinlac v. Reviewer, 2010 ed.)
CA, G.R. No. 91486, Sept. 10, 2003); or
4. May be allowed during the pendency of the appeal, SUBPOENA DUCES TECUM
where the interest of justice so requires (Tahanan Dev.
Corp. v. CA, G.R. No. L-55771, Nov. 15, 1982). A process directed to a person requiring him to bring with
him any books, documents, or other things under his
REMEDY FOR THE DENIAL OF MOTION TO INTERVENE control (Sec. 1, Rule 21).
under his control available for copying, authentication, and party and is not less than eighteen (18) years of age (Sec. 6, Rule
eventual production in court, the requesting party may 21).
avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Q: What should be delivered and tendered to the person
Court. The rules governing the issuance of a subpoena to whom subpoena is served?
the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall A: The original shall be exhibited and a copy thereof
be understood to be ex parte (Sec. 5, Judicial Affidavit Rule). delivered to the person on whom it is served, tendering to
him the fees for one days attendance and the kilometrage
SERVICE OF SUBPOENA allowed by the Rules. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or
Q: Who issues subpoena? things demanded shall also be tendered (Sec. 6, Rule 21).
2. That the witness fees and kilometrage allowed by the physical or mental examination by a physician.
Rules were not tendered when the subpoena was
served (Sec. 4, Rule 21).
Note: The modes of discovery are cumulative. They are not
MODES OF DISCOVERY alternative nor mutually exclusive.
Q: What is discovery? Q: What are the basic purposes of the rules of discovery?
2. It is not necessary
a. When an answer has already been served Q: Distinguish commission from letters rogatory.
XPN to the XPN: Introduction of deposition does not Taken in accordance The methods of procedure
make the deponent his witness: with the rules laid down are under the control of
1. If the deposition is used for impeaching or by the court issuing the foreign tribunal (Dulay v.
contradicting the deponent (Sec. 8, Rule 23); or commission Dulay, GR No. 158857,
2. If the adverse party uses the deposition of the November 11, 2005)
other party (Sec. 4[b], Rule 23)
Note: Letters of rogatory may be applied for and issued only after a
Q: May a party rebut a deposition? commission has been returned unexecuted (Dasmarinas Garments,
Inc. v. Reyes, et al, G.R. 108229).
A: Yes. At the trial or hearing, any party may rebut any
Note: Leave of court is not required when the deposition is to be
relevant evidence contained in a deposition whether
taken before a secretary of embassy or legation, consul general,
introduced by him or by any other party (Sec.9, Rule 23). consul, vice-consul or consular agent of the Republic of
the Philippines and the defendants answer has already been
Q: Before whom may depositions be taken? served. However, if the deposition is to be taken in a foreign
country where the Philippines has no secretary of embassy or
A: legation, consul general, consul, vice-consul or consular agent, it
1. If within the Philippines may be taken only before such person or officer as may be
a. Judge; appointed by commission or under letters rogatory (Dulay v. Dulay,
GR No. 158857, November 11, 2005).
b. Notary public (Sec. 10, Rule 23); or
c. Any person authorized to administer oaths, as
Q: Who are disqualified to be a deposition officer?
stipulated by the parties in writing (Sec. 14, Rule
23).
A:
th
1. One who is related to the deponent within the 6
2. If outside the Philippines
degree of consanguinity or affinity;
a. On notice, before a secretary of embassy or
2. An employee or attorney of one of the parties;
legation, consul-general, consul, vice-consul, or
consular agent of the Philippines (Sec. 11, Rule
23);
3. One who is related to the attorney of the deponent 8. The court may make any other order which justice
within the same degree or employee of such attorney; requires to protect the party or witness from
and annoyance, embarrassment, or oppression (Sec. 16,
4. One who is financially interested in the action (Sec. 13, Rule 23).
Rule 23).
Q: What objections shall be noted by the officer upon the
Q: May the parties stipulate in writing for the taking of deposition?
depositions?
A: All objections made at the time of the examination to
A: Yes. The parties may stipulate in writing as to the person the:
authorized to administer oaths, as to the time and place, 1. Qualifications of the officer taking the deposition;
but not as to the manner of taking depositions which 2. Manner of taking the deposition;
should be in accordance with the rules (Feria & Noche, Civil 3. Evidence presented;
Procedure Annotated, p. 520, 2001 ed.). 4. Conduct of any party; or
5. Any other objection to the proceedings (Sec. 17, Rule
Q: What is the requirement in taking deposition upon oral 23).
examination?
Note: A deposition officer has no authority to rule on the objection
A: A party desiring to take the deposition of any person (Herrera, Remedial Law, Vol. II, p. 34, 2007 ed.). Evidence objected
upon oral examination shall give reasonable notice in to shall be taken subject to the objection, which will be ruled upon
by the court when the deposition is offered in evidence (Feria &
writing to every other party to the action (Sec. 15, Rule 23).
Noche, Civil Procedure Annotated, p. 524, 2001 ed)
Q: What is the consequence of failure to attend by the he expects to elicit from each, and shall ask for an
party giving notice? order authorizing the petitioner to take the
depositions of the persons to be examined named in
A: The court may order the party giving the notice to pay the petition for the purpose of perpetuating their
such other party the amount of the reasonable expenses testimony (Sec.2, Rule 24).
incurred by him and his counsel in so attending, including
reasonable attorneys fees (Sec. 23, Rule 23). Q: What is the rule on notice and service of depositions
before action?
Q: What is the consequence of failure of a party giving A: The petitioner shall serve a notice upon each person
notice to serve subpoena? named in the petition as an expected adverse party,
together with a copy of the petition, stating that the
A: If because of such failure, the witness does not attend, petitioner will apply to the court, at a time and place
and if another party attends in person or by counsel named therein, for the order described in the petition. At
because he expects the deposition of that witness to be least twenty (20) days before the date of the hearing, the
taken, the court may order the party giving the notice to court shall cause notice thereof to be served on the parties
pay to such other party the amount of the reasonable and prospective deponents in the manner provided for
expenses incurred by him and his counsel in so attending, service of summons (Sec. 3, Rule 24).
including reasonable attorneys fees (Sec. 24, Rule 23).
Q: What are the contents of the motion for deposition
Q: How is deposition upon written interrogatories done? pending appeal?
A: A party desiring to take the deposition of any person A: The motion shall state:
upon written interrogatories shall serve them upon every 1. The names and addresses of the persons to be
other party with a notice stating the name and address of examined
the person who is to answer them and the name or 2. The substance of the testimony which he expects to
descriptive title and address of the officer before whom the elicit from each
deposition is to be taken. Within ten (10) days thereafter, a 3. The reason for perpetuating their testimony (Sec. 7,
party so served may serve cross-interrogatories upon the Rule 24).
party proposing to take the deposition. Within five (5) days
thereafter, the latter may serve re-direct interrogatories Note: If the court finds that the perpetuation of the testimony is
upon a party who has served cross-interrogatories. Within proper to avoid a failure or delay of justice, it may make an order
three (3) days after being served with re-direct allowing the depositions to be taken, and thereupon the
depositions may be taken and used in the same manner and under
interrogatories, a party may serve recross-interrogatories
the same conditions as are prescribed under Rule 23 (Sec. 7, Rule
upon the party proposing to take the deposition (Sec. 25, 24).
Rule 23).
USES; SCOPE OF EXAMINATION
Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of
Rule 23 shall also be followed on deposition upon written
interrogatories (Secs. 26 & 27, Rule 23). Q: To whom may the deposition be used against?
Q: Who may file a petition for deposition before action A: Any part or all of the deposition, so far as admissible
under Rule 24? under the rules of evidence, may be used against:
1. Any party who was present or represented at the
A: Any person who wants to perpetuate his own testimony taking of the deposition; or
or that of another person regarding any matter that may be 2. One who had due notice of the deposition (Sec. 4, Rule
cognizable in any court of the Philippines (Sec. 1, Rule 24). 23)
Q: What are the contents of the petition? Q: What are the uses of depositions?
A:
A: The petition shall be entitled in the name of the 1. Contradicting or impeaching the testimony of the
petitioner and shall show that: deponent as a witness;
1. the petitioner expects to be a party to an action in a 2. Any purpose by the adverse party where the deponent
court of the Philippines but is presently unable to bring is a party; or
it or cause it to be brought; 3. Any purpose by any party if the court finds that: DR.
2. the subject matter of the expected action and his USE
interest therein; a. The witness is Dead
3. the facts which he desires to establish by the proposed b. The witness Resides more than 100 kilometers
testimony and his reasons for desiring to perpetuate it; from the place of trial or hearing, or is out of the
4. the names or a description of the persons he expects Philippines. Unless it appears that his absence
will be adverse parties and their addresses so far as was procured by the party offering the
known; and deposition
5. the names and addresses of the persons to be c. The witness is Unable to testify because of age,
examined and the substance of the testimony which sickness, infirmity or imprisonment
d. The party offering the deposition has been unable before whom it is to be taken is waived unless made
to procure the attendance of the witness by before the taking of the deposition begins or as soon
Subpoena thereafter as the disqualification becomes known or
e. Upon application and notice, that such could be discovered with reasonable diligence.
Exceptional circumstances exist as to make it 3. As to competency or relevancy of evidence Objections
desirable in the interest of justice (Sec. 4, Rule 23) to the competency of witness or the competency,
relevancy, or materiality of testimony are not waived by
Q: What is the dual function of depositions? failure to make them before or during the taking of the
deposition, unless the ground, of the objection is one
A: Rule 23 method of discovery, with use on trial not which might have been obviated or removed if
necessarily contemplated presented at that time.
4. As to oral examination and other particulars Errors
Rule 24 a method of presenting testimony and irregularities occurring at the oral examination in
the manner of taking the deposition in the form of the
questions or answers, in the oath or affirmation, or in
Q: What is the use of deposition pending appeal? the conduct of the parties and errors of any kind which
might be obviated, removed, or cured if promptly
A: Depositions are taken pending appeal with the view to prosecuted, are waived unless reasonable objection
their being used in the event of further proceeding in the thereto is made at the taking of the deposition.
court of origin or appellate court (Sec. 7, Rule 24). 5. As to form of written interrogatories Objections to
the form of written interrogatories submitted under
Note: The deposition taken under this Rule is admissible in Secs. 25 and 26 are waived unless served in writing
evidence in any action subsequently brought involving the same upon the party propounding them within the time
subject matter (Sec. 6, Rule 24). allowed for serving succeeding cross or other
interrogatories and within 3 days after service of the
Q: What is the scope of the examination of the deponent? last interrogatories authorized.
6. As to manner of preparation Errors and irregularities
A: Unless otherwise ordered by the court as provided by in the manner in which the testimony is transcribed or
Sec. 16 or 18, Rule 23, the deponent may be examined the deposition is prepared, signed, certified, sealed,
regarding any matter, not privileged, which is relevant to indorsed, transmitted, filed, or otherwise dealt with by
the subject of the pending action, whether relating to the the officer under Secs. 17, 19, 20 and 26 are waived
claim or defense of any other party, including the: unless a motion to suppress the deposition or some
1. Existence; part thereof is made with reasonable promptness after
2. Description; such defect is, or with due diligence might have been,
3. Nature; ascertained (Sec. 29, Rule 23).
4. Custody;
5. Condition; WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR
6. Location of any books, documents, or other tangible ITS SCOPE LIMITED
things; and
7. The identity and location of persons having knowledge Q: When may taking of deposition be terminated or its
of relevant facts (Sec. 2, Rule 23). scope limited and what are the grounds thereof?
WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE A: At any time during the taking of the deposition, on
motion or petition of any party or of the deponent, and
Q: What is the rule on objections to admissibility of upon showing that the examination is conducted in:
deposition? 1. Bad faith;
2. Such manner as unreasonably to annoy, embarrass, or
A: Subject to the provisions of Sec. 29, Rule 23, objection oppress the deponent party (Sec. 18, Rule 23); or
may be made at the trial or hearing to receiving in evidence 3. When the constitutional privilege against self-
any deposition or part thereof for any reason which would incrimination is invoked by deponent or his counsel
require the exclusion of the evidence if the witness were (Herrera, Remedial Law, Vol.II, p. 37, 2007 ed.).
then present and testifying (Sec. 6, Rule 23).
Note: If the order made terminates the examination, it shall be
Q: What is the effect of errors and irregularities in resumed thereafter only upon the order of the court in which the
depositions as stated under Sec. 29, Rule 23? action is pending. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the
A: time necessary to make a notice for an order. In granting or
1. As to notice All errors and irregularities in the notice refusing such order, the court may impose upon either party or
upon the witness the requirement to pay such costs or expenses as
for taking a deposition are waived unless written
the court may deem reasonable. (Sec. 18, Rule 23)
objection is promptly served upon the party giving the
notice.
2. As to disqualification of officer Objection to taking a
deposition because of disqualification of the officer
Q: Distinguish protection order from motion to terminate Q: Distinguish depositions upon written interrogatories
or limit examination. under Rule 23, Section 25 from interrogatories to parties
under Rule 25.
A:
Protection Order (Sec. Motion to Terminate or A:
16, Rule 23) Limit Examination (Sec. Depositions Upon Interrogatories to
18, Rule 23) Written Interrogatories Parties (Rule 25)
Provides protection to Provides protection to Parties (Sec. 25, Rule
the party or witness during the taking of 23)
before the taking of deposition. Deponent
deposition. Party or ordinary witness Party only
The Motion is filed with Motion or petition is filed Procedure
the court in which the with the court in which With intervention of the No intervention.
action is pending. the action is pending or officer authorized by the Written
the RTC of the place Court to take deposition interrogatories are
where the deposition is directed to the party
being taken. himself
Not served upon the
WRITTEN INTERROGATORIES TO ADVERSE PARTIES adverse party directly. Served directly upon
They are instead delivered the adverse party (Sec
Q: What is the purpose of interrogatories to parties? to the officer before 1, Rule 25)
whom the deposition is to
A: To elicit material and relevant facts from any adverse be taken. (Sec 26, Rule 23)
party (Sec. 1, Rule 25). Scope
Direct, cross, redirect, re- Only one set of
Note: The answers may also be used as admissions of the adverse cross interrogatories
party (Feria & Noche, Civil Procedure Annotated, p. 538, 2001 ed.). Interrogatories
No fixed time 15 days to answer
Q: Distinguish interrogatories from bill of particulars. unless extended or
reduced by the court
A: Binding to anyone who is Binding only to the
Interrogatories Bill of Particulars present during the parties.
Interrogatories to Designed to clarify deposition.
parties are not directed ambiguities in a
to a particular pleading. pleading or to state Q: What is the procedure in taking interrogatories?
Instead, they seek to with sufficient
disclose all material and definiteness allegations A: The mode of discovery is availed of by filing and serving
relevant facts from a in a pleading. It is upon the adverse party written interrogatories to be
party (Sec 1, Rule 25) therefore directed to a answered by the party served. If the party is a juridical
pleading (Sec 1, Rule entity, it shall be answered by any of its officers competent
12) to testify in its behalf (Sec 1, Rule 25). The interrogatories
A party may properly A party may properly shall be answered fully in writing and shall be signed and
seek disclosure of seek disclosure only of sworn to by the person making them.
matters of proof which matters which define
may later be made a the issues and become Note: No party may, without leave of court, serve more than one
part of the records of a part of the pleadings set of interrogatories to be answered by the same party. (Sec. 4,
evidence Rule 25)
Note: If a motion to a bill of particulars is denied, it will not bar the Q: How are interrogatories answered?
party to avail of modes of discovery.
A: The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making them.
The party upon whom the interrogatories have been served
shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for good
cause shown, extends or shortens the time (Sec. 2, Rule 25).
Q: How can a party make objections to the (3) If any party or an officer or managing agent of a party
interrogatories? refuses to obey an order made under section 1 of this
Rule requiring him to answer designated questions, or
A: Objections shall be presented to the court within 10 days an order under Rule 27 to produce any document or
after service of the interrogatories. The filing of the other thing for inspection, copying, or photographing or
objections shall have the effect of deferring the filing and to permit it to be done, or to permit entry upon land or
service of the answer to the interrogatories (Sec. 3, Rule other property, or an order made under Rule 28
25). requiring him to submit to a physical or mental
examination, the court may make such orders in regard
Q: Is leave of court necessary before a party may be to the refusal as are just, and among others the
served with written interrogatories? following:
(a) An order that the matters regarding which the
A: It is necessary before answer has been served because, questions were asked, or the character or
at that time, the issues are not yet joined and the disputed description of the thing or land, or the contents of
facts are not yet clear. However, it is not necessary after the paper, or the physical or mental condition of
answer has been served, for the first set of interrogatories. the party, or any other designated facts shall be
taken to be established for the purposes of the
Q: What is the scope and use of interrogatories? action in accordance with the claim of the party
obtaining the order;
A: Interrogatories may relate to any matters that can be (b) An order refusing to allow the disobedient
inquired into under Section 2 of Rule 23, and the answers party to support or oppose designated claims or
may be used for the same purposes provided in section 4 of defenses or prohibiting him from introducing in
the same Rule (Sec. 5, Rule 25). evidence designated documents or things or items
of testimony, or from introducing evidence of
CONSEQUENCES OF REFUSAL TO ANSWER physical or mental condition;
(c) An order striking out pleadings or parts thereof,
Q: What are the consequences of refusal to answer? or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or
A: any part thereof, or rendering a judgment by
(1) If a party or other deponent refuses to answer any default against the disobedient party;
question upon oral examination, the examination may (d) In lieu of any of the foregoing orders or in
be completed on other matters or adjourned as the addition thereto, an order directing the arrest of
proponent of the question may prefer. The proponent any party or agent of a party for disobeying any of
may thereafter apply to the proper court of the place such orders except an order to submit to a physical
where the deposition is being taken, for an order to or mental examination (Sec. 3, Rule 29).
compel an answer. The same procedure may be availed
of when a party or a witness refuses to answer any EFFECT OF FAILURE TO SERVE WRITTEN
interrogatory submitted under Rules 23 or 25. INTERROGATORIES
If the application is granted, the court shall require the Q: What is the effect of failure to serve written
refusing party or deponent to answer the question or interrogatories?
interrogatory and if it also finds that the refusal to
answer was without substantial justification, it may A: GR: A party not served with written interrogatories may
require the refusing party or deponent or the counsel not be compelled by the adverse party to give testimony in
advising the refusal, or both of them, to pay the open court, or to give a deposition pending appeal.
proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorneys XPN: When allowed by the court and there is good cause
fees. shown and the same is necessary to prevent a failure of
justice (Sec. 6, Rule 25).
If the application is denied and the court finds that it
was filed without substantial justification, the court may REQUEST FOR ADMISSION
require the proponent or the counsel advising the filing
of the application, or both of them, to pay to the Q: What admissions may be requested from the adverse
refusing party or deponent the amount of the party?
reasonable expenses incurred in opposing the
application, including attorneys fees (Sec. 1, Rule 29). A: Admission of the:
1. Genuineness of any material and relevant document
(2) If a party or other witness refuses to be sworn or refuses described in and exhibited with the request; or
to answer any question after being directed to do so by 2. Truth of any material and relevant matter of fact set
the court of the place in which the deposition is being forth in the request (Sec. 1, Rule 26).
taken, the refusal may be considered a contempt of
that court (Sec. 2, Rule 29). Note: The request for admission must be served directly upon the
party; otherwise, the party to whom the request is directed cannot
be deemed to have admitted the genuineness of any relevant Q: When should objections to any request for admission
document described in and exhibited with the request or relevant be submitted?
matters of fact set forth therein on account of failure to answer the
request for admission (Briboneria v. CA, G.R. No. 101682, Dec. 14,
A: They shall be submitted to the court by the party
1992).
requested within the period for and prior to the filing of his
The answer to a request for admission properly served which was sworn statement and his compliance therewith shall be
signed and sworn to by the counsel of the party so requested is deferred until such objections are resolved, which
sufficient compliance with this rule, especially in the light of resolution shall be made as early as practicable (Sec. 2[b],
counsels authority under Secs. 21 and 23, Rule 138 (Nestle Rule 26).
Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1, 2002).
Q: May an admission be withdrawn?
Q: When may request for admission be made?
A: Yes. The court may allow the party making the admission
A: At any time after issues have been joined, a party may to withdraw or amend the admission upon such terms as
file and serve upon any other party a written request for may be just (Sec. 4, Rule 26).
the admission by the latter (Sec. 1, Rule 26).
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
IMPLIED ADMISSION BY ADVERSE PARTY ADMISSION
Q: When is there an implied admission? Q: What is the effect of failure to file and serve request for
admission?
A: GR: Each of the matters of which an admission is
requested shall be deemed admitted. A: A party who fails to file and serve a request for
admission on the adverse party on material and relevant
XPN: When the party to whom the request is directed files facts at issue shall not be permitted to present evidence on
and serves upon the party requesting the admission a such facts unless otherwise allowed by the court for good
sworn statement either denying specifically the matters of cause shown and to prevent a failure of justice (Sec. 5, Rule
which an admission is requested or setting forth in detail 26).
the reasons why he cannot truthfully either admit or deny
those matters (Sec. 2, Rule 26). PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR
ADMISSION Q: What may the court order under this mode of
discovery?
Q: What is the effect of the failure to answer a request for
admission? A: Upon motion of any party showing good cause therefor,
the court in which an action is pending may order any party
A: The facts or documents are deemed admitted. Under the to:
Rules, each of the matters of which an admission is 1. Produce and permit the inspection and copying or
requested shall be deemed admitted unless within a period photographing, by or on behalf of the moving party, or
designated in the request which shall not be less than 15 of any designated documents, papers, books,
days after service thereof, or within such further time as accounts, letters, photographs, objects or tangible
the court may allow on motion, the party to whom the things, not privileged, which constitute or contain
request is directed files and serves upon the party evidence material to any matter involved in the action
requesting the admission a sworn statement either denying and which are in his possession, custody or control; or
specifically the matter of which an admission is requested 2. Permit entry upon designated land or other property
or setting forth in detail the reason why he cannot in his possession or control for the purpose of
truthfully either admit or deny those matters (Sec. 2, Rule inspecting, measuring, surveying, or photographing
26). the property or any designated relevant object or
operation thereon (Sec. 1, Rule 27).
EFFECT OF ADMISSION
Q: What are the limitations on the request for production
Q: What is the effect of admission? or inspection of documents or things?
Q: Distinguish the rule on production or inspection of or thereafter made, of the same mental or physical
documents or things under Rule 27 from subpoena duces condition (Sec 3, Rule 28).
tecum.
Q: What is the effect if the party examined requests and
A: obtains a report on the results of the examination?
Production or Subpoena Duces Tecum
Inspection of A:
Documents or Things 1. He has to furnish the other party a copy of the report
Essentially a mode of Means of compelling of any previous or subsequent examination of the
discovery. production of evidence. same physical and mental condition (Sec. 3, Rule 28).
Limited to the parties to It may be directed to 2. He waives any privilege he may have in that action or
the action. any person whether a any other involving the same controversy regarding
party or not. the testimony of every other person who has so
Issued only upon Issued upon an ex parte examined or may thereafter examine him (Sec. 4, Rule
motion with notice to application. 28).
the adverse party.
Note: If a party refuses to deliver the report upon request to the
Note: This mode of discovery does not authorize the opposing person causing the examination to be made, the court may require
party or the clerk of court or other functionaries of the court to its delivery on such terms as are just.
distrain the articles or deprive the person who produced the same
of their possession, even temporarily (Tanda v. Aldaya, GR No. L- If the physician refuses or fails to make a report, the court may
13423, Nov. 23, 1959). exclude his testimony (Sec 3, Rule 28).
Q: What is the procedure to avail of the production or CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES
inspection of documents or things? OF DISCOVERY
Note: If the adverse party admits the facts sought to be given ORDER OF TRIAL; REVERSAL OF ORDER
in evidence, the trial shall not be postponed even if he objects
or reserves the right to their admissibility. Q: What is the procedure in trial?
For illness of party or counsel A: Subject to the provisions of Sec. 2, Rule 31, and unless
1. A motion for postponement must be filed; the court for special reasons otherwise directs, the trial
2. The motion must be supported by an affidavit or shall be limited to the issues stated in the pre-trial order
sworn certification showing: and shall proceed as follows:
a. the presence of the party or counsel at the trial is
indispensable; and
b. that the character of his illness is such as to render Plaintiff shall adduce evidence in
his non-attendance excusable (Sec. 4, Rule 30). support of his complaint
A: The parties to any action may agree, in writing, upon the Parties against whom any counterclaim
facts involved in the litigation, and submit the case for or cross-claim has been pleaded, shall
judgment on the facts agreed upon, without the adduce evidence in support of their
defense, in the order to be prescribed
introduction of evidence.
by the court
If the parties agree only on some facts in issue, the trial
shall be held as to the disputed facts in such order as the Parties may then respectively adduce
court shall prescribe. (Sec. 6, Rule 30) rebutting evidence only, unless the court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
Q: Distinguish stipulation of facts in civil cases vis-a-vis upon their original case
criminal cases.
A:
Upon admission of the evidence, the case
Civil Cases Criminal Cases shall be deemed submitted for decision,
May be signed by the Must be signed both by unless the court directs the parties to argue
counsel alone who has a the counsel and the or to submit their respective memoranda or
special power of accused. any further pleadings
attorney.
May be made verbally It must always be in
Note: If several defendants or third party defendants and so forth
or in writing. writing. having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their evidence
(Sec. 5, Rule 30).
CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL tried (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24,
1971).
Q: Distinguish consolidation from severance
Q: When may civil actions be suspended?
A:
Consolidation Severance A:
Involves several actions Contemplates a single 1. If willingness to discuss a possible compromise is
having a common action having a number expressed by one or both parties; or
question of law or fact of claims, 2. If it appears that one of the parties, before the
which may be jointly counterclaims, cross- commencement of the action or proceeding, offered to
tried claims, third-party discuss a possible compromise but the other party
(Sec.1, Rule 31) complaints, or issues refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).
which may be
separately tried Q: Doris filed a complaint for ejectment in the MTC on the
(Sec. 2, Rule 31) ground of non-payment of rentals against Minda. After 2
days, Minda filed in the RTC a complaint against Doris for
Q: What are the requisites for consolidation? specific performance to enforce the option to purchase
the parcel of land subject of the ejectment case. What is
A: the effect of Minda's action on Doris' complaint? Explain
1. Actions involving a common question of law or fact; and (2000 Bar Question)
2. There must be at least 2 actions pending before the
same court (Sec.1, Rule 31). A: There is no effect. The ejectment case involves
possession de facto only. The action to enforce the option
Q: What are the ways of consolidating cases? to purchase will not suspend the action of ejectment for
non-payment of rentals (Wilmon Auto Supply Corp. v. CA,
A: G.R. No. 97637, Apr. 10, 1992).
Recasting the Consolidation Test-Case
Cases Proper Method DELEGATION OF RECEPTION OF EVIDENCE
Reshaping of It is a joint trial By hearing
the cases by with joint only the Q: May the judge delegate the reception of evidence?
amending the decision, the principal case
pleading, cases retaining and A: GR: No. The judge shall personally receive and resolve
dismissing their original suspending the the evidence to be adduced by the parties.
some cases docket hearing on the
and retaining numbers. other cases XPN: The reception of evidence may be delegated to the
only one case. until judgment Clerk of Court, who is a member of the bar, under the
There must be has been following conditions:
joinder of rendered in 1. in defaults hearings;
causes of the principal 2. ex parte hearings; or
action and of case. The cases 3. in any case where the parties agree in writing (Sec. 9,
parties. retain their Rule 30).
original docket
numbers Note: Said clerk shall have no power to rule on objections to
any question or to admission of evidence or exhibits; and he
(Riano, Civil
shall submit his report and transcripts of the proceedings,
Procedure: A together with the objections to be resolved by the court,
Restatement within 10 days from the termination of the hearing (Ibid).
for the Bar, p.
96, 2009 ed.). TRIAL BY COMMISSIONERS
A: GR: Consolidation is discretionary upon the court to A: A person to whom a case pending in court is referred, for
avoid multiplicity of suits, guard against oppression or him to take testimony, hear the parties and report thereon
abuse, prevent delay, clear congested dockets, and simplify to the court, and upon whose report, if confirmed,
the work of the trial court and save unnecessary costs and judgment is rendered.
expenses.
Q: Distinguish delegation to clerk of court under Rule 30 5. Rule upon the admissibility of evidence (Sec.3, Rule
from trial by commissioner under Rule 32. 32).
in question by proper objections. It is not expected to passengers of the ill-fated bus. Consequently, Nestor, son
rehear the case upon the entire record (Kreidt vs. of Nilo, filed a complaint against ABS Co. for damages.
McCullough and Co., 37 Phi. 474). After Nestor had rested his case, ABS Co. filed a demurrer
to evidence, contending that Nestor's evidence is
DEMURRER TO EVIDENCE insufficient because it did not show (1) that ABS Co. was
negligent and (2) that such negligence was the proximate
Q: When may a party to the case move for dismissal based cause of the collision. Should the court grant or deny
on insufficiency of evidence? defendant's demurrer to evidence? Reason briefly. (2004
Bar Question)
A: After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the A: No, the court should not grant defendants demurrer to
ground that upon the facts and the law the plaintiff has evidence. Under the Rules of Court, after the plaintiff has
shown no right to relief. If his motion is denied, he shall completed the presentation of his evidence, the defendant
have the right to present evidence. If the motion is granted may move for dismissal on the ground that upon the facts
but on appeal the order of dismissal is reversed he shall be and the law the plaintiff has shown no right to relief. Here,
deemed to have waived the right to present evidence Nestor has shown that he is entitled to the relief he is
(Sec.1, Rule 33). asking for. ABS Co. is a common carrier. Under Article 1756
of the Civil Code, in case of death of or injuries to
passengers, common carriers are presumed to have been at
Motion for Demurrer Motion for Demurrer fault or to have acted negligently, unless they prove that
Denied Granted but Reversed they observed extraordinary diligence. Proof that the
on Appeal defendant was negligent and that such negligence was the
Denial is interlocutory, Order of the court is an proximate cause of the collision is not required. Thus,
hence, not appealable. adjudication on the without proof that ABS Co. has exercised extraordinary
Sec. 1, Rule 36 (that merits. Hence, the diligence, the presumption of negligence stands.
judgment should state requirement in Sec. 1,
clearly and distinctly the Rule 36 should be GROUND
facts and the law on complied with.
which it is based), will The only ground for demurrer to evidence is upon showing
not apply. that upon the facts and the law, the plaintiff has shown no
right to relief.
Q: Distinguish a demurrer to evidence from a motion to
dismiss EFFECT OF DENIAL
Q: How is a final judgment understood? 8. Judgment on the pleadings (Rule 34) Proper when an
answer fails to tender an issue because of a general or
A: It may be understood in two senses: insufficient denial of the material allegations of the
1. Judgment that disposes of a case in a manner that leaves complaint or when the answer admits the material
nothing more to be done by the court in respect allegations of the adverse party's pleading.
thereto. In this sense, a final judgment is distinguished 9. Summary judgment (Rule 35) One granted by the
from an interlocutory order which does not finally court for the prompt disposition of civil actions wherein
terminate or dispose of the case. It has also the effect of it clearly appears that there exists no genuine issue or
ending the litigation, and an aggrieved party may then controversy as to any material fact.
appeal from the judgment. 10. Several judgment (Sec. 4, Rule 36) It is one rendered
by a court against one or more defendants and not
2. Judgment that is no longer appealable and is already against all of them, leaving the action to proceed
capable of being executed because the period for against the others.
appeal has elapsed without a party having perfected an 11. Separate judgment (Sec. 5, Rule 36) It is one rendered
appeal, or it has already been resolved by a highest disposing of a claim among several others presented in
possible tribunal. In this sense, the judgment is a case, after a determination of the issues material to a
commonly referred to as one that is final and executory particular claim and all counterclaims arising out of the
(Riano, Civil Procedure, 2011 ed.). transaction or occurrence which is the subject matter of
said claim.
Q: Can courts act upon facts and issues not pleaded by the 12. Special judgment (Sec. 11, Rule 39) One which can
parties? only be complied with by the judgment obligor because
of his personal qualifications or circumstances or one
A: No. It is vital to keep in mind that in the process of that requires the performance of an act other than:
rendering judgment or in resolving controversies, courts a. Payment of money; and
can only consider facts and issued pleaded by the parties. b. Sale of real and personal property.
Courts, as well as magistrates presiding over them are not 13. Judgment for specific acts (Sec. 10, Rule 39)
omniscient. They can only act on the facts and issues Applicable in cases of:
presented before their own personal knowledge for a. Conveyance, delivery of deeds, or other
evidence. Nor may they take notice of matters except those specific acts, vesting title;
expressly provided as subjects of mandatory judicial notice b. Sale of real or personal property;
(Social Justice Society vs. Atienza, G.R. No. 156052, Feb. 13, c. Delivery or restitution of real property;
2008). d. Removal of improvements on property subject
of execution; or
Q: What are the kinds of judgment? e. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) A
A: judgment rendered by the court dismissing a case upon
1. Judgment upon compromise It is one conferred on the motion of the defendant, made after plaintiff has rested
basis of a compromise agreement entered into between his case, on the ground that upon the facts presented
the parties. by the plaintiff and the law on the matter, plaintiff has
2. Judgment by confession It is one rendered by the not shown any right to relief.
court when a party expressly agrees to the other partys 15. Conditional judgment It is one the effectivity of which
claim or acknowledges the validity of the claim against depends upon the occurrence or non-occurrence of an
him. event.
3. Judgment upon the merits It is one that is rendered 16. Final judgment One which disposes of the whole
after consideration of the evidence submitted by the subject matter or terminates the particular proceedings
parties during the trial of the case. or action, leaving nothing to be done by the court but to
4. Clarificatory judgment It is rendered to clarify an enforce by execution what has been determined.
ambiguous judgment or one difficult to comply with.
5. Judgment nunc pro tunc (Now for then) A judgment Q: Distinguish several judgments from separate
intended to enter into the record the acts which had judgments.
already been done, but which do not appear in the
records. Its only function is to record some act of the A:
court which was done at a former time, but which was Several Judgment Separate Judgment
not then recorded, in order to make the record speak Proper where the liability Proper when more
the truth, without any changes in substance or any of each party is clearly than one claim for
material respect. separable and distinct relief is presented in
6. Judgment sin perjuicio Judgment without a statement from his co-parties such an action and a
of the facts in support of its conclusion to be later that the claims against determination as to
supplemented by the final judgment. This is not each of them could have the issues material to
allowed. been the subject of a the claim has been
7. Judgment by default (Sec. 3, Rule 9) Rendered by the separate suit, and the made. The action
court following a default order or after it received, ex judgment for or against shall proceed as to
parte, plaintiffs evidence. one of them will not the remaining claims.
Q: What is the difference between a judgment and an A: Decisions which adopt by reference the findings of facts
opinion of the court? (2006 Bar Question) and conclusions of law of inferior tribunals. In this
jurisdiction, it has been held that memorandum decisions
A: The judgment or fallo is the final disposition of the court do not transgress the constitutional requirement in Article
which is reflected in the dispositive portion of the decision VIII, Section 14, on clearly and distinctly stating the facts
while the opinion of the court is contained in the body of and the law on which the decision is based. Nonetheless, it
the decision that serves as a guide or enlightenment to would be more prudent for a memorandum decision not to
determine the ratio decidendi of the decision. be simply limited to the dispositive portion but to (1) state
the nature of the case, (2) summarize the facts with
Q: What is an obiter dictum? references to the record, and (3) contain a statement of the
applicable laws and jurisprudence and the tribunals
A: It is an opinion expressed by a court, which is not assessments and conclusions on the case. This practice
necessary to the decision of the case before it. It is neither would better enable a court to make an appropriate
enforceable as a relief nor a source of a judicially actionable consideration of whether the dispositive portion of the
claim. judgment sought to be enforced is consistent with the
findings of facts and conclusions of law made by the
Q: What are the requisites of a valid judgment? tribunal that rendered the decision (Oil and Natural Gas
Commission v. Court of Appeals, G.R. No.
A: The: 114323. September 28, 1999).
1. court or tribunal must be clothed with authority to
hear and determine the matter before it; Q: What is an interlocutory order? (2006 Bar Question)
2. court must have jurisdiction over the parties and the
subject matter; A: It is an order which decides some point or matter
3. parties must have been given an opportunity to between the commencement and end of the suit but is not
adduce evidence in their behalf; the final decision on the whole controversy. It leaves
4. evidence must have been considered by the tribunal in something to be done by the court before the case is finally
deciding the case; decided on the merits.
5. judgment must be in writing, personally and directly
prepared by the judge; Q: What is the remedy to question an improvident
interlocutory order?
Note: A verbal judgment is, in contemplation of law, not in
esse, therefore, ineffective (Corus vs. Sandiganbayan, 442 A: File a petition for certiorari under Rule 65 not under Rule
SCRA 294) 45. A petition for review under Rule 45 is the proper mode
of redress to question only final judgments.
6. judgment must state clearly the facts and the law on
which it is based, signed by the judge and filed with Note: One cannot appeal from an interlocutory order.
the clerk of court (Sec. 1, Rule 36).
JUDGMENT ON THE PLEADINGS
Note: This requirement refers to decisions and final orders on
the merits not to those resolving incidental matters. (Pablo-
Gualberto vs. Gualberto, 461 SCRA 450) Q: What are the grounds for judgment on the pleadings?
(1999 Bar Question)
Q: After plaintiff, in an ordinary civil action before the
RTC, has completed presentation of his evidence, A:
defendant without prior leave of court moved for 1. The answer fails to tender an issue because of:
dismissal of plaintiff's complaint for insufficiency of a. General denial of the material allegations of the
plaintiff's evidence. After due hearing of the motion and complaint;
the opposition thereto, the court issued an order, reading b. Insufficient denial of the material allegations of
as follows: "The Court hereby grants defendant's motion the complaint.
2. The answer admits material allegations of the adverse Evidence is not received Evidence is received.
partys pleadings (Sec. 1, Rule 34). as the same is based on
the pleadings alone.
Q: When is judgment on the pleadings not applicable? Decision is based on the Decision is based on the
allegations in the evidence presented.
A: pleadings.
1. Actions for declaration of nullity of marriage, Generally available only Available to plaintiff.
annulment of marriage or for legal separation to the plaintiff, unless
2. Unliquidated damages the defendant presents
3. Insufficiency of fact amendment is the remedy a counterclaim.
Q: What is the effect when the plaintiff moves for Q: Distinguish motion for judgment on the pleadings from
judgment on the pleadings and defendants interpose no motion to dismiss
objection?
A:
A: The latter is deemed to have admitted the truth of the Motion for Judgment Motion to Dismiss
allegations of the complaint, so that there is no longer any on the Pleadings
necessity for the plaintiff to submit evidence of his claims Filed by the plaintiff if Filed by a defendant to
(Phil. Advertising counselors, Inc. v. Revilla, G.R. No. L- the answer raises no a complaint,
31869, Aug. 8, 1973). issue. counterclaim, cross-
claim or third-party
Q: Sunbanun, owner of a residential house, entered into a complaint.
lease agreement with Go, which the latter subleased. 3
months before the expiration of the lease agreement, Note: If the complaint states no cause of action, a motion to
Sunbanun, alleging that Go violated the agreement dismiss should be filed and not a motion for judgment on the
because the latter subleases the premises, said that she is pleadings.
terminating the lease. Thereafter, Go filed an action for
damages against Sunbanun. At the pre-trial, Sunbanun SUMMARY JUDGMENTS
moved for the case to be submitted for judgment on the
pleadings considering that the only disagreement Q: When is summary judgment (accelerated judgment)
between the parties was the correct interpretation of the proper?
lease contract. Go did not object to the motion. The trial
court rendered judgment in favor of Go. Is judgment on A: It is proper where, upon motion filed after the issues had
the pleadings proper? been joined and on the basis of the pleadings and papers
filed, the court finds that there is no genuine issue as to any
A: Yes. The trial court has the discretion to grant a motion material fact except as to the amount of damages (Ley
for judgment on the pleadings filed by a party if there is no Construction & Dev. Corp. v. Union Bank of the Phil., G.R.
controverted matter in the case after the answer is filed. No. 133801, June 27, 2000).
The instant case is unusual because it was Sunbanun, and Note: A claimant may at any time after the pleading in answer
not the claimant Go, who moved for a judgment on the thereto has been served, and the defendant may, at any time,
pleadings during the pre-trial. Sunbanun, in moving for a move with supporting affidavits, depositions or admissions for a
judgment on the pleadings without offering proof as to the summary judgment in his favor upon all or any part thereof. (Secs.
1 and 2, Rule 35)
truth of her own allegations and without giving Go the
opportunity to introduce evidence, is deemed to have
Q: What are the requisites of summary judgments?
admitted the material and relevant averments of the
complaint, and to rest her motion for judgment based on
A:
the pleadings of the parties (Sunbanun v. Go, G.R. No.
163280, Feb. 2, 2010). 1. The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse
Q: Distinguish judgment on the pleadings from judgment party may serve opposing affidavits, depositions, or
by default. admissions at least three (3) days before the hearing.
Note: There is genuine issue when an issue of fact is FOR THE DEFENDANT
presented which requires presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim. A party against whom a claim, counterclaim or cross-claim
(Monterey Foods Corp. v. Eserjose, G.R. No. 153126, Sept. 11,
is asserted or a declaratory relief is sought may, at any
2003)
time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all or
3. The party presenting the motion for summary
any part thereof (Sec. 2, Rule 35).
judgment must be entitled to a judgment as a matter
of law.
Q: What are the bases of summary judgment?
Q: Garcia, et. al. filed a complaint for quieting of title with
A:
writ of preliminary injunction with the RTC against Eland
1. Affidavits made on personal knowledge;
Philippines, Inc. The latter found out that the lot was the
2. Depositions of the adverse party or a third party under
subject of a land registration proceeding that had already
Rule 23;
been decided by the same court. Eland thus filed a motion
3. Admissions of the adverse party under Rule 26; and
to dismiss. The motion was denied and the trial court
4. Answers to interrogatories under Rule 25. All intended
enjoined Eland to file its answer. Thereafter, Garcia et. al.
to show that:
moved to declare Eland in default which was granted and
a. There is no genuine issue as to any material
the former were allowed to present evidence ex parte.
fact, except damages which must always be
After the many motions initiated by Eland were denied,
proved; and
Garcia et. al. moved for summary judgment. The motion
b. The movant is entitled to a judgment as a
was granted and the trial court decided in Garcias et. al
matter of law.
favor. Is summary judgment proper?
Q: Who has the burden of demonstrating the absence of
A: No. Trial courts have limited authority to render
genuine issue of fact?
summary judgments and may do so only when there is
clearly no genuine issue as to any material fact.
A: The party who moves for summary judgment has the
burdent of demonstrating clearly that the issue posed in
Eland is already the registered owner of the parcel of land
the complaint is patently unsubstantial so as not to
in question, pursuant to a decree of registration based on
constitue a genuine issue for trial. (Riano, Civil Procedure: A
the ruling of the same court that granted the summary
Restatement for the Bar, p. 552, 2011 ed.).
judgment. By granting the summary judgment, the trial
court has in effect annulled its former ruling based on a
WHEN THE CASE IS NOT FULLY ADJUDICATED
claim of possession and ownership of the same land for
more than 30 years without the benefit of a full-blown
Q: What happens when a case is not fully adjudicated?
trial. The fact that Garcia et. al. seek to nullify the original
certificate of title issued to Eland on the claim that the
A: If on motion, judgment is not rendered upon the whole
former were in possession of the same land for a number of
case or for all the reliefs sought and a trial is necessary, the
years, is already a clear indicium that a genuine issue of a
court at the hearing of the motion, by examining the
material fact exists. (Eland Philippines, Inc. v. Azucena
pleadings and the evidence before it and by interrogating
Garcia et. al, G.R. No. 173289, Feb. 17, 2010).
counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good
Q: What are the important features of Rule 35?
faith controverted. It shall thereupon make an order
specifying the facts that appear without substantial
A:
controversy, including the extent to which the amount of
1. There is no limitation as to the type of action in which
damages or other relief is not in controversy, and directing
the remedy is available (claim, counterclaim, cross
such further proceedings in the action as are just. The facts
claim, declaratory relief);
so specified shall be deemed established, and the trial shall
2. The remedy is available to both parties alike; and
be conducted on the controverted facts accordingly (Sec. 4,
3. The summary judgment procedure has been coupled
Rule 35).
with deposition-discovery procedure (Feria & Noche,
Civil Procedure Annotated, p. 604, 2001 ed) Note: A partial summary judgment is not a final or appealable
judgment (Province of Pangasinan v. Court of Appeals, 220 SCRA
FOR THE CLAIMANT 726).
A party seeking to recover upon a claim, counterclaim, or Q: After Geoff has served and filed his answer to John's
cross-claim or to obtain a declaratory relief may, at any complaint for damages, John served and filed a motion for
time after the pleading in answer thereto has been served, a summary judgment in his favor upon all of his claims.
move with supporting affidavits, depositions or admissions Geoff served and filed his opposition to the motion. After
for a summary judgment in his favor upon all or any part due hearing, the court issued an order (1) stating that the
thereof (Sec. 1, Rule 35). court has found no genuine issue as to any material fact
and thus concluded that John is entitled to judgment in his
favor as a matter of law except as to the amount of
Q: Distinguish summary judgment, judgment on the A: No. A decision becomes binding only after it is validly
pleadings and judgment by default(1989 Bar Question) promulgated. Consequently, if at the time of the
promulgation of a decision or resolution, a member of the
A: collegiate court who had earlier signed or registered his
Summary Judgment Judgment on the Pleadings vote has vacated his office, his vote is automatically
(Rule 35) (Rule 34) withdrawn or cancelled. The Resolution, in this case,
Based on the pleadings, Based solely on the remains valid because it is still supported by a majority of
depositions, admissions and pleadings. the COMELEC en banc (Benwaren v. COMELEC, G.R. No.
affidavits. 169393, Apr. 7, 2006).
Available to both plaintiff Generally available only to
and defendant. the plaintiff, unless the Q: How should a judgment be prepared?
defendant presents a
counterclaim. A: A judgment or final order determining the merits of the
There is no genuine issue The answer fails to tender case shall be in writing personally and directly prepared by
between the parties, i.e. an issue or there is an the judge, stating clearly and distinctly the facts and the law
there may be issues but admission of material on which it is based, signed by him, and filed with the clerk
these are irrelevant. allegations. of the court (Sec. 1, Rule 36).
10-day notice required. 3-day notice for motion
Q: Are courts required to state in its decision all the facts XPN: Any of the parties moves that his case be decided by
found in the records? the judge who substantially heard the evidence and before
whom the case was submitted for decision (Valentin v. Sta.
A: No. While it is required that decisions, no matter how Maria, G.R. No. L-30158, Jan. 17, 1974).
consicely written, be distinctly and clearly set forth the
facts and the law upon which they are based (Naguiat v. Note: A decision penned by a judge after his retirement cannot be
NLRC, 269 SCRA 564), the rule however, does not require validly promulgated and cannot acquire a binding effect. In like
that the court shall state in its decision all the facts found in manner, a decision penned by a judge during his incumbency
cannot be validly promulgated after his retirement. (Nazareno v.
the records (People v. Derpo, 168 SCRA 447). A decision
CA, G.R. No. 111610, Feb. 27, 2002)
need not be a complete recital of the evidence presented.
So long as the factual and legal basis is distinctly and clearly
set forth, the judgment is valid (Chan v. Court of Appeals,
457 SCRA 502).
Note: A decision that does not clearly and distinctly state the facts
and the law on which it is based leaves the parties in the dark as to
how it was reached and is specially prejudicial to the losing party,
who is unable to pinpoint the possible errors of the court for
review by a higher tribunal. (Miguel v. JCT Group, Inc., 453 SCRA
529)
Losing Party
Judgment
becomes final Court grants
and executory. motion:
Court 1. Modifies
maintains decision;
decision or
2. Grants
new trial.
Entry of
judgment
Appeal
Note: This rule does not apply to resolutions rendered in There are some proceedings the filing of which is reckoned from
connection with the case wherein no rationale has been the date of the entry of judgment: (a) the execution of a judgment
expounded on the merits of that action. by motion is within five (5) years from the entry of the judgment
(Sec. 6, Rule 39); (b) the filing of a petition for relief must be filed
Q: What is the principle of stare decisis et non quieta not more than 60 days from knowledge of the judgment and not
movere? more than six (6) months from the entry of the judgment or final
order (Sec. 3, Rule 38).
A: It holds that a point of law, once established by the court
(Supreme Court), will generally be followed by the same Q: When does a judgment become final?
court and by all courts of lower rank in subsequent cases
involving a similar legal issue. This proceeds from the legal A: Upon lapse of the reglementary period to appeal, with
principle that, in the absence of powerful countervailing no appeal perfected within such period, does the decision
considerations, like cases ought to be decided alike. become final and executor (Sec. 1, Rule 39; Banco de Brasil
v. CA, G.R. Nos. 121576-78, June 16, 2000), and upon a final 2. The irregularity of its entry is apparent from the face
decision rendered by the Supreme Court. of the record.
Q: What is the effect of void judgments (doctrine of total
Q: May the courts amend a judgment after the same has nullity)?
become executory?
A: A void judgment is in legal effect no judgment. By it no
A: GR: No, when a judgment is final and executory, it rights are divested, no rights can be obtained. Being
becomes immutable and unalterable (Rule of immutability). worthless in itself, all proceeding founded upon it are
equally worthless. It neither binds nor bars any one. All acts
XPN: Courts may amend a judgment even if it has become performed under it and all claims flowing out of it are void.
executory in the following instances:
1. To correct clerical errors or to make nunc pro tunc Q: Jayson, a career service officer, was illegally dismissed
entries (Philippine Economic Zone Authority v. Borreta, from his position. Thus, Jayson filed a complaint for illegal
G.R. No. 142669, Mar. 15, 2006); dismissal with the Career Executive Service Board (CESB).
While the said complaint was pending before the CESB,
Note: A clerical error is one which does not involve an Jayson filed a petition for quo warranto with the CA
exercise of judicial functions. praying that he be reinstated to his former post. The CESB
rendered a decision finding that Jayson was illegally
2. To clarify an ambiguity which is borne out by and dismissed. The CA found that Jayson resigned and was not
justifiable in the context of the decision; illegally dismissed. Both decisions became final for failure
to appeal the same. Are the two decisions immutable and
Note: The remedy is to file a motion for clarificatory unalterable in view of their finality?
judgment.
A: No, neither decision is immutable nor unalterable. As a
3. Judgments for support, which can always be amended
rule, a decision that has acquired finality becomes
from time to time;
immutable and unalterable. A final judgment may no longer
4. Void judgment.
be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and law;
Q: Distinguish amended or clarified judgment from
and whether it be made by the court that rendered it or by
supplemental decision.
the highest court in the land. In this case, however, to hold
that both decisions are immutable and unalterable would
A:
cause confusion and uncertainty (Collantes v. CA, G.R. No.
Amended or Clarified Supplemental 169604, Mar. 6, 2007).
Judgment Decision
It is an entirely new Does not take the Q: Can a judgment be penned by a judge who did not hear
decision and supersedes place of or the evidence?
the original judgment. extinguish the
original judgment. A: Yes, it is not necessary that the judge who heard the
Court makes a thorough Serves to bolster or evidence be the same judge who shall pen the decision. The
study of the original add to the original judge who originally tried the case may die, resign, be
judgment and renders judgment. disabled or transferred to another. In such an eventuality,
the amended and another judge has to continue and finish the trial.
clarified judgment only
after considering all the Q: What is the effect of a judgment or final order of a
factual and legal issues. tribunal of a foreign country having jurisdiction to render
the judgment or final order? (2007 Bar Question)
Q: What is the effect of amendment of judgment?
A:
A: The date of the amendment should be considered as the 1. If the judgment is on a specific thing, the judgment is
date of the decision for the computation of the period to conclusive upon the title to the thing;
perfect the appeal. 2. If the judgment is against a person, the judgment is
presumptive evidence of a right as between the
parties and their successor in interest by a subsequent
Q: May a judgment be attacked collaterally? title.
A: GR: The validity of a judgment or order of a court cannot Q: What are the grounds in assailing the judgment or final
be collaterally attacked. order of a foreign country? (2007 Bar Question)
XPN: It may be attacked collaterally on the following
A:
grounds:
1. Evidence of want of jurisdiction;
1. Lack of jurisdiction; or
2. Want of notice to the party;
3. Collusion;
4. Fraud; or
5. Clear mistake of fact or law.
A:
MOTION FOR NEW TRIAL (MNT) MOTION FOR RECONSIDERATION
(MR)
Grounds
1. Extrinsic fraud, accident, mistake or excusable 1. The damages awarded are
negligence (FAME) which ordinary prudence could not excessive;
have guarded against and by reason of which the rights 2. The evidence is insufficient to
of the aggrieved party were impaired; or satisfy the decision or final
2. Newly discovered evidence, which could not with order; or
reasonable diligence, have been discovered and 3. The decision or final order is
produced at the trial, and which if presented, would contrary to law (Sec. 1, Rule 37).
probably alter the result (Sec. 1, Rule 37).
Requisites
A: A:
1. They shall be in writing, stating the ground or grounds 1. They shall be in writing, stating
therefore, a written notice of which shall be served by the ground or grounds
the movant on the adverse party. (Sec 2, Rule 37) therefore, a written notice of
2. Affidavit of merit setting forth the particular facts which shall be served by the
claimed to constitute a meritorious cause of action in movant on the adverse party.
case the ground relied upon is FAME; (Sec 2, Rule 37)
3. In case of newly discovered evidence: 2. Must point out specifically the
a. Affidavit of new witnesses; and conclusion of judgment;
b. Duly authenticated documents to be introduced. 3. Express reference to testimonial
or documentary evidence or to
provisions of law.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma
or a mere scrap of paper and will not toll the reglementary period for appeal.
When to file
Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or
final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal
and a record on appeal within 30 days after notice of the judgment or final order. (Sec. 1, Rule 37) The
filing of a timely motion interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
Note: No motion for extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed
(Sec. 2, Rule 40).
Second motion may be allowed so long as based on grounds not Single motion rule
existing or available at the time the first motion was made (Sec. 5, No party shall be allowed a second
Rule 37). motion for reconsideration of a
judgment or final order (Sec. 5, Rule
37).
Q: What happens if the motion is filed without the 3. It failed to substantiate the alleged errors; or
required affidavits? 4. It merely alleged that the decision in question was
contrary to law; or
A: Non- compliance with the requirements of the Rules 5. The adverse party was not given due notice thereof
would reduce the motion to a mere pro- forma motion. A (Riano, Civil Procedure: A Restatement for the Bar, p.
pro forma motion is one which does not satisfy the 429, 2009 ed.).
requirements of the rules and one which will be treated as Q: What is a Motion for New Trial?
a motion intended to delay the proceeding (Marikina
Development Corporation vs. Flojo, 251 SCRA 87). A. It is a motion for the trial court to set aside the
judgment or final order and grant a new trial (Riano, Civil
Note: Under Sec. 2, Rule 37, a pro- forma motion shall not toll the Procedure: A Restatement for the Bar, p.436, 2009 ed).
reglementary period of appeal.
Q: What are the requisites of newly discovered evidence
Q: What are the grounds which makes the MR pro forma? as a ground for New Trial?
Q: Distinguish Newly Discovered Evidence from Forgotten Q: What is the effect of an order denying the MNT or MR?
Evidence
A: The order denying a motion for new trial or
A: reconsideration is not appealable, the remedy being an
NEWLY DISCOVERED FORGOTTEN EVIDENCE appeal from the judgment or final order (Sec. 9, Rule 37).
EVIDENCE The movant has a fresh period of fifteen days from receipt
Evidence was not Evidence was already or notice of the order denying or dismissing the motion for
available to a party available to a party and reconsideration within which to file a notice of appeal. It is
during a trial, and was was not presented no longer assailable by certiorari (Sec. 9, Rule 37, A.M. No.
discovered only through inadvertence or 07-7-12-SC).
thereafter. negligence of the
counsel; it is not a Q: What is the effect of an order reversing the grant of a
ground for new trial. new trial?
Q: Distinguish Motion for New Trial from Motion for A: Legally speaking, the effect of the order withdrawing the
Reopening of the Trial grant of new trial is that the original judgment shall be
deemed as having been repromulgated. In other words,
A: since the original judgment had already been vacated, the
MOTION FOR MOTION FOR REOPENING OF reconsideration of the grant of new trial does not in turn
NEW TRIAL TRIAL vacate the said grant, although the original judgment is
A motion must be The judge may act motu given a new life. (Pineda vs. Court of Appeals G.R. No. L-
filed propio 38196 July 22, 1975).
Proper only after May properly be presented
promulgation of only after either or both GRANT OF THE MOTION; EFFECT
judgment parties have formally offered
and closed their evidence Q: What is the effect if the motion for new trial is granted?
before judgment
Based upon Controlled by no other than A: If the motion for new trial is granted in accordance with
specific grounds the paramount interest of the provisions of the rules, the original judgment shall be
mentioned in Sec. justice, resting entirely on the vacated or set aside, and the action shall stand for trial de
37 in civil cases sound discretion of the court, novo; but the recorded evidence taken upon the former
and Sec. 121 in the exercise of such shall not trial so far as the same is material and competent to
criminal cases be reviewable on appeal establish the issues, shall be used at the new trial without
UNLESS a clear abuse thereof retaking the same (Sec. 6, Rule 37).
is shown.
Q: What is the effect if a motion for reconsideration is
Q: What is a motion for reconsideration? granted?
A: A motion for reconsideration under Rule 37 is one that is A: The court may amend such judgment or final order
directed against a judgment or a final order, and not the accordingly (Sec. 3, Rule 37). The amended judgment is in
motion for reconsideration of an interlocutory order. the nature of a new judgment which supersedes the
(Riano, Civil Procedure: A Restatement for the Bar, pp. 427, original judgment, and is not a mere supplemental decision
2009 ed) (Esquivel vs. Alegre, 172 SCRA 315).
Q: What is the purpose of a MR? REMEDY WHEN MOTION IS DENIED, FRESH 15 DAY RULE
Note: The appeal shall not stay the award, judgment, final Q: What is the basis of the courts power to rule on such
order unless the CA directs otherwise (Sec. 12, Rule 43). issues not raised on appeal?
5. Appeal by certiorari under Rule 45 A: The court is imbued with sufficient authority and
a. RTC to SC (Sec 2c, Rule 41) questions of law discretion to review matters, not otherwise assigned as
b. CA to SC (Sec. 1, Rule 45) - questions of law errors on appeal, as it finds that the consideration is
c. Sandiganbayan to SC (Sec. 1, Rule 45) - questions of necessary in arriving at a complete and just resolution of
law the case or to serve the interest of justice or to avoid
d. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45 dispensing piecemeal justice (Asian Terminals, Inc. v.NLRC,
as amended by AM No. 07- 7-12- SC) - questions of 541 SCRA 105, 2007).
law
e. Appeals from a judgment or final order in a petition PERIOD OF APPEAL
for a writ of amparo to the SC (AM No. 07-9-12- SC)
questions of fact and law Q: What is the period of appeal via notice of appeal under
f. Appeals from a judgment or final order in a petition Rule 40, 41, 42, 43, and 45?
for a writ of Habeas Data (AM No. 08-1-16-SC) -
questions of fact and law A: A party-litigant may either file his notice of appeal within
g. Appeals from judgment or final order in a petition 15 days from receipt of courts decision or file it within 15
for writ of Kalikasan (AM No. 09-6-8-SC) - questions days from receipt of the final order denying his motion for
of fact and law new trial or motion for reconsideration. Obviously, the new
15-day period may be availed of only if either motion is
ISSUES TO BE RAISED ON APPEAL filed; otherwise, the decision becomes final and executory
after the lapse of the original appeal period. This is
Q: What issues are to be considered on appeal? intended to make the appeal period uniform (Neypes v. CA,
GR 141524, September 14, 2005).
A: GR: The appellate court shall consider no error unless
stated in the assignment of errors (Sec. 8, Rule 51). Note: Appeal in habeas corpus cases shall be taken within 48 hours
from receipt of the courts decision or final order denying motion
XPN: However the court may consider an error not raised for reconsideration or new trial.
on appeal provided the same falls within any of the
following categories: Note: The Court in Fil-Estate Properties, Inc. v. Homena-Valencia,
G.R. No. 173942, June 25, 2008, held that, The determinative issue
1. It is an error that affects the jurisdiction over the
is whether the fresh period rule announced in Neypes could
subject matter; retroactively apply in cases where the period for appeal had lapsed
2. It is an error that affects the validity of the judgment prior to 14 September 2005 when Neypes was promulgated. That
appealed from; question may be answered with the guidance of the general rule
3. It is an error which affects the proceedings; that procedural laws may be given retroactive effect to actions
4. It is an error closely related to or dependent on an pending and undetermined at the time of their passage, there
assigned error and properly argued in the brief; or being no vested rights in the rules of procedure.
5. It is a plain and clerical error (Sec. 5, Rule 51).
Q: What if the means of appeal is record on appeal?
Note: Exceptions provided by Jurisprudence:
A: The period is 30 days from receipt of courts decision or
1. The fact that appellants brief did not raise the lack of the final order denying his motion for new trial or motion
jurisdiction of the trial court should not prevent the CA for reconsideration.
from taking up the issue of lack of jurisdiction (Dy v.
NLRC 145 SCRA 211; Bar 1993). Note: Record on appeal is required in the following:
2. Supreme Court is clothed with ample authority to 1. Actions for recovery of property with accounting;
review rulings even if they are not assigned as errors on 2. Actions for partition of property with accounting;
appeal, if it finds that their consideration is necessary in 3. Special civil actions of eminent domain and foreclosure of
arriving at a just decision of the case (Dumo v. Espinas, mortgage; and
GR Np. 141962, Jan. 25, 2006). 4. Special proceedings. (Roman Catholic Archbishop v. CA , G.R.
3. Though petitioners did not raise in issue the appellate No. 111324)
courts reversal of the award of damages in their favor,
the Court has the discretion to pass upon this matter
and determine whether or not there is sufficient
justification for the award of damages (Sps. Romulo v.
Sps Layug, GR No. 151217, Sept. 8, 2006). Q: May a period of appeal be extended?
4. The Court of Appeals is imbued with sufficient authority
and discretion to review matters, not otherwise A: Yes, under the sound discretion of the court. However,
assigned as errors on appeal, if it finds that their the mere filing of the motion for extension of time to
consideration is necessary in arriving at a complete and perfect the appeal does not suspend the running of the
just resolution of the case or to serve the interests of
reglementary period.
justice or to avoid dispensing piecemeal justice (Asian
Terminals v. NLRC, 541 SCRA 105).
Effect: The court loses jurisdiction over the case upon Q: What is the function of notice of appeal?
the perfection of the appeal filed in due time and the
expiration of the time to appeal of the other parties A: The function of the notice of appeal is merely to notify
the trial court that the appellant is availing of the right to
2. Appeal by record on appeal perfected as to the party appeal, and not to seek the courts permission that he be
with respect to the subject matter thereof upon the allowed to pose an appeal (Crisologo v. Daray, AM No. RTJ-
approval of the record on appeal filed in due time and 07-2036, Aug. 30, 2006). It does not require the approval of
upon payment of the appellate court docket fee. the court.
Effect: The court loses jurisdiction only over the Q: What is the effect of judgment on those who failed to
subject matter upon the approval of the records on appeal?
appeal filed in due time and the expiration of the time
to appeal of the other parties A:
1. As to affirmative relief an appellee who has himself
3. Appeal by petition for review upon the timely filing of not appealed may not obtain from the appellate court
a petition for review and the payment of the any affirmative relief other than what was granted in
corresponding docket and other lawful fees, the the decision of the lower court
appeal is deemed perfected as to the petitioner.
2. As to reversal of judgment
Note: Even if the appeal was filed out of time, the court still has
jurisdiction to admit and give due course to it, PROVIDED there are
justifiable reasons.
Q: Is the perfection of an appeal jurisdictional? APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
MTC
A: GR: Yes. Perfection of appeal within the reglementary
period is jurisdictional. Q: Discuss the procedure of appeal from decisions of the
MTC to the RTC.
XPN: When there has been extrinsic fraud, accident,
mistake, or excusable negligence (FAME), resort to Petition A:
for relief from judgment under rule 38 (Habaluyas v.
Japson, 142 SCRA 208, 1986).
Appeal decision of MTC by filing notice of
appeal within 15 days or 30 days where a
Q: What is the effect of a perfected appeal?
record on appeal is required from receipt
of judgment.
A: GR: Judgment is not vacated by appeal, but is merely
stayed and may be affirmed, modified or reversed or
findings of facts or conclusions of law may be adopted by Copies of the notice, and record on appeal
reference. when required, shall be served on the
adverse party.
XPN: Not applicable to civil cases under the Rules on
Summary Procedure which provides that the decision of the
RTC in civil cases governed by said Rule including forcible The MTC clerk transmits record to the RTC
entry and unlawful detainer cases, shall be immediately within 15 days from perfection of appeal.
executory without prejudice to a further appeal that maybe
taken therefrom. Also, under Rule 43, an appeal from quasi Parties are given notice that the records
judicial bodies shall not stay the judgment unless the CA have been received by the RTC.
directs otherwise.
Q: Would non- payment of appellate docket fees result to 1. Within 15 days from notice of appeal
the dismissal of the case? appellant submits memorandum to the
RTC.
A: GR: Payment of docket fee is jurisdictional. Without such 2. Within 15 days from receipt of
payment, the appellate court does not acquire jurisdiction appellants memorandum appellee files
over the subject matter of the action and the decision his memorandum.
sought to be appealed from becomes final and executory
(Regalado v. Go, GR No. 167988, February 6, 2007). Q: How should the RTC decide an appeal from an order of
a lower court dismissing a case without trial or those
XPNs: rendered without jurisdiction?
1. The failure to pay appellate court docket fee within
the reglementary period allows only discretionary A:
dismissal, not automatic dismissal, of the appeal; 1. If the lower court dismissed the case without trial on
2. Such power should be used in the exercise of the the merits, RTC may:
courts sound discretion (Republic v. Spouses Luriz, GR a) Affirm- in such case, it is a declaration of the
No. 158992, January 26, 2007). merits of the dismissal;
b) Affirm and the ground of dismissal is lack of
jurisdiction over the subject matter the action of
the RTC is a mere affirmation of the dismissal. The
RTC shall try the case on the merits as if the case
was originally filed with it;
A: The SC is not a trier of facts, and is not to review or Q: Distinguish Petition for Review on Certiorari under Rule
calibrate the evidence on record. Moreover, the findings of 45 and Certiorari under Rule 65.
facts of the trial court, as affirmed on appeal by the CA, are
conclusive on the Supreme Court. (Boston Bank of the A:
Philippines v. Manalo, GR No. 158149, Feb. 9, 2006; PETITION FOR REVIEW SPECIAL CIVIL ACTION
Frondarina v. Malazarte, GR No. 148423, Dec. 6, 2006) ON CERTIORARI (RULE ON CERTIORARI (RULE
45) 65)
Q: How does a question of law differ from a question of Mode of appeal which Special civil action; an
fact? seeks to review final original action (Rule 65).
judgments and orders It may be directed against
A: A question of law exists when the doubt or controversy (Section 2, Rule 41). an interlocutory order or
concerns the correct application of law or jurisprudence to matters where no appeal
a certain given set of facts; or when the issue does not call may be taken from
for an examination of the probative value of the evidence (Section 1, Rule 41)
presented, the truth or falsehood of facts being admitted. A Rule 45 is but a Rule 65 is not part of the
question of fact obtains when the doubt or difference continuation of the appellate process but an
arises as to the truth or falsehood of facts or when the appellate process over independent action.
query invites the calibration of the whole evidence the original case.
considering mainly the credibility of the witnesses, the Raises questions of law Raises questions of
existence and relevancy of specific surrounding jurisdiction
circumstances, as well as their relation to each other and to It shall be filed within It shall be filed not later
the whole, and the probability of the situation (Irene 15 days from notice of than 60 days from notice
Marcos-Araneta, et al. vs. CA, G.R. No. 154096, Aug. 22, judgment or final order of judgment, order or
2008). appealed from resolution sought to be
assailed or from denial of
Q: What are the contents of the verified petition under an MR or MNT
Rule 45? Does not require prior Requires as a general
motion for rule, a prior MR
A: The petition shall be filed in 18 copies, with the original reconsideration
copy intended for the court being indicated as such by the Stays the judgment Does not stay the
petitioner and shall: sought to be appealed judgment or order
1. state the full name of the appealing party as the subject of the petition
petitioner and the adverse party as the respondent, unless enjoined or
Q: What is the remedy of a party aggrieved by the decision Q: Where should the judgments and final orders of quasi-
of the Sandiganbayan? judicial bodies be appealed?
A: Decisions and final orders of the Sandiganbayan shall be A: Appeals from judgment and final orders of quasi- judicial
appealable to the SC by way of certiorari under Rule 45 bodies/agencies enumerated in Rule 43 are now required
raising pure questions of law (Sec. 1, Rule 45). to be brought to the CA under the requirements and
conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev.
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE Corp., 387 SCRA 128).
NLRC
Q: What issues may be raised on appeal?
Q: What is the remedy of a party aggrieved by the decision
of the NLRC? A: The appeal under Rule 43 may raise issues involving
questions of fact, of law or mixed questions of fact and law
A: The remedy is to promptly move for the reconsideration (Sec.3, Rule 43).
of the decision and if denied, to timely file a special civil
action of certiorari under Rule 65 within 60 days from Note: Rule 43 is not applicable where the petition contains an
notice of the decision. In observance of the doctrine of allegation that the challenged resolution is patently illegal and was
hierarchy of courts, the petition for certiorari should be issued with grave abuse of discretion and beyond respondents
jurisdiction. The appropriate remedy is Rule 65 on certiorari.
filed in the CA (St. Martin Funeral Homes vs. NLRC, G.R. No.
130866, September 16, 1998).
Q; What is the effect of the appeal on the award,
Note: Those judgments and final orders or resolutions of the judgment, final order or resolution?
Employees Compensation Commission should be brought to the CA
through a petition for review under Rule 43. A: The appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed unless the CA
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF shall direct otherwise upon such terms as it may deem just
QUASI- JUDICIAL AGENCIES (Sec. 12, Rule 43).
Q: What is a quasi-judicial agency? Q: What is the remedy of a party aggrieved by the decision
of a Quasi-judicial Agency?
A: An organ of the government other than a court and
other than a legislature, which affects the rights of private A: Within 15 days from:
parties through either adjudication or rule-making. 1. Notice of the award, judgment, final order or
resolution; or
Q: What are the agencies included under Rule 43? 2. Date of publication, if publication is required by law for
its effectivity; or
A: 3. Denial of petitioners MNT or MR,
1. Civil Service Commission;
2. Central Board of Assessment Appeals; the aggrieved party must file a verified petition for review
3. Securities and Exchange Commission; under rule 43 in 7 legible copies with the CA. The appeal
4. Office of the President; may involve questions of fact, of law, or mixed questions of
5. Land Registration Authority; fact and law.
6. Social Security Commission;
RELIEF FROM JUDGMENTS, ORDERS AND OTHER Note: A party who has filed a timely motion for new trial cannot
PROCEEDINGS file a petition for relief after the former is denied. The two
remedies are exclusive of one another. (Section 9,Rule 38;
Francisco v. Puno, 108 SCRA 427)
GROUNDS
Q: Who may file the petition for relief from judgment?
Q: What is the nature of petition for relief from judgment?
A: A petition for relief from judgment together with a
A: It is a legal remedy whereby a party seeks to set aside a
motion for new trial and a motion for reconsideration are
judgment rendered against him by a court whenever he
remedies available only to parties in the proceedings where
was unjustly deprived of a hearing or was prevented from
the assailed judgment is rendered. A person who was never
taking an appeal because of fraud, accident, mistake or
a party to the case, or even summoned to appear therein,
excusable neglect (Sec. 1, Rule 38; Quelnan v. VHF
cannot avail of a petition for relief from judgment (Alaban
Philippines, G.R. No. 138500, Sept. 16, 2005). It is an
v. CA, 470 SCRA 697).
equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy.
Q: What are the duties of the court after an answer to the
(Trust International Paper Corp. v. Pelaez, 499 SCRA 552)
petition has been filed or the period for filing has expired?
Q: Distinguish motion for new trial/reconsideration from
A: There are two steps or hearings in a petition for relief:
petition for relief from judgment (1990 Bar Question)
1. A hearing to determine whether the judgment, order
or proceeding should be set aside; and
A:
A: Unless a writ of preliminary injunction has been issued, A: No. The remedy of petition for relief from judgment is
execution of the judgment shall proceed even if the order available only when the judgment or order in question is
denying the petition for relief is pending on appeal. Said already final and executory, i.e., no longer appealable. It is
writ may be sought either in the trial or appellate courts an equitable remedy allowed only in exceptional cases from
(Service wide Specialists, Inc. vs. Sheriff of Manila, at. al., final judgments or orders where no other remedy is
G.R. No. 74586, Oct. 17, 1986). available (Palmares et. al. vs. Jimenez et al., 90 Phil. 773). It
will not be entertained when the proper remedy is appeal
Q: Is the order granting petition for relief appealable? or certiorari (Fajardo vs. Bayona et al., 98 Phil. 659).
A: An order granting petition for relief is interlocutory and CONTENTS OF THE PETITION
non-appealable (Regalado, Remedial Law Compendium,
Vol.1, p. 447, 2009 ed.). Q: What are the form and contents of the petition for
relief?
GROUNDS FOR AVAILING THE REMEDY
A:
Q: What are the grounds for petition for relief? 1. The petition for relief must be verified;
2. It must be supported by affidavit showing the FAME
A: relied upon; and
XPNs: A:
1. When execution is sought more than 5 years from its 1. There must be a motion filed by the prevailing party
entry without the judgment having been revived with notice to the adverse party;
2. When the judgment has already been executed by the 2. There must be a hearing of the motion for
voluntary compliance thereof by the parties (Cunanan
discretionary execution;
v. CA, G.R. No. L-25511, Sept. 28, 1968)
3. There must be good reasons to justify the
3. When the judgment has been novated by the parties
discretionary execution; and
(Dormitorio v. Fernandez, G.R. No. L-25897, Aug. 21,
4. The good reasons must be stated in a special order
1976)
(Sec. 2, Rule 39).
Note: The parties, despite the existence of a judgment, are at
liberty to novate a judgment by entering into a compromise.
A compromise is a contract recognized by substantive law
(Art. 2028, NCC). Q: When is execution discretionary?
A:
Execution is a matter of Discretionary execution If the winning party does not
right after expiration of upon good reasons move for execution within 5
period to appeal and no stated in a special order years but before 10 years from
appeal is perfected. after due hearing. the date of entry of judgment,
the same can only be revived by
means of new action / petition.
Q: What are the modes of execution of final and executory A: A dormant judgement is one which has not been
judgment or order and revived judgment? enforced by motion within 5 years after its entry and is thus
reduced to a mere right of action in favor of judgment-
A: obligee. It may be enforced by filing an action for revival of
1. Execution by motion - if the enforcement of the judgment and enforcing the decision therein. (Salvante v.
judgment is sought within 5 years from the date of its Cruz, 88 Phil. 236)
entry; and
2. Execution by independent action- if the five year Q: What is revival of judgment?
period has elapsed and before it is barred by statute of
limitations (Sec. 6, Rule 39). A: This means the enforcement by action of a judgment,
upon which no motion was filed for its execution within 5
Note: The date of finality of judgment or final order shall be years from the time of finality of judgment. This
deemed to be the date of its entry. Entry of judgment means the presupposes that the same can no longer be enforced by
ministerial recording of a court's final decision, usually by noting it mere motion. (Riano, Civil Procedure: A Restatement for the
in a judgment book or civil docket (Blacks Law Dictionary, 8th ed.).
Bar, p.503, 2009 ed)
Q: Can motion be dispensed with if the judgment is Note: An action to revive judgment is a personal one and not a
immediately executory? quasi in rem (Donelly v. CFI Manila, l-31209, April 11, 1972).
A: No, there must be a motion to that effect and a hearing Q: When should the action for revival of judgment be
called for the purpose (Lou v. Siapno, 335 SCRA 181). filed?
Q: Can execution be effected by motion after five years? A: After 5 years and within 10 years from entry of
judgment, such judgment becomes a mere right of action
A: GR: No, execution of a judgment can no longer be and if unsatisfied, the prevailing party can file an action for
effected by filing a motion, after 5 years. The remedy would revival of judgment (PNB v, Perez,, L-20412, Feb 28, 1966).
be to file an independent action for the revival of the
judgment. When a writ of execution is issued by motion Note: However, if the judgment is based upon a compromise which
after 5 years from the date of entry of judgment, such is immediately final and executory, prescription runs from the date
motion is considered null and void (Tag Fibers, Inc. vs. of its rendition and not from date of entry (Jacinto v. IAC, GR No.
NLRC, 344 SCRA 29; Terry vs. People, 314 SCRA 669) 66478, Aug. 28, 1988). If an amendatory and clarificatory judgment
was rendered, it is from the date of the entry thereof that the 10-
year period is reckoned (Sta. Romana v. Lacson, L-27754, April 8,
XPNs: However, the court in certain instances allowed
1981).
execution of the judgment by mere motion despite the
lapse of the 5 year period where: Note: 5 and 10 year periods not applicable to judgment for:
1. The delay in the execution of the judgment were (a) support (Canonizado v. Benitez, 127 SCRA 610)
through causes attributable to the judgment debtor; (b) Special proceedings (Rodil v. Benedicto, 95 SCRA 137)
or
Q: What is the nature of a revived judgment?
Note: Any interruption or delay occasioned by the debtor will
extend the time within which the writ may be issued without A: A revived judgment is deemed a new judgment separate
scire facias (Republic v. CA, l-43179, June 27, 1985). and distinct from the original judgment (Riano, Civil
Procedure: A Restatement for the Bar, p.504, 2009 ed citing
2. When delay is incurred for his benefit. PNB v Bondoc, 14 SCRA 770).
Q: How may the period to execute the judgment be Q: What is a writ of execution?
stayed?
A: It is a judicial writ issued to an officer authorizing him to
A: The period to execute the judgment may be stayed by: execute the judgment of the court.
1. Agreement of the parties;
2. Injunction; Q: What is the lifetime of a writ of execution?
3. Taking an appeal or writ of error.
A: The writ is enforceable within 5 years from the entry of
judgment (Sec. 6 of Rule 39).
Q: What is the effect of an appeal to the execution of the Q: What are the contents of a writ of execution?
judgment?
A: The writ of execution is issued in the name of the
A: GR: An appeal perfected in due time stays the execution Philippines and shall state:
of a judgment. 1. The name of the court which granted the motion;
2. The case number;
XPNs: There are judgments which by express provision of 3. The dispositive portion of the judgment or order
law are not stayed by appeal: subject of the execution; and
1. Those judgments which by express provision of the 4. Shall require the sheriff or other proper officer to
rules are immediately executory and are not stayed by whom it is directed to enforce the writ according to its
appeal (Sec. 4, Rule 39), such as judgment for terms, in the manner hereinafter provided:
injunction, receivership, accounting and support a) If the execution be against the property of the
unless the court rules otherwise or the appellate court judgment obligor, to satisfy the judgment, with
on appeal suspends, modifies, restores or grants the interest, out of the real or personal property of
same. Judgments appealed under Rule 43 not stayed such judgment obligor;
unless ordered by the Court b) If it be against real or personal property in the
2. Those judgments that have become the object of hands of personal representatives, heirs, devisees,
discretionary execution (Sec. 2, Rule 39). legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out
Q: What are the defenses available in an action for of such property;
enforcement? c) If it be for the sale of real or personal property, to
sell such property, describing it, and apply the
A: proceeds in conformity with the judgment, the
1. Prescription; material parts of which shall be recited in the writ
2. Satisfaction of claim; and of execution;
3. Counterclaims. d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the
Q: How may the execution be issued in case of death of same, describing it, to the party entitled thereto,
the party? and to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal
A: property of the person against whom it was
1. Death of an obligee execution will issue in any case, rendered, and if sufficient personal property
upon application of his executor, administrator, or cannot be found, then out of the real property;
successor-in-interest; and
2. Death of an obligor e) In all cases, the writ of execution shall specifically
- Death before levy: state the amount of the interest, costs, damages,
- Action for recovery of real or personal rents, or profits due as of the date of the issuance
property or any lien execution shall issue of the writ, aside from the principal obligation
against his executor or administrator or under the judgment. For this purpose, the motion
successor in interest. for execution shall specify the amounts of the
- Action for a sum of money execution will foregoing reliefs sought by the movants (Sec.8,
NOT issue. The judgment obligee should file Rule 39).
A: One which requires the performance of any act, other Note: The remedies are cumulative and may be resorted to by the
third party claimant independently of or separately from the
than the payment of money or the sale or delivery of real or
others. Availment of the terceria is not a condition sine qua non to
personal property, which a party must personally do the institution of separate action. (Imani v. Metropolitan Bank &
because his personal qualifications and circumstances have Trust Company, Nov. 17, 2010)
been taken into consideration (Sec. 11, Rule 39; Regalado,
Remedial Law Compendium, Vol. 1, p. 486, 2009 ed.). Note: The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if there is a
Q: What is the effect of failure to comply with special bond filed by the winning party. If there is no bond, the sale cannot
judgments? proceed. However, the judgment obligee can claim damages
against a third-party claimant who filed a frivolous or plainly
spurious claim, and such judgment obligee can institute
A: Failure to comply with special judgment under Section proceedings therefor in the same or separate action.
11 is punishable by imprisonment (Sec 11, Rule 39).
PROPERTIES EXEMPT FROM EXECUTION
Q: How are special judgments executed?
Q: What are the properties exempt from execution?
A: When a judgment requires the performance of any act
other than those mentioned in the two preceding sections, A:
a certified copy of the judgment shall be attached to the 1. The judgment obligors family home as provided by
writ of execution and shall be served by the officer upon law, or the homestead in which he resides, and land
the party against whom the same is rendered, or upon any necessarily used in connection therewith;
other person required thereby, or by law, to obey the 2. Ordinary tools and implements personally used by him
same, and such party or person may be punished for in his trade, employment or livelihood;
contempt if he disobeys such judgment (Sec 11, Rule 39).
A: No. When the writ of execution is issued in favor of the Q: Distinguish a judgment obligor from a redemptioner?
Republic of the Philippines, or any officer duly representing What are their rights as regards redemption of real
it, the filing of such bond shall not be required, and in case property?
the sheriff or levying officer is sued for damages as a result
of the levy, he shall be represented by the Solicitor General A:
and if held liable therefor, the actual damages adjudged by JUDGMENT OBLIGOR REDEMPTIONER
the court shall be paid by the National Treasurer out of Judgment obligor, or his Does not only refer to
such funds as may be appropriated for the purpose. (Sec. successor in interest (e.g. judgment obligor. He may
16, Rule 39). transferee, assignee, heirs, be a creditor having a lien
joint debtors) by virtue of an attachment,
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT judgment or mortgage on
AND REPLEVIN the property sold, or on
some part thereof,
Certain remedies available to a third person not party to subsequent to the lien
the action but whose property is the subject of execution: under which the property
was sold. Such redeeming
1. Terceria By making an affidavit of his title thereto or creditor is termed a
his right to possession thereof, stating the grounds of redemptioner (Sec. 27, Rule
such right or title. The affidavit must be served upon 39)
the sheriff and the attaching party (Sec. 14, Rule 57).
Upon service of the affidavit upon him, the sheriff shall Within 1 year from the date 1. Within 1 year from the
not be bound to keep the property under attachment of registration of the date of registration of
except if the attaching party files a bond approved by certificate of sale. the certificate of sale if
the court. The sheriff shall not be liable for damages he is the first
for the taking or keeping of the property, if such bond redemptioner, or
shall be filed. 2. Within 60 days from
2. Exclusion or release of property Upon application of the last redemption, if
the third person through a motion to set aside the levy he be a subsequent
on attachment, the court shall order a summary redemptioner,
hearing for the purpose of determining whether the provided that the
sheriff has acted rightly or wrongly in the performance judgment debtor has
of his duties in the execution of the writ of not exercised his right
attachment. The court may order the sheriff to release of redemption (Sec. 28,
the property from the erroneous levy and to return Rule 39)
the same to the third person. In resolving the Once he redeems, no Further redemption is
application, the court cannot pass upon the question further redemption is allowed, even after lapse of
of title to the property with any character of finality allowed. The person to 1 year, as long as each
but only insofar as may be necessary to decide if the whom redemption was redemption is made within
sheriff has acted correctly or not (Ching vs. CA, 423 made must execute and 60 days after the last.
SCRA 356). deliver to the judgment
3. Intervention This is possible because no judgment obligor a certificated of
has yet been rendered and under the rules, a motion redemption.
for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec. 2, Note: The period of redemption is not suspended by an action to
Rule 19). annul the foreclosure sale. The periods for redemption are not
extendible; but the parties may agree on a longer period, in such
4. Accion Reivindicatoria The third party claimant is
case, it would be a conventional redemption.
not precluded by Sec. 14, Rule 57 from vindicating his
claim to the property in the same or in a separate Q: Who may redeem the real property sold?
action. He may file a separate action to nullify the levy
with damages resulting from the unlawful levy and A: Real property sold, or any part thereof sold separately,
seizure. This action may be a totally distinct action may be redeemed by the following persons:
from the former case.
A: A:
1. If judgment or final order is on a specific thing, the 1. Upon filing of a petition for relief from judgment;
same is conclusive upon the title to thing (Sec. 47, Rule 2. Attack against a judgment which is void for lack of
39). jurisdiction, or obtained through fraud;
2. If judgment or final order is in respect to the probate 3. On equitable grounds; and
of a will, or the administration of the estate of a 4. In cases falling under the 10 exceptions above.
deceased person, the same is conclusive upon the will
or administration but the probate of the will or the Q: Can final and executory judgments be modified?
granting of letters of administration shall only be
prima facie evidence of the death of the testator or A: GR: Final and executory judgments cannot be amended
intestate and not a conclusive presumption of death or modified. Any amendment which substantially affects a
(Sec.47, Rule 39). final and executory judgment is null and void for lack of
3. If judgment or final order is in respect to the personal, jurisdiction.
political or legal condition or status of a particular
person or his relationship to another, the judgment or XPN: Judgment may be modified as to:
final order is conclusive upon the condition, status or 1. Clerical errors or mistakes - errors not as a result of
relationship (Sec.47, Rule 39). exercise of judicial functions
4. In other cases, if the judgment be with respect to the 2. To clarify ambiguity; or
matter directly adjudged or as to any other matter 3. To enter nunc pro tunc orders to make a present
that could have been raised in relation thereto, the record of an order which the court rendered at a
judgment or final order is conclusive between the previous terms but, by inadvertence has not been
parties and their successors in interest by title entered.
subsequent to the commencement of the action or 4. In judgments for support, which can always be
special proceeding, litigating for the same thing and amended from time to time, in light of the
Q: What are the requisites of res judicata? Q: What are the provisional remedies under the rules?
A: A:
1. Former judgment or order must be final and 1. Preliminary attachment (Rule 57)
executory; 2. Preliminary injunction (Rule 58)
2. Court has jurisdiction over subject matter and parties; 3. Receivership (Rule 59)
3. Former judgment or order was on merits; and 4. Replevin (Rule 60)
4. Identity of parties, subject matter, and cause of action 5. Support pendente lite(Rule 61)
between first and second action (TEST: determine
identity if cause of action) (Fels inc v Province of Q: Are provisional remedies available in criminal cases?
Batangas, GR no 168557, Feb. 19, 2007).
A: Yes. The provisional remedies in civil actions may
Q: What are the aspects of res judicata? likewise be availed of in connection with the civil action,
insofar as there are applicable. (Section 1, Rule 127).
A: The doctrine of res judicata has two aspects. The first,
known as "bar by prior judgment," or "estoppel by verdict," Q: What are the Other Provisional Remedies available?
is the effect of a judgment as a bar to the prosecution of a
second action upon the same claim, demand or cause of A:
action. 1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim)
The second, known as "conclusiveness of judgment" or 3. Restraining order against the accused in cases of
otherwise known as the rule of auter action violence among immediate family members living in
pendant, ordains that issues actually and directly resolved the same domicile and household
in a former suit cannot again be raised in any future case 4. Hold departure orders issued by Regional Trial Courts
between the same parties involving a different cause of in criminal cases
action. It has the effect of preclusion of issues only. (Sps. 5. Interim reliefs under Writ of Amparo
Rasdas v. Estenor, G.R. No. 157605 December 13, 2005) a. Temporary Protection Order
b. Witness Protection Order
ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR c. Inspection Order
FINAL ORDERS d. Production Order (Riano, Civil Procedure: A
Restatement for the Bar, p. 534-536, 2009
Q: What is the effect of a foreign order? ed)
6. Temporary Protection Order under Anti-Violence
A: Against Women and their Children Act of 2004
1. Against a specific thing conclusive upon title to the (RA 9262)
thing. 7. Provisional Remedies under the Human Security
2. Against a person presumptive evidence of a right as Act of 1997 (RA 9372)
between the parties and their successors in interest by 8. Provisional Remedies under the Rule on
a subsequent title (Sec 48, Rule 39). Corporate Rehabilitation (AM 00-8-10-SC):
a. Stay order
Note: In both instances, the judgment may be repelled by evidence b. Receivership
of want of jurisdiction, notice, collusion, fraud, or clear mistake of
law or fact.
NATURE OF PROVISIONAL REMEDIES
Q: How to enforce a judgment of a foreign court? (2007
Bar Question)
Q: What is the nature of provisional remedies?
A: Judgment of foreign courts may only be enforced in the
A: They are temporary measures availed of during the
Philippines through an action validly heard in a Regional
pendency of the action and ancillary because they are mere
Trial Court. Thus, it is actually the judgment of the
incidents and are dependent upon the result of the main
Philippine court enforcing the foreign judgment that shall
action (Regalado, Remedial Law Compendium Vol. I, p. 684,
be executed. th
10 ed.). They are interim, ancillary and provisional.
PROVISIONAL REMEDIES (RULE 57-61) Note: Injunction can be a main action if it seeks to permanently
enjoin the defendant through a final injunction (not preliminary)
Q: What are provisional remedies? (1996 Bar Question) issued by the court and contained in the judgment (PEZA v.
Carantes et al., G.R. No. 181274, June 23, 2010).
A: They are writs and processes available during the
pendency of the action which may be resorted to by a Q: What are the purposes of provisional remedies? (1996
litigant to preserve and protect certain rights and interests Bar Question)
UNIVERSITY OF SANTO TOMAS 130
2013 GOLDEN NOTES
CIVIL PROCEDURE
also issue the remedy of support pendente lite. (e.g. Art
A: To: 345 (3) RPC, in crimes against chastity, in every case to
1. preserve or protect their rights or interests while the support the offspring)
main action is pending
2. secure the judgment Q: When are these provisional remedies available?
3. preserve the status quo or
4. preserve the subject matter of the action A:
1. Attachment, injunction and support pendente lite
JURISDICTION OVER PROVISIONAL REMEDIES may be applied for before final judgment
2. Replevin may be applied before the answer
Q: Which court has jurisdiction over applications for 3. Receivership may be applied for at any stage of the
provisional remedies? action and even after final judgment.
A:
Preliminary Preliminary Receivership (Rule Replevin (Rule Support Pendente Lite (Rule 61)
Attachment (Rule Injunction (Rule 58) 59) 60)
57)
Subject Matter
Personal and real Particular act(s) Personal and real Personal Money or other forms of support
property property property capable
of manual
delivery
Jurisdiction (Court which can grant it)
SC, CA, RTC, SC, CA, RTC, Family SC, CA, RTC, Family RTC, Family GR: Family Court
Family Court, Court, Metropolitan, Court, Metropolitan, Court,
Metropolitan, Municipal and Municipal and Metropolitan, XPN: In criminal actions, as long as
Municipal and Municipal Circuit Municipal Circuit Municipal, and the civil aspect is tried together with
Municipal Circuit Trial Courts Trial Courts Municipal Circuit it , the RTC or MTC having jurisdiction
Trial Courts Trial Courts may also issue this remedy.(e.g Art.
345 (3) RPC, in crimes against
chastity, In every case to support the
offspring..)
Who may grant it
Courts where Only the Court where Court where action is Only the court Court of origin and appellate court.
action is pending, the action is pending, the CA or where action is (Ramos v. CA, GR No. L-31897, June
the CA or the SC pending; Lower the SC, or a member pending. 30, 1972)
(Sec. 2) court, CA or SC thereof, even if
provided action is action is pending in
pending in the same the lower court.
court which issues Appellate court may
the injunction (Sec. 2) allow application for
receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the At any stage of the At any stage of the At the At the commencement of the action
action but before action but before proceeding and even commencement or at any time prior to the judgment
entry of final judgment or final after finality of of the action but or final order (Sec. 1)
judgment (Sec. 1) order (Sec. 1) judgment; anytime before answer is
Preliminary Attachment Preliminary Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite
(Rule 57) Injunction (Rule 58) (Rule 61)
Purpose(s)
1. To seize the To require a party or To place the property To recover possession To compel adverse
property of the a court, agency or a subject of an action or of party to provide
adverse party in person to refrain proceeding under the personal property. support while the
advance for the from doing a control of a third party (1999 Bar Question) action is pending in
satisfaction of particular act or to for its preservation court.
judgment that may require the and
be recovered in performance of a administration litis
cases falling under particular act pendentia and to
Sec.1, Rule 57. protect the rights of
2. To enable the court To prevent future all the parties under
to acquire injury and maintain the direction of the
jurisdiction over the the status quo. court.
action by the actual (Kencht v. CA, G.R.
or constructive No. 97962, Nov. 17,
seizure of the 1993)
property in those
instances where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan, G.R. No. L-
54158, Nov. 19,
1982)
Ground(s)
1. GR: In an action for 1. That the 1. When the Applicant is: When equity and
the recovery of a applicant is applicant has an 1. The owner of the justice require, having
specified amount or entitled to the interest in the property claimed; due regard to the
damages against a relief demanded property or fund or probable outcome of
party who is about which consists in subject of the the case and such other
to depart from the restraining the proceeding and 2. Entitled to the circumstances as may
Philippines with commission or such property is possession suggest the
intent to defraud continuance of in danger of being thereof but the reasonability of
his creditors; the act lost, removed or property is granting support
XPN: complained of, materially injured wrongfully pendente lite
a. moral and or in requiring unless a receiver detained by the
exemplary the performance is appointed; adverse party
of an act for a 2. In foreclosure of (Sec. 2)
2. In an action for limited period or mortgage, when
money or property perpetually the property is in
embezzled or danger of being
reserved or
instituted prior to
its filing.
Effectivity
During the pendency of During the pendency Until discharged by During the pendency During the pendency of
the case unless earlier of the case unless the court of the case unless the the case.
discharged or quashed earlier discharged or defendant files a
by the court quashed by the court redelivery bond.
Preliminary Preliminary Injunction Receivership (Rule Replevin (Rule 60) Support Pendente Lite
Attachment (Rule 57) (Rule 58) 59) (Rule 61)
Requirement of Hearing
Not required; may be GR: Required Required Not required ; may Required Within 3 days
issued ex parte (2001 be issued ex parte after comment is filed or
Bar Question) XPN: Great or after expiration of period
irreparable injury of filing
would result / extreme
urgency and applicant
will suffer grave
injustice and
irreparable injury (Sec.
5)
Bond Requirement
Bond executed to the adverse party in the amount fixed by the court to Bond executed to No bond required.
cover the costs which may be adjudged to the adverse party and all the adverse party in
damages that he may sustain by reason of the granting of provisional double the value of
remedy prayed for, if the court shall finally adjudge that the applicant was the property, for
not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59) the return of the
property to the
2 bond requirement for receivership: adverse party if
1. Filed by the applicant; and such return be
2. Filed by the receiver. adjudged and for
the payment to the
adverse party of
such sum as he may
recover from the
applicant in the
action (Sec. 2)
Immediately Executory
No Yes Yes No Yes
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the Not applicable.
discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that
fixed by the court or to the value of the property if with respect to a particular property to secure
the payment of any judgment that the adverse party may recover in the action.
Counter Bond
Cash deposit may be Filing of counter-bond Amount of counter- Amount of counter- Not applicable.
made in lieu of the made only upon bond to be fixed by bond should be
counter-bond (Sec. 12) showing that the the court (Sec. 3) double the value of
issuance or the property (Sec.
continuance thereof 5)
would cause
irreparable damage to
the party or person
enjoined while the
applicant can be fully
compensated for such
damages as he may
suffer; counter-bond
alone will not suffice to
discharge the
injunction (Sec. 6)
Preliminary Preliminary Injunction Receivership (Rule Replevin (Rule 60) Support Pendente Lite
Attachment (Rule 57) (Rule 58) 59) (Rule 64)
Other Grounds For Discharge
1. Improper or 1. Insufficiency of 1. Appointment 1. Plaintiffs bond is
irregular issuance the application was obtained found to be
or enforcement or (Sec. 6) without insufficient or
insufficiency of sufficient cause. defective and is not
bond. (Sec. 13) 2. Other grounds replaced with
2. Judgment (e.g. applicants 2. Bond posted by proper bond; or
rendered against bond is the applicant /
attaching creditor insufficient/ receiver is 2. Property is not
(Sec. 19) defective), upon insufficient delivered to the
3. Property attached affidavits of the (Sec. 3). plaintiff for any
is exempt from party or person reason (Sec. 6).
execution (Sec. 2 enjoined
and 5)
4. Attachment is
excessive, but the
discharge shall be
limited to the
excess (Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or
For Irregularity of the Procurement Of the Provisional Remedy
Requisites: When the judgment or
1. Owner of the property attached must file before trial or before perfection of appeal or before final order finds that
judgment becomes executory an application for damages; the person who has
2. Party who availed of provisional remedy and his surety must be notified, showing right to been providing support
damages and amount thereof; and pendente lite is not
3. Such damages may be awarded only after proper hearing and shall be included in the judgment liable therefor, the
of the main case. court shall order the
recipient to return the
If the judgment of the appellate court is favorable to the party against whom provisional remedy was amounts already
effected: received with interest
Application must be filed with the appellate court before the judgment of the appellate court from the date of actual
becomes executory. Appellate court may allow application to be heard and decided by the trial payment, without
court. prejudice to the right of
the recipient to obtain
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy reimbursement in a
the award: separate action from
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule the person legally
59; Sec. 10, Rule 60) obliged to give support.
.
Note: Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the same If the recipient fails to
case. The recovery of damages cannot be had in a separate action. reimburse the amount,
the person who
provided the same may
seek reimbursement in
a separate action from
the person legally
obliged to give such
support (Sec. 7)
PRELIMINARY ATTACHMENT (RULE 57) be rendered in the case (Davao Light and Power, Inc.v. CA,
204 SCRA 343).
It is a provisional remedy issued upon the order of the court
where an action is pending to be levied upon the property Note: There is no separate action called preliminary attachment. It
of the defendant so the property may be held by the sheriff is not a distinct proceeding and is availed of within a principal
as a security for the satisfaction of whatever judgment may action because it is a mere provisional remedy. The grant of
A:
(1) Preliminary Attachment (2) Garnishment (3) Levy on Execution
Issued at the commencement It is a kind of attachment in which the Writ issued by the court after judgment by which
of the action or at anytime plaintiff seeks to subject either the the property of the judgment obligor is taken into
before entry of the judgment property of the defendant in the the custody of the court before the sale of the
as security for the satisfaction hands of the third person called the property on execution for the satisfaction of a final
of any judgment that may be garnishee, to his claim or the money in judgment. It is a preliminary step to the sale on
recovered in the cases which said third person owes the execution of the property of the judgment debtor
provided for by the rules. Here, defendant. It simply impounds the (Riano, Civil Procedure: A Restatement for the Bar,
the court takes custody of the property in the possession of the p. 571-572, 2009 ed.).
property of the party against garnishee and maintains the status
whom the attachment is quo until the main action is finally
directed. decided. Further, by means of
garnishment, the plaintiff reaches
Note: This is the regular form credits belonging to the defendant
of attachment which refers to and owing to him from a third person
corporeal property in the who is a stranger to the litigation.
possession of the party
(Regalado, Remedial Law
Note: Garnishment does not involve
Compendium Vol. I, p. 691,
the actual seizure of the property
10th ed.).
which remains in the hands of the
garnishee. It refers to money, stocks,
credits and other incorporeal
property which belong to the party
but are in the possession or under
control of a third person.
Garnishment does not lie against the
funds of the regular departments or
offices of the Government, but funds
of public corporations are not
exempt ftom garnishment (PNB vs.
Palaban, et. al., L-33112, June 15,
Q: Who may apply for a preliminary attachment? 1. DEPART. Actions for the recovery of a specified
amount of money or damages, other than moral and
A: Any party, can avail of preliminary attachment as long as exemplary, on a cause of action arising from law,
any of the grounds therefor exists. A defendant on his contract, quasi contract, delict or quasi-delict against a
counterclaim, a co-party on his cross-claim, and a third- party who is about to depart from the Philippines
party plaintiff on his third-party claim may move for the which intent to defraud his creditors;
issuance of the writ (Sec. 1, Rule 57; Regalado, Remedial 2. EMBEZZLEMENT. Actions for money or property
th
Law Compendium Vol. I, p. 690, 10 ed.). embezzled or fraudulently misapplied or converted to
Q: What is the nature of the proceeding? his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker agent, or
A: Attachment is in the nature of the proceeding quasi in clerk, in the course of his employment as such, or by
rem, although sometimes reffered to as an action in rem, in other person in a fiduciary capacity, or for a willful
which case, jurisdiction over the res is sufficient. When violation of duty;
availed of and is granted in an action purely in personam, it
converts the action to one that is quasi in rem. This 3. RECOVER POSSESSION. Actions to recover the
transformation of the nature of the action dispenses with possession of property unjustly or fraudulently taken,
the need for acquiring jurisdiction over the person of the detained or converted, when the property, or any part
defendant. Since attachment is directed against the thereof, has been concealed, removed, or disposed of
property of the defendant, the court may validly proceed to prevent its being found or taken by the applicant or
with the action as long as jurisdiction over the property is an authorized person;
acquired.
4. FRAUD. Actions against a party who has been guilty of
a fraud in contracting the debt or incurring the
obligation upon which the action is brought or in the
performance thereof
Q: Distinguish Preliminary attachment under Rule 57 from Note: Includes both kinds of fraud, i.e., fraud in contracting
Final attachment under Rule 39 the obligation and fraud in the performance thereof
(Regalado, Remedial Law Compendium Vol. I, p. 691, 10th
ed.)
A:
PRELIMINARY FINAL ATTACHMENT
5. DEFRAUD CREDITORS. Actions against a party who has
ATTACHMENT (Rule 39)
removed or disposed of his property, or is about to do
(Rule 57)
so, with intent to defraud his creditors;
It is an auxiliary remedy It is a means for the
to give security for a execution of a final
6. Actions against non-residents not found in the
judgment still to be judgment.
Philippines, or person upon whom summons may be
rendered.
served by publication (Sec. 1 Rule 57)
There is no sale because It should always be
the decision has not yet accompanied by a sale
REQUISITES
been rendered. at public auction.
Resorted to at the Available after the Q: What are the requisites for the issuance of an order of
commencement of the judgment in the main writ of preliminary attachment?
action or at any time action had become
before the entry of executory, and for the A:
judgment, for the satisfaction of said 1. An affidavit executed by the applicant, or of some other
temporary seizure of judgment. person who personally knows the facts showing that:
the property of the a. A sufficient cause of action exists
adverse party b. The case must be any of those where preliminary
The proceeds of the The proceeds of the sale attachment is proper
sale, in cases allowed, are turned over to the c. There is no sufficient security for the claim sought to
are in custodia legis attaching creditor be enforced
(Sec. 11) d. The amount due to the applicant, or the value of the
property the possession of which he is entitled to
GROUNDS FOR THE ISSUANCE OF WRIT OF ATTACHMENT recover, is as much as the sum for which the order is
granted above all legal counterclaims
Q: What are the grounds for the issuance of the writ of
attachment? 2. Attachment bond - a bond executed to the adverse party
in an amount to be fixed by the judge, not exceeding the
A: plaintiffs claim, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party and all
137 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
REMEDIAL LAW
damages which he may sustain by reason of the 2. Upon motion and notice of hearing, by the court in
attachment, if the court shall finally adjudge that the which the action is pending and may even be issued by
applicant was not entitled thereto (Sec. 3 and 4, Rule 57) the CA or the SC (Sec. 2, Rule 57);
Note: A hearing on a motion or application for preliminary Note: A hearing on a motion or application for preliminary
attachment is not generally necessary unless otherwise directed attachment is not generally necessary unless otherwise
by the trial court (Toledo v. Burgos, 168 SCRA 513). This is because directed by the trial court (Toledo v. Burgos, 168 SCRA 513).
an order of attachment may also be issued ex parte.
Q: What are the contents of the ORDER of attachment?
Note: Failure to allege matters required under Sec. 3, Rule 57
renders the writ totally defective as the judge issuing the writ acts
A: It must require the sheriff of the court to attach so much
in excess of jurisdiction. (K.O Glass Construction Co., Inc. vs.
Valenzuela, et al., L-48756, Sept. 11, 1982; Regalado, Remedial Law of the property in the Philippines of the party against whom
Compendium, Vol.1, p. 694, 10th ed) it is issued, not exempt from execution, as may be sufficient
to satisfy the applicants demand, unless such party makes
Q: At what stages of a proceeding may preliminary deposit or gives a bond in an amount equal to that fixed in
attachment be applied for? the order, which may be the amount sufficient to satisfy
the applicants demand or the value of the property to be
A: It may be applied for attached as stated by the applicant, exclusive of costs.
1. At the commencement of the action; or Note: Several writs may be issued at the same time to the sheriffs
of the courts of different judicial regions.
2. At any time before entry of judgment (Sec. 1, Rule 57)
Note: The application may be incorporated in the verified Q: What are the requirements for the grant of the ORDER
complaint alleging all the grounds, and complying with all the of attachment?
requisites for the grant of the application.
A: Affidavit stating the matters enumerated under Sec. 3 of
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT; Rule 57 as mentioned above and a bond
AFFIDAVIT AND BOND
= Q: What are the conditions of the applicants bond?
Q: What are the stages in the issuance of a writ of
attachment? A: For the applicant to pay all the costs which may be
adjudged to the adverse party and all damages which he
A: may sustain by reason of the attachment if the court shall
1. The court issues the order granting the application; finally adjudge that the applicant was not entitled thereto
2. The writ of attachment is issued pursuant to the order (Sec. 4, Rule 57).
granting the writ; and
3. The writ is implemented RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS
Note: For the initial two stages, it is not necessary that jurisdiction
over the person of the defendant should first be obtained. Q: What is the rule on prior or contemporaneous service
However, to validly implement the writ, it is required that the of summons?
court acquire jurisdiction over the defendant for without such
jurisdiction, the court has no power and authority to act in any
A: Enforcement of the writ of preliminary attachment must
manner against the defendant. Thus, any order issued by the court
will not bind the defendant (Mangila v. CA, G.R. No. 125027, Aug. be preceded by or simultaneously accompanied by service
12, 2002; Regalado p. 695). of summons, copy of complaint, application and affidavits
for the attachment and the bond upon the adverse party.
Q: How may the ORDER of attachment be issued? Jurisdiction must first be acquired through valid service of
summons first before a preliminary attachment may be
A: The writ of preliminary attachment may be issued: enforced.
1. Ex parte and even before summons is served upon the
defendant. Q: May a writ of preliminary attachment be issued
notwithstanding the absence of service of summons?
Note: An ex parte issuance of the writ is intended to pre-
empt any possible disposition of property by the adverse A: Yes. It may be granted and issued even before summons
property to the detriment of the attaching creditor and thus is served upon the defendant. However, the writ may not
defeat the very purpose of attachment. (Mindanao Savings & be enforced and may not be validly implemented unless
Loan Association, Inc. v. CA, 172 SCRA 480) preceded by a service of summons upon the defendant, or
simultaneously accompanied by service of summons, a
Note: The application for preliminary attachment ex parte
may be denied because the fundamental requisites under copy of the complaint, the application for attachment, the
Rule 57, Section 1 did not exist, and not because ex order of attachment and the attachment bond (Davao Light
parte applications are per se illegal (Davao Light & Power Co., & Power Co., Inc. v. CA, G.R. No. 93262, Dec. 29, 1991).
Inc v. CA, G.R. No. 93262 December 29, 1991).
Q: Alfred filed an action against Banjo for collection of
sum of money with an ex-parte application for a writ of
preliminary attachment which was granted by the trial A: Real and personal property shall be attached by the
court. A notice of garnishment was served by the sheriff sheriff executing the writ in the following manner:
upon the bank and summons was subsequently served
upon Banjo. Banjo then filed a motion to dissolve the writ 1. Real property, growing crops thereon, or interest therein
of preliminary attachment on the ground that the court a. By filing with the Registry of Deeds a copy of the
did not acquire jurisdiction over his person as the writ was order;
served ahead of the summons. Should the motion be b. Together with a description of the property
granted? (2005 Bar Question) attached;
c. A notice that it is attached, or that such real
A: No, the motion should be denied. The fact that the writ property and any interest therein held by or
of preliminary attachment was served ahead of the standing in the name of such other person are
summons did not affect the jurisdiction of the court over attached; and
his person. It makes the writ unenforceable, however, all d. By leaving a copy of such order, description, and
that is required is to re-serve the writ. notice with the occupant of the property, if any, or
Note: Where the writ of preliminary attachment had already been with such other person or his agent if found within
implemented, the subsequent service of summons does not confer the province (Sec. 7a, Rule 57).
a retroactive acquisition of jurisdiction over her person because
the law does not allow for retroactivity of a belated service (Torres Note: Where the property has been brought under the
v. Satsatin, G.R. No. 166759, November 25, 2009) operation of either the Land Registration Act or the
Property Registration Decree, the notice shall contain a
Q: What are the cases in which a writ of preliminary reference to the number of the certificate of title, the
attachment may be enforced without necessity of service volume and page in the registration book where the
of summons? (1993 Bar Question) certificate is registered, and the registered owner or
owners thereof (Ibid.).
A: Service of summons upon the defendant is not necessary
before a writ of preliminary attachment may be enforced in 2. Personal property capable of manual delivery
the following instances: a. Sheriff taking into custody and safely keeping it after
1. Where the summons could not be served personally or issuing the corresponding receipt therefor.
by substituted service despite diligent efforts;
2. Where the defendant is a resident of the Philippines 3. Stocks, shares or interest in stocks or shares of any
temporarily absent therefrom; corporation or company
3. Where the defendant is a non-resident; or a. By leaving with the president or managing agent
4. Where the action is one in rem or quasi in rem thereof, a copy of the writ and a notice stating that
the stock or interest of the party against whom the
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY; attachment is issued, is attached in pursuance of
WHEN PROPERTY such writ;
ATTACHED IS CLAIMED BY THIRD PERSON
4. Debts and credits, bank deposits, financial interests,
Q: How can the WRIT of attachment be enforced? royalties, commission and other personal property not
capable of manual delivery
A: The sheriff enforcing the writ shall without delay and a. By leaving copy of the writ and notice of attachment
with all reasonable diligence attach, to await judgment and with person owing or having custody over the
execution in the action, only so much of the property in the property
Philippines of the party against whom the writ is issued, not
exempt from execution, as may be sufficient to satisfy the 5. Interest in the estate of a decedent By serving copy of
applicants demand, unless the former makes a deposit writ and notice of attachment upon the:
with the court from which the writ is issued, or gives a a. Executor or administrator of estate or other
counter-bond executed to the applicant, in an amount personal representative of the decedent;
equal to the bond fixed by the court in the order of b. Clerk of Court where estate is being settled; and
attachment or to the value of the property to be attached, c. Heir, devisee, or legatee
exclusive of costs.
6. Property in custodia legis
No levy on attachment pursuant to the writ shall be a. A copy of writ shalll be filed with the proper court or
enforced unless it is preceded, or contemporaneously quasi-judicial agancy and notice of the attachment
accompanied, by service of summons, together with a copy serves upon the custodian of such property (Sec. 7,
of the complaint, the application for attachment, the Rule 57).
applicants affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines (Sec. Q: When may salary be the subject of attachment?
5, Rule 57).
A: It can only be attached at the end of the month or on the
payday provided by contract or law, as, prior thereto, the
Q: How can a property be attached? same do not constitute money due to the debtor from his
employer. Furthermore, if the employer is the Government,
before payday, such funds are public funds and are exempt International Services Inc. v. IAC, G.R. No. 67496, July 7,
from attachment or execution. (Garcia v. Castillo, 43 Phil 1986).
364; (Regalado, Remadial Lanw Compendium, Vol I, p. 702,
10th ed) Q: Which should prevail between a duly registered
attachment by levy and lis pendens?
Q: How about wages due to a laborer? May it be a subject
of attachment? A: Preference is given to a duly registered attachment over
a subsequent notice of lis pendens, even if the beneficiary
A: As a general rule, no. Art. 1708 of the Civil Code states of the notice acquired the subject property before
that The laborer's wage shall not be subject to execution registration of the attachment. Such notice does not
or attachment, except for debts incurred for food, shelter, establish a lien or an encumbrance on the property
clothing and medical attendance. (Gaa v. CA, G.R. No. L- affected. As the name suggests, a notice of lis pendens with
44169 December 3, 1985) respect to a disputed property is intended merely to inform
third persons that any of their transactions in connection
therewith -- if entered into subsequent to the notation --
Note: Article 1708 used the word wage" and not "salary" in
relation to "laborer" when it declared what are to be exempted would be subject to the result of the suit. (Du v. Stronghold
from attachment and execution. The term wages as distinguished Insurance Co. Inc., G.R. No.156580, June 14, 2004).
from "salary", applies to the compensation for manual labor,
skilled or unskilled, paid at stated times, and measured by the day, Q: How about a prior sale of property?
week, month, or season, while "salary" denotes a higher degree of
employment, or a superior grade of services, and implies a position A: A levy on execution duly registered takes preference
of office: by contrast, the term wages " indicates considerable pay over a prior unregistered sale; and that even if the prior
for a lower and less responsible character of employment, while
sale is subsequently registered before the sale in execution
"salary" is suggestive of a larger and more important service (35
Am. Jur. 496). but after the levy was duly made, the validity of the
execution sale should be maintained, because it retroacts
Q: May government funds be subject of garnishment or to the date of the levy; otherwise, the preference created
writ of execution? by the levy would be meaningless and illusory (Defensor v.
Brillo, 98 Phil. 427).
A: It depends. When the government enters into
commercial business, it abandons its sovereign capacity and Q: What are the remedies available if the property is being
is to be treated like any other corporation. Consequently, claimed by third person?
its funds may be subject to a duly issued writ of
garnishment or writ of execution. But public funds of a A: File:
municipality are not subject to levy or execution if intended 1. a terceria or third party claim;
for a public purpose and such funds cannot be disbursed 2. independent action to recover his property; or
without a lawful appropriation or statutory authority as 3. a motion for intervention available only before
required by law. Even when the immunity of state is judgment is rendered (Ong v. Tating, G.R. No. L-61042,
relaxed, the power of the court ends when judgment is Apr. 15, 1987).
rendered and state is at liberty to determine whether or
not to appropriate funds for the satisfaction of the Q: Andrei's real property is being attached by the sheriff in
judgment. (Malong vs. PNR, et. al., L-49930, Aug. 7, 1985; a civil action for damages against Bernard. Andrei claims
PNB vs. CIR L032667, Jan. 31, 1978; Regalado, Remadial that he is not a party to the case; that his property is not
Law Compendium, Vol I, p. 702, 10th ed) involved in said case; and that he is the sole registered
owner of said property. Under the Rules of Court, what
Q: In a case, the property of an incompetent under must Andrei do to prevent the sheriff from attaching his
guardianship was in custodia legis. Can it be attached? property? (2000 Bar Question)
Explain. (1999 Bar Question)
A: If the real property has been attached, the remedy is to
A: Yes. In such case, a copy of the writ of attachment shall file a third-party claim. The third-party claimant should
be filed with the proper court and the notice of the make an affidavit of his title to the property attached
attachment shall be served upon the custodian of such stating the grounds of his title thereto and serve such
property. affidavit upon the sheriff while the latter has possession of
the attached property and a copy thereof upon the
Q: What is the principle of seniority of liens? attaching party. The third-party claimant may also intervene
or file a separate action to vindicate his claim to the
A: Where property attached by the judgment creditor had property involved and secure the necessary reliefs such as
previously been mortgaged the judgment creditors lien is preliminary injunction which will not be considered as
inferior to that of the mortgagee, which must first be interference with a court of coordinate jurisdiction.
satisfied in the event of foreclosure. In reality, what was
Note: The sheriff shall not be bound to keep the property under
attached by the judgment creditor was merely the
attachment, unless the attaching party or his agent, on demand of
judgment debtors right or equity of redemption (Top Rate the sheriff, shall file a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the
property levied upon. In case of disagreement as to such value, the 2. To quash the attachment on the ground that it
same shall be decided by the court issuing the writ of attachment. was irregularly or improvidently issued, as
provided for in Section 13 of the same rule
The sheriff shall not be liable for damages for the taking or keeping
(Torres et al. v. Satsatin, G.R. No. 166759,
of such property, to any such third-party claimant, if such bond
shall be filed. November 25, 2009).
No claim for damages for the taking or keeping of the property Note: A discharge of attachment must be made only after hearing.
may be enforced against the bond unless the action therefor is An ex parte discharge or suspension of the attachment is a disfavor
filed within one hundred twenty (120) days from the date of the to the orderly administration of justice and nullifies the underlying
filing of the bond. role and purpose of preliminary attachment in preserving the rights
of parties pendente lite as an ancillary remedy (Peroxide Philippines
The claimant or any third person is not prevented from vindicating Corp., vs. CA, et. al GR No. 92813, July 21, 19991; Regalado p. 709).
his claim to the property, or prevent the attaching party from
claiming damages against a third-party claimant who filed a Q: How can attachment be discharged if an an ORDER of
frivolous or plainly spurious claim, in the same or a separate action. attachment has already been issued?
When the writ of attachment is issued in favor of the Republic of A: The party whose property has been ordered attached
the Philippines, or any officer duly representing it, the filing of such
may file a motion to quash the order by filing a motion with
bond shall not be required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be represented by the court in which the action is pending, before or after levy
the Solicitor General, and if held liable therefor, the actual or even after the release of the attached property, for an
damages adjudged by the court shall be paid by the National order to set aside or discharge the attachment on the
Treasurer out of the funds to be appropriated for the purpose. ground that the same was improperly or irregularly issued
(Sec. 14, Rule 57) or enforced, or that the bond is insufficient. If the
attachment is excessive, the discharge shall be limited to
Q: May the property covered by a writ of preliminary the excess.
attachment be sold before entry of judgment?
If the motion be made on affidavits on the part of the
A: GR: No. A writ of preliminary attachment is a provisional movant but not otherwise, the attaching party may oppose
remedy and its issuance does not have the effect of a final the motion by counter-affidavits or other evidence in
judgment over the property attached. addition to that on which the attachment was made. After
due notice and hearing, the court shall order the setting
XPN: An attached property may be sold after levy on aside or the corresponding discharge of the attachment if it
attachment and before entry of judgment whenever it shall appears that it was improperly or irregularly issued or
be made to appear to the court in which the action is enforced, or that the bond is insufficient, or that the
pending, upon hearing with notice to both parties, that the attachment is excessive, and the defect is not cured
attached property is perishable or that the interests of all forthwith (Sec. 13, Rule 57).
the parties to the action will be subserved by the sale pf the
atached property (Sec. 11, Rule 57; China Banking Q: How can an attachment ALREADY ENFORCED be
Corporation vs. Asian Corporation and Development discharged?
Corporation, GR No. 158271, April 8, 2008; Riano p. 564).
A: The party whose property has been attached may file a
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND motion to discharge the attachment wholly or in part on
the security given. This motion shall be with notice and
Q: How may an ORDER of attachment be prevented from hearing. After notice and hearing, the court shall discharge
being issued? the attachment if the movant makes a cash deposit or files
a counter-bond executed to the attaching party with the
A: clerk of court where the application is made in an amount
1. By making a deposit or giving a bond in an amount equal to that fixed by the court in the order of attachment,
equal to that fixed in the order, which may be the exclusive of costs (Sec. 12, Rule 57, Riano, Civil Procedure: A
amount sufficient to satisfy the applicants demand or Restatement for the Bar, p. 557, 2009 ed.).
the value of the property to be attached as stated by
the applicant, exclusive of costs (Sec. 2, Rule 57). Note: Should the counter-bond for any reason be found to be or
become insufficient, and the party furnishing the same fail to file
2. By raising the defense that the property covered is an additional counter-bond, the attaching party may apply for a
exempt from execution (Sec. 2, Rule 57) new order of attachment.
Q: What are the two ways of discharging the attachment Q: What are counterbonds?
(after order of attachment has already been issued)?
A: Counterbonds are replacements of the property formerly
A: attached, and just as the latter, may be levied upon after
1. To file a counter-bond in accordance with Section final judgment (Security Pacific Assurance Corporation v.
12 of Rule 57 Tria- Infante, 468 SSCRA 526).
Note: The mere posting of the counterbond does not automatically bond from all liability for damages. Should Porifios
discharge the writ of attachment. It is only after the hearing and motion be granted?
after judge has ordered the discharge of attachment that the same
is properly discharged. (Security Pacific Assurance Corporation v.
A: Yes, Porfirios motion to charge plaintiffs attachment
Tria- Infante, 468 SSCRA 526; Riano p. 558)
bond is proper and can be granted. It is not correct to
contend that Porfirios filing of a counterbond constitutes a
Q: What happens if the judgment was rendered in favor of
waiver of his right to proceed against the attachment bond
the party against whom attachment was issued?
for the damages he suffered from the unwarranted
attachment. It is a condition inter alia of the applicants
A:
attachment bond that he will pay all the costs which may
1. The order of attachment will be discharged and all the
be adjudged to the adverse party and all damages which
proceeds of sales and money collected or received by the
the latter may sustain by reason of the attachment, if the
sheriff, under the order of attachment, and all property
court shall finally adjudge that the applicant was not
attached remaining in any such officers hands, shall be
entitled thereto (DM Wenceslao and Associates, Inc. v.
delivered to the party against whom attachment was issued
Readycon Trading and Construction Corp., G.R. No. 156104,
(Sec. 19, Rule 57).
June 29, 2004).
2. The whole sum deposited must be refunded to him or his
Q: May damages be awarded for wrongful attachment?
assignee if the party against whom attachment had been
issued has deposited money instead of giving counter-bond
A: Yes. Damages may be awarded on account of improper,
(Sec. 18, Rule 57).
irregular or excessive attachment. The application for
damages must be filed (a) before the trial, or (b) before
Q: Roy obtained a writ of preliminary attachment upon a
appeal is perfected, or (c) before the judgment becomes
bond of P1 million. The writ was levied on Ronald's
executory. There must be notice to the attaching party and
property, but it was discharged upon the posting by
his surety of sureties (Sec. 20 Rule 57, Riano p. 558).
Ronald of a counterbond in the same amount of P1
million. After trial, the court rendered judgment finding
Where there is wrongful attachment, the attachment
that Roy had no cause of action against Ronald and that
defendant may recover actual damages even without proof
he had sued out the writ of attachment maliciously.
that the attachment plaintiff acted in bad faith in obtaining
Accordingly, the court dismissed the complaint and
the attachment. However, if it is alleged and established
ordered Roy and its surety to pay jointly to Ronald P1.5
that the attachment was not merely wrongful but also
million as actual damages, P0.5 million as moral damages
malicious, the attachment defendant may recover moral
and P0.5 million as exemplary damages. Evaluate the
damages and exemplary damages as well (Spouses Yu vs.
soundness of the judgment from the point of view of
Ngo Yet Te, GR No. 155868, Feb. 6, 2007).
procedure (2002 Bar Question)
Note: Damages may be claimed even by the losing party where the
A: The judgment against the surety is not sound if due attachment caused him damage where the attachment was
notice was not given to him of the application for damages. improper, irregular or excessive. An improper, irregular or
Moreover, the judgment against the surety cannot exceed excessive attachment is not validated by the fact that the attaching
the amount of its counterbond of P1 million. party prevailed in the main action. (1999 Bar Question)
Q: What is the duty of the surety or surties on SATISFACTION OF JUDGMENT OUT OF PROPERTY
counterbond, when the judgment becomes executory? ATTACHED
A: When the judgment has become executory, the surety or Q: How can the judgment be satisfied out of the attached
sureties on any counter-bond given to secure the payment property?
of the judgment shall become charged on such counter-
bond and bound to pay the judgment obligee upon demand A: If judgment is in favor the attaching party and execution
the amount due under the judgment, which amount may has issued thereon, the sheriff may cause the judgment to
be recovered from such surety or sureties after notice and be satisfied out of the property attached, if it be sufficient
summary hearing in the same action (Sec. 17, Rule 57). for that purpose, in the following manners:
1. Payment to judgment creditor of all sales of perishable
Q: After his properties were attached, defendant Porfirio or other property
filed a sufficient counterbond. The trial court discharged 2. If any balance remains, selling property as may be
the attachment. Nonetheless, Porfirio suffered substantial necessary to satisfy the judgment
prejudice due to the unwarranted attachment. In the end, 3. Collecting from all persons having possession of credits
the trial court rendered a judgment in Porfirio's favor by belonging to the judgment debtor and paying the
ordering the plaintiff to pay damages because the latter proceeds to judgment creditor (Sec. 15, Rule 57).
was not entitled to the attachment. Porfirio moved to 4. Ordinary execution (Sec. 16, Rule 57)
charge the plaintiff's attachment bond. The plaintiff and
his sureties opposed the motion, claiming that the filing of Note: If it remains unsatisfied, recovery may be had on the
the counterbond had relieved the plaintiff's attachment counterbond upon demand and notice and hearing to surety (Sec.
17, Rule 57).
amended by A.M. No. 07-7- originally issued (Regalado, 2. Applicant must establish that he has a right to relief, a
12-SC). Remedial Law Compendium, Vol. I, right in esse or a right to be protected and the act
p. 725, 2005 ed.) against which the injunction is directed is violative of
Restrains or requires the Maintain status quo ante such right;
performance of particular 3. Applicant must establish that there is a need to
acts. restrain the commission or continuance of the acts
Notice and hearing GR: Notice and hearing complained of and if not enjoined would work injustice
always required (Sec. 5, required to the applicant;
Rule 58) XPN: To prevent 4. Applicant must post a bond, unless exempted by the
urgent/irreparable injury, TRO court. This bond is executed in favor of the person
may be issued by an enjoined to answer for all damages which the latter
Executive Judge or Presiding may sustain by reason of injunction or restraining
Judge for 72 hours and a order if the court should finally decide that the
summary hearing be applicant was not entitled to the writ or order;
subsequently conducted 5. Service of summons;
within such period XPNs:
Can be issued to compel Cannot be issued to compel a. Summons could not be served personally or by
the performance of an act the performance of an act substituted service;
b. Adverse party is a resident but is temporarily
Q: Which court may grant preliminary injunction? absent from the Philippines;
c. Adverse party is a non-resident;
A: A preliminary injunction may be granted by the court 6. The plaintiff praying for the writ must further establish
where the action or proceeding is pending. If the action or that he has a present and unmistakable right to be
proceeding is pending in the Court of Appeals or in the protected and there is a special and paramount
Supreme Court, it may be issued by said court or any necessity for the writ to prevent serious damage
member thereof (Sec.2, Rule 58). (Riano, Civil Procedure: A Restatement for the Bar, p.
571-572, 2009 ed.).
Q: What is a status quo order? (2006 Bar Question)
Q: May the RTC issue an injunction without the posting of
A: It is resorted to when the projected proceedings in the a bond? (2006 Bar Question).
case made the conservation of the status quo desirable or
essential but the affected party neither sought such relief A: Yes, if the injunction issued is a final injunction.
nor did the allegations in his pleading sufficiently make out Generally, however, a preliminary injunction may not be
a case for a TRO. issued without the posting of a bond, unless exempted by
the trial court or otherwise provided for by law.
Q: Distinguish a temporary restraining order from a status
quo order. KINDS OF INJUNCTION
REQUISITES A:
Preliminary Injunction Main Action for
Q: What are the requisites for the grant of a writ of (Ancillary Remedy) Injunction
preliminary injunction or temporary restraining order? Provisional remedy; Independent/Primary
It is not a cause of action Action
A: itself but merely an
1. Verified application stating the grounds for its issuance adjunct to a main suit
(Sec. 4, Rule 58); Seeks to preserve the Perpetually
status quo until the restraining or
merits can be heard commanding the A: GR: No, because injunction contemplates acts being
performance of an committed or about to be committed (Romulo v. Yiguez,
act after trial G.R. No. 71908, Feb. 4, 1986).
Q: What are the kinds of preliminary injunction and their XPN: If such acts complained of are continuing in nature
distinctions? and were in derogation of plaintiffs rights at the outset,
preliminary mandatory injunction may be availed of to
A: restore the parties to the status quo (Regalado, Vol. I, pp.
Preliminary Prohibitory Preliminary Mandatory 717-718, 2005 ed.).
Injunction Injunction
Requires a person to Q: What are the requisites of mandatory injunction?
Requires a person to
refrain from a particular
perform a particular act A:
act
The act has already 1. Material and substantial invasion of right;
been been perfomed 2. Clear and unmistakable right of complainant;
and this act has violated 3. Urgent and paramount necessity for the writ to
The act has not yet prevent serious damages (Bautista v. Barcelona, G.R.
the rights of another
been perfomed No. 11885, Mar. 29, 1957)
(Riano, Civil Procedeure:
A Restatement for the 4. The effect would not be to create a new relation
Bar, p. 569, 2009 ed.). between the parties (Alvaro v. Zapata, G.R. No. L-
56025, Nov. 25, 1982; Regalado p. 720-721)
Q: Distinguish Prohibitory injunction from Prohibition
Q: What are the instances where mandatory injunction
A: does not lie?
Prohibitory Injunction Prohibition
Provisional remedy, Special Civil Action, Rule A:
Rule 58 65 1. To compel cohabitation (Arroyo v. Vasquez, G.R. No. L-
17014, Aug. 11, 1921);
Directed against a party Directed against a 2. Cancellation of attachment (Levy Hermanos v. Lacson,
litigant in the action court, tribunal or G.R. No. L-47506, Dec. 14, 1940);
person exercising 3. Release imported goods pending hearing before the
judicial powers Commissioner of Customs (Commissioner of Customs
It does not involve the Prohibition may be on v. Cloribel, G.R. No. L-19796, Jan. 31, 1967); and
jurisdiction of the court the ground that the 4. To take property out of the possession or control of
court against whom the one party and place it into that of another whose title
writ is sought acted has not clearly been established (Pio v. Marcos, G.R.
without or in excess of No. L-27980, Apr. 30, 1974).
jurisdiction (Regalado,
Remedial Law WHEN WRIT MAY BE ISSUED
th
Compendium, Vol I, 10
ed.). Q: When may a writ for preliminary injunction be issued?
Q: Distinguish Mandatory injunction from mandamus A: A preliminary injunction or temporary restraining order
may be granted only when:
A:
Mandatory Injunction Mandamus (a) The application in the action or proceeding is verified,
Provisional remedy, Special Civil Action, Rule and shows facts entitling the applicant to the relief
Rule 58 65 demanded; and
Directed to a party Seeking a judgment (b) Unless exempted by the court the applicant files with
litigant to perform an commanding a tribunal, the court where the action or proceeding is pending, a
act to restore the last corporation, board, bond executed to the party or person enjoined, in an
peaceable uncontested officer or person to amount to be fixed by the court (Sec. 4, Rule 58).
status preceding the perform a ministerial
controversy. duty required to be (c) When an application for a writ of preliminary injunction
performed by law (Sec. or a temporary restraining order is included in a complaint
3, Rule 65; Riano, Civil or any initiatory pleading, the case, if filed in a multiple-sala
Procedure: A court, shall be raffled only after notice to and in the
Restatement for the presence of the adverse party or the person to be
Bar, p. 570, 2009 ed.). enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied by service of summons,
Q: Does injunction lie against acts already consummated? together with a copy of the complaint or initiatory pleading
and the applicants affidavit and bond, upon the adverse
party in the Philippines. A: Mr. G's argument is incorrect. Under par. 2 4 Rule 58,
the required prior or contemporaneous service of summons
However, where the summons could not be served may be dispensed with in the following instances: (a) when
personally or by substituted service despite diligent efforts, the summons cannot be served personally or by substituted
or the adverse party is a resident of the Philippines service despite diligent efforts, (b) when the adverse party
temporarily absent therefrom or is a nonresident thereof, is a resident of the Philippines temporarily absent
the requirement of prior or contemporaneous service of therefrom, or (c) when such party is nonresident. In such
summons shall not apply. event, the notice of raffle and the presence of the adverse
party must also be dispensed with. The requirement of
(d) The application for a temporary restraining order shall notice of the raffle to the party whose whereabouts are
thereafter be acted upon only after all parties are heard in unknown does not apply because the case will have to be
a summary hearing which shall be conducted within raffled first before the court can act on the motion for leave
twenty-four (24) hours after the sheriffs return of service to serve summons by application (Gonzalo R. Gonzales vs.
and/or the records are received by the branch selected by State Properties Corporation G.R. No. 140765 January 25,
raffle and to which the records shall be transmitted 2001).
immediately.
Q: May a writ of preliminary injunction be issued ex-
Q: How does the rule on contemporaneous service of parte? (2001 Bar Question)
summons apply in Preliminary Injunction?
A: No. No preliminary injunction shall be granted without
A: It is the same as the rule on contemporaneous service of hearing and prior notice to the party or person sought to be
summons in attachment. Thus: enjoined. The reason is that a preliminary injunction may
cause grave and irreparable injury to the party enjoined.
GR: The enforcement of the writ of preliminary injunction
must be preceded by or simultaneously accompanied by Note: If it shall appear from facts shown by affidavits or by the
service of summons, copy of complaint, application and verified application that great or irreparable injury would result to
affidavits for the preliminary injunction and the bond upon the applicant before the matter can be heard on notice, the court
may issue ex parte a temporary restraining order
the adverse party.
If the matter is of extreme urgency and the applicant will suffer
XPN: Where the summons could not be served personally grave injustice and irreparable injury, the executive judge of a
or by substituted service despite diligent efforts, or the multiple-sala court or the presiding judge of a single-sala court may
adverse party is a resident of the Philippines temporarily issue ex parte a temporary restraining order effective for only
absent therefrom or is a nonresident thereof, the seventy-two (72) hours from issuance but he shall immediately
requirement of prior or contemporaneous service of comply with the provisions as to service of summons and the
summon shall not apply. (par. 2 4(c), Rule 58) documents to be served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge before whom the case
is pending shall conduct a summary hearing to determine whether
Q: S.P. Corporation filed a complaint for Recovery of the temporary restraining order shall be extended until the
Property with application for temporary restraining order application for preliminary injunction can be heard. In no case
and/or preliminary injunction against the heirs of Mr. B. shall the total period of effectivity of the temporary restraining
The case was then raffled to Branch 253 of RTC of Las order exceed twenty (20) days, including the original seventy-two
Pias. Mr. G, one of the heirs of Mr. B, filed an Omnibus hours provided herein.
Motion praying for another raffle of the case be held
because the they were not able to receive any notice of In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
raffle to which S.P. Corporation didn't oppose. S.P.
restraining order is deemed automatically vacated.
Corporation then filed a Motion for Service of Summons
by Publication on all the heirs of Mr. B except Mr. G
Q: May a trial court issue a writ of preliminary injunction
because the addresses could not be ascertained despite
based solely on the applicants evidence.
diligent inquiry. On the day of the raffle date requested by
Mr. G both counsels where present however, the counsel
A: No. The trial court commits grave abuse of discretion
of Mr. G opposed the said raffle for the reason that the
when it issues such writ prior to the termination of the
other defendants where not duly notified.
presentation of evidence by the party against whom the
injunction shall be issued. The order to show cause why
When the case reached the Supreme Court, Mr. G
the injunction should not be granted as stated in Sec. 5,
contends that under 4(c), Rule 58, a case may be raffled
Rule 58 of the Rules of Court is precisely directed to such
only after notice to and in the presence of the adverse
party, not on the injunctions applicant (Lee v. CA, G.R. No.
party. These requisites according to him are mandatory.
147191, July 27, 2006).
Furthermore, he maintains that the latter part of the rule,
which allows service of summons to be dispensed with in
Q: What are the instances where a writ of preliminary
case the adverse party cannot be located despite diligent
injunction may be issued?
efforts, should not be isolated from other related
provisions. Decide the case
A:
1. In petitions for relief from judgment entered through 1962; Cf. Guingona, et al. v. City Fiscal, L-60033, April 4,
FAME; 1984, 128 SCRA 577); x x x
2. In petitions for certiorari, prohibition, and mandamus;
3. In actions for annulment of judgments obtained j. When there is clearly no prima facie case against the
through fraud; accused and a motion to quash on that ground has been
4. In actions for annulment of judgment which are not denied (Salonga v. Pao, et al., L-59524, February 18, 1985,
patent nullity (i.e want of jurisdiction, lack of due 134 SCRA 438)[; and]
process of law) (BancoEspanol v. Palanca, 37 Phil.
921); k. Preliminary injunction has been issued by the Supreme
5. To restrain continued breach of valid negative Court to prevent the threatened unlawful arrest of
obligation; petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953,)
6. To enjoin repeated trespass on land; (People of the Philippines v. Grey, G.R. No. 180109, July 26,
7. To restrain city from proceeding with abatement of 2010).
nuisance per accidens before it has been judicially
declared as such; Q: Is a second application for preliminary injunction
8. To restrain voting of disputed shares of stocks; allowed?
9. To restrain sheriff from selling property on execution
not belonging to judgment debtor; A: No. A second application for injunction, which rests in
the sound discretion of the court, will ordinarily be denied
Q: May a writ of injunction be issued to enjoin a criminal unless it is based on facts unknown at the time of the first
prosecution? application. (Reyes v. Court of Appeals and Sun Life
Insurance Office, Ltd., G.R. No. 87647, May 21, 1990).
A: No, because public interest requires that criminal acts be
immediately investigated and prosecuted for the protection Q: In what actions will a preliminary injunction not lie?
of society.
A:
XPNS: 1. Against Department of Public Works and Highways to
stop government infrastructure projects (Secs. 3 & 4,
a. To afford adequate protection to the constitutional rights RA 8975; PD 1818)
of the accused (Hernandez v. Albano, et al., L-19272, XPNs:
January 25, 1967, 19 SCRA 95); a. Extreme urgency
b. Matter involves a constitutional issue
b. When necessary for the orderly administration of justice c. Grave injustice and irreparable injury will arise
or to avoid oppression or multiplicity of actions (Dimayuga, d. Supreme Court may issue the writ of preliminary
et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, injunction
supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104
SCRA 607); Note: Only the SC may issue injunction against the
government, officials or any person or entity whether public
c. When there is a pre-judicial question which is subjudice or private acting under the government direction, to restrain,
prohibit, or compel acts pursuant to the implementation and
(De Leon v. Mabanag, 70 Phil. 202);
completion of infrastructure projects. (Sec 3, RA 8975)
XPN:Acts which are continuing in nature and render the judgment ineffectual (Sec. 3, Rule 58).
were in derogation of plaintiffs rights at the
outset, preliminary mandatory injunction may be Prescinding from the provisions mentioned above, we have
availed of to restore the parties to the status quo consistently held that the requisites of preliminary
(Dayrit vs. De Los Santos, 18 Phil 275). injunction whether mandatory or prohibitory are the
10. To transfer the property in litigation from the following:
possession of one party to another where the legal
title is in dispute and the party having possession (1) the applicant must have a clear and unmistakable
asserts ownership thereto (Almeida v. CA and Sy, G.R. right, that is a right in esse;
No. 159124, January 17, 2005) (2) there is a material and substantial invasion of such
XPN: Forcible entry and unlawful detainer cases right;
preliminary mandatory injunction may be issued (3) there is an urgent need for the writ to prevent
(Sec. 15, Rule 70) irreparable injury to the applicant; and
10. Generally, injunction will not be granted to take (4) no other ordinary, speedy, and adequate remedy
property out of the possession of one party and place exists to prevent the infliction of irreparable injury
it in another whose title not clearly established; (Marquez v. Sanchez, G.R. No. 141849, February 13,
11. When action for damages would adequately 2007).
compensate injuries caused (Golding v. Balatbat, 36
Phil.941); GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION
12. To prevent directors from discharging their offices and OF INJUNCTION OR
restoring former directors; RESTRAINING ORDER
13. To restrain criminal prosecution where the
Ombudsman had authorized the Special prosecutor to Q: How can a writ of preliminary injunction or restraining
conduct a preliminary investigation or to file an order be dissolved?
injunction.
14. Generally, injunction does not lie to restrain the A: The party enjoined may file a motion to dissolve the
enforcement of a law alleged to be unconstitutional injunction or TRO with notice and hearing of the motion
except if it will result in injury to rights in private upon showing by affidavits that the person enjoined would
property ( J.M Tuazon vs. Co. et. al., G.R. No. L-18128 suffer irreparable damage while the applicant can be fully
December 26, 1961) compensated for such damages as he may suffer. The
15. GR: Restrain collection of taxes (Valley Trading v. CFI movant must also file a bond conditioned upon the
of Isabela, G.R. No. L-49529, Mar. 31, 1989) payment of all damages which the applicant may suffer by
XPN: There are special circumstances that bear the dissolution of the injunction or restraining order (Sec. 6,
the existence of irreparable injury (Churchill & Rule 58).
Tait v. Ratterty, G.R. No. L-10572, Dec. 21, 1915)
Q: What are the grounds for objections or dissolution of
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION injunction or restraining order?
DURATION OF TRO
Q: Discuss the duration of TRO issued by the courts (1988 Bar Question)
Note: After conducting a summary hearing within the 72 hour period until the application for preliminary injunction can be heard, an extension
of the 72-hour TRO may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of
the TRO is ordinarily non-extendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no
reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance
of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175, 1995)
Q: An application for a writ of preliminary injunction with or any person or entity, whether public or private acting
a prayer for a temporary restraining order is included in a under the government direction, to restrain, prohibit or
complaint and filed in a multi-sala RTC consisting of compel the following acts:
Branches 1, 2, 3, and 4. Being urgent in nature, the (a) Acquisition, clearance and development of the
Executive Judge, who was sitting in Branch 1, upon the right-of-way and/or site or location of any national
filing of the application aforesaid, immediately raffled the government project;
case in the presence of the judges of Branches 2, 3 and 4. (b) Bidding or awarding of contract/ project of the
The case was raffled to Branch 4 and the judge thereof national government as defined under Section 2
immediately issued a temporary restraining order. Is the hereof;
temporary restraining order valid? (2001 Bar Question) (c) Commencement prosecution, execution,
implementation, operation of any such contract or
A: No. It is only the Executive Judge who can issue project;
immediately a TRO effective only for 72 hours from (d) Termination or rescission of any such
issuance. No other judge has the right or power to issue a contract/project; and
TRO ex parte. The judge to whom the case is assigned will (e) The undertaking or authorization of any other
then conduct a summary hearing to determine whether the lawful activity necessary for such contract/project
TRO shall be extended, but in no case beyond 20 days (Sec. 3, RA 8975).
including the original 72-hour period.
Note: The law further provides that any TRO or preliminary
injunction issued in violation of Sec. 3 is void and of no force and
effect. (Sec. 4, ibid.)
A: Receivership is a provisional remedy wherein the court 2. Court of Appeals or Supreme Court or a member
appoints a representative to preserve, administer, dispose thereof (Sec. 1, Rule 59)
of and prevent the loss or dissipation of the real or personal
property during the pendency of an action. It may be the Note: During the pendency of an appeal, the appellate court may
principal action itself or a mere provisional remedy; it can allow an application for the appointment of a receiver to be filed in
be availed of even after the judgment has become final and and decided by the court of origin and the receiver appointed to be
subject to the control of said (latter) court (Sec.1, Rule 59).
executory as it may be applied for to aid execution or carry
judgment into effect.
Q: What is the effect of a contract executed by a receiver
Note: Receivership, like injunction may also be a principal action as without court approval?
the one referred to in Sec. 4 of Rule 39. Rule 59 is a receivership
that is ancillary to a main action (Riano, Civil Procedure: A A: Such contract will constitute his personal undertakings
Restatement for the Bar, p. 591, 2009 ed.) and obligations. (Pacific Merchandising Corp. v. Consolacion
Insurance & Surety Co., G.R. No. L-30204, Oct. 29, 1976)
Q: What is the purpose of Receivership? Q: What is the liability of a person who refuses or neglects
to deliver property to the receiver?
A: To protect and preserve the rights of the parties during
the pendency of the main action, during the pendency of an A: A person who refuses or neglects, upon reasonable
appeal or as an aid in the execution of a judgment when the demand, to deliver to the receiver all the property, money,
writ of executing has been returned unsatisfied (Sec. 1, Rule books, deeds, notes, bills, documents and papers within his
59). power or control, subject of or involved in the action or
proceeding, or in case of disagreement, as determined and
Note: The receivership under rule 59 is directed to the property ordered by the court, may be punished for contempt and
which is the subject of the action and does not refer to the shall be liable to the receiver for the money or the value of
receivership authorized under the banking laws and other rules or the property and other things so refused or neglected to be
laws. Rule 59 presupposes that there is an action and that the
surrendered, together with all damages that may have
property subject of the action requires its preservation. (Riano,
Civil Procedure: A Restatement for the Bar, p. 590, 2009 ed) been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect. (Sec. 7, Rule 59)
Q: What is the underlying reason for the appointment of a
receiver? CASES WHEN RECEIVER MAY BE APPOINTED
A: It is necessary since the court is not provided with Q: What are the grounds for appointment of a receiver?
adequate machinery and resources for dealing with the
situation presented by the appointment of a receiver and A:
all the details connected therewith (Velasco v. Gochuico, 1. The property or fund is in danger of being lost,
G.R. No.L-10173, Feb.1, 1916). removed or materially injured;
2. The mortgaged property is in danger of being wasted
Q: When is the time to file a receivership? or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgaged debt;
A: At any stage of the proceedings even after finality of 3. There is stipulation in the contract of mortgage;
judgment. 4. After judgment, to preserve the property during the
pendency of an appeal, or to dispose according to
Q: Who is a receiver? judgment;
5. To aid execution when execution has been returned
A: He is a person appointed by the court in behalf of all the unsatisfied;
parties to an action for the purpose of preserving the 6. Judgment obligor refuses to apply his property in
property involved in the suit and to protect the rights of all satisfaction of the judgment; or
the parties under the direction of the court (Mallari v. 7. When it appears that the appointment of a receiver is
CA,G.R. No. L-33127, July 15, 1981). A receiver is not a the most convenient and feasible means of preserving
representative party under Rule 3 but a real party in administering, or disposing of the property (Sec.1, Rule
interest, but he cannot file a case without the consent of 59).
the receivership court.
Q: What are the instances where receivership will not lie?
Q: Can a party to an action be appointed as a receiver?
A:
A: No, unless consented to by all parties 1. Receivership cannot be effected on a property in
custodia legis (LizarragaHnos. V. Abada, 40 Phil 124).
Q: Which court may appoint a receiver? But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
A: imminent loss or injury (Dolor v. Sindian, G.R. No. L-
1. Court where action is pending 27631, April 30, 1971);
2. Where the action is merely to obtain a money 9. Do such acts respecting the property as the court may
judgment on unpaid credits and not to enforce a lien authorize; and
upon specific property or funds in the possession of 10. Invest funds in his hands only by order of the court
the defendant, the appointment of receiver is upon the written consent of all the parties (Sec. 6, Rule
improper (Bonaplata vs. Ambler et. al.; 2 Phil 392; 59)
Regalado p. 746).
3. In actions involving possession of or title to real TWO KINDS OF BONDS
property, the appointment of receiver may be made
only if there is clear necessity to protect the applicant Q: What is the 2-bond requirement in filing a petition for
from grave or irremediable damages (Camiling vs. De receivership?
Aquino, 103 Phil 128);
A:
1. Bond posted by the applicant (Sec. 2, Rule 59)
2. Bond posted by receiver appointed The receiver
before entering upon his duties shall be sworn to
REQUISITES perform them faithfully and shall file a bond to the
effect that he will faithfully discharge his duties in the
Q: What are the requisites in the application for action and obey the orders of the court (Sec. 4, Rule
receivership? 59).
was also engaged in furniture manufacturing such that personal property involved person
from confirmed reports Paula gathered, the machinery Extends only to personal Extends to all kinds of
and equipment left with Jolly were no longer sufficient to property capable of manual property whether real,
answer for the latter's mortgage indebtedness. In the delivery personal or incorporeal
meantime, judgment was rendered by the court in favor Used to recover personal Recover property being
of Paula but the same is not yet final. Knowing what Jolly property even if not being concealed, removed or
has been doing, if you were Paula's lawyer, what action concealed, removed or disposed
would you take to preserve whatever remaining disposed
machinery and equipment are left with Jolly? Why? (2001 GR:Cannot be availed of Can be availed of even if
Bar Question) when property is in property is in custodia
custodialegis(under legis
A: Paulas lawyer should file a verified application for the attachment) or seized
appointment by the court of one or more receivers. under search warrant
Receivership is proper in an action by the mortgagee for the
foreclosure of a mortgage when it appears that the XPN:
property is in danger of being wasted or dissipated or 1. When the seizure is
materially injured and that its value is probably insufficient illegal (Bagalihog v.
to discharge the mortgage debt. Fernandez,G.R. No.
92270, June 27, 1991);
Q: How is receivership terminated? and
2. Where there is reason
A: to believe that the
1. By the court motu propio or on motion by either party seizure will not
2. Based on the following grounds: anymore be followed
a. Necessity for receiver no longer exists by the filing of the
b. Receiver asserts ownership over the property criminal action in court
(Martinez v. Grao, G.R. No. L-25437, August 14, or there are conflicting
1926) claims (Chua v. CA, G.
3. After due notice and hearing to all interested party R. No. 79021, May 17,
(Sec. 8, Rule 59) 1993)
The property either The property does not
REPLEVIN belongd to the plaintiff or belong to the plaintiff but
one over which the plaintiff to the defendant.
Q: What is Replevin? has a right of possession.
Property of GOCCs cannot Properties of GOCCs may
A: It is an action whereby the owner or person entitled to be reached be reached if utilized in
repossession of goods or chattels may recover those goods its proprietary function.
or chattels from one who has wrongfully distrained or Sheriff takes possession of Sheriff does not take
taken or who wrongfully detains such goods or chattels the property subject of the possession of the
th
(Blacks Law Dictionary. 6 ed.). Replevin may be a main replevin and hold the same property attached except
action or a provisional remedy. As a principal action its for a period of 5 days after constructively placing it
ultimate goal is to recover personal property capable of which said property will be under custodia legis.
manual delivery wrongfully detained by a person. The main delivered to the party who
action for replevin is primarily possessory in nature and obtained the writ.
generally determines nothing more than the right of Bond to be posted is Bond amount is fixed by
possession (Riano, Civil Procedure: A Restatement for the double the value of the court and does not
Bar, p. 593, 2009 ed.). property sought to be exceed the claim or value
recovered of the property to be
Q: Distinguish replevin from preliminary attachment. attached (Regalado,
Remedial Law
A: Compendium, Vol. 1, p.
Replevin Preliminary Attachment th
753-754, 10 ed.; Riano,
Recovery of possession of Available even if recovery Civil Procedure: A
personal property is the of personal property is Restatement for the Bar,
principal relief and only an incidental relief p. 597-598, 2009 ed.).
damages are incidental
This is available before Available from Note: These remedies cannot be availed of in the same case.
defendant files an answer commencement but
before entry of judgment Q: To be able to secure financial accommodations from
Available only where May be resorted to even Makati Leasing, Wearever discounted and assigned
defendant is in actual or if personal property is in several receivables under a Receivable Purchase
constructive possession of the custody of a third Agreement. To secure the collection of the receivables
assigned, private respondent executed a chattel mortgage d. Actual market value of the property (Sec. 2, Rule 60)
over certain machineries which were bolted to the
ground. Upon default Makati Leasing move for 3. The applicant must give a bond, executed to the
extrajudicial foreclosure of the mortgage properties and adverse party and double the value of the property
filed an action for replevin which was granted by the (Sec. 2, Rule 60)
court. Can the machineries bolted to the ground be a
subject of replevin? AFFIDAVIT AND BOND; REDELIVERY BOND
A: Machineries bolted to the ground are real properties Q: What is redelivery bond? When is it required?
that may not be the subject to replevin (Makati Leasing and
Finance Corporation v. Wearever Textile Mills Inc. GR No L- A: Bond, which must be double the value of property, to
58469, May 16, 1983). answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant (Sec. 2, Rule
60). It is required that the redelivery bond be filed within
the period of 5 days after the taking of the property. (Yang
v. Valdez, 177 SCRA 141)
WHEN MAY WRIT BE ISSUED SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
Q: When may a writ of replevin be issued?
Q: What are the duties of the sheriff?
A: This may only be obtained when the defendant in the
action has not yet filed his answer to the complaint where A: Upon receiving such order,
it is necessary to: 1. the sheriff must serve a copy thereof on the adverse
1. Protect plaintiffs right of possession to property party, together with a copy of the application, affidavit
2. Prevent defendant from destroying, damaging or and bond, and must forthwith
disposing of the property 2. take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his custody.
Q: Can a writ of replevin be issued anywhere in the 3. If the property or any part thereof be concealed in a
Philippines? building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the
A: Yes, under the Resolution of the Supreme Court en banc building or enclosure to be broken open and take the
dated Jan. 11, 1983, a writ of replevin like the one issued in property into his possession.
the present case may be served anywhere in the Philippines 4. After the sheriff has taken possession of the property as
(Fernandez v. International Corporate Bank now Union Bank herein provided, he must keep it in a secure place and
of the Philippines, GR No 131283, Oct. 7, 1999). shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses
REQUISITES for taking and keeping the same (Sec. 4, Rule 60).
Q: What are the requisites in applying for replevin? Q: When should the sheriff deliver the property to the
applicant?
A:
1. The application for the writ must be filed at the A: The sheriff shall retain the property for 5 days. Within
commencement of the action or at anytime beofre the such period, the adverse party may object to the sufficiency
defendant answers (Sec. 1 Rule 60); of the applicants bond or surety or he may file a redelivery
2. The application must contain an affidavit where the bond. After 5 days and the adverse party failed to object or
applicant particularly decribes the property that he is the redelivery bond is insufficient, the sheriff shall deliver
the owner of the property or that he is entitled to the the property to the applicant (Sec. 5).
possession thereof;
Q: What are the instances where the defendant is entitled
Note: The affidavit must contain the following: to the return of the property under a writ of replevin?
a. Applicant is the owner of the property claimed,
particular description of such, entitlement to
possession
A:
b. Property is wrongfully detained, alleging cause of 1. He seasonably posts a redelivery bond (Sec. 5, Rule 60)
detention according to applicants knowledge, 2. Plaintiffs bond is found to be insufficient or defective
information and belief and is not replaced with proper bond
c. Property has not been taken for tax assessment or fine, 3. Property is not delivered to the plaintiff for any reason
or seized by writ of execution, preliminary (Sec. 6, Rule 60)
attachment, in custodia legis, if so seized, that is
exempt or should be released from custody
Q: What are the remedies of a third person whose Declaratory relief action
property is taken by virtue of a replevin? is brought before there is
breach.
A:
1. Third party shall file and serve affidavit upon sheriff Interpleader plaintiff
and applicant stating his entitlement to possession files a complaint even if
2. Sheriff shall return the property to third person unless he has sustained no actual
applicant files a bond (same amount as the value of transgression of his rights
the property) approved by court to indemnify the third (Riano, Civil Procedure: A
person Restatement for the Bar,
3. Claim for damages upon said bond must be filed within p. 603, 2009 ed.).
120 days from date of filing of the bond Venue
Determined by either The venue of special civil
Q: Is the Rule on Prior or Contemporaneous Service of the residences of the actions is governed by the
Summons observed in replevin? parties where the general rules on venue,
action is personal or by except as otherwise
A: Yes. Although the writ of replevin may be issued ex location of the property indicated in the particular
parte, it cannot be implemented or enforced if not where the action is real rule for said special civil
preceded or accompanied by a service of summons. (Riano, Civil Procedure: action. Thus, actions for
A Restatement for the certiorari, prohibition and
SPECIAL CIVIL ACTION Bar, p. 603, 2009 ed.). mandamus should be
commenced in the proper
NATURE OF SPECIAL CIVIL ACTIONS Regional Trial Court, but
the same may, in proper
Q: What is special civil action? When is it filed? cases, be commenced in
the Supreme Court or
A: Since a civil action in general is one by which a party sues Court of Appeals (Sec. 4,
another for the enforcement or protection of a right, or the Rule 65); and special rule
prevention or redress of a wrong (Sec. 3[a], Rule 1, Rules of of venue is provided for
Court), a special civil action is generally brought or filed for quo warranto proceedings
the same purpose. (Sec. 7, Rule 66)
(Regalado, Remedial Law
Q: What are special civil actions commenced by complaint Compendium, Vol. I, p.
th
and petition? 770, 10 ed.).
Jurisdiction
A: May be filed initially in There are special civil
PETITION COMPLAINT either the Municipal actions which can only be
Trial Court or Regional filed in a Municipal Trial
Declaratory Relief (Rule 63) Interpleader (Rule 62) Trial Court depending Court like the actions for
Review of adjudications of upon the jurisdictional forcible entry and
COMELEC and COA (Rule Expropriation (Rule 67) amount or nature of unlawful detainer. There
64) the action involved are also special civil
Certiorari, prohibition and Foreclosure of real estate (Riano, Civil Procedure: actions which cannot be
mandamus (Rule 65) mortgage (Rule 68) A Restatement for the commenced in the
Bar, p. 604, 2009 ed.). Municipal Trial Court
Quo warranto (Rule 66) Partition (Rule 69) foremost of which are the
Forcible entry and Unlawful petitions for certiorari,
Detainer (Rule 70) (Riano, prohibition and
Contempt (Rule 71) Civil Procedure: A mandamus (Riano, Civil
Restatement for the Bar, p. Procedure: A Restatement
602, 2009 ed.). for the Bar, p. 604, 2009
ed.).
ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Motion to Dismiss
By virtue of Sec. 3 of Rule 1, the provisions of Rule 16
ORDINARY ACTION SPECIAL CIVIL ACTION on motion to dismiss are applicable in special civil
Cause Of Action action (National Power Corporation vs. Valera, L-
It is based on a cause of Not all special civil actions 15295, Nov. 30, 1961; Regalado, Remedial Law
th
action (Sec. 1, Rule 2, are based on a cause of Compendium, Vol. I, p. 771, 10 ed.).
Rules of Court). action, i.e. declaratory
relief (Rule 63) and
interpleader (Rule 62).
Q: Who has jurisdiction over special civil actions, where should it be filed, who may file it and when should it be filed?
A:
Jurisdiction Venue Who May File When To File
Interpleader (Rule 62)
MTC where the value of Where the plaintiff or any A person who claims no interest Within a reasonable
the claim or the personal of the principal plaintiff whatever in the subject matter time after a dispute
property does not exceed resides or where the or an interest which in whole or has arisen without
P300,000 or P400,000 in defendant or any of the in part is not disputed by the waiting to be sued by
Metro Manila or where the principal defendants claimants having claims upon either of the
value of the real property resides at the option of the same subject matter (Sec 1, contending claimants.
does not exceed P20,000 the plaintiff. (Sec. 2, Rule Rule 62) Otherwise, it may be
or P50,000 in Metro 4) barred by laches or
Manila. undue delay. This is
Note: The venue of special because after
RTC if the value exceeds civil actions is governed by judgment is obtained
the above amounts or if the general rules on venue, against the plaintiff by
except as otherwise
the subject matter is one claimant, he is
indicated in the particular
exclusively within the rule for said special civil already liable to the
jurisdiction of the RTC action. latter. (Wackwack
(Judiciary Act of 1980; BP Golf & Country Club v
Blg 129 (sec 19(2), Sec Won, GR L-23851
33(3)as amended by RA Mar. 26, 1976)
7691)
Declaratory Relief (Rule 63)
RTC Where the petitioner or a. Any person interested The petition must be
the respondent resides at under a deed, will, contract filed before there is a
the election of the or other written breach of contract or
petitioner (Section 2, Rule instrument, or whose rights violation of the
Note: It would be error to file 4, Rules of Court). are affected by a statute, statute or ordinance
the petition with the SC which
executive order or (Sec 1, Rule 63, Rules
has no original jurisdiction to
entertain a petition for
regulation, ordinance, or of Court).
declaratory relief (Tano v. any other governmental
Socrates, G.R. No. 110249, regulation.
Aug. 14, 1997)
In election cases
involving an act or
omission of MTC /RTC, it
shall be filed exclusively
with the COMELEC, in aid
of its appellate
jurisdiction (Sec. 4, Rule
65)
Quo Warranto (Rule 66)
RTC, CA, SC, (Sec. 7, Rule With the SC, CA, or in the The government through the Within 1 year after
66) SB in aid of its RTC exercising Solicitor General or a Public the cause of such
appellate jurisdiction (PD jurisdiction over the Prosecutor. It may also be filed ouster, or the right
1606, 4 as amended by RA territorial area where by a person claiming to be of the petitioner to
No 8249, 4) the respondent or any of entitled to a public office or hold such office or
the respondents resides. position usurped or unlawfully position, arose.
When the Solicitor held or exercised by another
General commences the (Secs. 2,3 and 5, Rule 66) Action for damages
action, it may be brought must be commenced
in the RTC of the City of within 1 year after
Manila, in the CA, or in the entry of the
the SC (Sec. 7, Rule 66) judgment
establishing the
Note: Subject to the petitioner's right to
principle of Hierarchy of the office in
Courts question (Sec. 11,
Rule 66)
Expropriation (Rule 67)
RTC (incapable of Land: where the Government or any of its At anytime before
pecuniary estimation) property is located instrumentalities ((Riano, Civil the actual taking and
(Barangay San Roque v. Procedure: A Restatement for entering into
Heirs of Pastor, G.R. No. the Bar, p. 679, 2009 ed.). possession of the
138896, June 20, 2000) real property
Personal property: the
place where the plaintiff
or defendant resides, at
the election of the
plaintiff (Section 2, Rule
4, Rules of Court).
for the Bar, pp. 192, 2009 plaintiff or Prescription does not
ed.); defendant resides at run in favor of co-
the election of the owner or co-heir
plaintiff (Sec. 13, against his co-owner
Rule 69) or co-heirs as long as
there is a recognition
of the co-ownership
expressly or
impliedly (Art 494,
Civil Code of the
Philippines) But a co-
owner may acquire
ownership by
prescription where
there exists a clear
repudiation of the
co-ownership and
the co-owners are
apprised of the claim
of adverse and
exclusive ownership
(Heirs of Flores
Restar v. Heirs of
Cichon, 475 SCRA
731)
Forcible Entry (Rule 70)
MTC, MTCCs, MCTC Where the property is A person deprived of the Within 1 year from
Metropolitan Trial Courts; located because it is a possession of any land or the date of entry or
covered by Rule on real action (Riano, Civil building by force, intimidation, taking of possession
Summary Procedure (Sec Procedure: A threat, strategy or stealth (Sec. by force,
3, RA no 7691) Restatement for the Bar, 1, Rule 70) intimidation, threat,
pp. 203, 2009 ed.); strategy, or stealth.
A: The subject matter in a petition for declaratory relief Q: What does the phrase to be ripe for judicial
may be any of the following: determination or to constitute the ripening seeds of a
a. deed; controversy, mean?
b. will;
c. contract or other written instrument; A: It means that under the facts of the case, there is
d. statute; threatened litigation in the immediate future, which
e. executive order or regulation; litigation is imminent and inevitable unless prevented by
f. ordinance; or the declaratory relief sought (Tolentino v. Board of
g. any other governmental regulations (Sec. 1, Rule 63). Accountancy, G.R. No. L-3062, Sept. 28, 1951).
Note: The enumeration of subject matter is exclusive, subject to Q: To whom shall notices be given?
clear and unambiguous contract or statute. (Riano, Civil Procedure:
A Restatement for the Bar, p. 614, 2009 ed) A:
1. To the Solicitor general if subject matter involves:
a) The validity of a statute, EO or regulation, or any
governmental regulation; or
b) The constitutionality of a local government
ordinance
2. To the Prosecutor or attorney of the local government
WHO MAY FILE THE ACTION unit if subject matter involves validity of a local
government ordinance (Secs. 3-4, Rule 63).
Q: Who may file an action for declaratory Relief?
Q: Which court has jurisdiction over actions for
A: Any person: declaratory relief?
1. Interested under a deed, will, contract or other written
instrument (Sec. 1, Rule 63); A: GR: The appropriate Regional Trial Court (Sec. 1, Rule
2. Whose rights are affected by a statute, executive order 63), even if only questions of law are involved. (Bank of
or regulation, ordinance or any other governmental Olangapo, Inc. vs. Comm. Of Land Registration, et. al., L-
regulation (Sec. 1, Rule 63); and 47988, Feb. 20, 1981; Regalado, Remedial Law
th
3. The other parties are all persons who have or claim any Compendium Vol. I, p. 784, 10 ed)
interest which would be affected by the declaration
(Sec. 2, Rule 63). XPN: If the petition has far-reaching implications and it
raises questions that should be resolved, it may be treated
REQUISITES OF ACTION FOR DECLARATORY RELIEF as one for prohibition or for mandamus, in such case, it
should be filed in the proper court (Regalado, Remedial
th
Q: What are the requisites of a valid declaratory relief? Law Compendium Vol. I, p. 784, 10 ed).
A: The plaintiff need not be in possession of the real A: If the SC finds the petition sufficient, respondents will be
property before he may bring the action as long as he can ordered to file a verified comment within 10 days from
show that he has a legal or an equitable title to the notice of such order (Sec. 6, Rule 64).
property which is the subject matter of the action (Art. 477,
Civil Code). Q: When may the court outrightly dismiss the petition?
Q: Distinguish Rule 45, Rule 64 and Rule 65 (1991, 1998, 1999 Bar Question)
A:
Appeal by Certiorari(Rule 45) Review of Judgments, Final Petition for Certiorari(Rule 65)
Orders or Resolutions of
COMELEC and COA (Rule 64)
GR: Petition is based only on questions of Petition is based on questions of Petition is based on questions of
law. law. jurisdiction, that is, whether the lower
XPN: questions of facts may be allowed in court acted without jurisdiction or in
cases of writ of habeas data, excess of jurisdiction or with grave abuse
Q: What are instances wherein the petitions for certiorari, XPN: When it is Habeas Data and Writ of
mandamus and prohibition are not available? necessary to delve into Kalikasan, it may involve both
factual issues in order to questions of law and facts.
A: resolve allegations of
1. Rule on Summary Procedure as to interlocutory order grave abuse of
issued by the lower court [Sec. 19(g), Rules on discretion as a ground
Summary Procedure]; (Balba vs. Peak
2. Writ of Amparo against any interlocutory order (Sec. Development, INC., et.,
11(l), Rule on Writ of Amparo) GR 148288, Aug. 12,
3. Petition for writ of Habeas data against any 2005; Regalado,
interlocutory order (Sec. 13(l), A.M. No. 08-1-16) Remedial Law
4. Small claims cases against interlocutory order issued Compendium Vol. I, p.
th
by the lower court (Sec. 14(g) of A.M. No. 08-8-7-SC) 792, 10 ed.)
Directed against an Involves the review of the
CERTIORARI DISTRINGUISHED FROM APPEAL BY interlocutory order of a judgment, final orders or
CERTIORARI court or where there is resolutions of the CA,
no appeal or any other Sandiganbayan, CTA, RTC or
Rule 65 (certiorari) Rule 45 (appeal by certiorari) plain, speedy or other courts
A special civil action Mode of Appeal adequate remedy
that is an original and Filed not later than 60 Filed within 15 days from
independent action and days from notice of notice of judgment, final order
not a mode of appeal. judgment, order or or resolution appealed from
May be directed against Seeks to review final resolution sought to be
interlocutory order or judgments or final orders assailed.
matters where no Unless a writ of Stays the judgment or order
appeal may be taken preliminary injunction appealed from
from or temporary
GR: Involves questions GR: Involves question of law restraining order is
of jurisdiction XPN: In Writ of Amparo, issued, it does not stay
A:
Prohibition Mandamus Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the
board or person, whether exercising board or person, to do an act required commission or continuance of a
judicial, quasi-judicial or ministerial to be done: specific act, or to compel a particular
functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings performance of an act which the applicant. Preliminary injunction is a
are without or in excess of its law specifically enjoins as a duty, provisional remedy to preserve the
jurisdiction, or with abuse of its and there is no other plain, status quo and prevent future wrongs
discretion, there being no appeal or speedy and adequate remedy in in order to preserve and protect
any other plain, speedy and adequate the ordinary course of law; or certain interests or rights during the
remedy in the ordinary course of law (b) When one unlawfully excludes pendency of an action.
(Sec. 2, Rule 65). another from the use and
enjoyment of a right or office to
which the other is entitled (Sec. 3,
Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain
usurpation or assumption of ministerial and legal duty; from an act or to perform not
jurisdiction; necessarily a legal and ministerial
duty;
May be directed against entities May be directed against judicial and Directed against a party
exercising judicial or quasi-judicial, or non-judicial entities
ministerial functions
Extends to discretionary and Extends only to ministerial functions Does not necessarily extend to
ministerial functions ministerial, discretionary or legal
functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent
jurisdiction over the territorial area jurisdiction over the territorial area resides.
where respondent resides. where respondent resides.
REQUISITES
XPNs:
1. If the assailed judgment/order is a patent nullity;
2. When there is urgent necessity for the resolution of
the question;
3. If the question raised in the certiorari proceeding have
been duly raised and passed upon by the lower court WHERE AND WHEN TO FILE
or are the same as those raised and passed upon in the
lower court; Q: When and where to file petition for certiorari,
4. If the issue raised is one purely of law or where public prohibition or mandamus?
interest is involved;
5. Petitioner is deprived of due process A:
6. MR would be useless;
7. In criminal case, relief from an order of arrest is urgent 1. Supreme Court- Subject to the doctrine of hierarchy of
and the granting of such relief by the trial court is courts and only when compelling reasons exist for not
improbable; filing the same with the lower courts.
8. The proceeding in the lower court is a nullity for lack of 2. Court of Appeals only- If the petition involves an act or
due process; and an omission of a quasi-judicial agency, unless otherwise
9. The proceeding was ex parte or in which the petitioner provided by law or rules.
had no opportunity to object. 3. Court of Appeals and Sandiganbayan- Whether or not in
aid of appellate jurisdiction.
RELIEFS PETITIONER IS ENTITLED TO 4. Regional Trial Court- If the petition relates to an act or
an omission of an MTC, corporation, board, officer or
Q: What are the reliefs a petitioner is entitled to with this person.
action? 5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC
A: The primary relief will be the annulment or modification
of the judgment, order, or resolution or proceeding subject Q: May a petition for certiorari, prohibition or mandamus
of the petition. It may also include such other Incidental against lower courts be filed directly with the SC? If not,
reliefs as law and justice may require (Sec. 1, Rule 65). The where should it be filed?
court may also award damages in its judgment and the
execution of the award for damages or costs shall follow A: No. By virtue of the amendment introduced by A.M. No.
the procedure in sec 1 of rule 39 (Sec. 9, Rule 65). 07-7-12-SC to Sec. 4, Rule 65, a petition for certiorari,
prohibition or mandamus may not be filed directly with the
Q: What should the public respondent do if no temporary SC anymore.
restraining order or writ of preliminary injunction was
issued by the court hearing the petition for certiorari, Note: If the petition relates to an act or an omission of a municipal
prohibition or mandamus? trial court or of a corporation, a board, an officer or a person, it
shall be filed with the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may
A: The public respondent shall proceed with the principal also be filed with the Court of Appeals or with the Sandiganbayan,
case within 10 days from the filing of a petition for whether or not the same is in aid of the courts appellate
certiorari with a higher court or tribunal, absent a jurisdiction. If the petition involves an act or an omission of a quasi-
temporary restraining order or a preliminary injunction, or judicial agency, unless otherwise provided by law or these rules,
upon its expiration. Failure of the public respondent to the petition shall be filed with and be cognizable only by the Court
proceed with the principal case may be a ground for an of Appeals (Sec. 4, as amended by A.M. No. 07-7-12-SC).
administrative charge (Sec. 7 as amended by A.M. No. 07-7-
12-SC) Q: When should petition for certiorari, prohibition or
. mandamus be filed?
ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES
A: It shall be filed not later than sixty (60) days from notice
of the judgment, order or resolution. In case a motion for
The Court may impose motu proprio, based on res ipsa DISTINGUISH FROM QUO WARRANTO IN OMNIBUS
loquitur, other disciplinary sanctions or measures on erring ELECTION CODE
lawyers for patently dilatory and unmeritorious petitions
for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC). A:
Quo Warranto Under Quo Warranto In Electoral
Q: James mortgaged his property to Peter. James failed to Rule 66 Proceedings
pay his obligation and Peter filed an action for foreclosure Issue is legality of the Issue is eligibility of the
of mortgage. After trial, the court issued an order granting occupancy of the office by person elected (Riano, Civil
Peter's prayer for foreclosure of mortgage and ordering virtue of a legal Procedure: A Restatement
James to pay Peter the full amount of the mortgage debt appointment (Riano, Civil for the Bar, pp.
not later than 120 days from date of receipt of the order. Procedure: A Restatement 672, 2009 ed.).
James received the order on August 10, 1999. No other for the Bar, pp.
proceeding took place thereafter. On December 20, 1999, 672, 2009 ed.).
James tendered the full amount adjudged by the court to Grounds: usurpation, Grounds: ineligibility or
Peter but the latter refused to accept it on the ground that forfeiture, or illegal disqualification to hold the
the amount was tendered beyond the 120-day period association (Sec 1, Rule office (sec 253, Omnibus
granted by the court. James filed a motion in the same 66, Rules of Court) Election Code)
Presupposes that the Petition must be filed 3. An association which acts as a corporation within the
respondent is already within 10 days from the Philippines without being legally incorporated or
actually holding office and proclamation of the without lawful authority so to act (de facto
action must be candidate. (Riano, Civil corporation) (Sec. 1, Rule 66).
commenced within 1 year Procedure: A Restatement
from cause of ouster or for the Bar, pp. Note: Actions of quo warranto against corporations now fall under
from the time the right of 672, 2009 ed.). the jurisdiction of the RTC acting as Special Commercial Courts
petitioner to hold office (Sec. 5.2, Securities Regulations Code). Quo warranto will only lie
arose. against DE FACTO corporations.
Petitioner is person Petitioner may be any
entitled to office (Riano, voter even if he is not WHEN INDIVIDUAL MAY COMMENCE AN ACTION
Civil Procedure: A entitled to the office.
Restatement for the Bar, (Riano, Civil Procedure: A A person claiming to be entitled to a public office or
pp. Restatement for the Bar, position usurped or unlawfully held or exercised by another
672, 2009 ed.). pp. may bring an action therefor in his own name (Sec. 5, Rule
672, 2009 ed.). 66).
Person adjudged entitled Actual or compensatory
to the office may bring a damages are recoverable in Such person may maintain action without the intervention
separate action against quo warranto proceedings of the Solicitor General and without need for any leave of
the respondent to recover under the Omnibus court. He must show that he has a clear right to the office
damages. (Sec 11, Rule 66, Election Code. allegedly being held by another (Cuevas vs. Bacal, 347 SCRA
Rules of Court) 338).
A: It is the procedure for enforcing the right of eminent MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
domain.
The right of eminent domain shall be exercised by the filing
Q: How it is commenced? of a verified complaint, which shall:
1. state with certainty the right and purpose of
A: It is commenced by a verified complaint stating the right expropriation;
and purpose of expropriation, describing the property 2. describe the real or personal property sought to be
sought to be expropriated, and joining as defendants all expropriated, and
persons owning or claiming to own any part thereof or 3. join as defendants all persons owning or claiming to
interest therein (Sec. 1, Rule 67). own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate
Note: It is the actual filing of complaint for expropriation which
interest of each defendant.
binds the land, and not a mere notice of the intent to expropriate.
However, the owner of the land may still dispose of said property, 4. If the title to any property sought to be expropriated
despite the filing of the action, as the grantee would merely be appears to be in the Republic of the Philippines,
substituted in his place and holds the land subject to the results of although occupied by private individuals, or if the title
the action. (Regalado, Remedial Law Compendium, Vol. I, p. 830, is otherwise obscure or doubtful so that the plaintiff
10th ed) cannot with accuracy or certainty specify who are the
real owners, averment to that effect shall be made in
Q: What are the requisites of the exercise of a valid the complaint (Sec. 1, Rule 67).
expropriation?
Note: Expropriation by the local government requires an
A: authorizing ordinance before it may be accomplished. Under Rule
1. Due process of law; 67 and RA 8974 there is no need for legislative authorization
2. Payment of just compensation; and before the Government may proceed with a particular exercise of
eminent domain (Riano, Civil Procedure: A Restatement for the Bar,
3. Taking must be for public use.
pp. 678-679, 2009 ed.).
Q: What are the properties that are subject to Note: The first stage will end in the issuance of an order of
expropriation if the court finds for plaintiff or in dismissal
expropriation?
of the complaint if it finds otherwise.
A: All properties can be expropriated, except money and 2. Determination of just compensation through the court-
choses in action. appointed commissioners (Riano, Civil Procedure: A
Restatement for the Bar, p. 677, 2009 ed.).
Note: Choses in action - A right to personal things of which the
owner has not the possession, but merely a right of action for their
possession (Black Laws Dictionary). Q: The City of Iloilo (petitioner) represented by Mayor
Treas filed a complaint for eminent domain against
Q: Is expropriation limited only to the acquisition of title Javellana seeking to expropriate two parcels of land.
over the property expropriated? Mayor Treas filed a motion for issuance of writ of
possession alleging that it had deposited 10% of the
A: Expropriation is not limited to the acquisition of real amount of compensation which the court issued. A writ of
property with a corresponding transfer of title or possession was subsequently issued, and petitioner was
possession. The right-of-way easement resulting in a able to take physical possession of the properties. After
restriction or limitation on property rights over the land which, the expropriation proceedings remained dormant.
traversed by transmission lines also falls within the ambit of 16 years later, Javellana filed an ex parte
the term "expropriation" (National Power Corporation vs. motion/manifestation, where he alleged that when he
Vda. De Capin, G.R. No. 175176, October 17, 2008). sought to withdraw the money, he discovered that no
deposit was made. Thus, Javellana filed a complaint for
Q: What remedy does the defendant have in the event he A: It may be appealed by the defendant by record on
omits some defenses? appeal. This is an instance when multiple appeals are
allowed because they have separate and/or several
A: If the answer omits some defenses, the remedy, in order judgments on different issues e.g. issue on the right to
to prevent a waiver of those defenses not alleged, is to seek expropriate or issue of just compensation.
leave to amend the answer within 10 days from the filing
thereof (Sec. 3, Rule 67, Riano, Civil Procedure: A Note: An appeal does not delay the right of the plaintiff to enter
Restatement for the Bar, p. 680, 2009 ed). upon the property of the defendant and appropriate the same for
public use. (Sec. 11, Rule 67). An appeal from judgment shall not
Q: What is the duty of the court if the defendant waives prevent the court from determining the just compensation to be
his defenses or objections? paid (Sec. 4 Rule 67).
Q: May the trial court decide conflicting claims of
ownership in the same case?
Q: May Congress enact a law providing that a 5,000 square JC Just compensation
meter lot, a part of the UST compound in Sampaloc, FMV Fair market value
Manila, be expropriated for the construction of a park in CD Consequential damages
honor of former City Mayor Arsenio Lacson, and as CB Consequential benefits
compensation to UST, the City of Manila shall deliver its 5-
hectare lot in Sta. Rosa, Laguna originally intended as a Note: Sentimental value is not computed.
residential subdivision for the Manila City Hall employees?
Explain. (2006 Bar Question) Q: What is a consequential benefit?
A: Congress may enact a law to expropriate property but it A: It refers to actual benefits derived by the owner on the
cannot limit just compensation. The determination of just remaining portion of his land which are the direct and
compensation is a judicial function and Congress may not proximate results of the improvements consequent to the
supplant or prevent the exercise of judicial discretion to expropriation, and not the general benefits which he
determine just compensation. Under Sec. 5, Rule 67 of the receives in common with community. (Regalado, Remedial
th
Rules of Court, the ascertainment of just compensation Law Compendium, Vol. I, p. 843, 10 ed)
requires the evaluation of 3 commissioners.
Q: What is the reckoning point for determining just
Q: What is just compensation? compensation?
A: Just compensation is defined as the full and fair A: The value of just compensation shall be determined as of
equivalent of the property sought to be expropriated. The the date of the taking of the property or the filing of the
measure is not the takers gain but the owners loss. The complaint, whichever came first (Sec. 4, Rule 67).
compensation, to be just, must be fair not only to the
owner but also to the taker. Even as undervaluation would GR: When the taking of the property sought to be
deprive the owner of his property without due process, so expropriated coincides with the commencement of the
too would its overvaluation unduly favor him to the expropriation proceedings, or takes place subsequent to
prejudice of the public (National Power Corporation vs. De the filing of the complaint for eminent domain, the just
la Cruz, G.R. No. 156093, Feb. 2, 2007). compensation should be determined as of the date of
the filing of the complaint (City of Iloilo v. Hon. Lolita
Q: How does the court determine just compensation? Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
A: The trial court should first ascertain the market value of XPNs:
the property, to which should be added the consequential 1. Grave injustice to the property owner
damages after deducting therefrom the consequential Air Transportation Office cannot conveniently
benefits which may arise from the expropriation. If the invoke the right of eminent domain to take
consequential benefits exceed the consequential damages, advantage of the ridiculously low value of the
these items should be disregarded altogether as the basic property at the time of taking that it arbitrarily
value of the property should be paid in every case. chooses to the prejudice of the land owners
(Heirs of Mateo Pidacan & Romana Eigo v. Air
The market value of the property is the price that may be Transportation Office, G.R. No. 162779, June 15,
agreed upon by parties willing but not compelled to enter 2007).
into the contract of sale. Not unlikely, a buyer desperate to
acquire a piece of property would agree to pay more, and a 2. The taking did not have color of legal authority
seller in urgent need of funds would agree to accept less, To allow NAPOCOR to use the date it constructed
than what it is actually worth. the tunnels as the date of valuation would be
grossly unfair. First, it did not enter the land
Among the factors to be considered in arriving at the fair under warrant or color of legal authority or with
market value of the property are the cost of acquisition, the intent to expropriate the same. It did not bother
current value of like properties, its actual or potential uses, to notify the owners and wrongly assumed it had
and in the particular case of lands, their size, shape, the right to dig those tunnels under their
location, and the tax declarations thereon (National Power property. Secondly, the improvements
Corporation vs. De la Cruz, G.R. No. 156093, Feb. 2, 2007). introduced by NAPOCOR, the tunnels, in no way
contributed to an increase in the value of the
land. The trial court rightly computed the
181 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
REMEDIAL LAW
valuation of the property as of 1992, when the APPOINTMENT OF COMMISSIONERS; COMMISSIONERS
owners discovered the construction of the huge REPORT; COURT ACTION UPON COMMISSIONERS REPORT
underground tunnels beneath their lands and
NAPOCOR confirmed the same and started Q: When may the court appoint a commissioner in
negotiations for their purchase but no agreement expropriation proceedings?
could be reached (NAPOCOR v. Ibrahim, G.R. No.
168732, June 29, 2007). A: Upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) competent and
3. The taking of the property was not initially for disinterested persons as commissioners to ascertain and
expropriation report to the court the just compensation for the property
There was no taking of the property in 1985 by sought to be taken. The order of appointment shall
Public Estates Authority (PEA) for purposes of designate the time and place of the first session of the
expropriation. As shown by the records, PEA filed hearing to be held by the commissioners and specify the
with the RTC its petition for expropriation on time within which their report shall be submitted to the
Sept. 22, 2003. The trial court was correct in court (Sec. 5, Rule 67).
ordering the Republic, through PEA, upon the
filing of its complaint for expropriation, to pay Note: Objections to the order of appointment must be filed within
Tan just compensation on the basis of the BIR 10 days from service of the order and shall be resolved within 30
zonal valuation of the subject property (Tan v. days after all the commissioners received the copies of the
objections (Sec. 5, Rule 67).
Republic, G.R. No. 170740, May 25, 2007).
Q: May the court dispense with the assistance of
4. The owner will be given undue increment
commissioners in the determination of just compensation
advantages because of the expropriation
in expropriation proceedings?
The value of the property in question was greatly
enhanced between the time when the extension
A: No. The appointment of commissioners to ascertain just
of the street was laid out and the date when the
compensation for the property sought to be taken is a
condemnation proceedings were filed. The
mandatory requirement in expropriation cases. Where the
owners of the land have no right to recover
principal issue is the determination of just compensation, a
damages for this unearned increment resulting
hearing before the commissioners is indispensable to allow
from the construction of the public improvement
the parties to present evidence on the issue of just
for which the land was taken. To permit them to
compensation.
do so would be to allow them to recover more
than the value of the land at the time when it was
While it is true that the findings of commissioners may be
taken, which is the true measure of the damages,
disregarded and the trial court may substitute its own
or just compensation, and would discourage the
estimate of the value, the latter may only do so for valid
construction of important public improvements
reasons, that is, where the commissioners have applied
(Provincial Govt of Rizal v. Caro de Araullo, G.R.
illegal principles to the evidence submitted to them, where
No. L-36096, Aug. 16, 1933).
they have disregarded a clear preponderance of evidence,
Note: Under Sec. 19 of the Local Government code the amount to or where the amount allowed is either grossly inadequate
be paid for the expropriation of the expropriated property shall be or excessive. (National Power Corporation vs. De la Cruz,
determined based on the fair market value at the time of the G.R. No. 156093, February 2, 2007)
taking of the property (Riano, Civil Procedure: A Restatement for
the Bar, p. 692, 2009 ed.). Q: What are the matters taken in determining just
compensation by the commissioner?
Q: What is the effect of non-payment of just
compensation? A: The parties may introduce their evidence before the
commissioners and they may argue their case either by
A: Nonpayment of just compensation does not entitle the themselves or by counsel. The commissioners shall assess
private landowner to recover possession of the the consequential damages to the property not taken and
expropriated lots. deduct from such consequential damages the
consequential benefits to be derived by the owner from the
However, in case where the government failed to pay just public use or purpose of the property taken, the operation
compensation within 5 years from the finality of judgment of its franchise by the corporation or the carrying on of the
in the expropriation proceedings, the owners concerned business of the corporation or person taking the property.
shall have the right to recover possession of their property But in no case shall the consequential benefits assessed
(Republic vs. Lim, GR No. 161656, Jun.29, 2005). exceed the consequential damages assessed, or the owner
be deprived of the actual value of his property so taken
Note: If the compensation is not paid when the property is taken, (Sec. 6, Rule 67; Riano, Civil Procedure: A Restatement for
but is postponed to a later date, the interest awarded is actually the Bar, p. 687, 2009 ed.).
part of just compensation, which takes into account such delay
(Benguet Consolidated vs. Republic, GR No. 712412, Aug. 15, 1986).
Q: When should the commissioners make a report?
Q: What is the effect if the junior encumbrancer is not A: The mortgagor does not have the right to a notice of sale
impleaded? after his failure to pay the debt because said notice is not
litigable and the issuance thereof is ministerial.
A: His equity or right of redemption is not affected or
barred by the judgment of the court because he is merely a Note: The mortgagor is entitled to a notice of hearing of the
necessary party not an indispensable party (Sunlife confirmation of the sale; otherwise, the order is void. Due process
Insurance v. Diez, G.R. No. 29027, Oct. 25, 1928). requires that said notice be given so that the mortgagor can resist
the motion and be informed that his right to redeem is cut-off
(Tiglao v. Botones, G.R. No. L-3619, Oct. 29, 1951). The order of
Note: The remedy of the senior encumbrancer is to file an
confirmation is appealable.
independent proceeding to foreclose the right to redeem by
requiring the junior encumbrancer to pay the amount stated in the
order of execution or to redeem the property in a specified time. Q: What is the effect of order of confirmation?
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE A: It shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the
It is the judgment of the court ordering the debtor to pay purchaser, subject to such rights of redemption as may be
within a period not less than 90 days nor more than 120 allowed by law (Sec. 3, Rule 68). It is said that title vests in
days from the entry of judgment after ascertaining the the purchaser upon a valid confirmation of the sale and
amount due to the plaintiff (Sec. 2, Rule 68). retroacts to the date of the sale (Binalgan Estate vs.
Gatuslao 74, Phil 128, Riano, Civil Procedure: A Restatement
Note: The judgment of the court is considered a final adjudication for the Bar, p. 707, 2009 ed)
of the case and hence, is subject to challenge by the aggrieved
party by appeal or by other post judgment remedies (Riano, Civil Q: What is the remedy if the mortgagor refuses to vacate?
Procedure: A Restatement for the Bar, p. 701, 2009 ed.).
A: The purchaser may ask for a writ of possession.
Q: What is foreclosure sale?
DISPOSITION OF PROCEEDS OF SALE
A: When the defendant fails to pay the amount of the
judgment within the period specified therein, the court, Q: How is the disposition of the proceeds of the sale
upon motion, shall order the property to be sold in the done?
manner and under the provisions of Rule 39 and other
regulations governing sales of real estate under executions A: The proceeds of the sale of the mortgaged property
(Sec. 3, Rule 68). shall, after deducting the costs of the sale, be paid to the
person foreclosing the mortgage, and when there shall be
SALE OF MORTGAGED PROPERTY; EFFECT any balance or residue after paying off the mortgage debt
due, the same shall be paid to junior encumbrances in the
Q: When is the sale of mortgaged property proper and order of their priority. If there be any further balance after
how must it be effected? paying them or if there be no junior encumbrances, the
same shall be paid to the mortgagor or any person entitled
A: If the mortgagor fails to pay the sum due within the thereto (Sec. 4, Rule 68).
period (90-120 days) stated by the court in its judgment,
upon motion of the mortgagee, the court shall order the Q: What claims shall be satisfied from the proceeds of the
property to be sold in the manner and under the provisions public sale of the mortgaged property (in order)?
DEFICIENCY JUDGMENT On January 10, 2003, GAP filed an ex-parte motion with
the court for the issuance of a writ of possession to oust
Q: What is deficiency judgment? Gretchen from the land. It also filed a deficiency claim for
P800,000 against Arlene and Gretchen. The deficiency
A: It is the judgment rendered by the court holding the claim was opposed by Arlene and Gretchen.
defendant liable for any unpaid balance due to the 1. Resolve the motion for the issuance of a writ of
mortgagee if the proceeds from the foreclosure sale do not possession.
satisfy the entire debt. 2. Resolve the deficiency claim of the bank. (2003 Bar
Question)
Q: May the plaintiff recover deficiency?
A:
A: If there is a balance due to the plaintiff after applying the 1. In judicial foreclosure by banks such as GAP, the
proceeds of the sale, the court, upon motion, shall render mortgagor or debtor whose real property has been sold
judgment against the defendant for any balance for which, on foreclosure has the right to redeem the property
by the record of the case, he may be personally liable to the within 1 year after the sale (or registration of the sale).
plaintiff. Execution may issue immediately if the balance is However, under Sec. 47 of the General Banking Law of
all due at the time of the rendition of the judgment. If not 2000, the purchaser at the auction sale has the right to
due, the plaintiff shall be entitled to execution at such time obtain a writ of possession after the finality of the order
as the balance remaining becomes due under the terms of confirming sale. The motion for writ of possession,
the original contract, which time shall be stated in the however, cannot be filed ex parte. There must be a
judgment (Sec. 6, Rule 68; Riano, Civil Procedure: A notice of hearing.
Restatement for the Bar, p. 709, 2009 ed.).
2. The deficiency claim of the bank may be enforced
Q: In case of deficiency judgment, what is the liability of a against the mortgage debtor Arlene, but it cannot be
rd
3 party mortgagor? enforced against Gretchen, the owner of the mortgaged
property, who did not assume personal liability of the
A: If such third person did not assume personal liability for loan.
the payment of the debt, the extent of recovery in the
judgment of foreclosure shall be limited to the purchase Judicial foreclosure versus extrajudicial foreclosure
price at the foreclosure sale and no deficiency judgment
can be recovered against said person (Phil. Trust Co. vs. Tan Q: What are the modes of foreclosure?
Suisa, 52 Phil 852; Regalado, Remedial Law Compendium,
th
Vol. I, p. 859, 10 ed.). A:
1. Judicial foreclosure (Rule 68)
INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY 2. Extrajudicial foreclosure (Act. 3135 as amended by Act
JUDGMENT 4188)
ORDER OF PARTITION AND PARTITION BY AGREEMENT A: If parties cannot agree, the court shall appoint not more
than 3 commissioners of competent and disinterested
Q: What are the modes of partition? persons to make partition. They shall make full and
accurate report to the court of all their proceedings as to
A: the partition for the parties (Sec. 3 Rule 69).
1. By agreement of the parties; or
2. By judicial proceedings under Rule 69 (order of Q: Can the appointment of commissioners be dispensed
partition) (Art. 494 NCC, Figuracion-Gerilla vs. Vda. De with in an action for partition?
Figuracion, GR No. 154322, Aug. 22, 2006; Riano, Civil
Procedure: A Restatement for the Bar, p. 712, 2009 A: The appointment of commissioners is mandatory unless
ed.). there is an extrajudicial partition between the parties. They
have the power to effect the partition but not to inquire
Note: Nothing in this Rule shall be construed to restrict or prevent into question of ownership or possession.
persons holding real estate jointly or in common from making an
amicable partition thereof by agreement and suitable instruments Q: When can there be assignment of real estate by
of conveyance without recourse to an action (Sec. 12, Rule 69). If commissioners?
the co-owners cannot agree on the partition of the property, the
only recourse is the filing of an action for partition (Riano, Civil
A: When it is made to appear to the commissioners that the
Procedure: A Restatement for the Bar, p. 712, 2009 ed.).
real state, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may
Q: What is an order of partition?
order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such amount as
A: It is an order that directs the parties or co-owners to
the commissioners deem equitable (Sec. 5 Rule 69).
partition the property
Note: The primary issue to be determined in an action for partition Q: If one of the interested parties asks that the property
is whether or not the plaintiff has the right to partition (Riano, Civil be sold instead of being assigned, what should the court
Procedure: A Restatement for the Bar, p. 714, 2009 ed.). do?
Q: When does the court issue the order of partition? A: The court shall order the commissioners to sell the real
estate at public sale under such conditions and within such
A: During the trial, the court shall determine whether or time as the court may determine (Sec. 5, Rule 69).
not the plaintiff is truly a co-owner of the property, that
there is indeed a co-ownership among the parties, and that Q: What are the duties of the commissioners in an action
a partition is not legally proscribed thus may be allowed. If for partition?
the court so finds that the facts are such that a partition
would be in order, and that the plaintiff has a right to A: The commissioners shall:
demand partition, the court will issue an order of partition. 1. Make a full and accurate report to the court of all their
proceedings as to the partition; or
Q: When is partition by agreement proper? 2. The assignment of real estate to one of the parties; or
3. The sale of the same.
A: After the order of partition they may, if they are able to
agree, make the partition among themselves by proper Upon the filing of such report, the clerk of court shall serve
copies thereof on all the interested parties with notice that
187 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
REMEDIAL LAW
they are allowed ten (10) days within which to file XPN: a co-owner may acquire ownership thereof by
objections to the findings of the report, if they so desire prescription where there exists a clear repudiation of the
(Sec. 6, Rule 69). co-ownership and the co-owners are apprised of the claim
of adverse and exclusive ownership (Heirs of Restar vs.
Q: Is the court bound by the report of the commissioner? Heirs of Cichon, 475 SCRA 731; Riano, Civil Procedure: A
Restatement for the Bar, p. 712, 2009 ed.).
A: No. The court may, upon hearing, accept the report and
render judgment in accordance with the same; recommit FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70)
the same to the commissioners for further report of the
facts; accept or reject the report in part; or render DEFINITIONS AND DISTINCTIONS
judgment that shall effectuate a fair and just partition of
the real estate (Sec. 7, Rule 69). Q. What is forcible entry and how is it commenced?
Note: The rule mandates that a hearing must be conducted before A: It is an action to recover possession founded upon illegal
a rendition of a judgment. possession from the beginning when one is deprived of
physical possession of real property by means of force,
JUDGMENT AND ITS EFFECTS
intimidation, threat, strategy, or stealth. It is commenced
by a verified complaint (Sec. 1, Rule 70).
Q: What should the judgment contain and its effects?
Q: What are the requisites of forcible entry?
A:
1. If actual partition of property is made, the judgment
A:
shall state definitely:
1. A person is deprived of possession of any land or
(a) The metes and bounds and adequate description;
building by force, intimidation, threat, strategy, or
and
stealth; and
(b) The particular portion of the real estate assigned
2. Action is brought within 1 year from the unlawful
to each party
deprivation (Sec. 1, Rule 70).
2. If the whole property is assigned to one of the parties
upon his paying to the others the sum or sums ordered
by the court, the judgment shall state the fact of such
payment, and of the assignment of the real estate to
Q: What are the questions to be resolved in an action for
the party making the payment.
forcible entry?
3. If the property is sold and the sale confirmed by the
court, the judgment shall state:
A:
(a) the name of the purchaser or purchasers;
1. Who has actual possession over the real property;
(b) and a definite description of the parcels of real
2. Was the possessor ousted therefrom within one year
estate sold to each purchaser.
from the filing of the complaint by force, intimidation,
strategy, threat or stealth; and
Note: A certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which the real 3. Does the plaintiff ask for the restoration of his
estate is situated, and the expenses of such recording shall be possession (Dizon v. Concina, G.R. No. 23756, Dec. 27,
taxed as part of the costs of the action (Sec. 11 Rule 69). 1969).
Q: What is the rule on partition of personal property? A: It is where one illegally withholds possession after the
expiration or termination of his right to hold possession
A: The provisions of this Rule shall apply to partitions of under any contract, express or implied. (Riano, Civil
estates composed of personal property, or of both real and Procedure: A Restatement for the Bar, p. 719, 2009 ed). It is
personal property, in so far as the same may be commenced by a verified complaint. (Sec. 1, Rule 70)
applicable (Sec. 13, Rule 69).
Q: What are the requisites of unlawful detainer?
PRESCRIPTION OF ACTION
A:
Prescription of action does not run in favor of a co-owner or 1. Possession of any land or building is unlawfully
co-heir against his co-owner or co-heirs as long as there is a withheld from a lessor, vendor, vendee, or other
recognition of the co-ownership expressly or impliedly (Art. person after the expiration or termination of the right
494, NCC). to hold possession by virtue of any contract express or
implied;
GR: Action to demand partition of a co-owned property 2. Action is brought within 1 year after such unlawful
does not prescribe. deprivation or withholding of possession; and
3. Demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee (Sec. 1,
Rule 70).
UNIVERSITY OF SANTO TOMAS 188
2013 GOLDEN NOTES
CIVIL PROCEDURE
Q: Does the amount of rents and damages prayed for in an Q: What are the actions available to recover possession of
action for forcible entry and unlawful detainer affect the real property?
jurisdiction of the courts?
A:
A: No. The amount of rents and damages claimed does not 1. Accion Interdictal (ejectment);
affect jurisdiction of the MTCs because the same are only 2. Accion Publiciana; and
incidental or accessory to the main action (Lao Seng Hian v. 3. Accion Reinvindicatoria
Lopez, G.R. No. L-1950, May 16, 1949).
Q: Distinguish from each other the 3 possessory actions
Note: If only rents or damages are claimed in an ordinary action,
the action is personal and the amount claimed determines whether
A:
it falls within the jurisdiction of the RTC or the MTC.
Accion Accion Accion
Q: Distinguish forcible entry from unlawful detainer Interdictal Publiciana Reivindicatoria
Summary A plenary action An action for the
A: action for the for the recovery recovery of
Forcible Entry Unlawful Detainer recovery of of the real right ownership, which
(Detentacion) (Desahucio) physical of possession necessarily
possession when the includes the
Possession of the land by Possession is inceptively
where the dispossession recovery of
the defendant is lawful but it becomes
dispossession has lasted for possession.
unlawful from the illegal by reason of the
has not lasted more than 1
beginning as he acquires termination of his right
for more than year.
possession by force, to the possession of the
1 year.
intimidation, strategy, property under his
threat contract with the All cases of RTC has RTC has
or stealth. plaintiff. forcible entry jurisdiction if jurisdiction if the
and unlawful the value of the value of the
Demand to vacate is not Demand is jurisdictional
detainer property property exceeds
required before the filing if the ground is non-
irrespective of exceeds P20,000 P20,000 or
of the action because payment of rentals or
the amount of or P50,000 in P50,000 in Metro
occupancy is illegal from failure to comply with
damages or Metro Manila. Manila.
the very beginning the lease contract.
unpaid rentals
(Riano, Civil Procedure: A
sought to be MTC has MTC has
Restatement for the Bar,
recovered jurisdiction if jurisdiction if the
p. 725, 2009 ed.).
should be the value of the value of the
The plaintiff must prove The plaintiff need not
brought to the property does property does not
that he was in prior have been in prior
MTC. not exceed the exceed the above
physical possession of physical possession.
above amounts. amounts.
the premises until he
was deprived thereof by
the defendant. Q: What rule should govern the proceedings of accion
GR: The 1 year period is Period is counted from interdictal?
counted from the date of the date of the last
actual entry on the land. demand or last letter of A: GR: Ejectment cases are summary proceedings intended
demand in case of non- to provide an expeditious means of protecting actual
XPN: When entry is by
payment of rentals or possession or right to possession of property.
stealth, the period must
Q: Who may institute the action? Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after the
A: demand to pay or comply with the conditions of the lease
UNIVERSITY OF SANTO TOMAS 190
2013 GOLDEN NOTES
CIVIL PROCEDURE
and to vacate is made upon the lessee (Sec. 2, Rule 70). The unlawful detainer. In his defense, Ben averred that the
requirement for a demand implies that the mere failure of case should be dismissed because Del had never been in
the occupant to pay rentals or his failure to comply with the possession of the property. Is Ben correct? (2008 Bar
conditions of the lease does not ipso facto render his Question)
possession of the premises unlawful. It is the failure to
comply with the demand that vests upon the lessor a cause A: No. In an action for unlawful detainer, it is not required
of action. that the plaintiff be in prior physical possession of the land
subject of the action. In this action by the vendee a retro
Q: What may constitute a demand in unlawful detainer? against a vendor a retro who refused to vacate the property
even after title has been consolidated in the vendee, the
A: latter, in contemplation of law, steps into the shoes of the
1. To pay and to vacate If the suit is based on vendor and succeeds to his rights and interest (Pharma
defendants failure to pay the rentals agreed upon. Industries Inc. v. Hon. Pajarillaga, G.R. No. L-53788, Oct. 17,
2. To comply and to vacate If suit is predicated upon 1980).
the defendants non-compliance with the conditions of
the lease contract (Riano, Civil Procedure: A Q: What is the rule in case of tacita reconduccion in
Restatement for the Bar, p. 727, 2009 ed.) relation to unlawful detainer?
Note: The notice giving the lessee the alternative either to pay the A: Under Art. 1670 of NCC, if at the end of lease, the lessee
increased rental or otherwise vacate the land is not the demand continues to enjoy the property leased for 15 days with
contemplated by the Rules of Court in unlawful detainer cases. consent of the lessor, and no notice to the contrary has
When after such notice, the lessee elects to stay, he thereby
been given, it is understood that there is an implied new
merely assumes the new rental and cannot be ejected until he
defaults in said obligation and necessary demand is first made lease.
(Peas, Jr. vs. Court of Appeals G.R. No. 112734 July 7, 1994).
When there is tacit reconduccion, the lessee cannot be
Q: In what form should the demand be made? deemed as unlawfully withholding the property. There is no
unlawful detainer (Riano, Civil Procedure: A Restatement for
A: The demand may be in the form of a written notice the Bar, p. 730, 2009 ed.).
served upon the person found in the premises. The demand
may also be made by posting a written notice on the PRELIMINARY INJUNCTION AND PRELIMINARY
premises if no person can be found thereon (Sec. 2, Rule MANDATORY INJUNCTION
70). It has been ruled, however, that the demand upon a
tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Q: What is the remedy of the plaintiff in order to obtain
Sufficient evidence must be adduced to show that there possession of the premises during the pendency of an
was indeed a demand like testimonies from disinterested action?
and unbiased witnesses.
A: The plaintiff may, within 5 days from filing of the
Q: What is the effect of non-compliance with the demand? complaint file a motion in the same action for the issuance
of a writ of preliminary mandatory injunction to restore him
A: If the lessee fails to comply therewith after fifteen (15) his possession. This motion shall be resolved within 30 days
days in the case of land or five (5) days in the case of from its filing (Sec. 15, Rule 70; Riano, Civil Procedure: A
buildings, the lessor may now proceed against the lessee Restatement for the Bar, p. 733, 2009 ed.).
(Sec. 2, Rule 70).
Q: Can the court grant injunction while the case is
Q: When is prior demand in unlawful detainer not pending?
required?
A: The court may grant preliminary injunction, in
A: accordance with the provisions of Rule 58 (Preliminary
1. Where the purpose of the action is to terminate the Injunction), to prevent the defendant from committing
lease by reason of expiry of its term; further acts of dispossession against the plaintiff. A
2. Where the purpose of the suit is not for ejectment but possessor deprived of his possession through forcible entry
for the reinforcement of the terms of the contract; or or unlawful detainer may, within five (5) days from the
3. When the defendant is not a tenant but a mere filing of the complaint, present a motion in the action for
intruder. forcible entry or unlawful detainer for the issuance of a writ
4. When there is stipulation dispensing with a demand of preliminary mandatory injunction to restore him in his
(Art. 1169 NCC, Sec. 2 Rule 70). possession. The court shall decide the motion within thirty
(30) days from the filing thereof (Sec. 15, Rule 70).
Q: Ben sold a parcel of land to Del with right to repurchase
within 1 year. Ben remained in possession of the property. Note: If judgment is appealed to the Regional Trial Court, said
court may issue a writ of preliminary mandatory injunction to
When Ben failed to repurchase the same, title was
restore the plaintiff in possession if the court is satisfied that the
consolidated in favor of Del. Despite demand, Ben refused defendant's appeal is frivolous or dilatory or that the appeal of the
to vacate the land, constraining Del to file a complaint for plaintiff is prima facie meritorious (Sec. 20, Rule 70).
This action shall both fall under the coverage of the Rules of CONTEMPT (RULE 71)
Summary Procedure irrespective of the amount of damages
or unpaid rental sought to be recovered (Sec. 3, Rule 70). Q: What is contempt?
Q: Do the rules of res judicata and conclusiveness of A: It is disobedience to the court by acting in opposition to
judgment apply in ejectment case? its authority, justice and dignity. It signifies not only willful
disregard or disobedience of courts orders, but such
A: Yes. But subject to the qualification that judgment is conduct as tends to bring the authority of court and
conclusive with respect to the right of possession under administration of law into disrepute or in some manner to
and by virtue of a contract the existence of which has been impede the due administration of justice (Regalado vs. Go,
proved in said ejectment suit (Penas vs. Tuason, 22 Phil GR No. 167988, Febraury 6, 2007, Riano, Civil Procedure: A
303; Regalado, Remedial Law Compendium, Vol. I, p. 897, Restatement for the Bar, p. 738, 2009 ed.).
th
10 ed.).
Q: What are the functions of contempt proceedings:
Q: What are the prohibited pleadings and motions under
Rule 70? A:
1. Vindication of public interest by punishment of
A: contemptuous conduct;
1. Motion to dismiss the complaint except on the ground 2. Coercion to compel the contemnor to do what the law
of lack of jurisdiction over the subject matter, or requires him to uphold the power of the court, and
failure to comply with a referral to the Lupon also to secure the rights of the parties to a suit
Tagapamayapa in cases covered by the LGC; awarded by the court (Regalado vs. Go, GR No.
2. Motion for a bill of particulars; 167988, Febraury 6, 2007, Riano, Civil Procedure: A
3. Motion for new trial, or for reconsideration of a Restatement for the Bar, p. 738, 2009 ed.).
judgment, or for reopening of trial;
4. Petition for relief from judgment; KINDS OF CONTEMPT
5. Motion for extension of time to file pleadings,
affidavits or any other paper; Q: What are the kinds of contempt?
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition A:
against any interlocutory order issued by the court; 1. According to nature (depending on the nature and
8. Motion to declare the defendant in default; effect of the contemptuous act)
9. Dilatory motions for postponement; a. Civil
10. Reply; b. Criminal
11. Third-party complaints; 2. According to the manner of commission
12. Interventions a. Direct
b. Indirect
Q: Aries filed an unlawful detainer case against Patrick
before the appropriate MTC. In his answer, Patrick avers PURPOSE AND NATURE
as a special and affirmative defense that he is a tenant of
Aries deceased father in whose name the property Q: What is the nature of contempt power?
remains registered. What should the court do? Explain
briefly. (2007 Bar Question) A: The power to punish for contempt is inherent in all
courts; its existence is essential to the preservation of order
A: The court should hold a preliminary conference not later in judicial proceedings and to the enforcement of
than 30 days after the defendants answer was filed, since judgments, orders and mandates of the courts, and,
the case is governed by summary procedure under Rule 70 consequently, to the due administration of justice.
of the Rules of Court, where a reply is not allowed. The
court should receive evidence to determine the allegations Q: Distinguish Criminal contempt from Civil Contempt?
of tenancy. If tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack of A:
jurisdiction. Criminal Contempt Civil Contempt
It is a conduct It is the failure to do
If it would appear that Patricks occupancy of the subject directed against the something ordered to be
property was one of agricultural tenancy, which is governed authority and dignity done by a court or a judge
by agrarian laws, the court should dismiss the case because of the court or a for the benefit of the
it has no jurisdiction over agricultural tenancy cases. judge acting judicially; opposing party therein and
Patricks allegation that he is a tenant of plaintiffs it is a conduct is therefore, an offense
deceased father suggests that the case is one of landlord- obstructing the against the party in whose
A:
Direct Contempt Indirect Contempt
Definition
A person guilty of misbehavior in the presence of or so Committed by a person who does the following acts:
near a court as to obstruct or interrupt the proceedings 4. Disobedience or resistance to a lawful writ, process,
before the same, including disrespect toward the court, order or judgment of a court;
offensive personalities toward others, or refusal to be 5. Any abuse of or any unlawful interference with the
sworn or to answer as a witness, or to subscribe an processes or proceedings of a court not constituting
affidavit or deposition when lawfully required to do so direct contempt; and
(Sec. 1, Rule 71). 6. Any improper conduct tending, directly or indirectly, to
impede, obstruct or degrade the administration of
justice (Siy vs, NLRC, GR No. 158971, Aug. 25, 2005).
Committed in the presence of or so near a court. Not committed in the presence of the court.
Summary in nature Punished after being charged and heard
Contempt in facie curiae Constructive contempt
Grounds
a. Misbehavior in the presence of or so near a court as to a. Misbehavior of an officer of a court in the
obstruct or interrupt the proceedings; performance of his official duties or in his official
b. Disrespect towards the court; transactions;
c. Offensive personalities toward others; or b. Abuse or any unlawful interference with the
d. Refusal to be sworn or to answer as a witness, or to proceedings not constituting direct contempt.
subscribe an affidavit or deposition when lawfully c. Disobedience of or resistance to a lawful writ, process,
required to do so (Sec. 1, Rule 71). order, or judgment of a court or unauthorized
intrusion to any real property after being ejected.
Remedy
The person adjudged in direct contempt by any court may Appeal (by notice of appeal)
not appeal therefrom, but may avail himself of the
remedies of special civil action of certiorari or prohibition The person adjudged in indirect contempt may appeal from
directed against the court, which adjudged him in direct the judgment or final order of the court in the same manner
contempt (Sec. 2, Rule 71). as in criminal cases. The appeal will not however have the
Pending the resolution of the petition for certiorari or effect of suspending the judgment if the person adjudged in
prohibition, the execution of the judgment shall be contempt does not file a bond in an amount fixed by the
suspended, provided such person files a bond fixed by the court from which the appeal is taken. This bond is
court which rendered the judgment and conditioned that conditioned upon his performance of the judgment or final
he will abide by and perform the judgment should the order if the appeal is decided against him (Sec. 11, Rule 71).
petition be decided against him (Sec. 2, Rule 71, Canada v.
Suerte, 474 SCRA 379).
principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for
joint hearing and decision (Sec. 4, Rule 71).
Q: Lawyer Mendoza, counsel for the accused in a criminal shall be filed in RTC of the place wherein the contempt
case, was cited for direct contempt by Judge Tagle and was committed (Sec. 12, Rule 71, (Riano, Civil
was sentenced to 10 days imprisonment. Lawyer Mendoza Procedure: A Restatement for the Bar, p. 749, 2009
was placed in prison immediately. Lawyer Mendoza ed.).
manifested his readiness to post a bond and to appeal the
order by certiorari to stay its execution but Judge Tagle
said that the order is immediately executory. Is Judge
Tagle correct?
Q: May a non-party be held for contempt?
A: No. An order of direct contempt is not immediately
executory or enforceable. The contemner must be afforded A: No, unless he is guilty of conspiracy with any one of the
a reasonable remedy to extricate or purge himself of the parties in violating the courts orders (DesaEnt., Inc. v. SEC,
contempt. Under Sec. 2, Rule 71, of the Rules of Court, a G.R. No. L-45430, Sept. 30, 1982).
person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of Q: Ray, through Atty. Velasco, filed a complaint for
certiorari or prohibition. The execution of the judgment quieting of title against Chiz. Chiz, however, interposed
shall be suspended pending resolution of such petition, the defense that the documents relied upon by Ray and
provided such person files a bond fixed by the court which Atty. Velasco were forged and falsified. Finding that the
rendered the judgment and conditioned that he will abide said documents were indeed forged and falsified, Judge
by and perform the judgment should the petition be Victoria cited Ray and Atty. Velasco for direct contempt
decided against him (Tiongco v. Judge Salao, A.M. No. RTJ- and ordered them to serve 10 days of detention at the
06-2009, July 27, 2006). Municipal Jail. Ray and Atty. Velasco filed a motion for bail
and a motion to lift the order of arrest. But they were
Q: What are the procedural requisites before the accused denied outright by Judge Victoria. Is Judge Victoria
may be punished for indirect contempt? correct?
SPECIAL PROCEEDINGS
Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action Special Proceeding Special Civil Action
To protect or enforce a Involves the establishment of a right, Civil Action subject to specific
right or prevent or redress status, or fact rules.
a wrong
Involves 2 or more parties May involve only one party only Involves two or more parties
plaintiff and defendant petitioner because it is an application
for relief against the whole world or a
proceeding in rem, not an action to
enforce a right against a particular
individual, except for correction or
cancellation of entries under Rule 108,
in which case, the Local Civil Registrar
should be impleaded as a respondent
Governed by ordinary Governed by special rules, Ordinary rules apply primarily
rules, supplemented by supplemented by ordinary rules if but subject to specific rules
special rules applicable like rule on payment of
docket fees and the requirement of
certification against forum shopping
(Sheker v. Estate of Alice Sheker, G.R.
157912 [2007])
Initiated by a complaint, Initiated by a petition and parties Some are initiated by
and parties respond respond through an opposition complaint, while some are
through an answer initiated by petition
Heard by courts of general Heard by courts of limited jurisdiction Heard by courts of general
jurisdiction jurisdiction
Issues or disputes are Issues are determined by law Issues or disputes are stated in
stated in the pleadings of the pleadings of the parties
the parties
Adversarial Not adversarial except for correction or Some are adversarial while
cancellation of entries under Rule 108 some are not adversarial
(it may be summary or adversarial
depending on what is sought to be
rectified)
Based on a cause of action Not based on a cause of action except Some special civil action does
habeas corpus not require a cause of action
A:
Rules 73-90 Settlement of Estate RTC - Gross value of the 1. If resident of the
of Deceased Persons estate exceeds P300,000 if Philippines (whether
outside Metro Manila or citizen or alien)- Court of
P400,000 if within Metro the province/ city where
Manila the deceased resides at the
time of death
2. If non- resident - court of
any province/ city wherein
MTC - Gross value of the he had estate
estate is P300,000 or less if
outside Metro Manila or
P400,000 or less if within
Metro Manila (Sec. 3, RA
7691)
Family Code Summary Family Court (Sec.5, R.A. Where the petitioner resides or
Proceedings 8369) where the child resides if it
involves minors
R.A. 8369 Actions mentioned in the Family Courts Act
1. Petitions on Family Court Where petitioner or respondent
Foster care and has been residing for at least 6
Temporary months prior to the date of
Custody filing
2. Declaration of In case of non-resident
Nullity of respondent, where he may be
Marriage found at the election of the
3. Cases of petitioner
Domestic
Violence
Against Women
and Children
Rule 102 Habeas Corpus SC, CA, RTC, MTC in the Where the aggrieved party is
province or city in case there detained (RTC)
is no RTC judge; SB only in aid
of its appellate jurisdiction
(Sec. 2)
A.M. No. Habeas Corpus in Where the petitioner resides or
03-04-04- Relation to Custody Family Court, CA, SC (Sec. 20) where the minor may be found
SC of Minors ( Note: petition may be filed
with the regular court in the
absence of the presiding judge
of the Family Court, provided,
however, that the regular
court shall refer the case to
the Family Court as soon as its
presiding judge returns to
duty)
A.M. No. Writ of Amparo RTC, SB, CA or SC or any Where the threat, act or
07-9-12-SC justice thereof (Sc. 3) omission was committed or any
of its elements occurred
A.M. No. Writ of habeas data RTC, SB, CA or SC or any Where the petitioner or
08-1-16-SC justice thereof (Sec. 3) respondent resides, or that
which has jurisdiction over the
place where the data or
information is gathered,
collected or stored, at the
option of the petitioner
A.M. No. Writ of Kalikasan SC or any stations of CA (Sec. Where the unlawful act,
09-6-8-SC 3, Rule 7) omission or threat was
committed
A:
Special Proceeding Publication of Order of Hearing
Clerical or typographical errors;administrative change of first Once a week for 2 consecutive weeks
name or nickname, the day and month in the date of birth or
sex of a person where it is patently clear that there was a
clerical or typographical error or mistake in the entry
Corporate rehabilitation
Settlement of estate of deceased persons Once a week for 3 consecutive weeks
Judicial change of name
Judicial cancellation or correction of entries in the civil registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)
Note: The declaration of absence shall not take effect until six (6)
months after its publication in a newspaper of general circulation.
Escheat Once a week for 6 consecutive weeks
Guardianship None
Trustees
Custody of minors
Hospitalization of insane person
Rescission of adoption
Correction of clerical or typographical error
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and children
Summary proceedings
Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2
consecutive weeks.
A:
Special proceeding To whom notice must be given
Settlement of estate of deceased persons Executor/administrator/any interested party
Trustees All persons interested on the trust
Hospitalization of insane person On the person alleged to be insane and to the one having
charge of him or any of his relatives
Judicial change of name Interested parties/Solicitor General
Judicial cancellation or correction of entries in the civil registry Persons named in the petition/Solicitor General/Civil Registrar
impleaded as respondent
Declaration of absence and death Heirs/legatees/devisees/creditors/other interested persons
Corporate rehabilitation Creditors/Debtors
Voluntary dissolution of corporation Creditors
Administrative correction of entry/ change of first name or Interested parties
nickname
Guardianship The minor if above 14 years of age/incompetent
himself/Interested parties on the property of the ward.
General or special notice may be given.
Domestic Adoption Biological parents/Solicitor General
Rescission of Adoption Adopter
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian if any
Habeas corpus To the person to which the writ is directed
Writ of amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care and temporary custody Solicitor General/Public Prosecutor
2. Cases of domestic violence against women and
children
Declaration of nullity of void marriage / Annulment of City/Provincial Prosecutor/ Respondent
marriage
Legal separation City/Provincial prosecutor/ Respondent
Escheat None
SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE parties as by entering into extrajudicial partition of the
AND PROCESSES estate (Sandoval v. Santiago, L- 1723, May 30, 1949); or by
filing another petition for settlement in a proper court of
WHICH COURT HAS JURISDICTION concurrent venue (De Borja v. Tan, 77 Phil 872).
Regional Trial Court Metropolitan Trial Note: The prohibition of filing an action relating to the estate
Court other than in the probate court where the petition for the
settlement of estate was filed refers only to courts in the
Gross value of the Gross value of the
Philippines and does not include foreign courts. Hence, in no
estate exceeds estate is P300,000 or way can it be validly maintained that the District Court of Hawaii
P300,000 (outside less (outside Metro has encroached upon, or impinged on, the jurisdiction of the
Metro Manila) or Manila) or P400,000 probate court by the issuance of an order directing the
exceeds P400,000 (within Metro Manila) investigation of the alleged commission of torture during the
(within Metro Manila) Marcos administration for a claim against his estate (Republic v.
Villarama Jr. G.R. No. 117733, September 5, 1997).
VENUE IN JUDICIAL SETTLEMENT OF ESTATE
XPN: Estoppel by Laches
Resident Non-Resident
Note: The rule applies to both testate and intestate proceedings
Court of the Court of the
(Intestate Estate of Wolfson, 45 SCRA 381 June 15, 1972).
province/city where the province/city wherein
deceased resided at the he had estate
EXTENT OF JURISDICTION OF PROBATE COURT
time of death, whether
a citizen or alien
Q: May probate courts determine issues of ownership in a
proceeding for the settlement of estate of decedent?
Q: Is venue waivable? Explain.
A: Yes. Wrong venue is a waivable procedural defect, and A: GR: No, because probate courts are courts of limited
such waiver may occur by laches where a party had been jurisdiction.
served notice of the filing of the probate petition for a year
and allowed the proceedings to continue for such time XPNS:
before filing a motion to dismiss. 1. Provisionally, for the sole purpose of including the
property in the inventory, without prejudice to its
Note: Jurisdiction under Rule 73 does not relate to jurisdiction per
final determination in a separate action;
se but to venue. Hence institution in the court where the decedent
is neither an inhabitant nor had his estate may be waived (Uriarte 2. When all the parties agreed to submit the issue of
v. CFI, G.R. Nos. L-21938-39, May 29, 1970). ownership to the probate court, provided that no
rights of third persons are prejudiced;
Q: What constitutes residence? 3. If the question is one of collation or advancement
(Agpalo, Handbook on Special Proceedings, pp. 10-
A: It is the personal, actual, physical habitation, his actual 12, 2003 ed.).
residence or place of abode (Fule v. CA, G.R. No. L-40502,
Nov. 29, 1976) not his permanent legal residence or Q: The probate court ordered the inclusion of a parcel of
domicile. land registered in the name of Richard in the inventory of
the properties of the deceased Anna. Richard opposed the
Q: What is the Principle of Preferential Jurisdiction? inclusion arguing that the probate court cannot determine
the issue of the ownership of the parcel of land inasmuch
A: GR: The probate court first taking cognizance of the as the same was registered in his name. Is Richard
settlement of the estate of the decedent shall exercise correct?
jurisdiction to the exclusion of all other courts (Sec. 1 of
Rule 73). It has exclusive jurisdiction over said estate and no A: Yes. In probate proceedings, if a property covered by
other special proceedings involving the same subject Torrens title is involved, the presumptive conclusiveness of
matter may be filed before any other court. It cannot be such title should be given due weight, and in the absence of
divested of such jurisdiction by the subsequent acts of the strong compelling evidence to the contrary, the holder
thereof should be considered as the owner of the property Note: If separate proceedings have been instituted for each estate,
in controversy until his title is nullified or modified in an both proceedings may be consolidated if they were filed in the
appropriate ordinary action, particularly, when as in the same court. The rule on consolidation in settlement proceedings
for husband and wife exclusively applies to them. It does not apply
case at bar, possession of the property itself is in the
to siblings, parents and child or other relatives no matter how close
persons named in the title (Luy Lim v. CA, G.R. No. 124715, (Benigno v. de la Pea, G.R. No. L-38036, Oct. 15, 1932).
Jan. 24, 2000).
POWERS AND DUTIES OF PROBATE COURT
Q: What may the court do in the exercise of its probate
jurisdiction? Q: What are the powers and duties of a Probate Court?
A: It may issue warrants and processes to compel the A: In probate proceedings, the court:
attendance of witnesses or carry into effect their orders 1. Orders the probate of the will of the decedent
and judgments and all other powers granted them by law 2. Grants letters administration
(Sec. 3, Rule 73). 3. Supervises and controls all acts of administration
4. Hears and approves claims against the estate of the
Q: May the probate court issue a writ of execution? deceased
5. Orders payment of lawful debts
A: GR: No, because its orders usually refer to the 6. Authorizes sale, mortgage or any encumbrance of real
adjudication of claims against the estate which the estate
executor or administrator may satisfy without the necessity 7. Orders the payment of taxes and other charges
of resorting to a writ of execution. 8. Directs the delivery of the estate to those entitled
thereto.
XPNS:
1. To satisfy the contributive share of the devisees, Note: The court acts as a trustee and as such must jealously guard
legatees and heirs when the latter had entered prior the estate and see to it that it is wisely and economically
possession over the estate (Sec. 6, Rule 88); administered, not dissipated (Timbol v. Cano, 111 Phil 923, 926).
2. To enforce payment of the expenses of partition (Sec.
3, Rule 90); and Q: What are the specific powers and duties of a probate
3. To satisfy the costs when a person is cited for court?
examination in probate proceedings (Sec. 13, Rule 142)
A:
Q: Can a declaration of heirship be made in an 1. To pass upon the issue regarding the validity of the will
independent action? (i.e. formalities required by law)
2. Distribute shares
A: 3. Determine who are the legal heirs
1. If the special proceedings are pending, or if there are 4. Issue warrants and processes to secure attendance of
no special proceedings filed but there is a need to file witnesses
one, then the determination of heirship should be 5. Determine and rule upon issues relating to settlement
raised and settled in said special proceedings. of the estate, such as administration, liquidation, and
distribution of the estate
2. If the special proceeding had been instituted but had 6. Determine the following:
been finally closed and terminated, or if a putative heir a. Heirs of the decedent;
has lost the right to have himself declared in the b. Recognition of an illegitimate child;
special proceedings as co-heir and he can no longer c. Validity of disinheritance effected by testator;
ask for its re-opening, then an ordinary civil action can d. Status of a person who claims to be the lawful
be filed for his declaration as heir in order to bring spouse of the decedent ;
about the annulment of the partition or distribution or e. Validity of waiver of hereditary heirs;
adjudication of properties belonging to the estate of f. Status of each heir;
the deceased (Portugal and Portugal, Jr. v. Portugal- g. Whether property in the inventory is conjugal or
Beltran, G.R. No. 155555, Aug. 16, 2005). exclusive property of deceased spouse; or
h. Matters incidental or collateral to the settlement
Q: Where should the estate be settled if the marriage is and distribution of the estate.
dissolved by death of either spouse or both?
MODES OF SETTLEMENT OF ESTATES
A: When the marriage is dissolved by the death of the
husband or wife, the community property shall be Q: What are different modes of settlement of estate of a
inventoried, administered and liquidated, and the debts deceased person?
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal A:
partnership shall be liquidated in the testate or intestate 1. Extrajudicial settlement Where the decedent left no
proceedings of either (Sec. 2, Rule 73). will and no debts and heirs are all of age, or the minors
are represented by their representatives duly
authorized for the purpose, court proceedings are no other persons for a period of 2 years from distribution.
longer necessary, but the formal requisites must be Furthermore, such lien cannot be substituted by a bond.
complied with (Sec. 1, Rule 74).
Q: Is a public instrument necessary for the validity of the
2. Judicial settlement where proceedings in court is extrajudicial settlement?
necessary, and includes the following:
a. Summary settlement of estate of small value A: No, the requirement of public instrument is not
Whenever the gross value of the estate of a constitutive of the validity but is merely evidentiary in
deceased person, whether he died testate or nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947).
intestate, does not exceed P10,000, the court Even a private instrument, oral agreement of partition or
may proceed summarily, without the compromise agreement entered into without previous
appointment of an executor or administrator authority from the court is valid. However, reformation of
(Sec. 2, Rule 74). the instrument may be compelled (Borja vs. Vda. De Borja,
b. Testate proceedings When the decedent left a 46 SCRA 577).
last will and testament (Rules 75-79).
c. Intestate proceedings When the decedent died Note: An extrajudicial settlement made in a private document can
be used to compel the other heirs to execute a public instrument
without a will, or died with a will but was found
to transfer title over the property since a public instrument is
invalid and thereafter disallowed (Rule 79). required in the transfer and registration of title to the heirs.
d. Partition When there is no will and the parties
entitled to the estate would agree on the project
of partition (Rule 69).
Note: The date of hearing shall be set by the court not less than
one month, nor more than 3 months from the date of publication
of last notice and the order of hearing shall be published once a
week for 3 consecutive weeks in a newspaper of general
circulation.
A:
EXTRA JUDICIAL SUMMARY SETTLEMENT
SETTLEMENT OF ESTATE
No court intervention. Requires summary
There is compliance by adjudication filed with the
UNIVERSITY OF SANTO TOMAS 206
2013 GOLDEN NOTES
SPECIAL PROCEEDINGS
REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE AND SUMMARY SETTLEMENT OF ESTATE
OF SMALL VALUE
Should be brought within 2 years after settlement and distribution of the estate
COMPEL THE SETTLEMENT OF Should be brought within 2 years after settlement and distribution of the estate
ESTATE IN COURTS
If the order of closure has already become final and executory, the heir must file an
ORDINARY ACTION BUT NOT independent civil action of accion reivindicatoria to recover his deprived share.
AGAINST THE BOND
Note: It must be brought within 10 years from the time the right of action accrues [Art. 1144(c)].
After the lapse of two years an ordinary action may be instituted against the distributees
within the statute of limitations but not against the bond.
May be availed of after judgment but before the finality of the closure order
Q: May an order denying probate of will be overturned make a partition of his property by an act inter vivos or by
after period to appeal has lapsed? Why? (2002 Bar will, such partition shall stand in so far as it does not
Question) prejudice the legitime of the forced heir (Mang- Oy v. CA, G.R.
No. L-27421, 1986).
A: Yes. A petition for relief may be filed on the grounds of
3. IMPRESCRIPTIBLE- because of the public policy to obey
fraud, accident, mistake or excusable negligence within a
the will of the testator
period of 60 days after the petitioner learns of the
judgment or final order and not more than 6 months after
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- The probate
such judgment or final order was entered (Secs. 1&3, Rule
of the will is mandatory. The presentation and probate of
38). An action for annulment may also be filed on the
the will is required by public policy. It involves public
ground of extrinsic fraud within 4 years from its discovery,
interest (Fernandez v. Dimagiba, L- 23638, 1967).
and if based on lack of jurisdiction, before it is barred by
laches or estoppel (Secs. 2&3, Rule 47).
5. RES JUDICATA once allowed, by the court, it can no
longer be questioned, irrespective of any erroneous
PRODUCTION AND PROBATE OF WILL
judgment because it serves as the law of the case (Balais v.
Balais, L-33924, 1988).
NATURE OF PROBATE PROCEEDING
Q: Does the probate court look into the intrinsic validity of
Q: What is probate?
the will?
A: Probate is the act of proving before a competent court
A: GR: No. The jurisdiction of probate court is limited to
the due execution and validity of a will by a person
the examination and resolution of the extrinsic validity of a
possessed of testamentary capacity, as well as the approval
will.
thereof by said court (also known as Allowance of Will)
nd
(Tabingan, Special Proceedings, p. 75, 2 Ed)
XPNS: Principle of practical considerations wherein the
court may pass upon the intrinsic validity of the will:
Q: Why is probate necessary?
1. If the case where to be remanded for probate of the
will, it will result to waste of time, effort, expense, plus
A: To settle all questions concerning the capacity of the
added anxiety; as in the case of absolute preterition
testator and the proper execution of his will, irrespective of
without any provision in favor of any devises or
whether its provisions are valid and enforceable (Fernandez
legatee (Nuguid v. Nuguid, G.R. No. L-23445, June 23,
v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967).
1966).
2. Where the entire or all testamentary dispositions are
Q: What is the nature of a probate proceeding?
void and where the defect is apparent on its face
(Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).
A:
1. IN REM- It is binding upon the whole world (Tabingan,
nd Q: What should the court do if, in the course of intestate
Special Proceedings, p. 76, 2 Ed.).
proceedings, a will is found and it is submitted for
probate? Explain. (2002 Bar Question)
2. MANDATORY- No will shall pass either real or personal
property unless it is proved and allowed in the proper court
A: The intestate proceeding will be suspended until the will
(Sec.1, Rule 75).
is probated, thereby giving priority to the testate
proceedings. Consequently, all the powers of the
Note: However, a will may be sustained on the basis of Article
1080 of the NCC which states that, if the testator should administrator shall cease and the administrator shall
ALLOWANCE OR DISALLOWANCE OF A WILL Note: In the absence of competent witness, and if the court deems
it necessary, expert testimony may be resorted to (Sec. 5, Rule 76).
CONTENTS OF PETITION FOR ALLOWANCE FOR WILL
Q: What is the remedy if none of the subscribing
1. Jurisdictional facts: witnesses resides in the province where probate is being
i. Death of the testator and conducted?
ii. His residence at the time of his death
iii. If non- resident, the province where the estate A: A motion for taking of deposition of one or more of them
was left (Sec. 7, Rule 76).
2. The names, ages and residences of the heirs, legatees
and devisees of the testator or decedent. Note: The court may also authorize photographic copy of the will
to be made and to be presented to the witness on his examination,
3. The probable value and character of the property of
who may be asked questions with respect to matters pertaining to
the estate. the will (Sec. 7, Rule 76).
4. The name of the persons for whom letters are prayed.
5. The name of the person having custody of the will if it Q: What are the instances when the court may admit the
has not been delivered to the court (Sec. 2, Rule 76). testimony of witnesses other than the subscribing
witnesses?
Note: No defect in the petition shall render void the allowance of
the will or the issuance of letters testamentary or of administration
with the will annexed (Ibid.). A:
1. The subscribing witnesses are dead or insane; or
Q: What is the effect of the allowance of a will? 2. None of them resides in the Philippines (Sec. 8, Rule
76).
A: The judgment or decree of the court allowing the will is:
1. Conclusive as to its extrinsic validity; Q: What matters shall be testified on by the other
2. Not subject to collateral attack and it stands as final, if witnesses?
not modified, set aside, or revoked by a direct
proceeding, or reversed on appeal by a higher court; A:
and 1. The sanity of the testator; and
3. Conclusive on the whole world (Yuseco v. CA, G.R. Nos. 2. Due execution of the will (Sec 8, Rule 76).
L-40719-21, Dec. 29, 1975).
Q: What proof is necessary if the testator himself files the Q: What is the Substantial Compliance Rule?
petition for probate of his holographic will and no contest
is filed? A: If the will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad
A: The fact that he affirms that the holographic will and the faith and fraud is obviated, said will should be admitted to
signature are in his own handwriting shall be sufficient probate (Art. 809, NCC).
evidence of the genuineness and due execution thereof. In
such case, the burden of disproving the genuineness and Note: Separate wills which contain essentially the same provisions
due execution thereof shall be on the contestant. The and pertain to properties which in all probability are conjugal in
testator may, in his turn, present such additional proof as nature, practical considerations dictate their joint probate (Vda. de
Perez v. Tolete, GR 76714, June 2, 1994).
may be necessary to rebut the evidence for the contestant
(Sec. 12, Rule 76).
REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE
ALLOWED IN THE PHILIPPINES
Q: What is the rule on proof of lost or destroyed will?
Q: What is reprobate?
A: If it is a notarial will, it shall not be proved as a lost or
destroyed will unless the execution and validity of the same
A: It is a special proceeding to establish the validity of a will
be established, and the will is proved to have been in
proved in a foreign country (Bernardo, Special Proceedings,
existence at the time of death of the testator, or is shown
p. 48, 2006 ed.).
to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless
Q: What are the requisites before a will proven outside
its provisions are clearly and distinctly proved by at least
the Philippines be allowed here?
two (2) credible witnesses (Sec. 6, Rule 76, Rules of Court).
In this case, a photostatic or machine copy of the will
A:
coupled with the testimonies of the attesting witnesses will
1. The testator was domiciled in a foreign country;
suffice.
2. The will has been admitted to probate in such country;
3. The foreign court is, under the laws of said foreign
If holographic will, a photostatic copy or xerox copy of the
country, a probate court with jurisdiction over the
lost will would not suffice. But if there are no other copies
proceedings;
available then a photostatic or machine copy would suffice
4. Proof of compliance with the law on probate
to serve as a comparison to the standard writings of the
procedure in said foreign country;
testator. No testimonies of witnesses is allowed because
5. The legal requirements in said foreign country for the
the will was made entirely by the testator himself (Bonilla
valid execution of the will have been complied with;
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982).
6. Filing a petition in the Philippines with copy of the will
and of its decree of allowance; and
Q: What are the requisites for allowance of a lost or
7. Notice and hearing (PCIB v. Escolin, G.R. No. 76714,
destroyed will?
June 2, 1994).
A: No will shall be proved as a lost or destroyed will unless:
Note: Under the doctrine of processual presumption, there must
1. Its execution and validity is established; be evidence to prove the existence of foreign law, otherwise the
2. It must have been in existence at the time of the death court should presume that the law of the foreign country is the
of the testator, or is shown to have been fraudulently same as Philippine laws.
or accidentally destroyed during the lifetime of the
testator without his knowledge; and The necessity of presenting evidence on the foreign laws upon
3. Its provisions must be clearly and distinctly proved by which the probate in the foreign court is based is impelled by the
at least 2 credible witnesses (Sec. 6, Rule 76). fact that our courts cannot take judicial notice of them (Salud
Teodoro Vda. de Perez v. Hon. Zotico A. Tolete, 232 SCRA 722).
GROUNDS FOR DISALLOWING A WILL
EFFECTS OF REPROBATE
1. If not executed and attested as required by law;
Q: What are the effects of reprobate?
2. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
A:
3. If it was executed under duress, influence of fear, or
1. The will shall have the same effect as if originally
threats;
proved and allowed in the Philippines (Sec. 3, Rule 77);
4. If it was procured by undue and improper pressure or
2. Letters testamentary or administration with a will
influence, on the part of the beneficiary, or of some
annexed shall extend to all estates of the testator in
other person for his benefit; or
the Philippines (Sec. 4, Rule 77); and
5. If the signature of the testator was procured by fraud
3. Such estate, after the payment of just debts and
or trick, and he did not intend that the instrument
expenses of administration, shall be disposed of
should be his will at the time of fixing his signature
according to the will, so far as such will, may operate
thereto (Sec. 9, Rule 76).
upon it, and the residue, if any, shall be disposed of as
provided by law in cases of estates in the Philippines
UNIVERSITY OF SANTO TOMAS 210
2013 GOLDEN NOTES
SPECIAL PROCEEDINGS
1. Request the administrator to make payment and file 3. Such other person as the court may select if there is no
an action against him in his personal capacity and not such creditor competent and willing to serve (Sec. 6,
as administrator should he fail to pay; or Rule 78).
2. Petition in the testate or intestate proceeding asking
the court, after notice to all persons interested, to Note: Order of preference may be disregarded for a valid cause.
allow his claim and direct the administrator to pay it as Administration may be granted to such other person as the court
an expense of administration (Occena v. Marquez, G.R. may appoint in case the persons who have the preferential rights
to be appointed are not competent or are unwilling to serve
No. L-28693, Sept. 30, 1974).
(Villamor v. CA, 162 SCRA 574).
2. The principal creditors, if competent and willing to OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY;
serve, if the surviving spouse or next of kin, or the SIMULTANEOUS FILING OF PETITION FOR
person selected by them be incompetent or unwilling ADMINISTRATION
or if the surviving spouse or next of kin neglects for 30
days after the death of the person to apply for Q: Who may oppose the issuance of letters testamentary
administration or to request that administration be or administration?
granted to some other person
Note: In order to be a party, a person must have material and A: The court may require further bond when there is:
direct, not indirect or contingent. (Herrera, Remedial Law, Vol. III-A 1. Change in circumstances of the executor or
2005 ed., p. 91) administrator or for other sufficient cause (Sec. 2, Rule
81);
Q: What are the grounds for opposing a petition for
2. Sale, mortgage, or encumbrance of the property of the
administration?
estate conditioned that such administrator or executor
will account for the proceeds of the sale or
A: Any interested person may, by filing a written
encumbrance (Sec. 7, Rule 89).
opposition, contest the petition on the ground of the:
1. Incompetency of the person for whom letters are
Q: May the probate court order the forfeiture of the
prayed therein; or
administrators bond?
2. Contestant's own right to the administration (Sec. 4,
Rule 79).
A: Yes, because the execution or forfeiture of an
administrators bond is deemed to be necessary and an
Note: Letters of administration may be granted to any qualified
applicant, though it appears that there are other competent incident of administration proceedings, as much as its filing
persons having better right to the administration, if such persons and the fixing of its amount. Therefore, the probate court
fail to appear when notified and claim the issuance of letters to may have the bond executed in the same proceedings (Phil.
themselves (Sec. 6, Rule 79). Trust Co. v. Luzon Surety Co., G.R. No. L-13031, May 30,
1961).
Q: Is the order of Appointment of Regular Administrator
final and appealable? Q: State the rule on bonds in case of joint executors or
administrators.
A: Yes. The order of appointment of a regular administrator
is appealable. Where no notice is required by Sec. 3, Rule A: The court may take separate bonds from each or a joint
79 of the Rules of Court has been given to persons believed bond from all (Sec. 3, Rule 81).
to have an interest in the estate of the deceased person;
the proceeding for the settlement of the estate is void and POWERS AND DUTIES OF EXECUTORS AND
should be annulled. The requirement as to notice is ADMINISTRATORS; RESTRICTIONS ON THE POWERS
essential to the validity of the proceeding in order that no
person may be deprived of his right to property without Q: What are the general powers of an administrator or an
due process of law (Herrera, Remedial Law, Vol. III-A, p. 94, executor?
2005 ed.).
A:
Q: When is bond required to be filed? 1. In case of a deceased partner:
a) To have access to, and examine and take copies
A: GR: Before an executor or administrator enters upon the of books and papers relating to the partnership
execution of his trust (Sec. 1, Rule 81). b) To examine and make invoices of the property
belonging to the partnership
Note: The term and effectivity of the bond do not depend on
payment of premium and does not expire until the 2. To maintain in tenantable repairs, houses and other
administration is closed. As long as the probate court retains structures and fences and to deliver the same in such
jurisdiction of the estate, the bond contemplates a continuing
repair to the heirs or devisees when directed so to do
liability (Luzon Surety v. Quebrar, G.R. No. L-40517, Jan. 31,
1984). by the court
3. To make improvements on the properties under
XPN: The executor may serve without a bond if the testator administration with the necessary court approval
so directs, or with only his individual bond, conditioned except for necessary repairs
only to pay the debts of the testator (Sec. 2, Rule 81). 4. To possess and manage the estate when necessary for
the payment of debts; and payment of expenses of
Q: What are the conditions of the bonds? administration (Rule 84).
in the will or the will was administration 1. Surrender the letters to the court; and
disallowed 2. Render his account within such time as the court may
direct (Sec. 1, Rule 82).
GROUNDS FOR REMOVAL OF ADMINISTRATOR
Q: What are the powers of a new executor or
Q: What are the grounds for the removal of an executor or administrator after the first one resigns or is removed?
administrator?
A:
A: 1. To collect and settle the estate not administered;
1. Neglect to render an account and settle the estate 2. To prosecute or defend actions commenced by or
according to law; against the former executor or administrator; and
2. Neglect to perform an order or judgment of the court, 3. To recover execution on judgments in the name of
or a duty expressly provided by the Rules; former executor or administrator.
3. When he absconds;
4. When he becomes insane; or An authority granted by the court to the former executor or
5. When he becomes incapable or unsuitable to administrator for the sale or mortgage of real estate may
discharge the trust (Sec. 2, Rule 82). be renewed in favor of such person without further notice
or hearing (Sec. 4, Rule 82).
Note: These grounds are not exclusive. The position of the Q: Is the executor or administrator chargeable with all the
administrator is one of confidence and when the court finds that estate and income of the deceased?
the administrator is not entitled to such confidence, it is justified in
withdrawing the appointment and giving no valid efficacy thereto. A: GR: The executor or administrator is accountable for the
(Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946)
whole estate of the deceased.
Q: What are the other grounds for removal of an executor
XPN: He is not accountable for properties which never
or administrator?
came to his possession.
A:
XPN to the XPN: When through untruthfulness to
1. Death;
the trust or his own fault or for lack of necessary
2. Resignation;
action, the executor or administrator failed to
3. An administrator who disbursed funds of the estate
recover part of the estate which came to his
without judicial approval. (Cotia vs. Jimenez, 104 Phil.
knowledge (Sec. 1, Rule 85).
960);
4. False representation by an administrator in securing
Q: When is the executor or administrator liable for
his appointment (Cabarubbias vs. Dizon, 76 Phil. 209);
damages?
5. An administrator who holds an interest adverse to that
of the estate or by his conduct showing his unfitness to
A: The executor or administrator is liable for damages
discharge the trust (Garcia vs. Vasquez, 32 SCRA 490);
when:
6. An administrator who has the physical inability and
1. He neglects or unreasonably delays to raise money, by
consequent unsuitability to manage the estate (De
collecting the debts or selling the real or personal
Borja vs. Tan, 93 Phil. 167).
estate of the deceased (Sec. 5, Rule 85);
2. He neglects to pay over the money he has in his hands;
Q: What is the status of the act made prior to the
3. The value of the estate is lessened;
revocation, resignation, or removal of an executor or
4. Unnecessary cost or interest accrues; and
administrator?
5. The persons interested suffer loss (Sec. 6, Rule 85).
A: The effect of revocation of letters testamentary or of
Q: What are expenses of administration?
administration is to terminate the authority of the executor
or administrator, but the acts of the executor or
A: They refer to those necessary for the management of the
administrator, done in good faith prior to the revocation of
property, for protecting it against destruction or
the letters will be protected, and similar protection will be
deterioration, and possibly for the production of fruits (De
extended to rights acquired under a previous grant of
Guzman v. De Guzman-Carillo, G.R. No. L-29466, May 18,
administration [Vda. de Bacaling v. Laguda, et al., 54 SCRA
1978).
243 (1973)].
Note: The following are not considered as necessary expenses:
Note: The rules provide for same grounds for removal/revocation 1. Expenses on the anniversary of the death of the deceased;
between executor and administrator except in case of the ground 2. Expenses incurred by a presumptive heir for her appearance
of revocation of administration if a will of decedent is discovered and that of her witnesses at the trial to oppose the probate of
(Sec. 1, Rule 82, Rules of Court). an alleged will;
3. Expenses for the settlement of the question as who are
Q: What are the duties of administrator upon revocation entitled to the estate left by the deceased;
of the letters? 4. Expenses incurred by the executor or administrator to
procure a bond;
A:
5. Personal expenses of the occupant of the heir of the family Note: The purpose of presentation of claims against decedents of
residences; the estate in the probate court is to protect the estate of the
6. Expenses for stenographic notes, unexplained representation deceased. Further, its primary object is to apprise the
expenses (Herrera, Remedial Law, Vol. III-A, p.122, 2005 ed.) administrator and the probate court of the existence of the claim
so that a proper and timely arrangement may be made for its
CLAIMS AGAINST THE ESTATE payment in full or by pro rata portion in the due course of the
administration. (Herrera, Remedial Law, Vol. III-A, p. 131, 2005 ed)
Q: What is a claim?
Q: Jericho loaned P5 Million from Carina. Said loan was
A: These are money claims of a pecuniary nature which secured by a real estate mortgage over a parcel of land
could have been enforced against the deceased in his owned by Jericho. Thereafter, Jericho died without
lifetime and could have been reduced to simple money satisfying the loan secured by the said mortgage. What are
judgments. the remedies available to Carina to enforce her mortgage
credit?
A:
1. Waive the mortgage and claim the entire debt from
the estate of the mortgagor as an ordinary claim;
Q: What claims against the estate of the decedent must be 2. Foreclose the mortgage judicially and prove any
presented in the settlement court in the testate or deficiency as an ordinary claim;
intestate proceedings? 3. Rely on the mortgage exclusively, foreclosing the same
judicially or extra judicially at any time before it is
A: Only the following, which survive, must be presented: barred by prescription without the right to claim for
1. All claims for money against the decedent, arising from any deficiency (Sec. 7, Rule 86).
contract, express or implied, whether the same be
Note: The above remedies are alternative (Herrera, Remedial Law,
due, not due, or contingent;
Vol. III-A, p. 154, 2005 ed.).
2. All claims for funeral expenses;
3. Expenses for the last sickness of the decedent; or
TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS
4. Judgment for money against the decedent (Sec. 5, Rule
86).
Q: What is the time within which claims shall be filed?
Note: If the defendant dies during the pendency of the action
against him, the rule on substitution of parties will be followed and A: It should not be less than six (6) months nor more than
any adverse decision against him may be filed by the plaintiff as a twelve (12) months from the day of the first publication of
claim against the estate. the notice thereof. Such period when fixed by the probate
court becomes mandatory and any action not filed within
If the defendant dies after an adverse decision was rendered the period shall be barred forever, unless otherwise falling
against him without having levied any property, then the plaintiff within any of the exceptions.
may file his claim against the estate.
If the defendant dies after an adverse decision was rendered Note: The period prescribed in the notice to creditors is not
against him, and after a levy was made, then execution shall exclusive because money claims against the estate may be allowed
proceed, without the need of filing a claim against the estate. at any time before an order of distribution is entered, at the
discretion of the court for cause and upon such terms as are
Q: What is an absolute claim? equitable. (Quisumbing vs. Guison, 76 Phil 730)
A: It is one which, if contested between living persons, Q: What is the purpose of the law in fixing the period
would be the proper subject of immediate legal action and within which to file the claims against the estate?
would supply a basis of judgment for a sum certain (Moran,
1980 Ed. 487). A: The fixing of the period is intended to insure a speedy
settlement of the affairs of the deceased person and the
Q: What is contingent claim? early delivery of the property to the person entitled to the
same (Santos v. Manarang, 27 Phil 209, 203, citing Re:
A: It is a conditional claim, which is subject to the Estate of De Dios, 24 Phil 574).
happening of a future uncertain event (Buan v. Laya, G.R.
No. L-7840, Dec. 24, 1957). STATUTE OF NON-CLAIMS
Q: When must the court issue a notice to file claims Q: What is the statute of non-claims?
against the estate?
A: It is a period fixed by the courts for the filing of claims
A: It is the duty of the court after granting letters against the estate for examination and allowance (Herrera,
testamentary or of administration to issue a notice Remedial Law, Vol. III-A, p. 132, 2005 ed.).
requiring all persons having money claims to file them in
the office of the clerk of court (Sec. 1, Rule 86). Q: What are the exceptions to the statute of non-claims?
A: Belated claims may be filed even beyond the period fixed administration, all persons having money claims against the
by the court: decedent are mandated to file or notify the court and the
1. On application of a creditor who has failed to file his estate administrator of their respective money claims;
claim within the time previously limited, at any time otherwise, they would be barred, subject to certain
before an order of distribution is entered, the court exceptions. A money claim is only an incidental matter in
may, for just causes, allow such claim to be filed for a the main action for the settlement of the decedent's estate;
period not exceeding 1 month from the order allowing more so if the claim is contingent since the claimant cannot
the filing of the belated claims; or (Sec. 2 , Rule 86) even institute a separate action for a mere contingent
2. Where the estate filed a claim against the creditor or claim. Hence, Alans contingent money claim, not being an
claimant who failed to present his claim against the initiatory pleading, does not require a certification against
estate within the period fixed by the probate court for non-forum shopping. (Sheker v. Estate of Alice O. Sheker,
the settlement of such claims, the creditor will be G.R. No.157912, Dec. 13, 2007)
allowed to set up the same as a counterclaim to the
action filed by the estate against him.
A:
Deliver the claim with necessary vouchers to the clerk of court
Claim is due: Supported by affidavit stating the Claim is not due or is contingent:
amount due and the fact that no payments have Supported by affidavit stating the
been made thereon or offsets particulars thereof
Executor/Administrator must file his answer to the claim within 15 days after service of a copy of the claim
If there is opposition, 15
Trial
days to file an answer
Judgment
PAYMENT OF DEBTS
Note: If there is still a deficiency, it shall be met by
Q: How should the debts of the estate be paid? contributions of devisees, legatees, or heirs who have
entered into possession of portions of the estate before
the debts and expenses have been settled and paid (Secs.
A: GR: The payment of the debts of the estate must be
2, 3, and 6, Rule 88).
taken from the following order:
1. Portion or property designated in the will XPNS: On application by executor or administrator,
2. Personal property; with written notice to persons interested, and after
3. Real property (Sec. 2, Rule 88). hearing, real properties can be charged first even
though the personal properties are not exhausted so distributed may still be applied to the payment of the
when: claim when established, and the creditor may maintain an
1. The personal property is not sufficient to pay the action against the distributees to recover the debt, and
debts, expenses of administration and legacies such distributees and their estates shall be liable for the
(Sec. 3, Rule 88); debt in proportion to the estate they have respectively
2. The sale of such personal property would be received from the property of the deceased (Sec. 5, Rule
detrimental to the participants of the estate (Sec. 88).
3, Rule 88);
3. Sale of personal property may injure the business Note: The contingent claims must first have been established and
or other interests of those interested of the estate allowed in the probate court before the creditors can file an action
(Sec. 2, Rule 89); directly against the distributees (De Bautista v. De Guzman, L-
28298, Nov. 25, 1983).
4. The testator has not made sufficient provision for
payment of such debts, expenses or legacies (Sec.
Q: What is the order of payment if estate is insolvent or
2, Rule 89);
assets are insufficient?
5. The decedent was, in his lifetime, under contract,
binding in law, to deed real property to a
A: The executor or administrator shall pay the debts
beneficiary (Sec. 8, Rule 89);
according to the concurrence and preference of credits
6. The decedent during his lifetime held real property
provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7,
in trust for another person (Sec. 9, Rule 89).
Rule 88).
Q: What is the consequence if the contingent claim is not ACTIONS BY AND AGAINST EXECUTORS AND
presented within the 2 year period after it becomes ADMINISTRATORS
absolute?
ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS
A: The assets retained in the hands of the executor or AND ADMINISTRATORS
administrator, not exhausted in the payment of claims,
shall be distributed by the order of the court to the persons Those claims which can proceed independently of the
entitled to the same (Sec. 4, Rule 88). However, the assets settlement proceeding such as:
Note: When an executor or administrator is appointed and Note: The last 3 requisites are unnecessary where the grantee is
assumes the trust, no action to recover the title or possession of the executor or administrator himself, in which event, the action
lands or for damages done shall be maintained against him by an should be in the name of all the creditors (Sec. 10; Herrera,
heir or devisee until there is an order of the court assigning the Remedial Law, Vol. III-A, p. 175, 2005 ed.).
lands to such heir or devisee or until the time allowed for paying
debts has expired (Sec. 3, Rule 87). The prohibition applies only to The creditor cannot directly file the action in court. It is only after
heirs or devisees and not to a donee inter vivos who may file an the executor/administrator failed to file the action that the
action to compel the administrator to deliver the property donated creditor is authorized to file the action, but it must still be in the
(Del Rosario v. Del Rosario, 2 Phil 321; Lopez v Olbes, 15 Phil 540). name of the executor/administrator.
Q: What is the rule with respect to the right of the heirs to DISTRIBUTION AND PARTITION
sue for the recovery of property of the estate during the
pendency of administration proceedings? LIQUIDATION
A: GR: The heirs have no legal standing to sue for recovery Q: What is liquidation?
of property of the estate (Herrera, Remedial Law, Vol. III-A,
p. 167, 2005 ed.). A: Liquidation means the determination of all assets of the
estate and payment of all debts and expenses.
XPN:
1. If the executor or administrator is unwilling or
refuses to bring suit; and
2. When the administrator is alleged to have
participated in the act complained of and he is
made a party defendant
A:
1. Application of the creditors;
2. Payment of cost and expenses by the creditors; and
3. Giving of security by the creditors in favor of the
executor or administrator (Sec. 9, Rule 87).
Q: Discuss the process for the distribution of the residue of the estate.
A:
Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor
shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must
still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims.
A: GR: Order of distribution shall be made after payments A: No. As long as the order of the distribution of the estate
of all debts, funeral expenses, expenses for administration, has not been complied with, the probate proceedings
allowance of widow and inheritance tax (Sec. 1, Rule 90). cannot be deemed closed and terminated (Estate of Ruiz v.
CA, G.R. No. 118671, Jan. 29, 1996).
XPN: If the distributees or any of them gives a bond
conditioned for the payment of said obligation, the Note: A decree of distribution of the estate of a deceased person
order of distribution may be made even before the vests the title to the land of the estate in the distributees, which, if
payment of all debts, etc. (par. 2, Sec. 1, Rule 90). erroneous may be corrected by a timely appeal. Once it becomes
final, its binding effect is like any other judgment in rem. However,
in exceptional cases, a final decree of distribution of the estate may
Note: The probate court loses jurisdiction over the settlement
be set aside for lack of jurisdiction or fraud. Further, in Ramon v.
proceedings only upon payment of all debts and expenses of the
Ortuzar, the Court ruled that a party interested in a probate
obligor and delivery of the entire estate to all the heirs (Guilas v.
proceeding may have a final liquidation set aside when he is left
Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972).
out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence (Ancheta v.
Guersey-Dalaygon, 490 SCRA 140).
Q: When should declaration of heirship be made?
Note: The provision is not mandatory because it is the distribution Q: What is the remedy of an heir who is entitled to the
of the residue of the estate before its obligations are paid which
residue but was not given his share?
the court is enjoined to do but not the declaration of heirs prior to
the satisfaction of these obligations. The court may therefore
make a declaration of heirship even before the payment of its A:
obligations (Ngo The Hua v. Chung kiat Hua, 118 Phil 956, 9 SCRA 1. MOTION TO SET ASIDE THE DISTRIBUTION - If an heir
113). appears after the court approved the project of
partition, the heir must file a Motion to set aside the
Q: What should the executor or administrator do if all the distribution with the court so that the court will not
claims are paid or settled? proceed with the distribution of the residue. The
probate court shall determine whether such heir has a
A: The executor or administrator shall prepare the project right to participate in the distribution of the residue. If
of partition reflecting the residue of the estate and how it is it is proven that the heir has a right, the court may
to be distributed. However, this is not mandatory (Herrera, order the revision of the project of partition for its
Remedial Law, Vol. III-A, p. 213, 2005 ed.). adjustment.
A: It is a document prepared by the executor or 3. MOTION FOR THE RE- OPENING OF THE SETTLEMENT
administrator setting forth the manner in which the estate PROCEEDINGS - If the distribution has already been
of the deceased is to be distributed among the heirs (Solivio made, a motion for closure has already been granted,
v. CA, G.R. No. 83308, Feb. 12, 1990). the heir must file a Motion for the re-opening of the
settlement proceedings within the reglementary
Q: May an heir of the deceased sell his undivided share period, provided the order of closure has not yet
during the pendency of the estate proceedings without become final and executory. The period is within 30
the prior approval of the probate court? days from the date the order of closure of the
administration proceeding was served on the executor
A: Yes. An heir has the right to sell his undivided or ideal or administrator (Divinagracia vs. Rovira, 72 SCRA
share of the estate, he being the co-owner with other heirs 307).
of the estate. Court approval is necessary only if specific
property of the estate is sold (Heirs of Pedro Escanlar v. CA, Note: When motion to intervene is made by illegitimate
G.R. No. 119777, Oct. 23, 1997). children, there must be proof beyond allegations in such
motion to show the interest of the private movants. In the
absence thereof, the action taken by the judge allowing said
Q: Does the finality of the approval of the project of
intervention could be considered premature (Jerez v. Nietes,
partition by itself alone terminate the probate G.R. No. L-26876 [1969])
proceeding?
A: GR: Yes. Neglect of trustees to file a bond will be Note: A trustee may resign his trust if it appears to the court to be
proper to allow such resignation (Sec. 8, Rule 98).
interpreted by the court as resignation or decline to accept
the trust.
Q: What are the conditions of the bond? A: The powers of a trustee appointed by a Philippine court
cannot extend beyond the confines of the territory of the
A: Republic of the Philippines. This is based on the principle
1. That the trustee will make and return to the court, at that his authority cannot extend beyond the jurisdiction of
such time as it may order, a true inventory of all the the Republic of the Philippines, under whose courts he was
estate belonging to him as trustee, which at the time appointed. Remotely, the rule is also based on the rule in
of the making of such inventory shall have come to his international law of the sovereign equality of states.
possession or knowledge; (Herrera, Remedial Law, Vol. III-A, p. 452, 2005 ed)
Note: When the trustee is appointed as a successor to a prior Q: When is there a testamentary trust?
trustee, the court may dispense with the making and return
of an inventory if one has already been filed. A: If a testator has omitted in will to appoint a trustee in
the Philippines, and if such appointment is necessary to
2. That he will manage and dispose of all such estate, and carry into effect the provisions of the will. The proper RTC
faithfully discharge his trust in relation thereto, may the appoint a trustee after notice to all persons
according to law and the will of the testator or the interested, who shall have the same rights, powers, and
provisions of the instrument or order under which he duties, and in whom the estate shall vest, as if he had been
is appointed; appointed by the testator.
3. That he will render under oath at least once a year
until his trust is fulfilled a true account of the property Note: The power to appoint a trustee is discretionary with the
in his hands and of the management and disposition court before whom application is made, and the appellate court
will decline to interfere except in cases of clear abuse (Herrera,
thereof, and such other accounts as the court may
Remedial Law, Vol. III-A, p. 449, 2005 ed.).
order; and
4. That at the expiration of his trust he will settle his
Q: Are notice to and consent of beneficiaries essential for
accounts in court and pay over and deliver all the
the creation of the trust?
estate remaining in his hands, or due from him on such
settlement, to the persons entitled thereto (Sec. 6,
A: No. The fact that beneficiaries were not notified of the
Rule 98).
existence of the trust or that the latter have not been given
an opportunity to accept it is of no importance for it is not
REQUISITES FOR THE REMOVAL AND RESIGNATION OF A
essential to the existence of a valid trust and to the right of
TRUSTEE
the beneficiaries to enforce the same that they had
knowledge thereof at the time of its creation. Neither is it
Q: What are the requisites for the removal or resignation
necessary that the beneficiary should consent to the
of a trustee?
creation of the trust (De Leon, et. al v. Molo-Peckson, et al.,
G.R. No.L-17809, Dec. 29, 1962).
A: When a trustee under a written instrument declines, Q: Who and where may an escheat proceeding be filed?
resigns, dies, or is removed before the objects of the trust A: The Solicitor General or his representative in behalf of
are accomplished, and no adequate provision is made in the Republic of the Philippines, may file a petition in the
such instrument for supplying the vacancy after due notice RTC of the province where the deceased last resided or in
to all persons interested, the proper RTC may appoint a which he had an estate, if he resided out of the Philippines,
new trustee to act alone or jointly with the others, as the setting forth the facts, and praying that the estate of the
case may be. deceased be declared escheated (Sec. 1, Rule 91).
ESCHEAT
Q: What purposes may the estate assigned be used for?
Q: What is escheat?
A: (1) The estate assigned shall be for the benefit of public
schools, and public charitable institutions and centers, in
A: It is a French or Norman term meaning chance or
such municipalities or cities. The court shall distribute the
accident. Escheat is a proceeding whereby the real or
estate as the respective needs of each beneficiary.
personal property of a deceased person in the Philippines,
becomes the property of the State upon his death, without
(2) The court, at the instance of an interested party, or on
leaving any will or legal heirs (Herrera, Vol. III-A, p. 225,
its own motion, may order the establishment of a
2005 ed.).
permanent trust, so that only the income from the property
Note: Escheat is a special proceeding commenced by petition. It is shall be used. (Art. 1013, Civil Code).
a substantial right of the State, being the last heir in the line of
succession, and is not a claim based on charity, gratuity or REQUISITES FOR FILING OF PETITION
unearned benefit (Ibid.).
Q: What are the requisites for filing a petition?
Q: Is the right to escheat waivable?
A:
A: Yes. The right to escheat may be waived, either expressly 1. A person died intestate;
or impliedly (Herrera, Vol. III-A, p. 229, 2005 ed.). 2. He left no heirs or persons by law entitled to the same;
and
Q: What is the basis of the states right to receive property 3. The deceased left properties in the Philippines (Sec. 1,
in escheat proceedings? Rule 91).
Q: Can the court convert escheat proceedings into A: It is the power of protective authority given by law and
settlement of the estate? imposed on an individual who is free and in the enjoyment
of his rights, over one whose weakness on account of his
A: No, once the court acquires jurisdiction to hear the age or other infirmity which renders him incapable to
petition for escheat by virtue of the publication of the protect himself. (Herrera, Vol. III-A, pg. 235, 2005 ed.).
petition for escheat, this jurisdiction cannot be converted
into one for the distribution of the properties of the It may also describe the relation subsisting between the
decedent (Herrera, Vol. III-A, p. 227, 2005 ed.) Each special guardian and the ward. It involves the taking of possession
proceeding must be governed by their respective rules and management of, the estate of another unable to act for
separate from each other. himself (Ibid).
Note: For the distribution of the estate to be instituted, the proper Note: Guardianship of minors is now governed by the Rule on
petitions must be presented and the proceedings should comply Guardianship of Minors (AM No. 03-02-05-SC) which took effect on
with the requirements of the Rules of Court (Municipality of May 1, 2003 while guardianship of incompetents who are not
Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960). minors is still governed by the provisions of the Rules of Court on
Guardianship (Rule 92- 97).
Note: If an issue arises as to who has the better right or title to the
properties conveyed in the guardianship proceeding, such issue Q: Give the proper venue for a petition for the
should be threshed out in a separate ordinary action as it is beyond appointment of an administrator over the land and
the jurisdiction of the guardianship court, unless the wards right or
building left by an American citizen residing in California,
title to the property is clear and undisputable.
who had been declared an incompetent by an American
court. (1997 Bar Question)
Q: Who are considered incompetents?
A: The venue for the appointment of an administrator over
A:
such land and building is the RTC of the place where his
1. Those suffering the penalty of civil interdiction;
property or part thereof is situated (Sec. 1, Rule 92).
2. Hospitalized lepers;
3. Prodigals;
Q: What are the grounds for opposition to petition of
4. Deaf and dumb who are unable to read and write;
guardianship of incompetent?
5. Those who are of unsound mind, even though they
have lucid intervals; and
A:
6. Persons not being of unsound mind, but by reason of
1. Competency of alleged incompetent; or
age, disease, weak mind, and other similar causes,
2. Unsuitability of the person for whom letters are
cannot, without outside aid, take care of themselves
prayed for(Sec. 4, Rule 93).
and manage their property, becoming thereby an easy
prey for deceit and exploitation (Sec. 2, Rule 92).
mortgaged or otherwise encumbered, and the acting as such guardian. (Guerrero v. Teran, G.R. No. L-4898, Mar.
proceeds invested in safe and productive security, or 19, 1909)
in the improvement or security of other real property
(Sec. 19, A.M. No. 03-02-05-SC). Q: Is there any requirement before the parents can
exercise legal guardianship over their minor children?
Q: What is the requirement before the guardian can sell,
mortgage or encumber the property of the ward? A: No. The father and the mother shall jointly exercise legal
guardianship over the person and property of their
A: The guardian must seek authority from the court. The unemancipated common child without the necessity of a
authority to sell or encumber shall not extend beyond one court appointment (Sec. 1, A.M. No. 03-02-05-SC).
(1) year unless renewed by the court.
Q: Does the requirement of posting a bond extend to
Q: Can the guardian be allowed to invest the proceeds of parents who are the legal guardians of their minor
the sale, mortgage, or encumbrance? children? Explain.
A: The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and any A: GR: No, if the market value or annual income of the child
other of his ward's money in his hands, in real estate or is P 50,000 or below.
otherwise, as shall be for the best interest of all concerned,
and may make such other orders for the management, XPN: If the market value of the property or the annual
investment, and disposition of the estate and effects, as income of the child exceeds P50,000, the parent
circumstances may require (Sec. 5, Rule 95). concerned shall furnish a bond in such amount as the
court may determine, but in no case less than 10% of
the value of such property or annual income, to
guarantee the performance of the obligations
CONDITIONS OF THE BOND OF THE GUARDIAN prescribed for general guardians (Sec. 16, A.M. No. 03-
02-05-SC).
Q: What are the conditions of the bond of the guardian?
Q: Discuss the procedure in the appointment of guardians
A: of minor or incompetent.
1. To make and return to the court, within 3 months, a
true and complete inventory of all the estate of his A:
ward which shall come to his possession or knowledge Petition for the appointment of a guardian
or to the possession or knowledge of any other person
for him;
2. To faithfully execute the duties of his trust, manage Court order fixing the time and date of hearing
and dispose of the estate according to the rules for the
best interests of the ward, and to provide for the
proper care, custody, and education of the ward; Notice of hearing
3. To render a true and just account of all the estate of
the ward in his hands, and of all proceeds or interest
derived therefrom, and of the management and Opposition, if any
disposition of the same, at the time designated by the
rules and such other times as the court directs;
Case study report of the minor and prospective
4. At the expiration of his trust, settle his accounts with
guardian conducted by a social worker submitted at
the court and deliver and pay over all the estate,
least three (3) days before the scheduled hearing
effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully
entitled thereto; and
5. To perform all orders required by the court (Sec. 1, Hearing and appointment of guardian
Rule 94; Sec.14, A.M. No. 03-02-05-SC).
A: It is for the protection of the property of the minor or Service of judgment on the Local Civil Registrar
incompetent to the end that he may be assured of an of the place where the minor or incompetent
honest administration of his funds (Herrera, Vol. III-A, p. resides and Register of Deeds where his
281, 2005 ed.) property or part thereof is situated
Q: What is adoption?
A: Domestic adoption refers to the juridical act, a
proceeding in rem, which creates between two persons a
relationship similar to that which results from legitimate
paternity and filiation.
DOMESTIC INTER-COUNTRY
Jurisdiction Family Court where adopter resides Inter-Country Adoption Board
[Petition may also be filed with Family Court
where adoptee resides; FC to endorse
petition to Inter-Country Adoption Board
(ICAB)]
Who May adopt (1) Any Filipino citizen A foreigner must meet the following
requirements in order to be qualified to
a. of legal age, adopt in the Philippines under the Inter-
Country Adoption Act:
b. in possession of full civil capacity and
legal rights, a) GR: at least twenty-seven (27) years of
age and at least sixteen (16) years older
c. of good moral character, than the child to be adopted, at the
time of application;
d. has not been convicted of any crime
g. at least sixteen (16) years older than c) With capacity to act and assume all
the adoptee. This requirement of a 16- rights and responsibilities of parental
year difference may be waived when authority under his national laws, and
the: has undergone the appropriate
counseling from an accredited
i. adopter is the biological parent of counselor in his/her country;
the adoptee or
ii. adopter is the spouse of the d) Not convicted of a crime involving moral
adoptees biological parent; turpitude;
(2) Any alien possessing the same e) Eligible to adopt under his/her national
qualifications as above-stated for Filipino law;
nationals: Provided,
f) In a position to provide the proper care
a. that his country has diplomatic and support and to give the necessary
relations with the Republic of the moral values and example to all his
Philippines, children, including the child to be
adopted;
b. that he has been living in the
Philippines for at least three (3) g) Agrees to uphold the basic rights of the
continuous years prior to the filing of the child as embodied under Philippine
petition for adoption and maintains such family laws, the U.N. Convention on the
residence until the adoption decree is Rights of the Child, and to abide by the
entered, rules and regulations issued to
c. that he has been certified by his implement the provisions of this Act;
diplomatic or consular office or any
appropriate government agency to have h) Comes from a country with whom the
the legal capacity to adopt in his country, Philippines has diplomatic relations and
and whose government maintains a similarly
authorized and accredited agency and
d. that his government allows the that adoption is allowed under his/her
adoptee to enter his country as his national laws; and
adopted child.
i) Possesses all the qualifications and
The requirements on residency and none of the disqualifications provided
certification of the aliens qualification to herein and in other applicable
adopt in his country may be waived for Philippine laws.
the following:
A:
Hearing
GR: To be held within 6 months from the date of issuance
of order of hearing
XPN: If the petition includes a change of name, hearing
must not be within 4 months after last publication, nor
within 30 days prior to an election Q: What is the effect of the petition for adoption in
relation to use of surnames?
GR: Supervised trial custody for a period of at least 6 A: Pursuant to Art. 189 of the Family Code which states that
months the adopted child shall acquire the reciprocal rights and
XPN: Same as exceptions from requirements of residency obligations arising from the relationship of a parent and
and certification child, including the right of the adopted to use the surname
of the adopter, the adoptee has both the right and
obligation to use the surname of the adopter, and that
Decree of Adoption upon reaching the age of majority, he may file a petition for
Note: In case of change of name, the decree shall be submitted
to the Civil Registrar where the court issuing the same is
situated
UNIVERSITY OF SANTO TOMAS 234
2013 GOLDEN NOTES
a change of surname, as the use by the adoptee of the 2. The adoptee shall be considered the legitimate child of
surname of the adopter is more an incident rather than the the adopter/s for all intents and purposes and shall be
object of adoption proceedings(Republic v. CA, G.R. No. entitled to all the rights and obligations provided by
97906, May 21, 1992). law to legitimate children born to them without
discrimination of any kind; and
Note: This ruling may imply that what may be included in a petition 3. In legal and intestate succession, the adopter/s and
for adoption is only the first or given name of the adoptee and not the adoptee shall have reciprocal rights of succession
the surname, for he has the right and obligation, at least initially to without distinction from legitimate filiation. However,
use the surname of the adopter (Agpalo, Handbook on Special
if the adoptee and his biological parent/s had left a
Proceedings, p. 193, 2003 ed.).
will, the law on testamentary succession shall govern
(Secs. 16-18, R.A. 8552).
Q: On June 25, 1990, spouses Samuel R. Dye, Jr. and
Rosalina Due Dye filed a petition before the RTC of
Note: The adoptee is no longer entitled to any legitime
Angeles City to adopt Maricel and Alvin, younger siblings
or share in the estate of the biological parent since all
of Rosalina. Samuel R. Dye, Jr. a member of the United
the legal ties are severed, except only through testate
States Air Force is an American citizen who resided at the
succession where a legacy or devise is given in his
Clark Air Base in Pampanga. His wife Rosalina is a former
favor.
Filipino who became a naturalized American. Both Maricel
and Alvin Due, as well as their natural parents, gave their
Note: The decree of adoption shall order the Civil Registrar where
consent to the adoption. The RTC granted the petition for the adoption was registered to issue a certificate of birth which
adoption. Is the trial court correct? shall not bear that it is a new or amended certificate and shall state
among others, the following: registry number, registration date,
A: No, Samuel Robert Dye, Jr. who is an American and, name of child, sex, date of birth, place of birth, name and
therefore, an alien is disqualified from adopting the minors citizenship of adoptive mother and father, and the date and place
Maricel and Alvin under Art. 184 of the Family Code. He is of their marriage, when applicable[Sec. 16, 3(b), A.M. No. 02-06-
not a former Filipino citizen who seeks to adopt a relative 02].
by consanguinity. Nor does he seek to adopt his wife's
legitimate child. Although he seeks to adopt with his wife Q: When should the decree of domestic adoption take
her relatives by consanguinity, he is not married to a effect?
Filipino citizen, for Rosalina was already a naturalized A: It shall take effect as of the date of filing of the original
American at the time the petition was filed, thus excluding petition (Sec. 16, Ibid.).
him from the coverage of the exception. The law here does
not provide for an alien who is married to a former Filipino Q: Who has the burden of proof in establishing adoption?
citizen seeking to adopt jointly with his or her spouse a
relative by consanguinity, as an exception to the general A: Upon the person claiming such relationship. (Vda. de
rule that aliens may not adopt. Jacob v. CA, G.R. No.135216, Aug. 17, 1999)
On her own, Rosalina Dye cannot adopt her brother and Q: What is the nature of adoption proceedings and its
sister for the law mandates joint adoption by husband and records?
wife, subject to exceptions. Article 29 of P.D. 603 (Child and
Youth Welfare Code) retained the Civil Code provision that A: All hearings in adoption cases, after compliance with the
husband and wife may jointly adopt. The Family Code jurisdictional requirements shall be confidential and shall
amended this rule by scrapping the optional character of not be open to the public. All records, books, and papers
joint adoption and making it now mandatory. Article 185 of relating to the adoption cases shall be strictly confidential
the Family Code provides: Husband and wife must adopt, (Sec. 18, A.M. No. 02-06-02).
except in the following cases: (1) When one spouse seeks to
adopt his own illegitimate child; (2) When one spouse seeks Q: What is the duty of the court if it finds that the
to adopt the legitimate child of the other. None of the disclosure of the information to a third person is
above exceptions applies to Samuel and Rosalina Dye, for necessary for security reasons upon proper motion?
they did not petition to adopt the latter's child but her
brother and sister (Republic v. Vergara, G.R. No. 95551, A: The court may order the necessary information to be
Mar. 20, 1997). released, restricting the purposes for which it may be used
(par. 2, Sec. 18, Ibid.).
EFFECTS OF ADOPTION
Q: What are the prohibited acts under domestic adoption?
Q: What are the effects of adoption?
A:
A: 1. Obtaining consent for an adoption through coercion,
1. All legal ties between the biological parents and the undue influence, fraud, improper material
adoptee shall be severed and the same shall then be inducement, or other similar acts;
vested on the adopter/s, except where the biological 2. Non-compliance with the procedures and safeguards
parent is the spouse of the adopter; provided by law for adoption;
3. Subjecting or exposing the child to be adopted to
danger, abuse or exploitation;
4. Fictitious registration of the birth of a child under the 3. The court shall order the Civil Registrar to cancel the
name of person(s) who is not his/her biological amended certificate of birth of the adoptee and
parent(s); restore his or her original birth certificate;
5. Cooperation of physician or nurse or hospital 4. The successional rights shall revert to its status prior to
personnel in simulation of birth; and adoption, but only as of the date of judgment of
6. Violation of confidentiality and integrity of adoption judicial rescission; and
processes (Sec. 21, R.A. 8552). 5. The vested rights acquired prior to judicial rescission
shall be respected (Sec. 23, Ibid.).
Q: What is simulation of birth?
INTER-COUNTRY ADOPTION
A: It refers to the tampering of the civil registry to make it
appear in the birth records that a certain child was born to WHEN ALLOWED
a person who is not his biological mother, thus causing such
child to lose his true identity and status [Sec. 3(s), A.M. No. Q: When may inter-country adoption be allowed?
02-06-02].
A: It shall only be allowed when all the possibilities for
Note: The mere registration of a child in his or her birth domestic adoption of the child have been exhausted and
certificates as the child of the supposed parents is not a valid that inter-country adoption is in the best interest of the
adoption. It does not confer upon the child the status of an child (Sec. 27a, A.M. No. 02-06-02).
adopted child and legal rights of such child (Rivera v. Villanueva,
G.R. No. 141501 [2006]).
Q: What is the rule on family selection?
INSTANCES WHEN ADOPTION MAY BE RESCINDED
A: No child shall be matched to a foreign adoptive family
unless it is satisfactorily shown that the child cannot be
Q: What are the grounds for rescission of adoption?
adopted locally (Sec. 11, R.A. 8043).
A: Upon the petition of the adoptee, with the assistance of
Q: What is matching?
the DSWD if a minor or though over 18 is incapacitated, on
any of the following grounds committed by the adopter/s:
A: It refers to the judicious pairing of the adoptive child and
1. Repeated physical and verbal maltreatment by
the applicant to promote a mutually satisfying parent-child
the adopter/s despite having undergone
relationship [Sec. 3(g), R.A. 8043].
counseling;
2. Attempt on the life of the adoptee;
Q: What is the role of DFA in inter-country adoption?
3. Sexual assault or violence; or
4. Abandonment and failure to comply with parental
A: It shall set-up a system by which Filipino children sent
obligations (Sec. 19, Ibid.).
abroad for trial custody are monitored and checked as
Note: Only the adoptee can rescind the decree of adoption. reported by the authorized and accredited inter-country
However, the adopter is not left without any remedy as he may adoption agency as well as the repatriation to the
deny to an adopted child his legitime and by will, may freely Philippines of a Filipino child whose adoption has not been
exclude him from having a share in the disposable portion of his approved (par. 3, Sec. 14; R.A. 8043).
estate. The new law had already abrogated or repealed the right of
an adopter under the Civil and Family Codes to rescind a decree of Q: What is the duty of the ICAB upon receipt of applicants
adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003). matching proposal and confirmation of the pre-adoptive
placement plans by foreign agency?
Q: What is the period to file for rescission of adoption?
A: It shall issue the placement authority within 5 working
A: The adoptee, if incapacitated, must file the petition for days. The copy of the placement authority shall be
rescission within 5 years after he reaches the age of transmitted to the DFA and to the foreign adoption agency
majority, or if he was incompetent, within 5 years after (Sec. 39, Rules and Regulations of R.A. 8043).
recovery from such incompetency. (Sec. 21, A.M. No. 02-06-
02) Q: When does the trial custody of the child starts?
EFFECTS OF RESCISSION OF ADOPTION A: Upon the actual physical transfer of the child to the
applicant who, as actual custodian shall exercise substitute
Q: What are the effects of rescission of adoption? parental authority over the person of the child (Sec. 44,
Rules and Regulations of R.A. 8043).
A:
1. The parental authority of the adoptee's biological Q: What is the duty of the foreign adoption agency during
parent/s, if known, or the legal custody of the DSWD the trial custody period?
shall be restored if the adoptee is still a minor or
incapacitated; A: It shall notify the ICAB of any incident that may have
2. The reciprocal rights and obligations of the adopter/s resulted in a serious impairment of the relationship
and the adoptee to each other shall be extinguished;
UNIVERSITY OF SANTO TOMAS 236
2013 GOLDEN NOTES
SPECIAL PROCEEDINGS
between the applicant and the child or any serious ailment 3. The procedures and safeguards placed under the laws
or injury suffered by the child as soon as possible but not for adoption were not complied with; or
later than 72 hours after the incident or the ailment of the 4. If the child to be adopted is subject or exposed to
child (Sec. 46, Rules and Regulations of R.A. 8043). danger, abuse and exploitation (Sec. 16, R.A. 8043).
Q: What are the grounds for termination of pre-adoptive Q: What are the other acts which constitute violations of
relationship? inter-country adoption act?
A: A:
1. If the relationship is unsatisfactory to the child or 1. Violation of confidentiality; (Sec. 55, Rules and
applicant; or Regulations of R.A. 8043)
2. The continued placement is not in the best interest of 2. Child trafficking (Sec. 57 (c), Rules and Regulations of
the child (Sec. 47, Rules and Regulations of R.A. 8043). R.A. 8043).
Note: No termination of pre-adoptive relationship shall be made BEST INTEREST OF THE MINOR STANDARD
unless it is shown that the foreign adoption agency has exhausted
all the means to remove cause of unsatisfactory relationship. Q: What is the Best Interest of the Minor Standard?
Q: What is the last resort if the ICAB in coordination with A: It refers to the totality of the circumstances and
the foreign adoption agency fails to find a new placement conditions as are most congenial to the survival, protection,
for the child within reasonable time? and feelings of security of the minor and most encouraging
to his physical, psychological and emotional development.
A: Repatriation of the child (Sec. 49, Rules and Regulations It also means the least detrimental available alternative for
of R.A. 8043). safeguarding the growth and development of the minor
(Sec. 14, AM No. 03-04-04-SC).
Q: Whose consent is necessary if a satisfactory pre-
adoptive relationship is formed between the applicant WRIT OF HABEAS CORPUS
and the child?
Q: What is the writ of habeas corpus?
A: DFAs consent which must be transmitted by the ICAB to
the foreign agency within thirty (30) days after receipt of A: It is a writ directed to the person detaining another and
the latters request (Sec. 50, Rules and Regulations of R.A. commanding him to produce the body of the prisoner at a
8043). certain time and place with the day and the cause of his
caption and detention to do, submit to and receive
Q: After the completion of trial custody period, what must whatsoever, the court or judge awarding the writ shall
the applicant do? consider in that behalf.
A: He shall file the petition for adoption with the proper Note: It is regarded as palladium of liberty, a prerogative writ
court or tribunal in the country where the applicant resides which does not issue as a matter of right but in the sound
within six (6) months (Sec. 51, Rules and Regulations of R.A. discretion of the court or judge.
8043).
Q: When does the court acquire jurisdiction over the
FUNCTIONS OF THE RTC person of the respondent?
A: The writ itself plays the role of summons in ordinary
Q: What is the function of the RTC in inter-country actions; the court acquires jurisdiction over the person of
adoption? the respondent by mere service of the writ. (Sec. 7, Rule
102)
A: The RTC merely receives applications from foreign
adoption agencies evaluate and assess the qualifications of Q: To what instances may habeas corpus extend?
the proposed adopter, and the court must submit its
findings and the application papers to the ICAB. The A:
supervised trial custody is conducted and the decree of 1. Cases of illegal confinement or detention by which a
adoption is issued by the court in the place of the adopter person is deprived of his liberty; and
abroad (Sec. 10, R.A. 8043). 2. Cases by which the rightful custody of the person is
withheld from the person entitled thereto (Sec. 1, Rule
Q: When is an adoption presumed illegal? 102).
Q: In 1978, Pete was convicted by the then CFI of Cavite on conducted an ex parte preliminary investigation without
the sole basis of his extrajudicial confession. The decision affording Ben, accused, opportunity to be heard and
soon became final and Pete has since been serving thereafter issued a warrant of arrest, pursuant to which
sentence until now, although to this day, he insists that he Ben has been detained, and subsequently forwarded the
is innocent and that his confession had been coerced. He records of the case to the provincial prosecutor for
later learned of the SCs decision in People v. Galit in appropriate action. Will habeas corpus and certiorari lie?
which the Court reversed a conviction that had been
based solely on an uncounselled confession. He forthwith A: Yes, a petition for habeas corpus to relieve Ben under
caused a petition for habeas corpus to be filed, alleging the illegal warrant of arrest, and for certiorari to assail the
that his confinement has all along been illegal. The warrant of arrest may be filed, and the judge may properly
Government opposed the petition on the ground that the be made respondent, even though the accused has been in
decision of conviction had long become final and may no physical custody of the Provincial warden, as the judge has
longer be reopened and that he is in fact serving sentence. constructive custody of the accused. For the illegal order
Will habeas corpus lie? Reasons. (1988 Bar Question) and warrant of arrest issued by the judge subsists and Ben
is offered no speedy, adequate remedy or appeal in the
A: Yes because once a deprivation of a constitutional right ordinary course of law. The writ of habeas corpus, although
is shown to exist, the court that rendered the judgment is not designed to interrupt the orderly administration of
deemed ousted of jurisdiction and habeas corpus is the justice, can be invoked, in fine, by the attendance of special
appropriate remedy to assail the legality of the detention circumstance that requires immediate action (Calvan v. CA,
(Gumabon v. Director of Prisons, G.R. No. L-30026, Jan. 30, G.R. No.140823, Oct. 3, 2000).
1971).
Q: What is the nature of the petition?
Q: Luis Ramos initiated a complaint-affidavitfor
deportation before the Bureau of Immigration and A: It is an inquisition by the government at the suggestion
Deportation (BID) against Jimmy Go alleging that the and instance of an individual, most probably, but still in the
latter is an illegal and undesirable alien. The complaint for name and capacity of the sovereign. It is a proceeding in
deportation was dismissed but was subsequently reversed rem that is instituted for the purpose of fixing the status of
by the Board of Commissioners; hence the corresponding a person and that there can be no judgment entered
Charge Sheet was filed against Jimmy, charging him of violating against anybody since there is no real plaintiff and
the Philippine Immigration Act of 1940. The Board of defendant (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981).
Commissioners issued a warrant of deportation which led
to the apprehension of Jimmy. Jimmy commenced a Note: In habeas corpus cases, the judgment in favor of the
petition for habeas corpus. Should the petition be applicant cannot contain a provision for damages.
granted?
A: No, once a person detained is duly charged in court, he CONTENTS OF THE PETITION
may no longer question his detention through a petition for
issuance of a writ of habeas corpus. His remedy would be Q: What should a verified petition for a writ of habeas
to quash the information and/or the warrant of arrest duly corpus contain?
issued. The writ of habeas corpus should not be allowed
after the party sought to be released had been charged A:
before any court. The term court in this context includes 1. That the person in whose behalf the application is
quasi-judicial bodies of governmental agencies authorized made is imprisoned or restrained of his liberty;
to order the persons confinement, like the Deportation 2. The officer or name of the person by whom he is
Board of the Bureau of Immigration(Carlos Go Sr. v. Luis so imprisoned or restrained; or, if both are unknown
Ramos, G.R. No. 167569; Jimmy Go v. Luis Ramos, G.R. No. or uncertain, such officer or person may be described
167570; Hon. Alipio Fernandez v. Jimmy Go, G.R. No. by an assumed appellation, and the person who is
171946, Sept. 4, 2009). served with the writ shall be deemed the person
intended;
Q: May a petition for writ of habeas corpus be properly 3. The place where he is so imprisoned or
filed together with a petition for certiorari? restrained, if known;
4. A copy of the commitment or cause of detention
A: Yes. The writ of habeas corpus and certiorari may be of such person, if it can be procured without impairing
ancillary to each other where necessary to give effect to the the efficiency of the remedy; or, if the imprisonment
supervisory powers of the higher courts. A writ of habeas or restraint is without any legal authority, such fact
corpus reaches the body and the jurisdictional matters, but shall appear (Sec. 3, Rule 102).
not the record. A writ of certiorari reaches the record but
not the body. Hence, a writ of habeas corpus may be used CONTENTS OF THE RETURN
with the writ of certiorari for the purpose of review (Galvez
v. CA, G.R. No. 114046, Oct. 24, 1994). When the person to be produced is imprisoned or
restrained by an officer, the person who makes the return
Q: A municipal trial judge, who is related within the third shall state therein, and in other cases the person in whose
degree of consanguinity to Archie, complainant, has custody the prisoner is found shall state, in writing to the
court or judge before whom the writ is returnable, plainly 1. Preliminary citation is issued when a government
and unequivocally: officer has the person in his custody, the illegality of
which is not patent, to show cause why the writ of
1. Whether he has or has not the party in his custody habeas corpus should not issue.
or power, or under restraint;
2. If he has the party in his custody or power, or under 2. Peremptory writ is issued when the cause of the
restraint, the authority and the true and whole detention appears to be patently illegal and the non-
cause thereof, set forth at large, with a copy of the compliance therewith is punishable (Lee Yick Hon v.
writ, order, execution, or other process, if any, upon Collector of Customs, G.R. No. 16779, Mar. 30, 1921).
which the party is held;
3. If the party is in his custody or power or is Q: What are the grounds for the issuance of writ of habeas
restrained by him, and is not produced, particularly corpus in judicial proceeding?
the nature and gravity of the sickness or infirmity of
such party by reason of which he cannot, without A:
danger, be brought before the court or judge; 1. There has been a deprivation of a constitutional right
4. If he has had the party in his custody or power, or resulting in restraint of person;
under restraint, and has transferred such custody or 2. The court has no jurisdiction to impose the sentence;
restraint to another, particularly to whom, at what 3. An excessive penalty has been imposed, the sentence
time, for what cause, and by what authority such being void as to excess; or
transfer was made (Sec. 10, Rule 102). 4. Where the law is amended, as when the penalty is
lowered (Feria v. CA, G.R. No. 122954, Feb. 15, 2000).
Q: Is the return considered as evidence?
Q: Rita Labriaga was caught selling two tea bags of
A: If it appears that the prisoner is in the custody of a public marijuana in Daraga, Albay in a buy-bust operation
officer under a warrant of commitment in pursuance of conducted by the Narcotics Command. Rita was found in
law, the return shall be considered prima facie evidence of possession of 115 grams of marijuana. Rita was convicted
the validity of the restraint for violation of R.A. 6425 and was sentenced for life
imprisonment. Rita filed a motion for reconsideration with
If he is restrained of his liberty by an alleged private modification of sentence. Rita prays for the retroactive
authority, the return shall be considered only as a plea of application to her case of R.A. 7659 which imposes
the facts therein set forth, and the party claiming the imprisonment of prision correccional for less than 250
custody must prove such facts (Sec. 13, Rule 102). grams of marijuana and for her eventual release from
confinement at the Correctional Institution for Women in
Q: When the soldiers defense to a petition for habeas Mandaluyong as a consequence of the application of the
corpus is that they released the detainees for whom the new law to her case. It appears that she already served
petition was filed, but the allegation of release is disputed sentence for a more than a year. Should the motion be
by the parents of the detainees, and it is not denied that granted?
the detainees have not been seen or heard from since
their supposed release, do the parents have the burden in A: Yes. The appropriate remedy is to file a petition for
law of proving that the their children are still detained by habeas corpus considering that the decision in this case is
the soldiers or does the burden shifts to the soldiers? final. However, in accordance with the ruling in Angeles v.
Bilibid Prison G.R. No. 117568, Jan. 4, 1995 and People v.
A: The general rule in the number of cases is that the Agustin, G.R. No. 98362, Sept. 5, 1995, in which the SC held
release of a detained person renders moot and academic that the rules on habeas corpus should be liberally applied
the petition for habeas corpus. The cited general rule in cases which are sufficient in substance, the motion in this
postulates that the release of the detainees is an case must be treated as a substantial compliance with the
established fact and not in dispute, and they do not rules on habeas corpus. Rita Labriaga, having served more
constitute to be missing persons. Where, however, there than the maximum imposable penalty of prision
are grounds for grave doubts about the alleged release of correccional, should be released (People v. Labriaga, G.R.
the detainees, where the standard and prescribed No. 92418, Nov. 20, 1995).
procedure has not been followed, then the burden of
proving by clear and convincing evidence the alleged WHEN NOT PROPER/APPLICABLE
release is shifted to the soldiers, as the respondents to the
petition (Dizon v. Eduardo, G.R. No. L-59118, Mar. 3, 1988). Q: When is habeas corpus not applicable?
DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY A: It is not applicable when the purpose is to:
CITATION 1. enforce a right of service;
2. determine whether a person has committed a crime;
Q: What is the difference between a preliminary citation 3. determine a disputed interstate boundary line;
and a peremptory writ? 4. punish respondent;
5. recover damages or other money award;
A: 6. assert or vindicate denial of right to bail (In re: Azucena
Garcia, G.R. No. 141443, Nov. 18, 2000); and
7. correct errors in appreciation of facts or law. become final and executory. What remedy/ies should the
counsel of Mariano take to secure his proper and most
expeditious release from the National Penitentiary?
Explain. (2005 Bar Question)
WHEN WRIT DISALLOWED/DISCHARGE A: His counsel should file a petition for habeas corpus for
the illegal confinement of Mariano or a motion in the court
Q: In what instances shall a writ be disallowed or which convicted Mariano to nullify the execution of his
discharged? sentence or the order of his commitment on the ground
that a supervening development had occurred.
A:
1. In cases of supervening events such as issuance of a Q: Is an application or admission to bail constitutes a
process and filing of an information (Velasco v. CA, waiver to object on accounts of illegal arrest, lack or
G.R. No. 118844, July 7, 1995); irregular preliminary investigation?
2. In cases of improper arrest or lack of preliminary
investigation (Paredes v. Sandiganbayan, G.R. No. A: No, an application or admission to bail shall not bar the
89989, Jan. 28, 1991); accused from challenging the validity of the his arrest, or
Note: proper remedy incase of improper arrest or lack the legality of warrant issued therefore, or from assailing
of preliminary investigation is to quash warrant and the regularity or questioning the absence of a preliminary
conduct or direct preliminary investigation. investigation of the charge against him, provided that he
3. In cases of invalid arrest due to deportation cases raises them before entering his plea (Sec. 26, Rule 114;
cured by filing of the deportation proceedings (Santos A.M. No.00-5-03-SC).
v. Commissioner of Immigration, G.R. No.L-25694, Nov.
29, 1976). Q: Edward Serapio is under detention pursuant to the
4. Petition for habeas corpus is not the appropriate order of arrest issued by the Sandiganbayan on April 25,
vehicle for asserting a right to bail or vindicating its 2001 after the filing by the Ombudsman of the amended
denial (Galvez v. Court of Appeals, G.R. No. 114046 information for plunder against Serapio and his co-
[1994]). accused. Edward had in fact voluntarily surrendered
5. Habeas corpus does not lie where the petitioner has himself to the authorities on April 25, 2001 upon learning
the remedy of appeal or certiorari because it will not that a warrant for his arrest had been issued. He filed a
be permitted to perform the functions of a writ of petition for habeas corpus contending that he is entitled
error or appeal for the purpose of reviewing mere to the issuance of said writ because the State, through the
errors or irregularities in the proceedings (Galvez v. prosecution's refusal to present evidence and by the
Court of Appeals, G.R. No. 114046 [1994]). Sandiganbayan's refusal to grant a bail hearing, has failed
to discharge its burden of proving that as against him,
Note: In all petitions for habeas corpus, the court must inquire into evidence of guilt for the capital offense of plunder is
every phase and aspect of petitioners detention, from the strong. He also maintains that the issuance by the
moment petitioner was taken into custody up to the moment the Sandiganbayan of new orders cancelling the bail hearings
court passes upon the merits of the petition and only after such a
which it had earlier set did not render moot and academic
scrutiny can the court satisfy itself that the due process clause of
the Constitution has been satisfied (Bernarte v. CA, G.R. No. the petition for issuance of a writ of habeas corpus, since
107741, Nov. 18, 1996). said orders have resulted in a continuing deprivation of
Serapio's right to bail. Should the petition for habeas
Q: What is the effect if the person arrested is judicially corpus be granted?
charged within 3 days from his detention during the
suspension of the writ? A: No. The general rule that habeas corpus does not lie
where the person alleged to be restrained of his liberty is in
A: It may preclude the inquiry into the legality of the arrest the custody of an officer under process issued by a court
or detention in the petition for habeas corpus and justifies which had jurisdiction to issue the same applies. Moreover,
its dismissal, as the question of the legality of the arrest or a petition for habeas corpus is not the appropriate remedy
detention should be raised in the pending criminal case, for asserting one's right to bail. It cannot be availed of
either in a motion to quash the warrant of arrest or the where accused is entitled to bail not as a matter of right but
information itself (Bernarte v. CA, supra.). on the discretion of the court and the latter has not abused
such discretion in refusing to grant bail, or has not even
Q: Mariano was convicted by the RTC for raping Victoria exercised said discretion. The proper recourse is to file an
and meted the penalty of reclusion perpetua. While application for bail with the court where the criminal case is
serving sentence, Mariano and Victoria got married. pending and to allow hearings thereon to proceed.
Mariano filed a motion in said court for his release from
the penitentiary on his claim that under R.A. 8353, his The issuance of a writ of habeas corpus would not only be
marriage to Victoria extinguished the criminal action unjustified but would also preempt the Sandiganbayan's
against him for rape, as well as the penalty imposed on resolution of the pending application for bail of Serapio.
him. The court denied the motion on the ground that it The recourse of Serapio is to forthwith proceed with the
had lost jurisdiction over the case after its decision had
hearing on his application for bail (Serapio v. RTC dismissed Elisas petition on the ground that a
Sandiganbayan, G.R. No. 148468, Jan. 28, 2003). petition for the issuance of a writ of habeas corpus is not
the proper remedy. Is the RTC correct?
Q: After Alma had started serving her sentence for
violation of B.P. 22, she filed a petition of writ of habeas A: Yes, the power to deport aliens is vested on the
corpus, citing Vaca v. CA where the sentence of President of the Philippines, subject to the requirements of
imprisonment of a party found guilty of violation of B.P. due process. The Immigration Commissioner is vested with
22 was reduced to a fine equal to double the amount of authority to deport aliens under Section 37 of the
the check involved. She prayed that her sentence be Philippine Immigration Act of 1940, as amended. Thus, a
similarly modified and that she be immediately released party aggrieved by a Deportation Order issued by the BOC
from detention. In the alternative, she prayed that is proscribed from assailing said order in the RTC via a
pending determination on whether the Vaca ruling applies petition for a writ of habeas corpus.
to her, she be allowed to post bail pursuant to Sec. 14,
Rule 102, which provides that if a person is lawfully In case such motion for reconsideration is denied by the
imprisoned or restrained on a charge of having committed BOC, the aggrieved party may appeal to the Secretary of
an offense not punishable by death, he may be admitted Justice and, if the latter denies the appeal, to the Office of
to bail in the discretion of the court. Accordingly, the trial the President of the Philippines. The party may also choose
court allowed Alma to post bail and then ordered her to file a petition for certiorari with the CA under Rule 65 of
release. In your opinion, is the decision of the trial court the Rules of Court, on the ground that the Secretary of
correct? Justice acted with grave abuse of discretion amounting to
1. Under Rule 102? excess or lack of jurisdiction in dismissing the appeal, the
2. Under the Rules of Criminal Procedure? (2008 Bar remedy of appeal not being an adequate and speedy
Question) remedy. In case the Secretary of Justice dismisses the
appeal, the aggrieved party may also resort to filing a
A: petition for review under Rule 43 of the Rules of Court, as
1. No. Section 4, Rule 102 of the Rules of Court (habeas amended (Johnson v. Makalino, G.R. No. 139255, Nov. 24,
corpus) does not authorize a court to discharge by writ 2003).
of habeas corpus a person charged with or convicted
of an offense in the Philippines, or of a person Q: Roxanne, a widow, filed a petition for habeas corpus
suffering imprisonment under lawful judgment. with the CA against Major Amor who is allegedly detaining
her 18-year old son Bong without authority of law. After
2. No. The trial courts ordering releasing Alma on bail Major Amor had filed a return alleging the cause of
even after judgment against her has become final and detention of Bong, the CA promulgated a resolution
in fact she has started serving sentence, is a brazen remanding the case to the RTC for a full-blown trial due to
disregard of the mandate in Section 24, Revised Rules the conflicting facts presented by the parties in their
of Criminal Procedure that: In no case shall bail be pleadings. In directing the remand, the CA relied on Sec. 9
allowed after the accused has commenced to serve (1), in relation to Sec. 21 of B.P. 129 conferring upon said
sentence (People v. Fitzgerald, G.R. No. 149723, Oct. court the authority to try and decide habeas corpus cases
27, 2006). concurrently with the RTCs. Did the CA act correctly in
remanding the petition to the RTC? Why? (1993 Bar
Q: May the person released by virtue of habeas corpus be Question)
imprisoned again for the same offense?
A: No, because while the CA has original jurisdiction over
A: GR: No. habeas corpus concurrent with the RTC, it has no authority
to remand to the latter original actions filed with the
XPN: By the lawful order or process of a court having former. On the contrary, the CA is specifically given the
jurisdiction of the cause or offense (Sec. 17, Rule 102). power to receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling
Q: Does the applicants temporary release render the within its original jurisdiction (Sec. 9, BP 129, as amended
petition moot and academic? by EO 33, s. 1986).
A: Yes, unless there are certain restraints which preclude Q: What is the period of appeal in habeas corpus cases?
freedom of action. (Villavicencio v. Lukban, G.R. No. L-
14639, Mar. 25, 1919) A: Under B.P. 129, the period of appeal in habeas corpus
cases shall be forty-eight (48) hours from the notice of the
Q: Upon a complaint that he is issuing fake Alien judgment appealed from.
Certificate Registration, Morgan, a British national was
arrested by the Bureau of Immigration and Deportation
(BID). The Board of Commissioners (BOC) of the BID issued
a deportation order against Morgan. A week after, Elisa,
Morgans wife, filed a petition for the issuance of a writ of
habeas corpus with the Manila RTC naming the
Immigration Commissioner as respondent. After trial, the
DISTINGUISH WRIT OF HABEAS CORPUS FROM WRIT OF AMPARO, HABEAS DATA AND KALIKASAN
cities or provinces.
Office of the Remedy
To direct the person To direct the public To order the disclosure or To order the protection of the
detaining another to officers involved to destruction of data relating constitutional right to a
produce the body of conduct an to the right to life, liberty balanced and healthful ecology
the person being investigation as to or security of a person. and restrain further acts that
detained and show the the whereabouts and cause environmental damage
cause of detention. legality of the of such a magnitude that
detention of a prejudices the right to life,
missing person. health or property of
inhabitants in two or more
cities or provinces.
Coverage
Involves the right to Involves the right to It protects the image, Constitutional right to a
liberty of and rightful life, liberty, and privacy, honor, balanced and healthful
custody by the security of the information, self- ecology.
aggrieved party. aggrieved party and determination and
covers extralegal freedom of information of
killings and enforced a person.
disappearances.
Where to file
RTC or any judge RTC of the place RTC where the petitioner In SC or any stations of the CA.
thereof, CA or any where the threat, act or respondent resides, or
member thereof in or omission was that which has jurisdiction
instances authorized committed or any of over the place where the
by law; Sandiganbayan its elements data or information is
in aid of its appellate occurred; SB or any gathered, collected or
jurisdiction, or SC or justice thereof; CA or stored, at the option of the
any member thereof. any justice thereof; petitioner; or with SC, CA
SC or any justice or SB when the action
thereof. concerns public data files
or government offices.
Prohibited pleadings
None 1. Motion to dismiss; 1. Motion to dismiss;
2. Motion for extension of time to file 2. Motion for extension of
opposition, affidavit, position paper and other time to file return;
pleadings; 3. Motion for
postponement;
Note: In writ of amparo, motion for extension of time 4. Motion for a bill of
to file the return is no longer a prohibited pleading, particulars;
as it may be granted by the court on highly 5. Counterclaim or cross-
meritorious cases.
claim;
6. Third-party complaint;
3. Dilatory motion for postponement;
7. Reply; and
4. Motion for a bill of particulars;
8. Motion to declare
5. Counterclaim or cross - claim;
respondent in default.
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory
orders or interim relief orders; and
12. Petition for certiorari, mandamus or
prohibition against any interlocutory order.
Q: Where should a petition for custody of minor be filed? A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival, protection,
A: Family courts in the province or city where the petitioner and feelings of security of the minor and most encouraging
resides or where the minor may be found (Sec. 3, AM No. to his physical, psychological and emotional development.
03-04-04-SC). It also means the least detrimental available alternative for
safeguarding the growth and development of the minor
Q: Do the Family Courts have concurrent jurisdiction with (Sec. 14, Ibid.).
the Supreme Court and the Court of Appeals in petitions
where the custody of minors is at issue? Q: Husband H files a petition for declaration of nullity of
marriage before the RTC of Pasig City. Wife W files a
A: Yes. The Court of Appeals and Supreme Court have petition for habeas corpus before the RTC of Pasay City,
concurrent jurisdiction with Family courts in habeas corpus praying for custody over their minor child. H files a motion
cases where the custody of minors is involved. The to dismiss the wifes petition on the ground of the
provisions of RA 8369 must be read in harmony with RA pendency of the other case. Rule (2007 Bar Question)
7029 and BP 129 that Family courts have concurrent
jurisdiction with the Court of Appeals and the Supreme A: The motion to dismiss the petition for habeas corpus
Court in petitions for habeas corpus where the custody of should be granted to avoid multiplicity of suits. The
minors is at issue (Thornton v. Thornton, G.R. No. 154598, question of who between the spouses should have custody
Aug. 16, 2004). of their minor child could also be determined in the petition
for declaration of nullity of their marriage which is already
Q: What are the contents of the verified petition? pending in the RTC of Pasig City. In other words, the
petition filed in Pasay City, praying for custody of the minor
A: child is unnecessary and violates only the cardinal rule of
1. The personal circumstances of the petitioner and of procedure against multiplicity of suits. Hence, the latter suit
the respondent. may be abated by a motion to dismiss on the ground of litis
2. The name, age and present whereabouts of the minor pendentia (Yu v. Yu, G.R. No. 164915, March 10, 2006).
and his or her relationship to the petitioner and the
respondent. Q: In a petition for habeas corpus which he filed before
3. The material operative facts constituting deprivation the Court of Appeals, Joey sought custody of his minor son
of custody. from his former live-in partner, Loreta. Joey alleged that
4. Such other matters which are relevant to the custody the child's mother was abroad most of the time and thus,
of the minor. he should be given joint custody over their son. The CA
5. Certificate of Non-Forum Shopping signed personally however denied the petition, and on the basis of Art. 213,
by the petitioner (Sec. 4, AM No. 03-04-04-SC). par (2) of the FC, awarded custody of the child in favor of
the mother. Was the CA correct in denying Joeys petition
Q: To whom should the custody of the child be given? for habeas corpus for the custody of his minor son?
A: Under Article 213 (2) of the Family Code, no child under A: Yes. Under Art. 176 of the FC, parental authority over an
7 years of age shall be separated from the mother, unless illegitimate child is vested solely in the mother, and this is
the court finds compelling reasons to order otherwise. true notwithstanding that the child has been recognized by
the father as his offspring. At most, such recognition by the
Q: When will the court take into consideration the choice father would be a ground for ordering the latter to give
of the child? support to, but not custody of, the child (David v. Court of
Appeals, 250 SCRA 82). Custody over the minor in this case
A: The child, who is over 7 years of age, may choose which was therefore awarded correctly to the mother, and this is
parent he prefers to live with, unless the parent so chosen all the more so in view of Art. 213 of the FC which lays
is unfit to take charge of the child by reason of moral down the Maternal Preference Rule. There is also no
depravity, habitual drunkenness, incapacity, or poverty showing that Joey was able to show proof of any
(Art. 213, Family Code). compelling reason to wrest from the mother parental
Note: If both parents are unfit, the court may designate other authority over their minor child.
persons or an institution to take charge of the child, such as the
paternal or maternal grandparent of the child, or his oldest brother Q: In a petition for habeas corpus that was filed by Loran
or sister, or some reputable and discreet person.
against his estranged wife, as well as against his parents-
in-law whom he alleged were unlawfully restraining him
Q: What should be considered in awarding the custody of
from having custody of his child, the trial court issued an
minor?
order directing the aforesaid persons to appear in court
and produce the child in question and to show cause why Q: May the court award temporary visitation rights in the
the said child should not be discharged from restraint. provisional custody order?
Does the trial court's order run counter to Art. 213 of the
FC? A: Yes, the court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-
A: No. The assailed order of the trial court did not grant custodial parent or parents, unless the court finds said
custody of the minor to any of the parties but was merely a parent or parents unfit or disqualified (Sec. 15,Ibid.).
procedural directive addressed to the petitioners for them
to produce the minor in court and explain why they are
restraining his liberty. Moreover, Art. 213 of the FC deals
with the adjudication of custody and serves as a guideline
for the proper award of-custody by the court. While the
petitioners can raise it as a counter argument in the Q: What should the court award after the hearing?
custody suit, it may not however be invoked by them to
prevent the father from seeing the child. A:
1. Care, custody and control of each child as will be for
Note: Habeas corpus may be resorted to in cases where rightful his best interest.
custody is withheld from a person entitled thereto. Under Art. 211 2. Court may order either or both parents to support or
of the FC, both parents in this case have joint parental authority help support the child, irrespective of who may be its
over their child and consequently joint custody over him. Further,
custodian. The fact that the father has recognized the
although the couple is separated de facto, the issue of custody has
yet to be adjudicated by the court. In the absence of a judicial child may be a ground for ordering him to give
grant of custody, both parents are still entitled to the custody of support, but not for giving him custody of the child.
their child (Salientes, et al. v. Abanilla, et al.,G.R. No. 162734, Aug. 3. Court may permit the parent who is deprived of care
29, 2006). and custody to visit the child or have temporary
custody thereof in an order that is just and reasonable
Q: What are the stages in the pre-trial? (Sec. 18, AM No. 03-04-04-SC).
Note: If the second stage does not produce an amicable Q: Can the minor child be brought out of the country
settlement, the court will proceed with the pre-trial conference. without leave from court while the petition is pending?
Pre-trial is mandatory (Sec. 12, Ibid.).
A: No. The minor child subject of the petition shall not be
Q: What is the order of preference in awarding provisional brought out of the country without prior order from the
custody? court while the petition is pending.
A: As far as practicable, the order of preference shall be The court, motu proprio or upon application under oath,
observed: may issue ex parte a hold departure order, addressed to the
1. Both parents jointly; Bureau of Immigration and Deportation, directing it not to
2. Either parent, taking into account all relevant allow the departure of the minor from the Philippines
considerations, especially the choice of the minor over without the permission of the court (Sec. 16, AM No. 03-04-
seven years of age and of sufficient discernment, 04-SC).
unless the parent chosen is unfit;
3. The grandparent, or if there are several grandparents, WRIT OF AMPARO
the grandparent chosen by the minor over seven years A.M. NO. 07-9-12-SC
of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified; Q: What is writ of amparo?
4. The eldest brother or sister over twenty-one years of
age, unless he or she is unfit or disqualified; A: It is a remedy available to any person whose right to life,
5. The actual custodian of the minor over twenty-one liberty and security is violated or threatened with violation
years of age, unless the former is unfit or disqualified; by an unlawful act or omission of a public official or
or employee, or of a private individual or entity. The writ
6. Any other person or institution the court may deem shall cover extralegal killings and enforced disappearances
suitable to provide proper care and guidance for the or threats thereof (Sec. 1, A.M. No. 07-9-12-SC).
minor (Sec. 13,Ibid.).
Note: The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an injuries constitute a crime against persons
action to determine criminal guilt requiring proof beyond because they are an affront to the bodily
reasonable doubt, or liability for damages requiring preponderance integrity or security of a person.
of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings
(Deliberations of the Committee on the Revision of the Rules of c. Guarantee of protection of ones rights by
Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, the government - The right to security of
2008). person in this third sense is a corollary of the
policy that the State guarantees full respect
for human rights under Article II, Section 11
of the 1987 Constitution. As the government
is the chief guarantor of order and security,
the Constitutional guarantee of the rights to
Q: How is right to life, liberty and security defined? life, liberty and security of person is
rendered ineffective if government does not
A: afford protection to these rights especially
when they are under threat. Protection
1. The right to life guarantees essentially the right to be includes conducting effective investigations,
alive- upon which the enjoyment of all other rights is organization of the government apparatus to
preconditioned - the right to security of person is a extend protection to victims of extralegal
guarantee of the secure quality of this life, viz: The life killings or enforced disappearances (or
to which each person has a right is not a life lived in threats thereof) and/or their families, and
fear that his person and property may be bringing offenders to the bar of justice.
unreasonably violated by a powerful ruler. Rather, it is (Reyes v. Court of Appeals, G.R. No. 182161,
a life lived with the assurance that the government he December 3, 2009)
established and consented to, will protect the security
of his person and property. Q: What are extralegal killings?
2. The right to liberty as guaranteed by the Constitution A: These are killings committed without due process of law,
was defined by Justice Malcolm to include the right to legal safeguards or judicial proceedings (Secretary of
exist and the right to be free from arbitrary restraint or National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008).
servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the Q: On December 11, 2009, Congress enacted Republic Act
citizen, but is deemed to embrace the right of man to No. 9851 entitled PHILIPPINE ACT ON CRIMES AGAINST
enjoy the facilities with which he has been endowed INTERNATIONAL HUMANITARIAN LAW, GENOCIDE, AND
by his Creator, subject only to such restraint as are OTHER CRIMES AGAINST HUMANITY. What is its effect on
necessary for the common welfare. the rule of writ of amparo?
3. The right to security includes the following: A: The Rule on the Writ of Amparo is now a procedural law
a. Freedom from fear - is the right and anchored, not only on the constitutional rights to the rights
any threat to the rights to life, liberty or to life, liberty and security, but on a concrete statutory
security is the actionable wrong. Fear is a definition as well of what an enforced or involuntary
state of mind, a reaction; threat is a disappearance is. Therefore, A.M. No. 07-9-12-SCs
stimulus, a cause of action. In reference to enforced disappearances should be construed
the amparo context, it is more correct to say to mean the enforced or involuntary disappearance of
that the right to security is actually persons contemplated in Section 3(g) of RA No. 9851.
the freedom from threat. Viewed in this (Navia et al v. Pardico, GR 184467, June 19, 2012 citing
light, the threatened with violation Clause Rubrico v. Macapagal Arroyo).
in the latter part of Section 1 of
theAmparo Rule is a form of violation of the Q: What is an enforced disappearance?
right to security mentioned in the earlier
part of the provision. A: The arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of, a State
b. Guarantee of bodily and psychological or a political organization followed by a refusal to
integrity or security - Physical injuries acknowledge that deprivation of freedom or to give
inflicted in the context of extralegal killings information on the fate or whereabouts of those persons,
and enforced disappearances constitute with the intention of removing from the protection of the
more than a search or invasion of the law for a prolonged period of time (Section 3(g) of RA No.
body. It may constitute dismemberment, 9851).
physical disabilities, and painful physical
intrusion. As the degree of physical injury Q: What are the elements of enforced disappearance?
increases, the danger to life itself
escalates. Notably, in criminal law, physical A: AA-RR
(c) That it be followed by the State or political Note: If command responsibility were to be invoked and applied to
organizations refusal to acknowledge or give information these proceedings, it should, at most, be only to determine the
on the fate or whereabouts of the person subject of author who, at the first instance, is accountable for, and has the
duty to address, the disappearance and harassments complained
the amparo petition; and,
of, so as to enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights covered by the
(d) That the intention for such refusal is to remove the writ of amparo. Thus, the doctrine of command responsibility does
subject person from the protection of the law for a not determine criminal, civil or administrative liabilities but is to be
prolonged period of time. (Navia et al v. Pardico, GR applied merely to ascertain responsibility and accountability of the
184467, June 19, 2012). persons involved. (Rodriguez v. Macapagal Arroyo, G.R.
No. 191805, November 15, 2011).
Q: Is State participation an indispensable element for the
Note: The rule is the same with respect to habeas data
issuance of a writ of amparo?
Q: Is the concept of responsibility the same as
A: Yes. Proof of disappearance alone is not enough. It is
accountability under an amparo proceedings?
likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization,
A: No. Responsibility refers to the extent the actors have
support or acquiescence of the government. While the writ
been established by substantial evidence to
may lie if the person sought to be held accountable or
have participated in whatever way, by action or omission,
responsible in an amparo petition is a private individual or
in an enforced disappearance while Accountability refers to
entity, still, government involvement in the disappearance
the measure of remedies that should be addressed to those
remains an indispensable element. This hallmark of State
(i) who exhibited involvement in the enforced
participation differentiates an enforced disappearance case
disappearance without bringing the level of their complicity
from an ordinary case of a missing person (Navia et al v.
to the level of responsibility defined above; or (ii) who are
Pardico, GR 184467, June 19, 2012).
imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or
Q: Is an amparo proceeding criminal in nature?
(iii) those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the
A: No. While the principal objective of its proceedings is the
enforced disappearance (Razon, Jr. v. Tagitis G.R. No.
initial determination of whether an enforced
182498, December 3, 2009).
disappearance, extralegal killing or threats thereof had
transpiredthe writ does not fix liability for such
Q: Can a writ of amparo be issued when the protection
disappearance, killing or threats, whether that may be
being asked for involves a property right?
criminal, civil or administrative under the applicable
substantive law (Roxas v. Macapagal Arroyo, G.R. No.
A: No. The writ of amparo was originally conceived as a
189155, September 7, 2010).
response to the extraordinary rise in the number of killings
It partakes of the nature of a prerogative writ that does not
and enforced disappearances, and to the perceived lack of
determine guilt nor pinpoint criminal culpability for the
available and effective remedies to address these
disappearance; rather, it determines responsibility, or at
extraordinary concerns. It is intended to address violations
least accountability, for the enforced disappearance for
of or threats to the rights to life, liberty or security, as an
purposes of imposing the appropriate remedies to address
extraordinary and independent remedy beyond those
the disappearance (Razon, Jr. v. Tagitis G.R. No. 182498,
available under the prevailing Rules, or as a remedy
December 3, 2009).
supplemental to these Rules. What it is not, is a writ to
protect concerns that are purely property or commercial
Q: Can the concept of command responsibility be applied
(Tapuz v. Del Rosario, G.R. No. 182484, June 17, 2008).
in proceedings for a writ of amparo?
Note: The rule is the same with respect to habeas data
A: No. The application of command responsibility
presupposes an imputation of individual liability, it is more
Q: How about in a labor dispute?
aptly invoked in a full-blown criminal or administrative case
rather than in a summary amparo proceeding (Roxas v.
A: Still, the writ will not be issued. Employment constitutes
Macapagal Arroyo, G.R. No. 189155, September 7, 2010).
a property right under the context of the due process
clause of the Constitution and does not constitute an
It must be clarified, however, that the inapplicability of the
unlawful violation of the right to life, liberty, or security.
doctrine of command responsibility in an amparo
(Meralco v Lim, G.R. No. 184769 October 5 2010).
proceeding does not, by any measure, preclude impleading
DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT A: Yes. The petition may be filed on any day, including
holidays and also at any time from morning to evening,
In the Oct. 7, 2008 decision of the Supreme Court in the considering that such is the protection of the mother of all
case of The Secretary of National Defense vs. Manalo, the rights, the right to life
Court said that the production order under (http://sc.judiciary.gov.ph/Annotation_amparo.pdf).
the Amparo Rule pertained to a civil procedure that
cannot be identified or confused with unreasonable Q: Does the rule allowing the filing of the petition before
searches prohibited by the Constitution. It should not be the RTC require that the RTC have jurisdiction OVER THE
confused with a search warrant for law enforcement under OFFENSE complained of?
Article III, Section 2 of the 1987 Constitution because it is
likened to the production of documents or things under A: No. Jurisdiction can only be conferred by Congress. The
Section 1, Rule 27 of the Rules of Civil Procedure which rule merely establishes a procedure to enforce the right to
provides in relevant part, viz: life, liberty or security of a person which requires the filing
of the petition before the RTC of the place where the
Section 1. Motion for production or inspection order. threat, act or omission was committed or any of its
Upon motion of any party showing good cause elements.
therefor, the court in which an action is pending may
order any party to produce and permit the inspection The intent is to prevent the filing of the petition in some
and copying or photographing, by or on behalf of the far-flung area to harass the respondent. Moreover,
moving party, of any designated documents, papers, allowing the amparo petition to be filed in any Regional
books of accounts, letters, photographs, objects or Trial Court may prejudice the effective dispensation of
tangible things, not privileged, which constitute or justice, as in most cases, the witnesses and the evidence
contain evidence material to any matter involved in are located within the jurisdiction of the Regional Trial
the action and which are in his possession, custody or Court where the act or omission was committed.
control. (http://sc.judiciary.gov.ph/Annotation_amparo.pdf)
WHO MAY FILE 1. The lawful defenses to show that the respondent
did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party, A motion to dismiss is a prohibited pleading in an application for a
through any act or omission; writ of amparo
2. The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved Q: Is a motion to dismiss on the ground of lack of
party and the person or persons responsible for the jurisdiction over the subject matter a prohibited motion in
threat, act or omission; a petition for a writ of amparo?
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission A: Yes. The filing of a motion to dismiss even on the ground
against the aggrieved party; and of lack of jurisdiction over the subject matter and the
4. If the respondent is a public official or employee, parties is proscribed to avoid undue delay. The grounds of a
the return shall further state the actions that have motion to dismiss should be included in the return and
been or will still be taken: resolved by the court, using its reasonable discretion as to
a. to verify the identity of the aggrieved party; the time and merit of the motion. (Sec. 11, Ibid.).
b. to recover and preserve evidence related to PROCEDURE FOR HEARING
the death or disappearance of the person
identified in the petition which may aid in the Q: What is the nature of the hearing on the petition?
prosecution of the person or persons
responsible; A: It shall be summary. However, the court, justice or judge
c. to identify witnesses and obtain statements may call for a preliminary conference to simplify the issues
from them concerning the death or and determine the possibility of obtaining stipulations and
disappearance; admissions from the parties (Sec. 13, Ibid.).
d. to determine the cause, manner, location and
time of death or disappearance as well as any Q: How long should the hearing last?
pattern or practice that may have brought
about the death or disappearance; A: The hearing shall be from day to day until completed and
e. to identify and apprehend the person or given the same priority as petitions for habeas corpus (Sec.
persons involved in the death or 13, Ibid.).
disappearance; and
f. to bring the suspected offenders before a INSTITUTION OF SEPARATE ACTION
competent court.
Q: May a separate action be filed after filing a petition for
5. Other matters relevant to the investigation, its resolution a writ of amparo?
and the prosecution of the case (Sec. 9, A.M. No. 07-9-12-
SC as amended). A: Yes. It does not preclude the filing of separate criminal,
civil or administrative actions (Sec. 21, Ibid.). However, if
Note: The failure to file a return cannot be extended except on the evidence so warrants, the amparo court may refer the
highly meritorious grounds. Thus, a motion for extension of time to case to the Department of Justice for criminal prosecution
file a return upon showing of a highly meritorious ground is no (http://sc.judiciary.gov.ph/Annotation_amparo.pdf).
longer a prohibited pleading. Q: Once a criminal action is filed, can there be an
independent action for a writ of amparo?
EFFECTS OF FAILURE TO FILE RETURN
A: No. An independent action for amparo is improper once
Q: What happens when the respondent fails to file a criminal proceedings have been commenced. Validity of the
return? arrest or the proceedings conducted thereafter is a defense
that may be set up by respondents during trial and not
A: The court, justice or judge shall proceed to hear the before a petition for writ of amparo. The reliefs afforded by
petition ex parte. The hearing should the writs may, however, be made available to the
not be delayed by the failure of the respondent to file a aggrieved party by motion in the criminal proceedings
return, otherwise the (Castillo v. Cruz G.R. No. 182165 November 25, 2009).
right to life, liberty and security of a person would be easily
frustrated. (Sec. 12, Ibid.). Note: The rule is the same with respect to habeas data
OMNIBUS WAIVER RULE Q: Fr. Reyes was arrested and charged with rebellion.
Consequently, the DOJ Secretary issued Hold Departure
Q: What is the Omnibus Waiver Rule? Order (HDO) No. 45 ordering the Commissioner of
Immigration to include in the hold departure list the name
A: The omnibus waiver rules states that all defenses not of Fr. Reyes. The RTC dismissed the charge but the HDO
raised in the return (answer) are deemed waived (Sec. 10, No. 45 still subsisted. Thus, Fr. Reyes filed a petition for
Ibid.). writ of amparo to the SC claiming that the continued
restraint on his right to travel is illegal. Should the petition
Note: This is to be distinguished from the Omnibus Motion Rule be granted?
which states that defenses not raised in a Motion to Dismiss are
deemed waived.
A: No. The right to travel refers to the right to move from (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7,
one place to another. As stated in Marcos v. 2010).
Sandiganbayan, G.R. Nos. 115132-34, Aug. 9, 1995, a
persons right to travel is subject to the usual constraints Q: Can an interim relief still be granted independently
imposed by the very necessity of safeguarding the system even when a writ of amparo has already been issued?
of justice. The restriction on Fr. Reyes right to travel as a
consequence of the pendency of the criminal case filed A: No. Provisional reliefs are intended to assist the
against him was not unlawful. Fr. Reyes has failed to court before it arrives at a judicious determination of
establish that his right to travel was impaired in the manner the amparo petition. The privilege of the writ of amparo,
and to the extent that it amounted to a serious violation of once granted, necessarily entails the protection of the
his right to life, liberty and security. aggrieved party (Yano v. Sanchez, G.R. No. 186640,
February 11, 2010).
Under Sec. 22, A.M. No. 07-9-12-SC (effect of filing of
criminal action), Fr. Reyes should have filed with the RTC-
Makati, where the information for rebellion was filed, a QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF
motion to lift HDO No. 45 (Rev. Fr. Robert Reyes v. CA, G.R. WRIT OF AMPARO
No. 182161, Dec. 3, 2009).
Q: What is the quantum of evidence required in a petition
CONSOLIDATION for a writ of amparo?
Q: When can a petition for a writ of amparo be A: The parties shall establish their claims by substantial
consolidated with a criminal action? evidence. (Sec. 17, A.M. No. 07-9-12-SC).
A: (a) When a criminal action is filed subsequent to the Q: Is the standard of diligence required between a private
filing of the petition of the writ and (b) when a separate individual or entity and a public official or employee
civil action and a criminal action was filed subsequent to different?
the petition for the writ of amparo.
A: Yes. Public officials and employees must prove that
INTERIM RELIEFS AVAILABLE TO PETITIONER AND extraordinary diligence was exercised in the performance of
RESPONDENT duty while only ordinary diligence is required for private
individual or entity. Public officials or employees are
Q: What are the interim reliefs available? charged with a higher standard of conduct because it is
their legal duty to obey the Constitution, especially its
A: provisions protecting the right to life, liberty and security.
Petitioner Respondent (Sec. 17, A.M. No. 07-9-12-SC).
1. Temporary 1. Inspection order;
protection 2. Production order Note: Same provision provides that respondent public official or
order; (Sec. 15) employee cannot invoke the presumption that official duty has
been regularly
2. Inspection
performed to evade responsibility or liability.
order;
3. Production
Q: When is a petition for writ of amparo sufficient in form
order;
and substance?
4. Witness
protection order
A: The pleader must state the ultimate facts constituting
(Sec. 14)
the cause of action, omitting the evidentiary details.
However, in an amparo petition, this requirement must be
Note: Temporary protection and witness protection orders may be
issued motu proprio by the court unlike inspection and protection read in light of the nature and purpose of the proceeding,
orders which may be issued only upon verified petition by the which addresses a situation of uncertainty; the petitioner
party. may not be able to describe with certainty how the victim
exactly disappeared, or who actually acted to kidnap,
Q: What allegations must a party make in order to be abduct or arrest him or her, or where the victim is detained,
entitled to an inspection order? because these information may purposely be hidden or
covered up by those who caused the disappearance. In this
A: A basic requirement before an amparo court may grant type of situation, to require the level of specificity, detail
an inspection order is that the place to be inspected is and precision is to make the Rule a token gesture of judicial
reasonably determinable from the allegations of the party concern for violations of the constitutional rights to life,
seeking the order. While the Amparo Rule does not require liberty and security.
that the place to be inspected be identified with clarity and
precision, it is, nevertheless, a minimum for the issuance of The test in reading the petition should be to determine
an inspection order that the supporting allegations of a whether it contains the details available to the petitioner
party be sufficient in itself, so as to make a prima facie case under the circumstances, while presenting a cause of action
showing a violation of the victims rights to life, liberty and
UNIVERSITY OF SANTO TOMAS 252
2013 GOLDEN NOTES
SPECIAL PROCEEDINGS
Q: A petition for habeas data was filed alleging as follows: INSTANCES WHEN PETITION MAY BE HEARD IN
"1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA CHAMBERS
is prayed for so that the PNP may release the report on
the burning of the homes of the petitioners and the acts of Q: What are the instances when a petition for a writ of
violence employed against them by the private habeas data may be heard in chambers?
respondents, furnishing the Court and the petitioners with
copy of the same; A: It may be conducted where the respondent invokes the
[ ] defense that the release of the data or information in
66. Petitioners apply for a WRIT OF HABEAS DATA question shall compromise national security or State
commanding the Philippine National Police [PNP] to secrets, or when the data or information cannot be
produce the police report pertaining to the burning of the divulged to the public due to its nature or privileged
houses of the petitioners in the land in dispute and character (Sec. 12, Ibid.).
likewise the investigation report if an investigation was
conducted by the PNP." Q: What reliefs may be granted by the court if the
allegations in the petition are proven by substantial
Does this constitute sufficient compliance for the petition evidence?
for habeas data?
A: The court shall enjoin the act complained of, or order the
A: No. A petition for habeas data is fatally deficient when deletion, destruction, or rectification of the erroneous data
there are no concrete allegations of unjustified or unlawful or information and grant other relevant reliefs as may be
violation of the right to privacy related to the right to life, just and equitable (Sec. 16, Ibid.).
liberty or security, has not demonstrated any need for
information under the control of police authorities, and Q: How may an adverse decision in habeas data
has not shown the necessity or justification for the proceedings be appealed?
issuance of the writ, based on the insufficiency of previous
efforts made to secure information. In such case, the prayer A: Any party may appeal from the final judgment or order
for the issuance of a writ of habeas data is nothing more to the SC under Rule 45. The appeal may raise questions of
than the "fishing expedition" that this Court - in the course fact or law or both (Sec. 19, Ibid.).
of drafting the Rule on habeas data - had in mind in
defining what the purpose of a writ of habeas data is not. CONSOLIDATION
(Tapuz et al v. Judge del Rosario et al G.R. No. 182484, June
17, 2008). Q: What happens when a criminal and/or civil action is
filed after the filing of the petition for writ of habeas
CONTENTS OF RETURN data?
A: The filing of a petition for the writ of habeas data shall under his or her own hand, information and grant
not preclude the filing of separate criminal, civil or and may deputize any other relevant reliefs as
administrative actions (Sec. 20, Ibid.). officer or person to serve may be just and
it. The writ shall also set
equitable; otherwise,
the date and time for
QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF summary hearing of the the privilege of the writ
WRIT OF HABEAS DATA petition which shall not be shall be denied.
later than ten (10) work
Q: What is the quantum of evidence required in a petition days from the date of its
for a writ of habeas data? issuance (10) days from the
time the petition is
A: If the allegations in the petition are proven by substantial submitted for decision
evidence, the court shall enjoin the act complained of, or
order the deletion, destruction, or rectification of the
erroneous data or information and grant other relevant
reliefs as may be just and equitable; otherwise, the
privilege of the writ shall be denied (Sec. 16, Ibid.).
A:
Issuance of the writ Privilege of the writ
Issued upon the filing of Issued after hearing, in
the petition if on its face the form of a judgment
it ought to issue
Note: The court shall
Note: Sec. 7. Upon the render judgment within
filing of the petition, the ten (10) days from the
court, justice or judge shall time the petition is
immediately order the
submitted for decision.
issuance of the writ if on
its face it ought to issue. If the allegations in the
The clerk of court shall petition are proven by
issue the writ under the substantial evidence,
seal of the court and cause the court shall enjoin
it to be served within three the act complained of,
(3) days from its issuance; or order the deletion,
or, in case of urgent destruction, or
necessity, the justice or
rectification of the
judge may issue the writ
erroneous data or
CHANGE OF NAME
DIFFERENCES UNDER RULE 103, R.A.9048 as amended by R.A. 10172 AND RULE 108
petition.
Where to appeal , in case of adverse decision
CA under Rule 41 Civil Registrar General under (Rule 14, IRR of RA CA under Rule 41
9048)
Who may file
Filed by the person desiring to Petition is filed by the person of legal age who Any person interested in the act,
change his name. must have a direct and personal interest in the event, decree or order concerning the
correction: civil status of persons.
1. Owner of the record;
2. Owners spouse, children, parents, brothers,
sisters, grandparents, guardian; or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Solicitor General/ Interested Interested parties/Solicitor General need not be Civil registrar impleaded as
parties. notified. respondent; Solicitor General/
Interested parties.
Publication
Order for hearing shall be Order for hearing in case of change of first Order for hearing shall be published
published once a week for 3 name/nickname, the day and month in the date of once a week for 3 consecutive weeks.
consecutive weeks. birth or sex of a person where it is patently clear
that there was a clerical or typographical error or
mistake shall be published once a week for 2
consecutive weeks.
GROUNDS FOR CHANGE OF NAME 4. All names and aliases of petitioner (Republic v. Marcos,
G.R. L-31065, Feb. 15, 1990).
Q: What are the grounds justifying a change of name?
Q: What is the nature of petition for change of name?
A:
1. When the name is ridiculous, dishonorable or A: It is a special proceeding to establish the status of a
extremely difficult to write or pronounce; person involving his relation with others, that is, his legal
2. When the change will avoid confusion; position in, or with regard to, the rest of the community. It
3. When one has been continuously used and been is a proceeding in rem and, as such, strict compliance with
known since childhood by a Filipino name, and was jurisdictional requirements, particularly in publication, is
unaware of alien parentage; essential in order to vest the court with jurisdiction
4. When the surname causes embarrassment and there therefore (Republic v. CA, G.R. No. 97906, May 21, 1992).
is no showing that the desired change of name was for
a fraudulent purpose or that the change of name will Q: What are the Jurisdictional requirements in a petition
prejudice public interest for change of name?
5. When the change is a legal consequence of
legitimation or adoption A:
6. When the change is based on a sincere desire to adopt 1. Publication for 3 successive weeks in some newspaper
a Filipino name to erase signs of former alienage, all in of general circulation in the province
good faith and without prejudice to anybody (People v. 2. Both title or caption of the petition and its body shall
Hernandez 253 SCRA 509) recite:
a. The name or names or aliases of the applicant;
b. The cause for which the change of name is sought
c. The new name asked for.
an election or within four (4) months after the last the date. Did the court acquire jurisdiction even if there
publication of the notice of the hearing. was no republication of the new date of hearing?
Q: Pernito, also known in the community as Peregrine, A: Yes. It cannot be over-emphasized that in a petition for
filed a petition for change of name to Pedro. The name change of name, any interested person may appear at the
Peregrine appeared in the body of the petition but not in hearing and oppose the petition. Likewise, the Solicitor
the caption. When the petition was published, the caption General or his deputy shall appear on behalf of the
and the body of the petition were merely lifted verbatim, Government. The government, as an agency of the people,
so that as published, the petitions caption still did not represents the public and, therefore, the Solicitor General,
contain Peregrine as the petitioners alias. The who appears on behalf of the government, effectively
government lawyer filed a motion to dismiss on the represents the public. As it were, the Solicitor General was
ground that, notwithstanding publication for the requisite fully apprised of the new dates of the initial hearing.
number of times, the court did not acquire jurisdiction Accordingly, there was no actual need for a republication of
over the petition because petitioners alias-Peregrine did the initial notice of the hearing. The peculiar circumstances
not appear on the published caption. The court denied the obtaining in this case and the requirements of fair dealing
motion to dismiss with the ruling that there was demand that we accord validity to the
substantial compliance with the law and that the omission proceedings a quo. (Republic of the Philippines v. Bolante,
of the alias was clearly set forth in the petition itself. Was G.R. No. 160597, July 20, 2006).
the court correct in denying the motion to dismiss?
Explain. (1992 Bar Question) Q: What is the effect of change of name?
A: No. The failure of the petitioner to include his alias, A: A change of name does not define or effect a change of
Peregrine, in the caption is a jurisdictional defect and its ones existing family relations or in the rights and duties
inclusion in the body of the petition does not cure said flowing there from. It does not alter ones legal capacity,
defect. The reason for the rule is that the ordinary reader civil status or citizenship; what is altered is only the name.
only glances fleetingly at the caption in a special proceeding (Republic v. CA, G.R. No. 97906, May 21, 1992)
and only if the caption strike him does he proceed to read
the body of the petition; hence, he will probably not notice ABSENTEES (RULE 107)
the other names or aliases of the petitioner (Gil Go v.
Republic, G.R. No. L-31760, May 25, 1977). PURPOSE OF THE RULE
Note: Failure to comply with all the requirements and to spell Q: What is the purpose of this Rule?
correctly the names in the order and in the petition will preclude
the trial court from acquiring jurisdiction. (Jayme Tan v. Republic, A: It is to appoint an administrator over the properties of
G.R. No. 16384, Apr. 26, 1962)
the absentee. This is proper only where the absentee has
properties to be administered.
Q: Why should the Solicitor General be notified?
Note: If the absentee left no properties, such petition is not
A: The State has an interest in the names borne by necessary. (Reyes v. Alejandro, G.R. No. L-46187,Jan. 16, 1986)
individuals for purposes of identification, and that changing
ones name is a privilege and not a right. Accordingly, a WHO MAY FILE
person can be authorized to change his name appearing in
either his certificate of birth or civil registry upon showing Q: Who may file a petition for declaration of absence and
not only of reasonable cause, or any compelling reason appointment of administrator/trustee?
which may justify such change, but also that he will be
prejudiced by the use of his true and official name (Republic A:
of the Philippines v. Bolante, G.R. No. 160597, July 20, 1. Spouse present;
2006). The interest of the State which is represented by the 2. Heirs instituted in the will;
Solicitor General is paramount over personal right to 3. Relatives who will succeed by intestacy; or
choose a name. The State must identify its subjects (Ong 4. Those who have over the property of the absentee
Peng Oan v. Republic, G.R. No. L-80035, Nov. 29, 1975). some right subordinated to the condition of his death
(Sec. 2, Rule 107).
Q: A petition for change of name was filed on October 18,
2000 and set for hearing on February 20, 2001. The notice Note: Petition to declare the husband an absentee and the petition
of hearing was published in the November 23, and 30, to place the management of the conjugal properties in the hands
2000 and December 7, 2000 issues of the Norluzonian of the wife could be combined and adjudicated in the same
Courier. However, since Sec. 3 of Rule 103 requires that proceedings.
the date set for the hearing shall not be within thirty (30)
days prior to an election nor within four (4) months after WHEN TO FILE
the last publication of the notice, and realizing that the
date of the hearing falls within the 4 month prohibitive Q: When should a petition for declaration of absence and
period, the hearing was moved to September 25, 2001.The appointment of administrator/trustee be filed?
Solicitor General was also fully apprised of the changes of
Q: Who may be appointed as administrator of the Considered dead for the purpose
property of the absentee? of opening his succession after an
absence of 10 years. If he
A: The spouse present shall be preferred in the disappeared after the age of 75,
appointment of a representative or administrator of the absence of 5 years is
property of the absentee provided they are not legally sufficient.
separated. If the absentee left no spouse or if the spouse
Marriage: if the spouse was
present is incompetent, any competent person may be
absent for 4 years (or 2 years
appointed by the court (Sec. 7, Ibid.). under extraordinary
circumstances) and the spouse
Q: When does the declaration of absence take effect? present has a well - founded belief
that the absent spouse is already
A: It takes effect six (6) months after publication of the dead, the spouse present must
judgment on declaration of absence in a newspaper of institute a summary proceeding
general circulation and in the Official Gazette. The order for the declaration of presumptive
death for the purposes of
must also be recorded in the Civil Registry of the place
contracting a subsequent
where the absentee last resided. (par. 2, Sec. 6, Ibid.). marriage [Arts. 41-43, FC; Sec. 3
(w)(4), Rule 131].
Q: What are the grounds for termination of the
administration? Q: May the wife who is appointed as an administrator
alienate or encumber the husbands property?
A:
1. Absentee appears personally or through an agent; A: Yes, provided she secures first a judicial authority. (Art.
2. Absentees death is proved and heirs appear; or 388, NCC).
3. Third person appears showing that he acquired title
over the property of the absentee (Sec. 8, Ibid.). CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Q: What are the periods of absence and their
corresponding consequence? Q: Who may file a petition for cancellation or correction of
entries?
A:
Period of Consequence A: Any person interested in any act, event, order or decree
Absence concerning the civil status of persons which has been
After lapse of 2 Petition for Appointment of recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, the birth certificate was registered in the civil registry. (Lee
with the RTC of the province where the corresponding civil v. CA, supra.).
registry is located (Sec. 1, Rule 108).
Q: Celine files a petition for cancellation of the birth
Q: What is the nature of proceedings in Rule 108? certificate of her daughter Jeanie on the ground of
falsified material entries therein made by Celines
A: Rule 108, when all the procedural requirements husband as the informant. The RTC sets the case for
thereunder are followed, is the appropriate adversary hearing and directs the publication of the order once a
proceeding to effect substantial correction and changes in week for 3 consecutive weeks in a newspaper of general
the entries of civil register (Lee v. CA, G.R. No. L-118387, circulation. Summons was served on the Civil Registrar but
Oct. 11, 2001). there was no appearance during the hearing. The RTC
granted the petition. Jeanie filed a petition for annulment
Note: An adversarial in nature - one which has opposing parties; of judgment before the CA, saying that she was not
one of which the party seeking relief has given legal warning to the notified of the petition and hence, the decision was issued
other party, and afforded the latter an opportunity to contest it in violation of due process. Celine opposed saying that the
(Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986).
publication of the court order was sufficient compliance
with due process. Rule. (2007 Bar Question)
Q: What are the requisites of adversarial proceedings?
A: It should not be granted. The publication of an order of
A:
hearing under Section 4 of Rule 108 cured the failure to
1. Proper petition is filed where the Civil Registrar and all
implead an indispensable party. A petition for correction is
parties interested are impleaded;
an action in rem, an action against a thing and not against a
2. The order of hearing must be published once a week
person. The decision on the petition binds not only the
for three consecutive weeks;
parties thereto but the whole world. An in rem proceeding
3. Notice must be given to the Civil Registrar and all
is validated essentially through publication. Publication is
parties affected thereby;
notice to the whole world that the proceeding has for its
4. The civil registrar and any person interested, may
object to bar indefinitely all who might be minded to make
within 15 days from notice or from the last date of
an objection of any sort against the right sought to be
publication, files his opposition thereto; and
established. It is the publication of such notice that brings
5. Full blown trial. (Republic v. Valencia, supra.).
in the whole as a party in the case and vests the court with
jurisdiction to hear and decide it (Republic v. Kho, G.R. No.
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29,
UNDER RULE 108
2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004).
Q: What are the entries subject to cancellation or
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a
correction under Rule 108?
Chinese, who is married to another woman living in China.
Her birth certificate indicates that Helen is the legitimate
A:
child of Tony and Eliza and that she is a Chinese citizen.
1. Births;
Helen wants her birth certificate corrected by changing
2. Marriages;
her filiation from "legitimate" to "illegitimate" and her
3. Deaths;
citizenship from Chinese" to "Filipino" because her
4. Legal separations;
parents were not married. What petition should Helen file
5. Judgments of annulments of marriage;
and what procedural requirements must be observed?
6. Judgments declaring marriages void from the
Explain. (2005 Bar Question)
beginning;
7. Legitimations;
A: A petition has to be filed in a proceeding under Rule 108
8. Adoptions;
of the Rules of Court. A petition to change the record of
9. Acknowledgments of natural children;
birth by changing the filiation from legitimate to
10. Naturalization;
illegitimate and petitioners citizenship from Chinese to
11. Election, loss or recovery of citizenship;
Filipino does not involve a simple summary correction
12. Civil interdiction;
which could otherwise be done under the authority of R.A.
13. Judicial determination of filiation; and
9048. Procedural requirements include: (a) filing a verified
14. Change of name (Sec. 2, Rule 108).
petition; (b) naming as parties all persons who have or
claim any interest which would be affected; (c) issuance of
Q: Within what period may a petition for correction or
an order fixing the time and place of hearing; (d) giving
cancellation of entries be filed?
reasonable notice to the parties named in the petition; and
(e) publication of the order once a week for 3 consecutive
A: The law did not fix a period within which the petition for
weeks in a newspaper of general circulation.
correction under Rule 108 in relation to Art. 412 of Civil
Code may be filed. Accordingly, such petition may be filed
within 5 years from the time the petitioner discovered the REPUBLIC ACT NO. 9048 as amended by R.A. 10172
ADMINISTRATIVE CORRECTION OF CLERICAL OR
error or mistake in the civil registry, and not from the date
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR
CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL Q: Where should the petition for correction of entry or
REGISTER change of name under R.A. 9048 be filed?
A: It refers to a mistake committed in the performance of Q: Julio, born male, underwent a sex reassignment
clerical work in writing, copying, transcribing or typing an surgeryin Bangkok, Thailand. After the successful medical
entry in the civil register that is harmless and innocuous, operation, Julio filed a petition to have his name in his
such as misspelled name or misspelled place of birth, birth certificate changed from Julio to Julia, and his
mistake in the entry of day and month in the date of birth sex from male to female with the RTC Manila. After
or the sex of the person or the like, which is visible to the hearing, the RTC Manila granted Julios petition. The
eyes or obvious to the understanding, and can be corrected Office of the Solicitor General filed a petition for certiorari
or changed only by reference to other existing record or in the CA alleging that there is no law allowing the change
records: Provided, however, That no correction must of entries in the birth certificate by reason of sex
involve the change of nationality, age (correction on year alteration. The CA granted the petition for certiorari and
of birth), or status of the petitioner. [Sec. 2(3), R.A. 9048 as reversed the RTC Manilas order. Is the CA correct?
amended by R.A. 10172; NSO Administrative Order No. 1
Series of 2012]. A: Yes. First, RTC Manila does not have the jurisdiction to
allow the petition filed by Julio. R.A. 9048 now governs the
Note: Correction is allowed only on the day and month of birth but change of first name. It vests the power and authority to
not on the year of birth because this will already alter the age of entertain petitions for change of first name to the city or
the petitioner.
municipal civil registrar or consul general concerned.
Jurisdiction over applications for change of first name is
Q: What are the grounds for a change of first name under
now primarily lodged with the aforementioned
R.A. 9048?
administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of
A:
Rules 103 and 108, until and unless an administrative
1. The petitioner finds the first name or nickname to be
petition for change of name is first filed and subsequently
ridiculous, tainted with dishonor or extremely difficult
denied.
to write or pronounce;
2. The new first name or nickname has been habitually
Second, the ground relied upon by Julio on his petition for
and continuously used by the petitioner and he has
change of name is not among those enumerated by R.A.
been publicly known by that first name or nickname in
9048. Julios basis in praying for the change of his first name
the community; or
was his sex reassignment. However, a change of name does
3. The change will avoid confusion (Sec. 4).
not alter ones legal capacity or civil status. R.A. 9048 does
Q: Carla was born with two genitals, one for male and one
for female. Only after maturity did his male dominant
features becomes manifest. Carla filed a petition for
change of name to Carlo. The available evidence
presented in court including the fact that Carla thinks of
himself as a male and as to the statement made by the
doctor that Carlas body produces high levels of male
hormones, which is preponderant biological support for
considering him as male. Should the petition be granted?
Procedure for Petition for administrative corrections under R.A. 9048 as amended by R.A. 10172 and
Administrative Order No. 1 Series of 2012 in relation to Administrative Order No. 1 Series of 2001
Correction of a clerical or Change of first name or nickname Correction of erroneous entry Correction of erroneous ent
typographical error concerning the day and moth concerning the sex of a pers
The particular erroneous entry or in the date of birth
The particular erroneous entry entries sought to be changed shall The particular erroneous en
or entries sought to be corrected be stated, supported by the The particular erroneous entry or entries sought to
shall be stated, supported by the following documents: or entries sought to be corrected shall be stat
following documents: corrected shall be stated, supported by the follow
(1) A certified true machine copy of supported by the following documents:
(1) A certified true machine copy the certificate or of the page of the documents:
of the certificate or of the page registry book containing the entry (1) Earliest school record
of the registry book containing or entries sought to be corrected or (1) Earliest school record or earliest school documents
the entry or entries sought to be changed; earliest school documents
corrected or changed; (2) Medical records,
(2) At least two (2) public or private (2) Medical records,
(2) At least two (2) public or documents showing the 261 correct U N I V E R S I T Y O F S A N T O T O M (3) A S Baptismal certificate a
private documents showing the entry or entries upon which the (3) Baptismal F Acertificate
C U L T Y O F and
C I V I L L Aother
W documents issued
correct entry or entries upon correction or change shall be based; other documents issued by religious authorities
REMEDIAL LAW
Publication of the petition for at least once a week for two (2) consecutive weeks in a newspaper of general
circulation proven by an affidavit of publication from the publisher and a copy of the newspaper clipping
Note: In the case of migrant petitioner, the petition shall be posted first at the office of the Petition Receiving Civil Registrar for ten (10)
consecutive days before sending it to the Record Keeping Civil Registrar. Upon receipt, the Record Keeping Civil Registrar shall post again the
petition in his office for another ten (10) consecutive days. When the petition is for a change of first name, the migrant petitioner shall
publish the petition in a newspaper of general and national circulation.
In the case where a person's civil registry record or records were registered in the Philippines or in any of the Philippine Consulates, but the
person presently resides or is domiciled in a foreign country, posting and/or publication, as the case may be, shall be done in the place where
the petition is filed and in the place where the record sought to be corrected is kept.
Grants Denies
APPEALS IN SPECIAL PROCEEDING (RULE 109) 5. Constitutes, in the proceedings relating to the
settlement of the estate of a deceased person, or the
JUDGMENTS AND ORDERS FROM WHICH APPEAL MAY BE administration of a trustee or guardian, a final
TAKEN determination in the lower court of the rights of the
party appealing, except that no appeal shall be
Q: What are the orders or judgments from which appeal allowed from the appointment of a special
may be taken? administrator;
6. Is the final order or judgment rendered in the case,
A: An interested person may appeal when such order or and affects the substantial rights of the person
judgment: appealing, unless it be an order granting or denying a
1. Allows or disallows a will; motion for new trial or for reconsideration (Sec. 1,
2. Determines who are the lawful heirs of a deceased Rule 109).
person, or the distributive share of the estate to which
such person is entitled; Note: A stranger having neither material nor direct interest in a
3. Allows or disallows, in whole or in part, any claim testate or intestate estate has no right to appeal from any order
against the estate of a deceased person, or any claim issued therein. (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928).
presented on behalf of the estate in offset to a claim
against it; Q: Who are allowed to appeal?
4. Settles the account of an executor, administrator,
trustee or guardian; A:
MODES OF APPEAL
A:
1. Rule 40 (Appeal from MTC to RTC) By filing a record
on appeal and payment of appeal fees on questions of
law or fact or both (settlement of estate);
2. Rule 41 (Appeal from the RTC to CA in exercise of its
original jurisdiction) By ordinary appeal by filing a
record on appeal and payment of appeal fees on
questions of law or fact or both (settlement of estate,
habeas corpus, guardianship, trustees, absentees,
change of name under Rule 103,
correction/cancellation of entries under Rule 108);
3. Rule 42 (Petition for review from the RTC to the CA in
exercise of its appellate jurisdiction) By filing a record
on appeal and payment of appeal fees on questions of
law or fact or both; (settlement of estate)
A:
Criminal Law Criminal Procedure
Substantive Remedial
It declares what acts are It provides how the act
punishable is to be punished
It defines crimes, treats It provides for the
of their nature and method by which a
provides for their person accused of a
punishment crime is arrested, tried
or punished.
A:
1. Penalty attached The jurisdiction of a Court in criminal
cases is determined by the penalty imposable, and not by
the penalty ultimately imposed (Guevarra v. Almodovar,
169 SCRA 476)
2. Nature of the offense charged
3. Territorial jurisdiction over place of commission of the
crime.
subject matter is person of the accused amendment, in which case the court where the
determined upon the is acquired by action is pending is ousted of jurisdiction and the
allegations made in the voluntary appearance pending action will have to be transferred to the
complaint, irrespective or surrender of the court having jurisdiction by virtue of the
of whether the plaintiff accused or by his amendatory law (Binay v. Sandiganbayan GR No.
is entitled or not, to arrest. 120011, Oct. 1, 1999).
recover upon the claim
asserted therein, a JURISDICTION OF CRIMINAL COURTS
matter resolved only
after and as a result of Q: How is jurisdiction determined?
the trial.
A: It is determined by the allegations in the complaint or
REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION information not by the results of proof or by the trial
courts appreciation of the evidence presented (Buaya v.
Q: What are the requisites for the valid exercise of Polo, G.R. No. 75097, Jan. 26, 1989).
criminal jurisdiction?
Q: If fine is the only penalty, how is jurisdiction
A: determined?
1. Jurisdiction over the subject matter This is the power
to hear and determine cases of general class to which A: In cases where the only penalty provided by law is a fine,
the proceeding in question belongs. The offense, by the amount thereof shall determine the jurisdiction of the
virtue of the imposable penalty or its nature, is one court:
which the court is by law authorized to take 1. The RTC has jurisdiction where the fine is more than
cognizance of. P4,000 including offenses committed by public officers
2. Jurisdiction over the territory The offense must have and employees in relation to their office, where the
been committed or any of its essential ingredients amount of the fine does not exceed P6,000 (SC Court
took place within the territorial jurisdiction of the Circular No. 09-94) except in cases of criminal
court. It cannot be waived and where the place of the negligence involving damage to property which falls
commission was not specifically charged, the place under the exclusive original jurisdiction of the MTC.
may be shown by evidence. 2. The MTC has jurisdiction where the fine is 4,000 pesos
3. Jurisdiction over the person of the accused The or less. Accessory penalties and civil liabilities are no
person charged with the offense must have been longer determinative of criminal jurisdiction.
brought to its presence for trial, forcibly by warrant of
arrest or upon his voluntary submission to the court. Q: In complex crimes, how is the jurisdiction of a court
determined? (2003 Bar Question)
Note: G.R. Questions of jurisdiction may be raised at any stage of
the proceedings. A: It is lodged with the trial court having jurisdiction to
impose the maximum and most serious penalty imposable
XPN: The party raising the question is guilty of estoppels or laches of an offense forming part of the complex crime. It must be
(Tijam v. Sibonghanoy, 23 SCRA 29)
prosecuted integrally and must not be divided into
component offenses which may be made subject of
Q: What determines jurisdiction of the court in criminal
multiple information brought in different courts (Cuyos v.
cases?
Garcia, G.R. No. L-46934, Apr. 15, 1988).
A:
Q: Which court has jurisdiction over continuing crimes?
1. The geographical limits of its territory;
2. Determined by the allegations in the complaint or
A: Continuing offenses are consummated in one place, yet
information not by the results of proof or by the trial
by the nature of the offense, the violation of the law is
courts appreciation of the evidence presented;
deemed continuing (e.g. estafa and libel). As such, the
3. Determined by the nature of the offense and/ or
courts of the territories where the essential ingredients of
penalty attached thereto and not what may be meted
the crime took place have concurrent jurisdiction. But the
out after trial; and
court which first acquires jurisdiction excludes the other
4. Determined by the law in force at the time of the
courts.
institution of the criminal action and not at the time of
its commission. ONCE VESTED IT CANNOT BE
Q: Which court has jurisdiction over crimes punishable by
WITHDRAWN BY:
destierro?
a. Subsequent valid amendment of the information
(People v. Chipeco, G.R. No. 1968, March 31,
A: Where the imposable penalty is destierro, the case falls
1964); or
within the exclusive jurisdiction of the Municipal Trial
b. Subsequent statutory amendment of the rules of
Court, considering that in the hierarchy of penalties under
jurisdiction unless the amendatory law expressly
Art. 71 of the RPC, destierro follows arresto mayor which
provides otherwise or is construed that it is
involves imprisonment (People v. Eduarte, G.R. No. 88232,
intended to operate to actions pending before its
Feb. 26, 1990).
Q: Photokina Marketing Corporation filed a complaint for CRIMINAL ACTIONS, HOW INSTITUTED
libel against Justice Alfredo Benipayo, then chairman of
the COMELEC. Information against Justice Benipayo was Q: What is criminal action?
filed before the RTC despite the challenge on the
jurisdiction of the Office of the City Prosecutor over his A: It is one by which the State prosecutes a person for an
person being a public official. Benipayo contends that it is act or omission punishable by law.
the Sandiganbayan who has jurisdiction. Do the
Sandiganbayan and RTC having concurrent jurisdiction Q: How is criminal action instituted?
over libel or written defamation cases?
A: Criminal actions are instituted by:
A: No, the grant to the Sandiganbayan of jurisdiction over 1. Filing the complaint with the proper officer for the
offenses committed in relation to office, did not divest the purpose of conducting the requisite preliminary
RTC of its exclusive and original jurisdiction to try written investigation for offenses where a preliminary
defamation cases regardless of whether the offense is investigation is required;
committed in relation to office (People v. Benipayo, G.R. 2. For all other offenses, by filing the complaint or
Nos. 154473 and 155573, Apr. 24, 2009). information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN with the office of the prosecutor (Sec. 1, Rule 110);
CRIMINAL PROSECUTION
Note: For Metro Manila and other chartered cities, the complaint
Q: Will injunction lie to restrain the commencement of a shall be filed with the prosecutor regardless of the imposable
criminal action? Explain. (1999 Bar Question) penalty (Sec 1b, Rule 110), while cases falling within the jurisdiction
of the RTC are always commenced by information filed by the
prosecutor.
A: GR: Injunction cannot lie to restrain the commencement
of a criminal action because public interest requires that
Q: Can the complaint or information be directly filed in the
criminal acts be immediately investigated and prosecuted
Regional Trial Court or Metropolitan Trial Court or other
for the protection of society.
chartered cities?
XPNs:
A: There is NO DIRECT FILING of an information or
1. To afford adequate protection to the
complaint with the RTC because its jurisdiction covers
constitutional rights of the accused;
offenses which require preliminary investigation.
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
There is likewise NO DIRECT FILING with the Metropolitan
actions;
Trial Court because in Manila, including other chartered
3. When there is a prejudicial question which is
cities, as a rule, the complaint shall be filed with the office
subjudice;
of the prosecutor, unless otherwise provided by their
4. When the acts of the officer are without or in
charters. In case of conflict between a city charter and a
excess of authority;
provision of the Rules of Court, the former, being
5. Where the prosecution is under an invalid law,
substantive law, prevails.
ordinance or regulation;
6. When double jeopardy is clearly apparent;
Q: What is the effect of institution of the criminal action?
7. Where the court has no jurisdiction over the
offense;
A: GR: It interrupts the running of the period of prescription
8. Where it is a case of persecution rather than
of the offense charged (Sec. 1, Rule 110).
prosecution;
9. Where the charges are manifestly false and
XPN: Prescriptive periods of violations of special laws
motivated by lust for vengeance;
and municipal ordinances governed by Act No. 3326 (An
10. When there is clearly no prima facie case against
Act to Establish Periods of Prescription for Violations
the accused and a motion to quash on that
Penalized by Special Laws and Municipal Ordinances
ground has been denied; and
and to Provide When Prescription shall Begin to Run)
11. Preliminary injunction has been issued by the SC
shall only be interrupted by the filing of a complaint or
to prevent the threatened unlawful arrest of
information in court. The filing of a complaint with the
petitioners (Domondon v. Sandiganbayan, G.R.
prosecutor or the proper officer for purposes of
No 129904, Mar. 16, 2002).
conducting a preliminary investigation will not interrupt
the prescriptive period (Zaldivia v. Reyes, Jr., G.R. No.
102342, July 3, 1992).
WHO MAY FILE THEM, CRIMES THAT CANNOT BE Q: Who may file a complaint on cases of unlawful acts in
PROSECUTED DE OFFICIO RA 7610 (Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act)?
Q: What is the concept of an offense or crime that cannot
be prosecuted de officio? A: The complaint may be filed by the following:
1. Offended party;
A: These are crimes or offenses which cannot be 2. Parents or guardians;
prosecuted except on complaint filed by the offended party 3. Ascendant or collateral relative within the third degree
or if the offended party is a minor, by the parents, of consanguinity;
grandparents or the guardian. 4. Officer, social worker or representative of a licensed
child-caring institution;
Note: These are also known as private crimes. 5. Officer or social worker of the Department of Social
Welfare and Development;
Q: Are all criminal actions initiated by complaint or 6. Barangay chairman; or
information filed by the prosecutor? 7. At least three (3) concerned, responsible citizens
where the violation occurred (Sec. 27, RA 7160)
A: GR: Yes.
Q: May a minor file a complaint for seduction, abduction,
XPN: Private crimes which may only be prosecuted by a or acts of lasciviousness?
complaint filed by the private offended party, i.e.:
1. Adultery and concubinage; A: GR: Yes, the offended party, even if a minor, has the
2. Seduction, abduction and acts of lasciviousness; right to initiate the prosecution of such offenses
and independently of his parents, grandparents or guardian.
3. Criminal actions for defamation imputing the
abovementioned offenses (Sec. 5, Rule 110). XPN: If the minor is:
1. Incompetent; or
Q: Who can legally file a complaint for adultery or 2. Incapable of doing so (Sec. 5, Rule 110).
concubinage?
Note: If the minor fails to file a complaint, his parents,
A: Only the offended spouse may file a complaint for grandparents or guardian may file the same. The right granted to
adultery or concubinage (Sec. 5, Rule 110). the latter shall be excusive and successive in the order herein
provided (Sec. 5, Rule 110).
Note: The offended spouse cannot institute a criminal action for
adultery without including the guilty parties if both are alive; or if Q: Fey, a minor orphan was subjected to acts of
the offended party has consented to the offense or pardoned the lasciviousness performed by her uncle Polo. She informed
offenders (Sec. 5, Rule 110). If the complainant has already been her grandparents but was told not to file charges. Fey now
divorced, he can no longer file the complaint (Pilapil v. Somera,
G.R. No. 80116, June 30, 1989). This is considered as lack of status.
Suppose the crime committed against Fey by her uncle is A: GR: The subsequent marriage between the party and the
rape, witnessed by your mutual friend Isay. But this time, accused, even after the filing of the complaint, extinguishes
Fey was prevailed upon by her grandparents not to file the criminal liability of the latter, together with that of the
charges. Isay asks you if she can initiate the complaint co-principals, accomplices and accessories.
against Polo. Would your answer be the same? Explain.
(2000 Bar Question) XPNs:
1. Where the marriage was invalid or contracted in
A: I would advise the minor to file the complaint herself bad faith in order to escape criminal liability;
independently of her grandparents, because she is not 2. In private libel or the libelous imputation of the
incompetent or incapable to doing so upon grounds other commission of the crimes of concubinage,
than her minority (Sec. 5, Rule 110). adultery, seduction, abduction, rape or acts of
lasciviousness and in slander by deed; and
Since rape is now classified as a crime against persons 3. In multiple rape, in so far as the other accused in
under the Anti-Rape Law of 1997 or R.A. 8353, I would the other acts of rape committed by them are
advise Isay to initiate the complaint against Polo. concerned.
Q: In cases of seduction, abduction or acts of Q: What is the effect of desistance made by the offended
lasciviousness may a minor extend pardon? party in private crimes?
A: Yes, but the pardon to be effective as to prevent A: It does not bar the People from prosecuting the criminal
prosecution of the accused must be given by both parents action, but it operates as a waiver of the right to pursue
and the offended party (U.S. v. Luna, 1 Phil. 360; People v. civil indemnity.
Arguelles, G.R. 612).
Note: GR: Since it is the State who is the real offended
Q: Distinguish pardon from consent. party in a criminal case, it is the prosecutor or the
Ombudsman as the case may be, or the Solicitor General in
A: cases before the CA or SC, who has the personality and
Pardon Consent authority prosecute and file a petition in behalf of the
Refers to past acts Refers to future acts State.
In order to absolve the
In order to absolve the XPN: An offended party in a criminal case has
accused from liability, it
accused from liability, it sufficient personality to file a special civil action for
is sufficient even if
must be extended to certiorari, even without the imprimatur of the State. In
granted only to the
both offenders so doing, the complainant should not bring the action
offending spouse
in the name of the People of the Philippines. The
Q: Who can give pardon? action may be prosecuted in the name of the said
complainant (Perez v. Hagonoy Rural Bank, Inc., G.R.
A: No. 126210, Mar. 9, 2000).
A. Concubinage and adultery only the offended
spouse, not otherwise incapacitated. Q: What is the effect of death by the offended party to the
B. Seduction, abduction and acts of lasciviousness: criminal action?
1. The offended minor, if with sufficient
discretion, can validly pardon the accused by A: Death of the complainant:
herself if she has no parents or where the 1. Will not be sufficient justification for the dismissal of
accused is her own father and her mother is the information, if prior to the filing of a case in court,
dead; a complaint was already filed by the offended party
2. The parents, grandparents or guardian of the with the prosecutor (People v. Ilarde, G.R. No. L-57288,
offended minor, in that order, extend a valid Apr. 30, 1984); or
pardon in said crimes without the conformity 2. During the pendency of the case, will not extinguish
of the offended party, even if the latter is a the criminal liability of the accused whether total or
minor; or partial (Donio-Teves v. Vamenta, G.R. No. L-38308,
3. If the offended woman is of age and not Dec. 26, 1984).
otherwise incapacitated, only she can extend a
valid pardon.
Note: The pardon refers to pardon before filing of the criminal CONTROL OF PROSECUTION
complaint in court. Pardon effected after the filing of the complaint
in court does not prohibit the continuance of the prosecution of Q: Who prosecutes criminal actions?
the offense.
Q: What is the rule regarding the name of the offended Q: What is the rule with regard to the designation of the
party? offense?
A: The complaint or information must state the name and A: The designation of the offense given by the statute must
surname of the persons against whom or against whose be stated in the complaint or information with the
property the offense was committed or any appellation or averment of acts or omissions constituting the offense and
nickname by which such person has been or is known and specify the qualifying and aggravating circumstances. If
if there is no better way of identifying him, he must be there is no designation of the offense, reference shall be
described under a fictitious name. made to the section or subsection of the statute punishing
1. In crimes against property, if the name of the offended it (Sec. 8).
party is unknown, the property must be described with
such particularity as to properly identify the particular Q: Accused was charged with the offense of Estafa
offense charged. through Falsification of Public Documents under Article
A: GR: No. A complaint or information must charge only A: Only valid information may be amended. An Information
one offense. filed before the effectivity of the law punishing the offense
may not be amended after the law had come into effect
XPN: When the law prescribes a single punishment for (Herrera, Remedial Law, Vol. IV, p. 162, 2007 ed.).
various offenses (Sec. 13, Rule 110), e.g.:
1. Complex crimes; Q: What are the tests to determine the propriety of
2. Special complex crimes; amendment after plea?
3. Continuous crimes or delicto continuado;
4. Crimes susceptible of being committed in various A:
modes; and 1. Whether a defense under the information as it originally
5. Crimes of which another offense is an ingredient. stood would be available after the amendment is made;
and
Note: Should there be duplicity of offense in the information
unless a single punishment for various offenses is prescribed, the 2. Whether any evidence defendant might have would be
accused must move for the quashal of the same before equally applicable to the information in the one form as in
arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have the other. An amendment to an information which does
waived the objection and may be found guilty of as many offenses not change the nature of the crime alleged therein does not
as those charged and proved during the trial (Sec. 3, Rule 120). affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of
AMENDMENT OR SUBSTITUTION OF COMPLAINT OR substance. (Ricarze v. CA, G.R. No. 160451, Feb. 9, 2007).
INFORMATION
Note: After plea, by leave and at the discretion of the court,
Q: Distinguish amendment from substitution amendments in form, but not substance may be allowed as long as
it will not prejudice the accused.
A:
plea of court;
and and A: If it appears anytime before judgment that a mistake has
during Without been made in charging the proper offense, the court shall
the trial causing dismiss the original complaint or information upon the filing
prejudice to the of a new one charging the proper offense, provided the
rights of the accused shall not be placed in double jeopardy (Sec. 14,
accused (Sec. Rule 110).
14, Rule 110).
Q: What are the limitations to the rule on substitution?
Q: What steps should be taken by the prosecution so that
an amended information which downgrades the nature of A:
the offense may be validly made? Why? (2001 Bar 1. No judgment has yet been rendered;
Question) 2. The accused cannot be convicted of the offense
charged or of any other offense necessarily included
A: The prosecution should file a motion for leave of court therein; and
with notice to the offended party. This is for the protection 3. The accused would not be placed in double jeopardy
of the interest of the offended party and to prevent (Herrera, Remedial Law, Vol. IV, p. 176, 2007 ed.).
possible abuse by the prosecution.
VENUE OF CRIMINAL ACTIONS
Q: Can the prosecutor amend the information which
changes the nature of the crime after the arraignment? Q: Where should a criminal action be instituted?
A: GR: No. The prosecutor can no longer amend the A: GR: Subject to existing laws, criminal action shall be
information after arraignment as it would prejudice the instituted and tried in the court of the municipality or
substantial rights of the accused. territory where the offense was committed or any of its
essential ingredients occurred (Sec. 15, Rule 110).
XPN: When a fact supervenes which changes the nature
of the crime charged in the information or upgrades it XPNs:
to a higher crime, the prosecutor, with leave of court, 1. An offense was committed on a railroad train, in
may amend the information to allege such supervening an aircraft, or in any other public or private
fact and upgrade the crime charged to the higher crime vehicle in the course of trip the criminal action
brought about by such supervening fact. may be instituted and tried in the court of any
municipality or territory where such train, aircraft
Q: Arthur was accused of homicide for the killing of or other vehicle passed during such trip, including
Bebang. During the trial, the public prosecutor received a the place of departure and arrival;
copy of the marriage certificate of Arthur and Bebang. Can 2. Where the offense is committed on board a vessel
the public prosecutor move for the amendment of the on its voyage the criminal action may be
information to charge Arthur with the crime of parricide? instituted and tried in the proper court of the first
port of entry or of any municipality or territory
Suppose instead of moving for the amendment of the through which the vessel passed during such
information, the public prosecutor presented in evidence voyage subject to the generally accepted
the marriage certificate without objection on the part of principles of international law;
the defense, could Arthur be convicted of parricide? . 3. Felonies under Art. 2 of the RPC shall be
(1997 Bar Question) cognizable by the proper court where the criminal
action was first filed (pars. b, c and d, Sec. 15);
A: 4. Continuous or transitory crimes such offenses
1. No. The information cannot be amended to change may be tried by the court of any jurisdiction
the offense charged from homicide to parricide. wherever the offender may be found, but the
Firstly, the marriage is not a supervening fact arising complainant should allege that the offense was
from the act constituting the charge of homicide. committed within the jurisdiction of the court
Secondly, after plea, amendments may be done only (Herrera, Vol. IV, p. 184, 2007 ed.).
as to matters of form. The amendment is substantial 5. Piracy the venue of piracy, unlike all other
because it will change the nature of the offense crimes, has no territorial limits. It is triable
(Dionaldo v. Dacuycuy, G.R. No. L-55357, Oct. 30, anywhere;
1981). 6. Libel the action may be instituted at the election
of the offended or suing party in the municipality
2. No. Arthur can be convicted only of homicide not of or city where:
parricide which is a graver offense. The accused has a. The libelous article is printed and first
the constitutional rights of due process and to be published;
informed of the nature and the cause of the b. If one of the offended parties is a private
accusation against him individual, where said private individual
actually resides at the time of the commission
Q: When is substitution proper? of the offense;
Q: X was charged before the City Court of Cebu with the A: In cases where the consolidation is given due course, the
offense of Serious Physical Injuries Thru Reckless evidence presented and admitted in the civil case shall be
Imprudence, for having allegedly sideswiped A along M. C. deemed automatically reproduced in the criminal action
Briones St., Cebu City while X was driving a jeepney without prejudice to admission of additional evidence and
owned and registered in the name of Y who is Xs right to cross examination (Sec. 2, Rule 111).
employer. While the criminal case was pending, A filed a
separate civil action for damages based on culpa aquiliana WHEN SEPARATE CIVIL ACTION IS SUSPENDED
against X and the latter's employer, Y. X and Y filed a
motion to dismiss the civil case on the ground that the Q: When is a separate civil action suspended?
complaint for damages was filed without the proper
reservation in the criminal action to institute a separate A: GR: If the civil action is instituted before the criminal
and independent civil action. Rule on the motion. action and the criminal action is subsequently commenced,
the pending civil action, in whatever stage it may be found,
A: There is no need to make a reservation of As right to file shall be suspended until final judgment of the criminal
a separate civil action inasmuch as the civil action action has been rendered (Sec. 2, Rule 111).
contemplated is not derived from the criminal liability of
the accused but one based on culpa aquiliana. The XPNs:
confusion lies in the failure to distinguish between the civil 1. In cases of independent civil actions based on
liability arising out of criminal negligence governed by the Arts. 32, 33, 34 and 2176 of the Civil Code;
Penal Code on one hand, and the responsibility for culpa 2. In cases where the civil action presents a
aquiliana or quasi-delict on the other, the latter being prejudicial question; and
separate and distinct from the civil liability arising from 3. Where the civil action is not one intended to
crime. It is thus clear that the plaintiff-appellant's action, enforce the civil liability arising from the offense.
being one for culpa aquiliana (Article 2176) may not be
classified as a civil action arising from the criminal offense Q: When may civil action proceed independently of the
to be suspended "until judgment in the criminal case has criminal action?
been rendered (Bordas v. Canadalla, G.R. No. L-30036, April
15, 1988). A: The institution of an independent civil action based on
Arts. 32 33, 34 and 2176 of the Civil Code against the
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY offender may proceed independently of the criminal case at
the same time without the suspension of either proceeding
Q: What civil actions are not deemed impliedly instituted (Sec. 3, Rule 111).
in the criminal action?
Note: It requires only a preponderance of evidence and the
A: Those which are: offended party is entitled only to the bigger award when the
1. Arising from breach of contract; and awards in the cases vary. Recovery of civil liability under Arts. 32,
33, 34 and 2176 of the Civil Code may be prosecuted separately
2. Independent civil actions or those based on Arts. 32,
even without reservation (DMPI Employees Credit Cooperative v.
33, 34 and Art. 2176 of the New Civil Code or quasi- Velez, G.R. No. 129282, Nov. 29, 2001). In no case, however, may
delict (Herrera, Remedial Law, Vol. IV, pp. 216-217, the offended party recover damages twice for the same act or
2007 ed.). omission charged in the criminal action.
Note: The failure to reserve the right to file the enumerated Q: Does the extinction of the penal action carry with it the
actions does not amount to a waiver to institute a separate civil extinction of the civil action?
action. (Herrera,Remedial Law, Vol. IV, p. 217, 2007 ed)
A: GR: The extinction of the penal action does not
Q: May the offended party compromise the civil aspect of
extinguish the civil action.
a crime?
XPN: When there is a finding in a final judgment in the
A: Yes, provided it must be entered before or during the
criminal action that the act or omission from which the
litigation and not after final judgment.
civil liability might arise did not exist (Sec. 2, Rule 111).
Q: Is the consolidation of civil action and criminal action Note: The civil action that is extinguished refers exclusively to civil
arising from the same offense allowed? liability arising from the crime and does not include civil actions:
1. Based on quasi-delict
A: Yes. Before judgment on the merit is rendered in the civil 2. Based on Arts. 32, 33 and 34 of the NCC (independent
action, the same may, upon motion of the offended party, civil actions) or
be consolidated with the criminal action in the court trying 3. Civil obligation not based on the criminal offense
the criminal action (Sec. 2, Rule 111). (Herrera, Remedial Law, Vol. IV, p. 249, 2007 ed.).
Note: A preliminary investigation is in effect a realistic judicial A: Within 10 days from receipt of subpoena, he is required
appraisal of the merits of the case. Sufficient proof of the guilt of to submit his counter-affidavit, the affidavits of his
the accused must be adduced so that when the case is tried, the witnesses and the supporting documents relied upon for his
trial court may not be bound as a matter of law to order an
defense (Sec. 3(c) Rule 112)
acquittal (Cojuangco, Jr. vs. PCGG, et. al, as held in Uy v.
Ombudsman, G.R. Nos. 156399-400, June 27, 2008).
Note: Despite the subpoena, if the respondent does not submit his
counter-affidavit within the ten-day period granted him, the
Q: Is preliminary investigation considered part of the trial? investigating officer shall resolve the complaint based on the
evidence presented by the complainant. The same rule shall apply
A: No, it is not part of the trial of the criminal action in in case the respondent cannot be subpoenaed (Sec. 3(d) Rule 112).
court. Nor is its record part of the record of the case in the
RTC. The dismissal of the case by the investigator will not Q: Is a motion to dismiss allowed during preliminary
bar the filing of another complaint for the same offense, investigation?
but if re-filed, the accused is entitled to another preliminary
investigation (US v. Marfori, G.R. No. 10905, Dec. 9, 1916). A: GR: In preliminary investigation, a motion to dismiss is
not an accepted pleading for it merely alleges the
Q: What brings about the start of a preliminary innocence of the respondent without rebutting or
investigation? repudiating the evidence of the complainant.
A: By the filing of the complaint before the investigating XPN: When it contains countervailing evidence or defenses
officer and evidence which rebuts or repudiates the charges; in
which case it will be treated as a counter-affidavit.
Q: What should accompany the complaint?
Note: If one files a motion to dismiss and he only asserts that the
A: It shall be accompanied by case should be dismissed, then the motion to dismiss is a mere
1. The affidavits of the complainant; scrap of paper. If the respondent does not later on submit a
2. The affidavits of his witnesses; and counter-affidavit, it will constitute a waiver on his part to file a
counter-affidavit.
3. Other supporting documents that would establish
probable cause (Sec. 3(a) Rule 112).
Q: Is clarificatory hearing a mandatory requirement?
Q: Before whom shall the complaint be subscribed and
A: No. A hearing may be set by the investigating officer only
sworn?
when there are facts and issues to be clarified either from a
party or a witness, which shall be conducted within ten
A: The affidavits that shall accompany the complaint shall
days from the submission of the counter-affidavit, other
be subscribed and sworn to before:
affidavits and documents filed by the respondent.
1. Any prosecutor;
2. Before any government official authorized to
Q: Are parties allowed to cross-examine the witness?
administer oaths; or
3. In the absence or unavailability of the above
A: No. The parties do not have the right to examine or
mentioned, the affidavits may be subscribed and
cross-examine each other or the witnesses. If they have
sworn to before a notary public.
questions to ask, they shall submit the questions to the
Note: The officer or notary public before whom the affidavits were investigating officer who shall ask the questions (Sec. 3(e),
subscribed and sworn to must certify that he personally examined Rule 112).
the affiants and that he is satisfied that they voluntarily executed
and understood their affidavits (Sec. 3(a), Rule 112). Q: What is the duty of the prosecutor after the
termination of investigation?
Q: What is the duty of the investigating officer?
A: Within ten days from the termination of the
investigation, the investigating prosecutor shall determine
Q: What is the effect of lack of preliminary investigation A: The Commission on Elections is vested the power to
raised in a proceeding pending before the Sandiganbayan? conduct preliminary investigations; it may deputize other
prosecuting arms of the government to conduct preliminary
A: The proceeding will be held in abeyance and case should investigation and prosecute offenses (People v. Basilla, G.R.
be remanded to the Office of the Ombudsman or the No. 83938-40, Nov. 6, 1989).
Special Prosecutor to conduct the preliminary investigation
(Ong v. Sandiganbayan, G.R. No. 126858, Sept. 26, 2005). RESOLUTION OF INVESTIGATING PROSECUTOR
Q: What are the rights of the respondent in a preliminary
investigation? Q: Are the findings or resolution of the investigating
prosecutor final?
A: The respondent has the right to:
1. Submit a counter affidavit; A: No, the resolution of the investigating prosecutor is
merely recommendatory. No complaint or information may
Note: The prosecutor is not mandated to require the be filed or dismissed by an investigating prosecutor without
submission of counter-affidavits. Probable cause may then be the prior written authority or approval of the provincial or
determined on the basis alone of the affidavits and city prosecutor or chief state prosecutor or the
supporting documents of the complainant, without infringing
Ombudsman or his deputy (Sec. 4, Rule 112).
on the constitutional rights of the petitioners. (Borlongan, Jr.
v. Pena, G.R. No. 143591, Nov. 23, 2007)
Q: When should the investigating prosecutor submit his
2. Examine the evidence submitted by the complainant resolution for approval?
at his own expense; and
A: Within 5 days from the issuance his resolution, he shall
Note: Object evidence need not to be furnished but is forward the record of the case to the provincial or city
available for examination, copying or photographing at the prosecutor or chief state prosecutor, or to the Ombudsman
expense of the requesting party (Sec. 3, Rule 112). or his deputy (Sec. 4, Rule 112).
3. Be present during the clarificatory hearing (Sec. 3, Rule Q: What is the extent of the authority of the Ombudsman
112). in the conduct of preliminary investigation?
WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF A: The power to investigate and to prosecute granted to
PROBABLE CAUSE the Ombudsman is plenary and unqualified. It pertains to
any act or omission of any public officer or employee when
Q: Who are authorized to conduct a preliminary such act or omission appears to be illegal, unjust, improper
investigation? or inefficient. The law does not make a distinction between
cases cognizable by the Sandiganbayan and those
A: cognizable by the regular courts (Office of the Ombudsman
1. Provincial or City prosecutors and their assistants; v. Breva, G.R. No. 145938, Feb. 10, 2006).
2. National and Regional State Prosecutors; and Note: This however does not include administrative cases of court
3. Other officers as may be authorized by law (e.g. personnel because the 1987 Constitution vests in the SC
Ombudman; authorized officer deputized by COMELEC administrative supervision over all courts and court personnel.
for election offenses).
Q: Regional Director August of the DPWH was charged
Note: Their authority to conduct preliminary investigation shall with violation of Sec. 3(e) of R.A. 3019 in the Office of the
include all crimes cognizable by the proper court in their respective Ombudsman. An administrative charge was likewise filed
territorial jurisdiction (Sec. 2). against him in the same office. The Ombudsman assigned
a team composed of investigators from the Office of the
Special Prosecutor and from the Office of the Deputy
Ombudsman for the Military to conduct a joint
investigation of the criminal case and administrative
cases. The team of investigators recommended to the
Q: May prosecutors conduct preliminary investigation of
Ombudsman that August be preventively suspended for a
offenses falling within the original jurisdiction of the
period not exceeding 6 months on its finding that the
Sandiganbayan?
evidence of guilt is strong. The Ombudsman issued the
said order as recommended by the investigators.
A: No, the Ombudsman has primary authority to investigate
and exclusive authority to file and prosecute
August moved to reconsider the order on the following
Sandiganbayan cases (Ledesma v. CA, G.R. 161629, July 29,
grounds: (a) the Office of the Special Prosecutor had
2005). The Ombudsman is authorized to take over at any
A: The superior prosecutor or Ombudsman may by Q: What is the remedy of an aggrieved party against the
himself, file the information against the respondent, or resolution of the Secretary of Justice?
direct another assistant prosecutor to do so without
conducting another preliminary investigation (Sec. 4, Rule A: The resolution of the DOJ is appealable administratively
112). before the Office of the President, and the decision of the
latter may be appealed before the CA pursuant to Rule 43
Q: What degree of proof is necessary to warrant the filing (De Ocampo v. Sec. of Justice, G.R. No. 147392, Jan. 25,
of an information or complaint in court? 2006). However, if there is grave abuse of discretion
resulting to lack or excess of jurisdiction, a petition for
A: Probable cause. It need not be based on evidence certiorari under Rule 65 may be filed (Ching v. Sec.of
establishing guilt beyond reasonable doubt but only such as Justice, G.R. No. 164317, Feb. 6, 2006).
may engender a well-founded belief that an offense has
been committed and that the accused is probably guilty Q: What is the remedy against the resolution of the
thereof. Ombudsman?
Probable cause is defined as the existence of such facts and A: The resolution of the Ombudsman in administrative
circumstances as would excite the belief in a reasonable cases may be subject of petition for review via Rule 43
mind, acting on the facts within the knowledge of the before the CA (Section 7, Rule III of the Rules of Procedure
prosecutor, that the person charged was guilty of the crime of the Office of the Ombudsman) or a special civil action for
for which he was prosecuted. (Vergara vs. Ombudsman, certiorari via Rule 65 before the SC in criminal cases
G.R. No. 174567, March 12, 2009). (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5,
2002)
REVIEW
Q: Cite instances where a new preliminary investigation is CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
not necessary?
Q: When is preliminary investigation not required?
A: A new preliminary investigation is not necessary when:
1. Amendment to information is not substantial (Villaflor A:
v. Vivar, G.R. No. 134744, Jan. 16, 2001); 1. When the penalty prescribed by law for the offense
2. The court orders the filing of correct information involves an imprisonment of less than four (4) years,
involving a cognate offense (Sy Lim v. CA, G. R. No. L- two (2) months, and one (1) day;
37494, Mar. 30,1982); and 2. If a person is arrested lawfully without a warrant
3. If the crime originally charged is related to the involving an offense which requires preliminary
amended charge such that an inquiry into one would investigation, an Information or complaint may be
elicit substantially the same facts that an inquiry to filed against him without need for a preliminary
another would reveal (Orquinaza v. People, G.R. No. investigation provided an inquest has been conducted
165596, Nov. 15, 2005; Herrera, Vol. IV, p. 281, 2007 in accordance with existing rules. (Sec. 6 Rule 112 as
ed). amended by A.M. No. 05-08-26-SC, August 30, 2005).
Thus if a person is arrested by a police officer in
flagrante delicto while robbing the victim, the arrest is
WHEN WARRANT OF ARREST MAY ISSUE a lawful one and a preliminary investigation is not
required even if the penalty for robbery is more than 4
Q: What actions may the judge take upon the filing of the years, 2 months, and 1 day. Riano, Civil Procedure: A
complaint or Information? Restatement for the Bar, p. 161, 2011 ed).
REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY Q: What are the duties of an inquest officer?
INVESTIGATION
A: Under DOJ Circular No. 61, dated 21 September 1993,
Q: When is the proper time to question the lack of the initial duty of the inquest officer is to determine if the
preliminary investigation? arrest of the detained person was valid, Should the Inquest
Officer find that the arrest was not made in accordance
A: He must do so before he enters his plea. The court shall with the Rules, he shall (a) recommend the release of the
resolve the matter as early as practicable but not later than person arrested or detained; (b)note down the disposition
the start of the trial. An application for or admission of the on the referral document; (c)prepare a brief memorandum
accused to bail does not bar him from raising such question indicating the reasons for the action taken; and (d) forward
(Sec. 26, Rule 114). Failure to invoke the right before the same, together with the record of the case, to the City
entering a plea will amount to a waiver. or Provincial Prosecutor for appropriate action.
Q: What remedies may the accused avail of if there was no Where the recommendation is approved by the City or
preliminary investigation conducted pursuant to a lawful Provincial Prosecutor but the evidence on hand warrant the
warrantless arrest? conduct of a regular preliminary investigation, the order of
release shall be served on the officer having custody of said
A: detainee and shall direct the said officer to serve upon the
1. Before the complaint or Information is filed, the detainee the subpoena or notice of preliminary
person arrested may ask for a preliminary
Commences
investigation but he must sign a waiver of the by a receipt by
provisions of Art. 125 of the RPC, as amended, in the inquest officer
presence of his counsel; from the law
2. The waiver by the person lawfully arrested of the enforcer of
provisions of Art. 125 of the RPC does not preclude complaint/
referral
him from applying for bail; documents
3. After the filing of the complaint or Information in court
without a preliminary investigation, the accused may, Inquest
within five (5) days from the time he learns of its filing, officer
ask for a preliminary investigation with the same right shall first
to adduce evidence in his evidence as provided in this determine
if the
Rule (Sec. 6 Rule 112). arrest is
valid
Q: The accused was arrested lawfully without a warrant
for carnapping and detained at Camp Crame in Quezon
City. He asked for a preliminary investigation and signed a If the arrest is valid,
If not valid, he shall
waiver of the provisions of Art. 125 of the RPC. However, detainee shall be asked if
proceed with the
the assisting judge of the Marikina RTC approved the bail the detainee wants a new
inquest but shall preliminary investigation,
bond for the accused who was being held in Quezon City. recommend the and if he does, he shall
Was the approval of the bail bond proper? release to be be made to execute a
approved by the city or waiver of the provision of
A: No. The bail must be, applied for and issued by the court provincial prosecutor Art. 125 of RPC
in the province, city, or municipality where the person
arrested is held. In this case, the bail application should
have been filed with a Quezon City court which has the When the Otherwise, Inquest
authority to grant the bail and not Marikina court (Ruiz v. recommendation for proper shall be
Beldia, Jr., A.M. No. RTJ-02-1731, 16 February 2005). release is approved,
but the evidence
conducted
warrants the conduct
of a preliminary
investigation, the said
order shall be served If the inquest officer finds
INQUEST
on the officer having probable cause, he must
custody of the prepare a
Q: What is inquest? detainee and shall complaint/information
direct the said officer with recommendation to
to serve upon the be filed in court,
detainee the otherwise recommend
subpoena or notice of the release of person
UNIVERSITY OF SANTO TOMAS 286 preliminary (Part II, manual for
2013 GOLDEN NOTES investigation Prosecutor).
CRIMINAL PROCEDURE
investigation, together with the copies of the charge sheet 4. If the presence of the detained person is not feasible
or complaint, affidavit or sworn statements of the by reason of age, health, sex and other similar factors.
complainant and his witnesses and other supporting (Sec.6, Part II, Manual for Prosecutors).
evidence.
Q: Leo was arrested without a warrant following the
Q: Who may conduct preliminary investigation? issuance by PGMA of PP 1017. On the eve of his arrest,
Leo was subjected to an inquest at the Quezon City Hall of
A: The preliminary investigation may be conducted by the Justice for Inciting to Sedition (Art. 142 of the RPC) based
Inquest Officer himself or by any other Assistant Prosecutor on a speech he allegedly gave during a rally. The inquest
to whom the case may be assigned by the City or Provincial was based on a joint affidavit of Leos arresting officers
Prosecutor, which investigation shall be terminated within who claimed to have been present at the rally. The
fifteen (15) days from its inception (Sec. 10 Part II Manual inquest prosecutor filed the corresponding Information
for Prosecutors). with the MeTC. Several days after the first inquest, he was
again subjected to a second inquest but this time for
Note: If the Inquest Officer finds that probable cause exists, he rebellion allegedly committed based on the letters of CIDG
shall forthwith prepare the corresponding complaint/information investigators claiming that Leo was the leader/ promoter
with the recommendation that the same be filed in court (Sec. 13 of an alleged plot to overthrow the Arroyo government.
Part II Manual for Prosecutors). If the Inquest Officer finds no
The panel of prosecutors from the DOJ which conducted
probable cause, he shall recommend the release of the arrested or
detained person (Sec. 15 Part II Manual for Prosecutors). the second inquest subsequently issued a resolution
finding probable cause to indict Leo as leader/ promoter
of alleged rebellion. The panel filed an Information with
the RTC of Makati. The court sustained the finding of
probable cause against Leo. Leo filed a Petition to set
aside the orders finding probable cause and the denial of
the MR to enjoin his prosecution. Was the second inquest
valid?
A: A valid warrant of arrest remains valid until arrest is A: No. It shall be the duty of the officer executing the
effected or the warrant is lifted (Albano citing Mamangon warrant to arrest the accused and to deliver him to the
v. CFI August 30, 1990) nearest police station or jail without unnecessary delay
(Sec. 3, Rule 113). This rule equally applies to situations of
Q: Within what period must a warrant of arrest be served? warrantless arrests. Here, the arrest was made in Pasay
City. Hence, the suspect should be brought to the police
A: There is no limitation of period. A warrant of arrest is station in Pasay City for booking and not in Caloocan City.
valid until the arrest is effected or the warrant lifted.
METHOD OF ARREST
The head of the office to whom the warrant was
delivered must cause it to be executed within 10 days Q: What are the modes of effecting arrest?
from its receipt, and the officer to whom it is assigned
must make a report to the judge who issued the warrant A:
within 10 days from the expiration of the period. If he 1. By actual restraint of the person to be arrested;
fails to execute it, he should state the reasons 2. By his submission to the custody of the person making
therefore. (Sec. 4, Rule 113). the arrest.
person to be arrested the be arrested flees; 1. the person to be arrested is or reasonably believed to
cause of the arrest and the 2. When he forcibly be in the said building;
fact that the warrant has resists before the 2. the officer has announced his authority and purpose
been issued for his arrest. officer has an for entering therein;
opportunity to inform 3. he has requested and been denied admittance (Sec.
Note: The officer need not him; and 11, Rule 113).
have the warrant in his 3. When the giving of
possession at the time of the such information will Note: A lawful arrest may be made anywhere, even on a private
arrest but must show the same property or in a house. This rule is applicable both where the arrest
imperil the arrest.
after the arrest, if the person is under a warrant, and where there is a valid warrantless arrest.
arrested so requires.
Arrest by officer without a warrant Q: What can be confiscated from the person arrested?
(Sec. 8, Rule 113)
The officer shall inform the 1. when the person to be A:
person to be arrested of his arrested is engaged in 1. Objects subject of the offense or used or intended to
authority and the cause of the commission of an be used in the commission of the crime;
the arrest w/out a warrant offense or is pursued 2. Objects which are fruits of the crime;
immediately its 3. Those which might be used by the arrested person to
commission; commit violence or to escape; and
2. when he has escaped, 4. Dangerous weapons and those which may be used as
flees, or forcibly resists evidence in the case.
before the officer has
an opportunity to so Note: Arrest must precede the search, the process cannot be
inform him; and reversed. Nevertheless, a search substantially contemporaneous
3. when the giving of such with an arrest can precede the arrest at the outset of the search.
information will imperil Reliable information alone is not sufficient to justify a warrantless
the arrest. arrest under Sec. 5, Rule 113.
Arrest by a private person (Sec. 9, Rule 113)
Q: Jose, Alberto and Romeo were charged with murder.
The private person shall 1. when the person to be
Upon filing of the information, the RTC judge issued the
inform the person to be arrested is engaged in
warrants of arrest. Learning of the issuance of the
arrested of the intention to the commission of an
warrants, the 3 accused jointly filed a motion for
arrest him and the cause of offense or is pursued
reinvestigation and for the recall of the warrants of arrest.
the arrest. immediately its
On the date set for hearing of their motion, none of the
commission;
Note: The private person must 2. when he has escaped,
accused showed up in the court for fear of being arrested.
deliver the arrested person to The RTC judge denied their motion. Did the RTC rule
flees, or forcibly resists
the nearest police station or correctly? (2008 Bar Question)
before the officer has
jail, otherwise, he may be held
an opportunity to so
criminally liable for illegal A: The RTC ruled correctly in denying the motion for
detention. inform him; and
reinvestigation and recall of the warrants of arrest because
3. when the giving of such
the accused have not surrendered their persons to the
information will imperil
court. Jurisdiction over the person of the accused can only
the arrest.
be obtained through arrest or voluntary surrender
(Dimatulac v. Villon, G.R. No. 127107, Oct. 12, 1998).
BY OFFICER WITH WARRANT
BY OFFICER WITHOUT WARRANT
Q: What amount of force shall be used in effecting an
arrest?
Q: What is a buy-bust operation?
A: No violence or unnecessary force shall be used in making
A: A form of entrapment which has been repeatedly
an arrest. The person arrested shall not be subject to a
accepted to be a valid means of arresting violators of the
greater restraint than is necessary for his detention (Sec. 2,
Dangerous Drugs Law. The violator is caught in flagrante
Rule 113).
delicto and the police officers conducting the operation are
not only authorized but duty-bound to apprehend the
XPN: If necessary to secure and detain the offender,
violator and to search him for anything that may have been
overcome his resistance, prevent his escape, recapture him
part of or used in the commission of the crime (People v.
and protect himself from bodily harm (Albano p. 1076 citing
Juatan, G.R. No. 104378, Aug. 20, 1996).
People v. Delima, 46 Phil. 738)
Q: What are the elements of hot pursuit arrest?
Q: May an officer break into a building or enclosure to
effect an arrest?
A:
1. An offense has been committed (close proximity
A: Yes, provided that:
between the arrest and the time of commission of the
crime) (Pamaran, Revised Rules of Criminal Procedure
Note: Personal gathering of information is different from personal Q: How may an illegal arrest be cured?
knowledge. The rule requires that the arrest immediately follows
the commission of the offense (People v Manlulu, 231 SCRA 701). A: Illegality of warrantless arrest maybe cured by filing of
information in court and the subsequent issuance by the
Q: How can an arresting officer have personal knowledge judge of a warrant of arrest.
of facts when he was not present when the crime was
committed? Q: May an accused who has been duly charged in court
question his detention by a petition for habeas corpus?
A: Personal knowledge has no reference to the actual
commission of the crime but to personal knowledge of facts A: No. Once a person has been duly charged in court, he
leading to probable cause. may no longer question his detention by petition for habeas
corpus. His remedy is to quash the information and/or the
Q: What is the obligation of the arresting officer after the warrant of arrest.
warrantless arrest?
Q: What are the consequences of illegal arrests?
A: He must comply with the provisions of Art. 125 of the
RPC, otherwise, he may be held criminally liable for A:
arbitrary detention under Art. 124 of the RPC. Jurisdiction 1. The documents, things or articles seized following the
over the person arrested must be transferred to the judicial illegal arrest are inadmissible in evidence;
authorities. Art. 125 is a procedural requirement in case of 2. The arresting person may be held criminally liable for
warrantless arrest. A case must be filed in court. illegal arrest under Art. 269, RPC;
3. Arresting officer may be held civilly liable for the
damages under Art. 32, NCC; and
4. He may also be held administratively liable.
Q: When must officers deliver the person detained under Q: Albert was killed by Bobot during a quarrel over a guest
Art. 125 of the RPC? relations officer in a nightclub. Two days after the
incident, and upon complaint of the widow of Albert, the
A: The person must be delivered to the judicial authorities police arrested Bobot without a warrant of arrest and
within the period specified in Art. 125 (Delay in the delivery searched his house without a search warrant.
of detained persons to the proper judicial authorities). 1. Can the gun used by Bobot in shooting Albert,
1. Light penalties 12 hours which was seized during the search of the house
2. Correctional penalties 18 hours of Bobot, be admitted in evidence?
DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A: Where a warrant of arrest was improperly issued, the
A JUDGE proper remedy is a petition to quash it, NOT a petition for
habeas corpus, since the court in the latter case may only
Probable Cause as Probable Cause as order his release but not enjoin the further prosecution or
determined by the determined by the the preliminary examination of the accused (Alimpoos v.
Prosecutor Judge Court of Appeals, GR No L-27331, July 30, 1981)
Purpose For the filing of an For the issuance of
information in warrant to BAIL
court by determine whether RULE 114
determining there is a necessity
whether there is for placing the It is the security given for the release of a person in custody
reasonable ground accused under of the law, furnished by him or a bondsman, to guarantee
to believe that the immediate custody his appearance before any court as required under the
accused is guilty of in order not to conditions prescribed under the rules (Sec. 1, Rule 114).
the offense frustrate the ends of
charged and should justice (P/Supt. Cruz Q: What are the conditions attached to the grant of bail?
be held for trial v. Judge Areola, A.M.
No. RTJ-01-1642, A: All kinds of bail are subject to the following conditions:
March 6, 2002)
Function Executive function Judicial function (a) The undertaking shall be effective upon approval, and
Basis Reasonable ground The report and the unless cancelled, shall remain in form at all stages of
to believe that a supporting the case until promulgation of the judgment of the
crime has been documents Regional Trial Court, irrespective of whether the case
committed submitted by the was originally filed in or appealed to it;
fiscal during the
preliminary (b) The accused shall appear before the proper court
investigation and the whenever required by the court or these Rules;
supporting affidavits
that may be (c) The failure of the accused to appear at the trial
required to be without justification and despite due notice shall be
submitted. deemed a waiver of his right to be present thereat. In
such case, the trial may proceed in absentia; and
Q: What is the remedy for warrants improperly issued?
Note: When the court finds that there is likelihood of the accused A: The right to bail is a constitutional right which flows from
jumping bail or committing other harm to the citizenry is feared, the presumption of innocence in favor of every accused
the court may grant other conditions in granting bail (Almeda v. who should not be subjected to the loss of freedom. Thus,
Villaluz, G.R. No. L-31665, Aug. 6, 1975). the right to bail only accrues when a person is arrested or
deprived of his liberty. The right to bail presupposes that
The court however may not impose additional obligations upon the
the accused is under legal custody (Paderanga v. Court of
bondsmen other than those provided by law. The obligation
imposed upon the bondsmen cannot be greater nor of a different Appeals, 247 ACRS 741).
character than those imposed upon the accused (Bandoy v. Judge
of CFI of La Laguna, GR. No. L-5200, March, 11, 1909) Q: Andrew was charged with the crime of estafa in the
RTC of Manila. A warrant of arrest was issued by Judge
By filing forged bail bonds, appellants are considered not merely to Matias. Before the warrant of arrest could be served,
have jumped bail, but for all intents and purposes to have escaped Judge Matias issued a recall order of the warrant of arrest
from detention. Hence, their pending appeal should be dismissed, issued against Andrew in view of the approval of his bail
subject to the filing of the proper criminal cases against the parties
bond by the Executive Judge of the RTC of Manila. Was
responsible therefor (People of the Philippines v. Del Rosario, G.R.
Nos. 107297-98. December 19, 2000). the application for bail of Andrew validly approved?
Q: What is the nature of the liability of the surety or A: No. The right to bail can only be availed of by a person
bondsmen? who is in custody of the law or otherwise deprived of his
liberty and it would be premature to file a petition for bail
A: It is inherently civil in nature. The liability of the for someone whose freedom has yet to be curtailed. Here,
bondsmen on the bail bond arises not from the violation of, the bail application of Andrew was approved before the
or an obligation to comply with, a penal provision of law. It warrant for his arrest could be served (Alva v. CA, G.R. No.
emerges instead from a contract, the bond subscribed 157331, April 12, 2006).
jointly by the accused and the surety or bondsmen.
Q: Where should bail be filed?
The obligation of the accused on the bond is different from
the surety in that the former can be made to suffer a A:
criminal penalty for failure to comply with the obligations 1. In the court where the case is pending; or
on the bail bond. However, the surety is not under a similar 2. In the absence or unavailability of the judge thereof,
path of punishment, as its liability on the bail bond would with any RTC judge, MTC judge, or MCTC judge in the
merely be civil in character (Reliance Surety and Insurance province, city, or municipality.
Co. v. Amante Jr., et. al., G.R. No. 150994, June 30, 2005).
Note: Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application may
NATURE
only be filed in the court where the case is pending, whether on
preliminary investigation, trial, or on appeal.
Q: What is the nature of bail proceedings?
When bail is filed with a court other than where the case is
A: The hearing of an application for bail should be summary pending, the judge who accepted the bail shall forward it, together
or otherwise in the discretion of the court. with the order of release and other supporting papers, to the court
where the case is pending (Sec. 19, Rule 114).
Note: By 'summary hearing' means such brief and speedy method
of receiving and considering the evidence of guilt as is practicable Q: What are other instances when bail is filed?
and consistent with the purpose of the hearing which is merely to
determine the weight of the evidence for the purpose of bail A:
(Ocampo v. Bernabe, 77 Phil. 55) 1. If the accused is arrested in a province, city, or
municipality other than where the case is pending, bail
may also be filed with any RTC of said place, or if no
judge thereof is available, with any MTC judge, MCTC
therein; or
Q: What are the purposes of bail? 2. Any person in custody who is not yet charged in court
may apply for bail with any court in the province, city,
A: or municipality where he is held (Sec. 17, Rule 114).
1. To relieve an accused from the rigors of imprisonment
until his conviction and yet secure his appearance at
3. Cash deposit/ Cash bond; A: It depends. No person charged with a capital offense, or
a. It is the deposited by the accused himself or any an offense punishable by reclusion perpetua or life
person acting in his behalf; imprisonment, shall be admitted to bail when evidence of
b. Cash shall be in the amount fixed by the court or guilt is strong, regardless of the stage of the criminal
recommended by the prosecutor who prosecution (Sec. 7, Rule 114).
investigated the case;
c. It is to be deposited before the: Q: In an Information charging them with murder,
i. Nearest collector of internal revenue; policemen Ian, Paul and Steve were convicted of
ii. Provincial, city or municipal treasurer; or homicide. Ian appealed from the decision but Paul and
iii. Clerk of court where the case is pending; Steve did not. Paul started serving his sentence but Steve
d. No further order from the court is necessary for escaped and is at large. In the CA, Ian applied for bail but
the release of the accused if the conditions was denied. Finally, the CA rendered a decision acquitting
prescribed were complied with (Sec. 14, Rule Ian on the ground that the evidence pointed to the NPA as
114); the killers of the victim.
e. If the accused does not appear when required, 1) Was the Court of Appeal's denial of Ian's application
the whole amount of the cash bond will be for bail proper?
forfeited in favor of the government and the 2) Can Paul and Steve be benefited by the decision of
accused will now be arrested. the CA? (1998 Bar Question)
4. Recognizance A:
a. An obligation of record, entered into before some 1. Yes, the CA properly denied Ian's application for bail.
court or magistrate duly authorized to take it with The court had the discretion to do so. Although Ian
the condition to do some particular act. It is an was convicted of homicide only, since he was charged
undertaking of a disinterested person with high with a capital offense, on appeal he could be convicted
credibility wherein he will execute an affidavit of of the capital offense (Obosa v. CA, G.R. No. 114350,
recognizance to the effect that when the Jan. 16, 1997).
presence of the accused is required in court, the
custodian will bring him to that court. Alternative Answer:
b. This is allowed for light felonies only. Under Circular No. 2-92, Ian is entitled to bail because
he was convicted of homicide and hence the evidence
Note: If the accused does not appear despite notice to the of guilt of murder is not strong.
custodian, or the person who executed the recognizance does not
produce the accused, he may be cited for contempt of court. This is
the remedy because no money is involved in recognizance. 2. Paul, who did not appeal, can benefit from the
decision of the CA which is favorable and applicable to
Q: Distinguish Bail Bond from Recognizance. him [Sec. 11(a) Rule 122]. The benefit will also apply to
Steve even if his appeal is dismissed because of his
A: escape
BAIL BOND RECOGNIZANCE
An obligation under seal An obligation of record GUIDELINES IN FIXING AMOUNT OF BAIL
given by the accused with entered into before some
one or more sureties, and court or magistrate duly Q: What are the primary considerations in fixing the
made payable to the proper authorized to take it with reasonable amount of bail?
officer with the condition to the condition to do some
be void upon performance particular act, the most A:
by the accused of such acts usual condition in criminal 1. Financial ability of the accused to give bail;
as he may legally be cases being the appearance 2. Nature and circumstances of the offense;
required to perform. of the accused for trial. 3. Penalty of the offense charged;
4. Character and reputation of the accused;
HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES 5. Age and health of the accused;
6. Weight of evidence of the accused;
Q: What is a capital offense? 7. Probability of the accused to appear in trial;
Q: What is the principal factor to consider in bail fixing? Q: Who has the burden of proof in bail applications?
A: The principal factor to the determination of which most A: It is the prosecution who has the burden of showing that
other factors are directed is the probability of the evidence of guilt is strong at the hearing of an application
appearance of the accused, or of his flight to avoid for bail filed by a person who is charged for the commission
punishment (Villasenor v Abano, 21 SCRA 312). of a capital offense or offense punishable by reclusion
perpetua or life imprisonment (Sec. 8, Rule 114).
BAIL WHEN NOT REQUIRED
Q: What is the effect of a grant of bail?
Q: What are the instances where bail is not necessary or
when recognizance is sufficient? A: The accused shall be released upon approval of the bail
by the judge (Sec. 19, Rule 114).
A:
1. When the offense charged is for violation of an Q: Domingo was charged with murder, a capital offense.
ordinance, a light, or a criminal offense, the imposable After arraignment, he applied for bail. The trial court
penalty of which does not exceed 6 months ordered the prosecution to present its evidence in full on
imprisonment and/or P2,000 fine, under the ground that only on the basis of such presentation
circumstances provided under R.A. 6036 (An Act could it determine whether the evidence of Domingo's
providing that bail shall not, with certain exceptions, guilt was strong for purposes of bail. Is the ruling correct?
be required In cases of violations of municipal or city (2002 Bar Question)
ordinances and in light offenses);
2. Where a person has been in custody for a period equal A: No. At the hearing of an application for bail filed by a
to or more than the minimum of the imposable person who is in custody for the commission of an offense
principal penalty, without application of the punishable by death, reclusion perpetua, or life
Indeterminate Sentence Law or any modifying imprisonment, the prosecution has the burden of showing
circumstance, in which case the court, in its discretion, that evidence of guilt is strong. The prosecution is only
may allow his release on a reduced bail or on his own required to present as much evidence as is necessary to
recognizance (Sec. 16, Rule 114); determine whether the evidence of Domingos guilt is
3. Where the accused has applied for probation, pending strong for purposes of bail (Sec. 8, Rule 114).
the resolution of the case but no bail was filed or the
accused is incapable of filing one (Sec. 24, Rule 114); INCREASE OR REDUCTION OF BAIL
4. In case of a youthful offender held for a physical and
mental examination, trial, or appeal, if he is unable to Q: May the amount of bail be reduced or increased?
furnish bail and under circumstances envisaged in P.D.
603 (Child and Youth Welfare Code) as amended. A: Yes, after the accused is admitted to bail, the court may,
5. Before final conviction, all juveniles charged with upon good cause, either increase or reduce its amount.
offenses falling under the Revised Rule on Summary When increased, the accused may be committed to custody
Procedure shall be released on recognizance to the if he does not give bail in the increased amount within a
custody of their parents or other suitable person who reasonable period (Sec. 20, Rule 114).
shall be responsible for the juveniles appearance in
court whenever required (Sec. 15, A.M. No. 02-1-18- Note: A motion to reduce the amount of bail likewise requires a
SC). hearing before it is granted in order to afford the prosecution the
chance to oppose it (Sec. 18, Rule 114).
Q: What are the duties of the trial judge if an application
Note: Excessive bail may not be imposed because that is
for bail is filed? tantamount to denying bail
A: If the bondsmen fail to comply with their obligations, the APPLICATION FOR BAIL IS NOT A BAR TO OBJECTIONS IN
court will render judgment against the bondsmen jointly ILLEGAL ARREST; LACK OF OR IRREGULAR PRELIMINARY
and severally if there are more than one bondsman (Sec. INVESTIGATION
21, Rule 114).
Q: Is an application for bail a bar to questions of illegal
Note: The court shall not reduce or mitigate the liability of the arrest by reason of irregularity or lack of preliminary
bondsmen unless the accused has been surrendered or is acquitted
investigation?
(Sec. 21, Rule 114). The 30 day period granted to the bondsmen to
comply with the two requisites for the lifting of the order of
forfeiture cannot be shortened by the court but may be extended A: No, provided that he raises them before entering his
for good cause shown. plea. The court shall resolve the matter as early as possible,
not later than the start of the trial on the case (Sec. 26, Rule
Q: When may bail be cancelled? 114).
A: Upon the application of the bondsmen with due notice Q: Paolo was charged with estafa. Thereafter, he was
to the prosecutor, bail may be cancelled upon: arrested by virtue of a warrant of arrest issued by the RTC.
1. surrender of the accused; and Before arraignment, Paolo filed an application for bail.
2. proof of death of the accused (Sec. 22, Rule 114). Paolo then filed a motion to quash information on the
ground that it charges more than one offense. RTC denied
Q: When is bail deemed automatically cancelled? bail to Paolo on the ground that an application for bail and
a motion to quash are inconsistent remedies. Is the RTC
A: Upon: correct?
1. Acquittal of the accused;
2. Dismissal of the case; and A: No. There is no inconsistency in filing an application of an
3. Execution of judgment of conviction (Sec. 22, Rule accused for bail and his filing of a motion to quash. The
114). purpose of bail is to obtain the provisional liberty of a
person charged with an offense until his conviction while at
the same time securing his appearance at the trial. On the
other hand, a motion to quash an information is the mode
Note: If the court finds in such case that the accused is entitled to Q: What is a Hold Departure Order?
bail because the evidence against him is not strong, he may be
granted provisional liberty even prior to arraignment; for in such a A: A Hold Departure Order or HDO is an order issued by the
situation, bail would be "authorized" under the circumstances
Secretary of Justice or the proper RTC commanding the
(Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116,
Jan. 28, 2003). Commissioner of the Bureau of Immigration to prevent the
departure for abroad of Filipinos and/ or aliens named
Q: Charged with murder, Leviste was convicted with the therein by including them in the Bureaus Hold Departure
crime of homicide and was sentenced to suffer an List (DOJ Department Order No. 17).
indeterminate penalty of six years and one day of prision
Note: The proper court may issue a hold departure order or direct
mayor as minimum to 12 years and one day of reclusion
the Department of Foreign Affairs to cancel the passport of the
temporal as maximum. Pending appeal he applied for bail, accused. This is a case of a valid restriction on a persons right to
but the same was denied by the CA. Petitioners theory is
Note: If the case against the accused is pending trial, the A: The Secretary of Justice may issue a WLO under any of
application under oath of an interested party must be the following circumstances:
supported by: a) certified true copy of the complaint or 1. Against the accused, irrespective of nationality in
information; and b) a certification from the Clerk of Court criminal cases pending trial before the RTC or before
concerned that the criminal case is pending. courts below the RTCs;
2. Against the respondent, irrespective of nationality in
If the accused has jumped bail or has become a fugitive of criminal cases pending Preliminary Investigation,
justice, the application under oath of an interested party
Petition for Review or Motion for Reconsideration
must be supported by: a) a certified true copy of the
complaint or information; b) a certified true copy of the BEFORE the DOJ or any of its provincial or city
warrant or order of arrest; and c) a certification from the prosecution offices;
Clerk of Court concerned that the warrant or order of arrest 3. The Secretary of Justice may likewise issue a WLO
was returned unserved. against any person, either motu proprio or upon
request of any government agencies, including
2. Against an alien whose presence is required either as a commissions, task forces or similar entities created by
defendant, respondent or a witness in a civil or labor the Office of the President, pursuant to the Anti-
A: A WLO issued shall be valid for sixty (60) days unless Q: Is the right to bail available in extradition cases?
sooner terminated or extended, for a non-extendible Discuss.
period of not more than sixty (60) days (Section 4, DOJ
Department Order No. 41). A: Yes.
1. While our extradition law does not provide for the
Q: Where should permission to leave the country be filed? grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion
A: Permission to leave the country should be filed in the for bail, a right to due process under the constitution.
same court where the case is pending because they are in 2. While extradition is not a criminal proceeding, it still
the best position to judge the propriety and implication of entails a deprivation of liberty on the part of the
the same (Santiago v. Vasquez, G.R. No. 99289-90, January potential extraditee and furthermore, the purpose of
27, 1993). extradition is also the machinery of criminal law.
3. The Universal Declaration of Human Rights applies to
Q: What is the remedy against an HDO/ WLO? deportation cases, hence, there is no reason why it
cannot be invoked in extradition cases.
A: A WLO may be attacked by filing a motion for 4. The main purpose of arrest and temporary detention
cancellation or by getting an Allow Departure Order from in extradition cases is to ensure that the potential
the DOJ or by filing a Motion to Lift Hold Departure Order. extraditee will not abscond.
5. Under the principle of pacta sunt servanda, the
Q: What is an Allow Departure Order (ADO)? Philippines must honor the Extradition Treaty it
entered into with other countries. Hence, as long as
A: An Allow Departure Order is a directive that allows the the requirements are satisfactorily met, the extraditee
traveler to leave the territorial jurisdiction of the must not be deprived of his right to bail (Government
Philippines. This is issued upon application to the of Hong Kong Special Administrative Region v. Olalia,
Commissioner of Immigration and the appropriate G.R. No. 153675, Apr. 19, 2007).
government agency (An outline of Philippine Immigration
and Citizenship Laws, Volume I, Atty. Rolando P. Ledesma, Note: The required proof of evidence is clear and convincing
p. 34). evidence and not preponderance of evidence nor proof beyond
reasonable doubt. The burden of proof lies with the extraditee.
(Government of Hong Kong Special Administrative Region v. Olalia,
Q: When is ADO issued?
G.R. No. 153675, Apr. 19, 2007)
A: The right means that the presumption must be Q: What is meant by the accuseds right to be informed?
overcome by evidence of guilt beyond reasonable doubt.
The burden lies on the prosecution to overcome such A: The right requires that the information should state the
presumption of innocence by presenting the quantum of facts and circumstances constituting the crime charged in
evidence required. Conviction should be based on the terms sufficient to enable a person of common
strength of the prosecution and not on the weakness of the understanding to know what offense is being charged.
defense. The significance of this is that accusation is not
synonymous with guilt. (People v. Angus, GR No. 178778, Q: May the right to be informed be waived?
August 3, 2010).
A: No, the right to be informed may not be waived. It is a
Q: What is reasonable doubt? basic constitutional right of the accused to be informed of
the nature and cause of accusation against them.
A: It is the doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let Q: Noque was convicted for the crime of selling and
the mind rest easy upon the certainty of guilt. Absolute possessing methamphetamine hydrochloride. On appeal,
certainty is not demanded by law to convict of any criminal Noque claimed that his conviction violated his right to be
charge but moral certainty is required as to every informed of the nature and cause of the accusations
proposition of proof requisite to constitute the offense against him since the charges in the Information are for
(Sec. 2, Rule 133). selling and possessing methamphetamine hydrochloride
but what was established and proven was the sale and
Q: What is the equipoise rule? possession of ephedrine. Is the appellants right to be
informed of the nature and cause of accusation violated?
A: Where the evidence of the parties in a criminal case is
evenly balanced, the constitutional presumption of A: No. The Information filed was for the crimes of illegal
innocence should tilt in favor of the accused who must be sale and illegal possession of regulated drugs. Ephedrine
acquitted (People v. Erguiza, GR No. 171348, Nov. 26, has been classified as a regulated drug; it is classified as the
2008). raw material of shabu. Under Sections 4 and 5, Rule 120 of
the Rules of Court, an offense charged is necessarily
Q: What are the exceptions to the presumption of included in the offense proved when the essential
innocence? ingredients of the former constitute or form part of those
constituting the latter. At any rate, a minor variance
A: between the information and the evidence does not alter
1. In cases of self-defense, the person invoking self the nature of the offense, nor does it determine or qualify
defense is presumed guilty. In this case, a reverse trial the crime or penalty, so that even if a discrepancy exists,
will be held. this cannot be pleaded as a ground for acquittal (People v.
2. The legislature may enact that when certain facts have Noque GR No. 175319, January 15, 2010).
been proved, they shall be prima facie evidence of the
existence of guilt of the accused and shift the burden Q: In a criminal proceeding, when is the presence of the
of proof provided there be a rational connection accused required?
between the facts proved and the ultimate fact
presumed so that the inference of the one from proof A:
of the other is not an unreasonable and arbitrary 1. During arraignment (Sec.1b, Rule 116);
experience (People v. Mingoa, G.R. No. L-5371, Mar. 2. Promulgation of judgment except when the conviction
26, 1953). is for a light offense, in which case, it may be
pronounced in the presence of his counsel or a
representative (Sec.6 Rule 120); and
Q: What is a reverse trial? 3. When ordered by the court for purposes of
identification (Sec.1, Rule 115)
A: A reverse trial happens if the accused admits the killing
but claims self-defense. He must first establish the
Note: The accused may be compelled to be present despite waiver A: The privilege is intended to prevent the State, with all its
for purposes of identification, but if the accused manifests in open coercive powers, from extracting from the suspect
court that he is indeed the accused, such shall also be considered a testimony that may convict him and to avoid a person
waiver thereof.
subject to such compulsion to perjure himself for his own
protection (People v. Bersonia, 422 SCRA 210).
Q: What are the effects of waiver of the right to appear by
the accused?
Q: Is the right of the accused against self-incrimination
waivable?
A:
1. It is also a waiver to present evidence;
A: Yes. It may be waived by the failure of the accused to
2. Prosecution can present evidence despite the absence
invoke the privilege after the incriminating question is
of the accused; and
asked and before his answer.
3. The court can decide even without accuseds evidence.
Q: Does the right against self-incrimination include the
Q: As counsel of an accused charged with homicide, you
furnishing of a signature specimen?
are convinced that he can be utilized as a State witness.
What procedure will you take? Explain. (2006 Bar
A: Yes, because writing is not a purely mechanical act for it
Question)
involves the application of intelligence and attention. If
such person is asked whether the writing in a document is
A: As counsel for the accused, I will advise my client to ask
his or not, and he says it is not, he is deemed to have
for a reinvestigation and convince the prosecutor for him to
waived his right. On the other hand, if the accused simply
move for the discharge of my client as a State witness or
refused to answer the question inquiring about the
the accused can apply as a State witness with the
handwriting, no waiver of the right took place (Beltran v.
Department of Justice pursuant to R.A. 6981, the Witness
Samson G.R. No. 32025, Sept. 23, 1929).
Protection, Security and Benefit Act. The right to prosecute
Q: What does the right of the accused to confront and
vests the prosecutor with a wide range of discretion,
cross-examine a witness against him contemplate?
including what and whom to charge.
A: Confrontation is the act of setting a witness face-to-face
Q: What is the effect if the accused refuses to testify?
with the accused so that the latter may make any objection
he has to the witness which must take place in the court
A: GR: The silence of the accused should not be used
having jurisdiction to permit the privilege of cross-
against him.
examination. In addition, the accused is entitled to have
compulsory process issued to secure the attendance of
XPN:
witness and production of other evidence in his behalf [Sec.
1. When the prosecution has already established a
1 (g), Rule 115].
prima facie case, the accused must present proof
to overturn the evidence; and Note: The main purpose of this right to confrontation is to secure
2. If the defense of the accused is alibi and he does the opportunity of cross-examination and the secondary purpose is
not testify, the inference is that the alibi is not to enable the judge to observe the demeanor of witness.
believable.
Q: What is the scope of the right against self- Q: Is the right to cross-examination waivable?
incrimination?
A: Yes, the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a
A: No. It is inadmissible because the lawyer should assist his ARRAIGNMENT AND PLEA
client from the time the confessant answers the first RULE 116
question asked by the investigating officer until the signing
of the extrajudicial confession (People v. Morial, G.R. No. Q: What is arraignment?
129295, Aug. 15, 2001).
A: It is the formal mode of implementing the constitutional
Note: The right to counsel covers the period beginning from right of the accused to be informed of the nature of the
custodial investigation until rendition of judgment and even on accusation against him. (People v. Pangilinan, 518 SCRA
appeal (People v. Serzo, Jr., G.R. No. 118435, June 20, 1997). 358, March 14, 2007).
Q: An affidavit was made by the accused without the Arraignment is the proceeding in a criminal case, whose
presence of counsel during preliminary investigation, object is to fix the identity of the accused, to inform him of
admitting the commission of a crime. When presented the charge and to give him an opportunity to plead, or to
during trial as evidence, the accused objected claiming obtain from the accused his answer, in other words, his
that there was a violation of his right to a competent and plea to the information.
independent counsel. Is the accused correct?
Note: The purpose of arraignment is, thus, to apprise the accused
A: No. The constitutional right to a competent and of the possible loss of freedom, even of his life, depending on the
independent counsel exists only in custodial interrogations, nature of the crime imputed to him, or at the very least to inform
or in-custody interrogation of accused persons. A him of why the prosecuting arm of the State is mobilized against
preliminary investigation is an inquiry or a proceeding to him. (Borja v. Mendoza, 77 SCRA 422).
A: Arraignment is made: Note: In case the offended party fails to appear despite due notice,
1. In open court where the complaint or information the court may allow the accused to enter a plea of guilty to a lesser
has been filed or assigned for trial; offense which is necessarily included in the offense charged with
2. By the judge or clerk of court; the conformity of the trial prosecutor alone (Section 1(f), Rule 116).
3. By furnishing the accused with a copy of the complaint
or information; Q: What are the different rules on arraignment?
4. Reading it in a language or dialect known to the
accused; (People v. Albert 251 SCRA 136). A:
5. Asking accused whether he pleads guilty or not guilty 1. Trial in absentia may be conducted only after valid
(Sec.1(a), Rule 116); arraignment.
6. Both arraignment and plea shall be made of record 2. Accused must personally appear during arraignment
but failure to enter of record shall not affect the and enter his plea (counsel cannot enter plea for
validity of the proceedings (Sec. 1(b), Rule 116). accused)
3. Accused is presumed to have been validly arraigned in
Note: The accused must be arraigned before the court where the the absence of proof to the contrary.
complaint or information was filed or assigned for trial (Sec. 1(a)). 4. Generally, judgment is void if accused has not been
validly arraigned.
Q: When is arraignment made? 6. If accused went into trial without being arraigned,
subsequent arraignment will cure the error provided
A: GR: Under the Rules of Court, the arraignment shall be that the accused was able to present evidence and
made within thirty (30) days from the date the court cross examine the witnesses of the prosecution during
acquires jurisdiction over the person of the accused. trial.
(Section 1(g), Rule 116).
XPNs:
1. When an accused is under preventive detention,
his case should be raffled within 3 days from filing
and accused shall be arraigned within 10 days WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED
from receipt by the judge of the records of the
case (RA 8493 Speedy Trial Act) Q: When should a plea of NOT guilty be entered?
XPN to the XPN: If what the accused would prove is an A: To determine the voluntariness of the plea and whether
exempting circumstance, it would amount to a withdrawal the accused understood fully the consequence of his plea.
of his plea of not guilty.
Q: What is the meaning of the duty of the judge to
Note: For non-capital offenses, the reception of evidence is merely conduct a searching inquiry?
discretionary on the part of the court (Sec. 4). If the information or
complaint is sufficient for the judge to render judgment on a non- A: In all cases, the judge must convince himself that:
capital offense, he may do so. But if the case involves a capital 1. The accused is entering the plea voluntarily and
offense, the reception of evidence to prove the guilt and degree of intelligently;
culpability of the accused is mandatory in which case, the accused
2. There exists a rational basis for finding of guilt based
may present evidence in his behalf and the court shall conduct a
searching inquiry into the voluntariness and full comprehension of on accuseds testimony
the consequences of his plea (Sec. 3, Rule 116). 3. Inform the accused of the exact length of
imprisonment and the certainty that he will serve it in
Q: What is the duty of the court after the accused pleads a national penitentiary
guilty to a capital offense?
Note: The case of People v. Pastor (379 SCRA 181) provided the
following as guidelines on how judges must conduct a searching
A: When the accused pleads guilty to a capital offense, the
inquiry:
court shall: 1. Ascertain from the accused himself (1) how he was
1. Conduct a searching inquiry into the: brought into custody of the law; (2) whether he had the
a. Voluntariness of the plea, and assistance of a competent counsel during the custodial
b. Full comprehension of the consequences of the and preliminary investigations; and (3) under what
plea; conditions he was detained and interrogated during the
2. Require the prosecution to prove guilt and the precise investigations.
degree of his culpability; 2. Ask the defense counsel a series of questions as to
whether he had conferred with, and completely
3. Ask the accused if he desires to present evidence in his
explained to, the accused the meaning and
behalf and allow him to do so if he desires. However, consequences of a plea of guilty.
the defendant after pleading guilty may not present 3. Elicit information about the personality profile of the
evidence as would exonerate him completely from accused.
criminal liability such as proof of self-defense. 4. Inform the accused of the exact length of imprisonment
or nature of the penalty under the law and the certainty
Note: This procedure is mandatory, and a judge who fails to that he will serve such sentence.
observe it commits grave abuse of discretion. The reason for this 5. Inquire if the accused knows the crime with which he is
strictness is to assure that the State makes no mistake in taking life charged and fully explain to him the elements of the
except the life of the guilty. (People v. Diaz, 254 SCRA 735). crime.
6. All questions posed to the accused should be in a
Q: Why is the presentation of evidence required after the language known and understood by the latter.
7. The trial judge must satisfy himself that the accused is
plea of guilty?
truly guilty.
A: To preclude any room for reasonable doubt in the mind Q: Crisanto is charged with murder. At his arraignment the
of either the trial court or of the Supreme Court, on review, prosecution witnesses appeared in court together with
as to the possibility that there might have been the heirs of the victim. Realizing the gravity of the offense
misunderstanding on the part of the accused as to the and the number of witnesses against him Crisanto
nature of the charges to which he pleaded guilty; and to consulted his counsel de officio who explained to him the
ascertain the circumstances attendant to the commission of nature of the charge and the consequences of his plea.
the crime which justify or require the exercise of greater or Crisanto then manifested his readiness for arraignment.
lesser degree of severity in the imposition of prescribed The information was read to him in a language he clearly
penalties (People v. Basa, 51 SCRA 317). understood after which he pleaded guilty. To be sure, the
judge forthwith asked him if he indeed fully understood
the implications of his plea and Crisanto readily and
Q: May the plea of guilty be collaterally attacked? without hesitation answered in the affirmative. The judge,
fully convinced that the plea of the accused was made
2. Suppose Crisanto with the assistance of counsel waives Q: Enumerate the instances of improvident plea.
the presentation of evidence by the prosecution saying
that, after all, he has already entered his plea, may the A:
court insist on the presentation of the evidence for the 1. Plea of guilty was compelled by violence or
prosecution? Explain. intimidation;
2. The accused did not fully understand the meaning and
3. Suppose upon plea bargaining Crisanto decides to plead consequences of his plea;
guilty to the lesser offense of homicide, may the court 3. Insufficient information to sustain conviction of the
still require presentation of evidence? Explain. offense charged;
4. Information does not charge an offense; or
4. After the information was read to Crisanto upon 5. Court has no jurisdiction.
arraignment and he pleaded guilty to the charge but the
facts did not sufficiently constitute an offense, did his Q: When may an improvident plea be withdrawn?
plea of guilt which has already been entered in the
records, have the effect of supplying what was not A: The court may permit an improvident plea of guilty to be
alleged in the information to complete the elements of withdrawn, at any time before the judgment of conviction
the offense to justify his conviction? Explain. (1995 Bar becomes final, and be substituted by a plea of not guilty.
Examination)
Note: The withdrawal of a plea of guilty is not a matter of right to
A: the accused but addressed to the sound discretion to the trial court
1. The judge erred in pronouncing sentence on the (Sec. 5, Rule 116).
accused without previously conducting a searching
inquiry into the voluntariness and full comprehension Q: What is the effect of such withdrawal?
of the consequences of the plea of guilty and requiring
the prosecution to prove the guilt and the precise A: The court shall set aside the judgment of conviction and
degree of culpability. (Sec. 3, Rule 116) re-open the case for new trial.
2. Yes, in accordance with the above rule GROUNDS FOR SUSPENSION OF ARRAIGNMENT
Q: What are the instances where there is an unauthorized Note: The death of the offended party before final
filing of information? conviction will not abate prosecution where the
offense charged is one against the State involving
A: peace and order as well as in private crimes (People v.
1. Officer filing is irregularly appointed. It does not Misola, G.R. No. L-3606, Dec. 29, 1950).
necessarily invalidate the information if such officer
may be considered de facto; 2. Service of the sentence;
2. Officer is disqualified from appointment to such 3. Amnesty, which completely extinguishes the penalty
position. The information is invalid and the court does and all its effects;
not acquire jurisdiction to try the accused thereon 4. Absolute pardon;
(Villa vs. Banez, G.R. No. L-4313, March 20, 1951); 5. Prescription of the crime;
3. Officer filed the information without the approval 6. Prescription of the penalty; and
by the head / Chief prosecutor (Sec. 4, Rule 112); 7. The marriage of the offended woman, as provided in
4. Information is filed without the complaint in Article 344 of the Revised Penal Code.
cases involving private crimes.
Q: Distinguish pardon from amnesty.
Note: An infirmity in the information caused by the lack of
authority of the officer signing it cannot be cured by silence, A:
acquiescence, or even by express consent. An invalid information is Pardon Amnesty
no information at all. No criminal proceeding may prosper
therefrom, thus, it is subject to quashal (Romualdez vs. Proclaimed by the
Sandiganbayan, G.R. Nos. 143618-41, July 30, 2002).
President, but it has to
Granted by the Chief
be with the
6. Complaint of Information does not conform to the Executive.
concurrence of
prescribed form
Congress.
Q: What interrupts the period of prescription? Q: When a criminal case is dismissed on nolle prosequi,
can it later be refiled? (2003 Bar Examination)
A: The filing of a complaint or information interrupts the
running of the period of prescription but commences to run A: As a general rule, when a criminal case is dismissed on
again when such proceedings terminate without the nolle prosequi before the accused is place on trial and
accused being convicted or acquitted, or are unjustifiably before he is called on to plead, this is not equivalent to an
stopped for any reason not imputable to him (Article 91, acquittal and does not bar a subsequent prosecution for
Revised Penal Code; People vs. Yamzon, 10 Phil 385). the same offense (Galvez v. Court of Appeals, 237 SCRA
685).
Q: In cases of violation of special laws, when will the
prescriptive period begin to run? 9. That it contains averments, which if true, would
constitute a legal excuse or justification
A: Violation of special law is malum prohibitum, hence, the
applicable statute requires that if violation of special law is Only exempting circumstances constitute a legal excuse or
not known at the time, the prescriptive period begins to run justification. Justifying circumstances such as self-defense
only from the discovery thereof, which includes discovery must be proven.
of the unlawful nature of the constitutive acts which
requires the evidence to be shown. (People v. Duque, G.R. 10. Double Jeopardy
No. 100285, Aug. 18, 1992)
DISTINGUISHED FROM DEMURRER TO EVIDENCE then the court should order the prosecution to file
another information or an amendment thereof, as the
MOTION TO QUASH DEMURRER TO
A: GR: An order sustaining the motion to quash is not a bar A: No. A person convicted by a court-martial cannot, for the
to another prosecution for the same offense. same offense, be prosecuted again the civil court. A court
martial is a court, and the prosecution of an accused before
XPNs: it is criminal, not administrative; thus it would be, under
1. Double jeopardy; or certain conditions, a bar to another prosecution of the
2. Criminal liability is extinguished (Sec. 6, Rule 117). defendant for the same offense, because the latter would
place the accused in double jeopardy (Marcos vs. Chief of
DOUBLE JEOPARDY (RES JUDICATA IN PRISON GREY) Staff, 89 Phil. 477).
It means that when a person is charged with an offense and Q: Is there double jeopardy when the complaint or
the case is terminated either by acquittal or conviction or in information was dismissed before the defendant has been
any other manner without the consent of the accused, the arraigned and had pleaded thereto?
latter cannot again be charged with the same or identical
offense. A: No. The requirement that the accused must have been
arraigned and pleaded to the charge rests upon the idea
Q: What is the purpose of the right against double that it is only from that moment that the issues for trial are
jeopardy? deemed joined. Before that, the accused is not in danger of
being validly convicted (People vs. Apostol, 64 Phil. 676).
A: The purpose is to set the effects of the first prosecution
forever at rest, assuring the accused that he shall not Q: D and E were charged with homicide in one
thereafter be subjected to the danger and anxiety of a information. Before they could be arraigned, the
second charge against him for the same offense (Caes v. prosecution moved to withdraw the information
Intermediate Appellate Court, 179 SCRA 54). It protects the altogether and its motion was granted. Can the
accused not against the peril of second punishment but prosecution re-file the information although this time for
against being tried again. murder? (2002 Bar Question)
Q: What are the kinds of double jeopardy? A: Yes the prosecution can re-file the information for
murder in substitution of the information for homicide
A: because no double jeopardy has as yet attached. (Galvez v.
1. No person shall be put twice in jeopardy for the SAME Court of Appeals, 237 SCRA 685).
OFFENSE.
2. When the act punished by a law and an ordinance, Q: D was charged with slight physical injuries in the MTC.
conviction or acquittal under either shall be a bar to He pleaded not guilty and went to trial. After the
another prosecution for the SAME ACT (Sec. 21, Art. III. prosecution has presented its evidence, the trial court set
1987 Constitution). the continuation of the hearing on another date. On the
date scheduled for hearing, the prosecutor failed to
Q: What are the requirements in order for the first appear, whereupon the court, on motion of D, dismissed
jeopardy to attach? the case. A few minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court reconsidered
A: its order and directed D to present his evidence. Before
1. Competent Court the next date of trial came, however, D moved that the
2. Valid jurisdiction last order be set aside on the ground that the
3. Accused was arraigned reinstatement of the case had placed him twice in
4. Accused pleaded jeopardy. Acceding to this motion, the court again
dismissed the case. The prosecutor then filed an
Q: When does the second jeopardy attach? information in the RTC, charging D with direct assault
based on the same facts alleged in the information for
A: slight physical injuries but with the added allegation that
1. When the accused was acquitted; D inflicted the injuries out of resentment for what the
2. When there is final conviction; complainant had done in the performance of his duties as
3. Dismissal on the merits chairman of the board of election inspectors. D moved to
4. Dismissal without express consent quash the second information on the ground that its filing
had placed him in double jeopardy. How should Ds
Note: The prohibition against double jeopardy refers to the same motion to quash be resolved? (2002 Bar Question)
offense and not to the same act. The offense charged in the two
prosecutions must be the same in law and in fact, because the A: Ds motion to quash should be granted on the ground of
same acts may be violative of two or more provisions of the
double jeopardy because the first offense charged is
criminal law.
necessarily included in the second offense charged.
Although the dismissal of the first case was upon motion of
the accused, double jeopardy attached since the dismissal
A: There is identity between two offenses not only when A: No. The rule on double jeopardy does not apply to a
the second offense is exactly the same as the first, but also controversy where one is an administrative case and the
when the second offense includes or is necessarily included other is criminal in nature (Riano, Criminal Procedure 2011
in the first offense or an attempt or frustration thereof, or p. 487 citing Icasiano v. Sandiganbayan, 209 SCRA 377).
when it necessarily includes or is necessarily included in the
offense charged in the first information. Q: As a result of vehicular mishap, petitioner was charged
before the MTC of two separate offenses in two
Q: When does an offense include or is included in informations:
another? a. reckless imprudence resulting in slight physical
injuries; and
A: An offense charged NECESSARILY INCLUDES the offense b. reckless imprudence resulting in homicide and
proved when some of the essential ingredients or damage to property for the death of the husband of
ingredients of the former as alleged in the complaint or the respondent and damage to the vehicle.
information constitute the latter.
Petitioner pleaded guilty to the first information and was
An offense charged IS NECESSARILY INCLUDED in the punished only be public censure. Invoking such conviction
offense proved when the essential ingredients of the petitioner now moves for the quashal of the other
former constitute or form part of those constituting the information on the ground of double jeopardy. Does
latter. double jeopardy apply to quasi offenses?
Q: What are the exceptions to the identity rule? A: Yes. The two charges arose from the same facts and
were prosecuted under the same provision of the Revised
A: Penal Code, namely Article 365. The doctrine is that
1. The graver offense developed due to supervening facts reckless imprudence under Art. 365 is a single quasi-
arising out of the same act or omission constituting the offense by itself and not merely a means to commit other
former charge. (Sec. 7 (a), Rule 117) crimes. Hence, conviction or acquittal of such quasi offense
2. The facts constituting the graver offense became bars subsequent prosecution for the same quasi offense,
known or were discovered only after a plea was regardless of its various resulting acts (Ivler v. Modesto- San
entered in the former complaint or information. (Sec. Pedro, GR No. 172716, Nov. 17, 2010)
7 (b), Rule 117)
3. The plea of guilty to a lesser offense was made Q: For firing a machine gun which caused panic among the
without the consent of the prosecutor and the people present and physical injuries to one, two separate
offended party (Sec. 7 (c), Rule 117) informations (one for serious public disturbance and the
4. The second offense was not in existence at the time of other for reckless imprudence resulting in physical
the first prosecution for the simple reason that in such injuries) were filed against the accused. As he pleaded
case, there is no possibility for the accused, during the guilty to the charge of reckless imprudence resulting in
first prosecution, to be convicted for an offense that physical injuries, the accused was convicted and
was then inexistent (Melo v. People, 85 Phil 766). sentenced accordingly.
Later, the accused sought to dismiss the charge of serious
Note: In any of the foregoing cases, where the accused satisfies or public disturbance on the ground of double jeopardy. Is
serves in whole or in part the judgment, he shall be credited with there double jeopardy? Why? (1993 Bar Question)
the same in the event of conviction for the graver offense.
A: No, because a case cannot be provisionally dismissed Q: Give the distinctions between a pre-trial in a criminal
except upon the express consent of the accused and with case and a pre-trial in a civil case. (1997 Bar Question)
notice to the offended party.
A:
Q: Before the arraignment for the crime of murder, the Pre-trial in Civil Cases Pre-trial in Criminal Cases
private complainant executed an Affidavit of Desistance Is set when the plaintiff Pre-trial is ordered by the
stating the she was not sure if the accused was the man moves ex parte. court and no motion to set
who killed her husband. The public prosecutor filed a the case for pre-trial is
Motion to Quash the Information on the ground that with required from either the
private complainants desistance, he did not have prosecution or the defense.
evidence sufficient to convict the accused. On 02 January (Sec. 1, Rule 118)
2001, the court without further proceedings granted the The motion to set the case The pre-trial is ordered by
motion and provisionally dismissed the case. The accused for pre-trial is made after the court after arraignment
gave his express consent to the provisional dismissal of the last pleading has been and within 30 days from the
the case. The offended party was notified of the dismissal served and filed. (Sec. 1, date the court acquires
but she refused to give her consent. Rule 18) jurisdiction over the person
of the accused. (Sec. 1 Rule
Subsequently, the private complainant urged the public 118)
prosecutor to refile the murder charge because the Considers the possibility of Does not include the
accused failed to pay the consideration which he had an amicable settlement or considering of the possibility
promised for the execution of the Affidavit of Desistance. compromise of amicable settlement of a
The public prosecutor obliged and refiled the murder criminal liability as one of its
charge against the accused on 01 February 2003. The purpose. (Sec. 1, Rule 118)
accused filed a Motion to Quash the Information on the The agreements and All agreements or
ground that the provisional dismissal of the case had admissions may be admissions made or entered
already become permanent. Was the provisional dismissal contained in the record of during the pre-trial
of the case proper? (2003 Bar Question). pre-trial and pre-trial order. conference shall be reduced
The Minutes of Preliminary in writing and signed by
A: The provisional dismissal of the case was proper because Conference, may be signed both the accused and
the accused gave his express consent thereto and the by either the party or his counsel, otherwise, they
offended party was notified. It was not necessary for the counsel. cannot be used against the
offended party to give her consent thereto (Sec. 8, Rule accused.
117). A pre-trial brief is required A pre-trial brief is not
to be submitted. (Sec. 6, specifically required.
PRE-TRIAL Rule 18)
RULE 118 (Riano, Civil Procedure: A Restatement for the Bar, p. 373,
2009 ed.).
Q: What is the importance of a pre-trial?
Q: What must the order for pre-trial conference contain?
A:
1. It covers not only that period technically defined in A: It must contain orders:
Rule 118 but also that period from filing of the 1. Requiring the private offended party to appear thereat
information up to the actual conduct of trial; for purposes of plea-bargaining and for other matters
2. It encompasses many legal remedies such as the filing requiring his presence;
of Motion to Quash (Rule 117), Motion to Suppress 2. Referring the case to the branch clerk of court, if
Evidence (Sec, 14, Rule 126), Motion for Determination warranted, for a preliminary conference to be set at
of Probable Cause (Rule 126) least three (3) days prior to the pre-trial to mark the
documents or exhibits to be presented by the parties
and copies thereof to be attached to the records after
comparison and to consider other matters as may aid
in its prompt disposition; and
3. Informing the parties that no evidence shall be
allowed to be presented and offered during the trial
MATTERS TO BE CONSIDERED DURING PRE-TRIAL other than those identified and marked during the pre-
trial except when allowed by the court for good cause
Q: When is pre-trial held? shown. In mediatable cases, the judge shall refer the
parties and their counsel to the Philippine Mediation
A: Plea bargaining is the process whereby the accused, the Q: What is the effect if the prosecution and the offended
offended party and the prosecution work out a mutually party agree to the plea offered by the accused?
satisfactory disposition of the case subject to court
approval. It usually involves the defendants pleading guilty A: The court shall:
to a lesser offense or to only one or some of the counts of a 1. issue an order which contains the plea bargaining
multi- count indictment in return for a lighter sentence arrived at;
than that for the graver charge. 2. proceed to receive evidence on the civil aspect of the
case; and
3. render and promulgate judgment of conviction,
including the civil liability or damages duly established
by the evidence (A.M. No. 03-1-09-SC).
Q: When is plea bargaining not applicable? PRE-TRIAL AGREEMENT
A: In violations of the Dangerous Drugs Act regardless of Q: What is pre- trial agreement?
the imposable penalty (Sec. 23, RA 9165).
A: A: Such order shall bind the parties, limit the trial to those
1. They are reduced to writing; matters not disposed of, and control the course of the
2. The pre-trial agreement is signed by the accused AND action during the trial, unless modified by the court to
his counsel prevent manifest injustice. (Sec 4 Rule 118; Sec 5, Speedy
Trial Act of 1998)
The agreements in relation to matters referred to in Section
2, i.e, Plea bargaining, Stipulation of Facts, Marking for Note: To prevent manifest injustice, however, the pre-trial order
Identification of evidence of parties, Waiver of objections to may be modified by the court, upon its own initiative or at the
admissibility of evidence, and Other matters as will promote instance of any party.
a fair and expeditious trial are subject to the approval of
Q: When shall the trial judge issue a pre-trial order and
the court. Provided, that the agreement on the plea of the
what are its contents?
accused to a lesser offense may only be revised, modified,
or annulled by the court when the same is contrary to law,
A: It must be issued within ten (10) days after the
public morals, or public policy (Sec. 3 Speedy Trial Act of
termination of the pre-trial. It shall set forth the following:
1998).
1. Actions taken during the pre-trial conference;
Note: The requirement of Section 2 is intended to safeguard the 2. Facts stipulated;
right of the accused against improvident or unauthorized 3. Admissions made;
agreements or admissions which his counsel may have entered 4. Evidence marked; and
into, or which any person may have ascribe to the accused without 5. Number of witnesses to be presented and the
his knowledge, as he may have waived his presence at the pre-trial schedule of trial (Sec. 4, rule 118).
conference (People vs. Uy, G.R. No. 128046. March 7, 2000).
REFERRAL FOR SOME CASES FOR COURT ANNEXED
NON-APPEARANCE DURING PRE-TRIAL MEDIATION AND JUDICIAL DISPUTE RESOLUTION
(A.M. No, 11-1-6-SC-PHILJA)
Q: What is the effect of non-appearance of counsel for the
accused or the prosecutor during the pre-trial without Q: What is the purpose of Court Annexed Mediation and
valid justification? Judicial Dispute Resolution?
A: Where counsel for the accused or the prosecutor does A: The diversion of pending court cases both to Court-
not appear at the pre-trial conference and does not offer an Annexed Mediation (CAM) and to Judicial Dispute
acceptable excuse for his lack of cooperation, the court Resolution(JDR) is plainly intended to put an end to pending
may impose proper sanctions or penalties. The court may litigation through a compromise agreement of the parties
impose proper sanctions or penalties in the form of and thereby help solve the ever-pressing problem of court
reprimand, fines or imprisonment if he does not offer an docket congestion. It is also intended to empower the
acceptable excuse for his lack of cooperation (Sec. 3, Rule parties to resolve their own disputes and give practical
118; Sec. 5, Speedy Trial Act). effect to the State Policy expressly stated in the ADR Act of
2004 (R.A. No. 9285), to wit:
Q: What is the reason why accused is not included in the
mandatory appearance during pre-trial? to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own
A: The principal reason why the accused is not included in arrangement to resolve disputes. Towards this end, the
the mandatory appearance is the fear that to include him is State shall encourage and actively promote the use of
to violate his constitutional right to remain silent (Section Alternative Dispute Resolution (ADR) as an important
12, par. 1, Article III, 1987 Constitution). means to achieve speedy and impartial justice and de-clog
court dockets.
Note: Unless otherwise required by the court, personal appearance
of the accused at the conference is not indispensible. This is aside
from the consideration that the accused may waive his presence at
all stages of the criminal action, except at the arraignment,
promulgation of judgment or when required to appear for
identification (Regalado, Remedial Law Compendium, Vol. 2, p. Q: What is the judges role in mediation?
541, 2008 ed.).
A: The pre-trial judge will rule on the compromise
PRE-TRIAL ORDER agreement reached through mediation. If court-annexed
A:
A:
Lupon Tagapamayapa
Filing of Case
Non-mediatable
Trial
Mediatable
Decision
Court-annexed mediation
Decision
Appellate
Court
Mediation:
Appeal to
CA
Reaches a Fails
settlement
Decision
First Level Court the lower courts judgment has Q: What is the effect of the referral of the case to CAM
or RTC during the and mediation is been rendered and JDR?
pre-trial stage is conducted just at the lower
referred by the like in Court - courts but has A: The period during which the case is undergoing
presiding judge Annexed been appealed mediation shall be excluded from the regular and
to the Philippine Mediation. If to the CA. mandatory periods for trial and rendition of judgment in
Mediation Center mediation fails ordinary cases and in cases under summary proceedings.
Unit for or the parties
mediation. refuse Q: What is the procedure after the parties reached a
Mediation is mediation, the settlement?
successful if the case goes back
parties enter into to the judge A: If full settlement of the dispute is reached, the parties,
a Compromise who does not assisted by their respective counsels, shall draft the
Agreement, and yet try the case. compromise agreement which shall be submitted to the
the judge renders The judge, court for judgment upon compromise or other appropriate
a decision based acting action.
on this sequentially as
agreement. If it Conciliator, Where compliance is forthwith made, the parties shall
fails or the Neutral instead submit a satisfaction of claims or a mutual
parties refuse to Evaluator and withdrawal of the case and, thereafter, the court shall enter
undergo Mediator or a an order dismissing the case. If partial settlement is
mediation, the combination of reached, the parties shall, with the assistance of counsel,
case goes back to the three, submit the terms thereof for the appropriate action of the
court for trial. attempts to court, without waiting for resolution of the unsettled part.
convince the
parties to settle Q: What will happen if the other party does not comply
their case with the agreement reached?
amicably. If the
parties still A: The court which approved the compromise agreement
refuse to settle, must be informed immediately for it to issue an order to
the case goes comply. Sanctions will be imposed for non-compliance.
back to court for The aggrieved party may also apply for a writ of execution.
trial.
Q: What is the remedy if the case is not resolved during
Q: What is the duration of mediation in the Philippine JDR?
Mediation Center?
A:
A: The Mediator shall have a period of not exceeding thirty 1. MULTIPLE SALA COURT- If the case is not resolved
(30) days to complete the mediation process. Such period during the JDR, the case shall be raffled to another
shall be computed from the date when the parties first branch for the pre- trial proper until judgment.
appeared for the initial conference as stated in the Order to
appear. An extended period of another thirty (30) days may For cases with pending applications for restraining
be granted by the court, upon motion filed by the orders/preliminary injunctions, the judge to whom the
Mediator, with the conformity of the parties. case was raffled shall rule on the said applications.
During the pre-trial stage, the judge refers the case to
Q: May a case be referred to JDR even during trial? CAM, but if the parties do not settle at CAM, the case
will be raffled to another branch for JDR. If the parties
A: Yes. Cases may be referred to JDR even during the trial do not settle at JDR, the case will be returned to the
stage upon written motion of one or both parties indicating branch that ruled on the applications for the pre-trial
willingness to discuss a possible compromise. If the motion proper and up to judgment.
is granted, the trial shall be suspended and the case
referred to JDR, which shall be conducted by another judge 2. SINGLE SALA COURT- Unless otherwise agreed upon as
through raffle in multiple sala courts. provided, the JDR proceedings will be conducted by
the judge of the pair court, if any, otherwise, by the
Q: Can one party refuse mediation? judge of the nearest court as determined by the
concerned Executive Judge. The JDR proceedings shall
A: No. Once the court determines that the case is be conducted at the station where the case was
mediatable, the parties are compelled to appear before the originally filed. The result of the JDR proceedings shall
Philippine Mediation Center (PMC) unit. If the complainant be referred to the court of origin for appropriate
fails to appear for mediation, the case may be dismissed. If action, e.g. approval of the compromise agreement,
the defendant is absent, the court will then decide the case trial, etc.
on the basis of what was presented by the plaintiff alone.
Notwithstanding the foregoing, before the and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No.
commencement of the JDR proceedings, the parties 123872, Jan. 30, 1998).
may file a joint written motion requesting that the
court of origin conduct the JDR proceedings and trial. Q: What is a hearing?
3. FAMILY COURTS- Unless otherwise agreed upon as A: Hearing is not confined to trial, but embraces several
provided below, the JDR proceedings in areas where stages of litigation including the pre- trial stage. A hearing
only one court is designated as a family court, shall be does not necessarily imply the presentation of oral or
conducted by a judge of another branch through documentary evidence in open court but that the parties
raffle. However, if there is another family court in the are afforded an opportunity to be heard (Republic v.
same area, the family court to whom the case was Sandiganbayan, 416 SCRA 133, 2003).
originally raffled shall conduct JDR proceedings and if
no settlement is reached, the other family court shall Q: How must trial proceed?
conduct the pre-trial proper and trial.
A: The trial once commenced, shall continue from day to
Notwithstanding the foregoing, before day as far as practicable until terminated. However, it may
commencement of the JDR proceedings, the parties be postponed for a reasonable period of time for good
may file a joint written motion requesting that the cause. (Sec. 2, Rule 119)
family court to which the case was originally raffled
shall conduct the JDR proceedings and trial. Note: The granting or refusal of an application for continuance or
postponement of the trial lies within the sound discretion of the
court and the discretion will not be interfered with by mandamus
Despite the non-mediatable nature of the principal or by appeal, unless there is grave abuse of discretion.
case, like annulment of marriage, other issues such as
custody of children, support, visitation, property Q: What is the purpose of the continuous trial system?
relations and guardianship, may be referred to CAM
and JDR to limit the issues for trial. A: The purpose of the system is to expedite the decision or
resolution of cases in the trial courts considering the
4. COMMERCIAL, INTELLECTUAL PROPERTY AND mandate of Section 12, Article XVIII of the 1987
ENVIRONMENTAL COURTS- Unless otherwise agreed Constitution. Supreme Court Circular No. 1-89 requires that
upon as provided below, the JDR proceedings in areas the judge shall conduct the trial with utmost dispatch, with
where only one court is designated as judicious exercise of the court's power to control the trial to
commercial/intellectual property/environmental avoid delay and that a strict policy on postponements
court, hereafter referred to as special court, shall be shall be observed.
conducted by another judge through raffle and not by
the judge of the special court. Where settlement is not Note: The SC adopted the continuous trial system as a mode of
reached, the judge of the special court shall be the judicial fact-finding and adjudication conducted with speed and
trial judge. Any incident or motion filed before the pre- dispatch so that trials are held on the scheduled dates without
trial stage shall be dealt with by the special court that postponement, the factual issues for a trial well defined at pre-trial
shall refer the case to CAM. and the whole proceedings terminated and ready for judgment
within ninety (90) days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.
Notwithstanding the foregoing, before
commencement of the JDR proceedings, the parties
Q: Petitioner assails the decision of the Court of Appeals
may file a joint written motion requesting that the
affirming the decision of the trial court in denying his
special courts to which the case was originally raffled
petition for postponement of the trial on account of the
shall conduct the JDR proceedings and trial.
absence of his witnesses to appear during trial. In deciding
the case against petitioner, the Court of Appeals held that
TRIAL
the trial court did not act in grave abuse of its discretion as
RULE 119
the petitioner failed to substantiate his motion for
postponement as required by the Rules. Is the Court of
Q: What is a trial?
Appeals correct?
A: Trial is the examination before a competent tribunal
A: Yes, as it is a well-settled rule that motions for
according to the laws of the land, of facts put in issue in a
postponement are addressed to the sound discretion of the
case for the purpose of determining such issue.
court and this discretion would not be interfered with
unless it has been clearly abused. In order for the absence
After a plea of not guilty is entered, the accused shall have
of a witness to justify the postponement of a trial, the
at least fifteen (15) days to prepare for trial. The trial shall
following must be shown: First, that the witness is really
commence within 30 days from receipt of pre-trial order
material and appears to the court to be so; second, that the
(Sec. 1, Rule 119).
party who applies has been guilty of no neglect; and third,
Note: Denial of right to prepare is reversible error; the proper that the witness can be held at the time to which the trial
remedy from a judgment of conviction under such case is appeal has been deferred, and, incidentally, that no similar
evidence could be obtained. Further, the affidavit should
Q: What are the duties of the Presiding Judge under the Q: In a petition assailing the validity of the order of the
continuous trial system? trial court, the petitioner insists that the judge acted with
grave abuse of discretion when it dismissed the criminal
A: case against the accused on the ground that that the 30-
1. Adhere faithfully to the session hours prescribed by day time limit set by Rule 119 had been breached. It is,
laws; further, claimed by the petitioner that their pending
2. Maintain full control of the proceedings; petition for transfer of venue should interrupt
3. Effectively allocate and use time and court resources proceedings and, therefore, halt the running of the 30-day
to avoid court delays; and time limit. Is the petition meritorious?
4. Continuous trial on a weekly or other short-term trial
calendar at earliest possible time. A: No, as the delay that may be excluded from the time
limit in Sec. 3 of Rule 119 within which trial must
commence are those resulting from proceedings
Q: What are the exclusions in computation of time within concerning the accused. The time involved in the
which trial must commence? proceedings in a petition for transfer of venue can only be
excluded from said time limit if it was the accused who
A: instituted the same. Further, the petition for transfer of
1. Any periods of delay resulting from other proceedings venue cannot interrupt proceedings unless a TRO or writ of
concerning the accused, including but not limited to preliminary injunction has been issued in accordance with
the following: Section 7 of Rule 65 as said petition is akin to a petition for
a. examination of the physical and mental condition certiorari. (Mari vs. Gonzales, G.R. No. 187728, September
of the accused; 12, 2011)
and 15, Rule 119) 3. witnesses can be had at the time to which the trial is
deferred and no similar evidence could be obtained;
and
Q: What is deposition? 4. affidavit showing the existence of the above
circumstances must be filed.
A: It is the testimony of a witness taken upon oral questions
or written interrogatories, in open court, but in pursuance Q: What are the remedies of the accused where a
of a commission to take testimony issued by a court, or prosecuting officer without just cause secures
under a general law or court rule on the subject, and postponements of the trial against his protest beyond a
reduced to writing and duly authenticated and intended to reasonable period of time?
be used in preparation and upon the trial of a civil or
criminal prosecution. A:
1. Mandamus to compel a dismissal of the information;
Q: What are the purposes of taking deposition? or
2. If he is restrained of his liberty, by habeas corpus to
A: obtain his freedom.
1. Greater assistance to the parties in ascertaining the
truth and checking and preventing perjury; TRIAL IN ABSENTIA
2. Provide an effective means of detecting and exposing
false, fraudulent claims and defenses; Q: May a trial proceed in the absence of the accused?
3. Make available in a simple, convenient and
inexpensive way, facts which otherwise could not be A: Yes. Section 14 (2), Article 3 of the Constitution provides
proved except with greater difficulty; that trial may proceed notwithstanding the absence of the
4. Educate the parties in advance of trial as to the real accused provided that he has been duly notified and his
value of their claims and defenses thereby failure to appear is unjustifiable. (Parada v. Veneracion,
encouraging settlements, A.M. No.RTJ-96-1353, March 11, 1997)
5. Expedite litigation;
6. Prevent delay; Q: What are the requisites for trial in absentia?
7. Simplify and narrow the issues; and
8. Expedite and facilitate both preparation for and trial. A:
1. The accused has been arraigned;
Q: How is the trial of several accused conducted? 2. He has been notified of the trial; and
3. His failure to appear is unjustified (Sec. 14(2), Art. III,
A: GR: When two or more persons are jointly charged with 1987 Constitution of the Phiippines; Bernardo v.
an offense, they shall be tried jointly. This rule is so People, 520 SCRA 332, April 4, 2007)
designed as to preclude a wasteful expenditure of judicial
resources and to promote an orderly and expeditious Q: What are the effects of trial in absentia?
disposition of criminal prosecutions.
A: The accused waives the right to present evidence and
XPN: The court, upon motion of the prosecutor or any cross-examine the witnesses against him. The accuseds
of the defendants, may order a separate trial for one or waiver does not mean, however, that the prosecution is
more accused (Sec. 16, Rule 119). deprived of the right to require the presence of the accused
for purposes of identification by the witnesses which is vital
Note: In the interest of justice, a separate trial may be granted for conviction of the accused, except where he
even after the prosecution has finished presenting its evidence in unqualifiedly admits in open court after his arraignment
chief (Joseph v. Villaluz, G.R. No. L-45911, Apr. 11, 1979). If a that he is the person named as defendant in the case on
separate trial is granted, the testimony of one accused imputing
trial.
the crime to his co-accused is not admissible against the latter. In
joint trial, it would be admissible if the latter had an opportunity
for cross-examination.
REQUISITES FOR THE DISCHARGE OF THE ACCUSED TO 3. The testimony of said accused can be substantially
BECOME A STATE WITNESS corroborated in its material points;
A: Any person who has witnessed or has knowledge or The discharged defendant need not be the least guilty;
information on the commission of a crime and has testified all the law requires, in order to discharge an accused
or is testifying or about to testify before any judicial or and to use him as a state witness, is that the defendant
quasi-judicial body, or before any investigating authority, whose exclusion is requested does not appear to be the
may be admitted into the Program, Provided, That: most guilty, not necessarily that he was the least guilty
1. the offense in which his testimony will be used is a (People vs. Faltado, 84 Phil. 89).
grave felony as defined under the Revised Penal Code,
or its equivalent under special laws; 5. Said accused has not at any time been convicted of any
2. his testimony can be substantially corroborated in its offense involving moral turpitude (Sec. 17, Rule 119).
material points;
3. he or any member of his family within the second civil Moral turpitude includes any act done contrary to
degree of consanguinity or affinity is subjected to justice, honesty, modesty or good morals. It is an act of
threats to his life or bodily injury or there is a baseness, vileness, or depravity in the private and social
likelihood that he will be killed, forced, intimidated, duties which a man owes his fellowmen and to society
harassed or corrupted to prevent him from testifying, in general contrary to the accepted and customary rule
or to testify falsely, or evasively, because or on of right and duty between man and woman or conduct
account of his testimony; and contrary to justice, honesty, modesty, or good morals.
4. he is not a law enforcement officer, even if he would
be testifying against the other law enforcement Q: Petitioner claims that the public respondent judge
officers. In such a case, only the immediate members erred when it ordered the discharge of private
of his family may avail themselves of the protection respondents as state witnesses when the latter were
provided for under this Act (Sec. 3, RA 6981). already charged along with the other accused, including
him, before they were admitted to the Witness Protection 2. Evidence adduced in support of the discharge shall
under Rep. Act No. 6981. Petitioner argues that if this automatically form part of the trial (People v. Feliciano,
were to be allowed, the same is tantamount to permitting G.R. No. 136258, Oct. 10, 2001); and
the prosecution to supplant with its own the courts 3. If the court denies the motion to discharge the
exercise of discretion on how a case over which it has accused as State witness, his sworn statement shall be
acquired jurisdiction, will proceed. Is the petition inadmissible in evidence (People v. Feliciano, G.R. No.
meritorious? 136258, Oct. 10, 2001)
may oppose the motion the law pronounced by the court on the action or question
within a non-extendible before it (Sec. 1, Rule 120).
period of five (5) days
from its receipt. REQUISITES OF A JUDGMENT
Note: It is well settled that acquittal, in a criminal case is the civil liability is not extinguished by acquittal where the acquittal
immediately final and executory upon its promulgation, and that is based on reasonable doubt (PNB vs. Catipon, 98 Phil. 286).
accordingly, the State may not seek its review without placing the
accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00- Q: What is the rule regarding a judgment for two or more
1568, February 15, 2001). offenses charged in the complaint or information?
Q: Is there a maximum duration for the courts sentence? A: When two or more offenses are charged in a single
complaint or information but the accused fails to object to
A: Yes. In the service of sentence, the maximum duration of it before trial, the court may convict him of as many
the courts sentence shall not be more than three-fold the offenses as are charged and proved, and impose on him the
length of time corresponding to the most severe of the penalty of each offense, setting out separately the findings
penalties imposed upon the accused, and such maximum of the fact and law in each offense (Sec. 3, Rule 120).
shall in no case exceed forty years.
Note: Failure of the accused to object to the duplicity of offense
CONTENTS OF JUDGMENT charged in the complaint or information, is deemed a waiver
thereof. (Herrera, Vol. IV, p. 882, 2007 ed)
Q: What are the contents of the judgment?
Q: What is the rule regarding a judgment in case of
A: The judgment must state: variance between the offense charged and proved?
1. If of conviction
a. Legal qualification of the offense constituted by A: GR: An accused can be convicted of an offense only
the acts committed by the accused, and the when it is both charged and proved; if it is not charged
aggravating or mitigating circumstances attending although proved, or if it is not proved although charged, the
its commission; accused CANNOT be convicted thereof.
b. Participation of the accused whether as principal,
accomplice or accessory; XPN: Where there is a variance between the offense
c. Penalty imposed upon the accused; and charged in the complaint or information and that
d. Civil liability or damages caused by the wrongful proved AND the offense as charged is included in or is
act or omission unless a separate civil action has necessarily includes the offense proved, the accused
been reserved or waived. (Sec.2, Rule 120) shall be convicted of the offense proved which is
2. If of acquittal included in the offense charged, or of the offense
a. Whether the evidence of the prosecution charged which is included in the offense proved (Sec.
absolutely failed to prove the guilt of the accused 4).
or merely failed to prove his guilt beyond
reasonable doubt; and Note: An accused cannot be convicted of an offense not charged or
b. In either case, the judgment shall determine if the included in the information for this will be in violation of the
act or omission from which the civil liability might constitutional right of the accused to be informed of the nature of
the offense charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).
arise did exist (Sec. 2, Rule 120).
Q: What is the effect of the judgment of conviction upon a
Q: Can the courts impose penalties in the alternative?
minor?
A: No. It is true that under many of the provisions of the
A: The courts shall promulgate the sentence and ascertain
penal law, the court has the discretion or alternative of
any civil liability which the accused may have incurred. The
imposing one or another of different penalties; but
sentence, however, shall be suspended without need of
certainly it cannot be argued that, because the judge has
application pursuant to P.D. 603 or the Child and Youth
the discretion of fixing one or another penalty, he can
Welfare Code. In which case, the child shall have been
impose both in the alternative. He must fix positively and
committed under the care of the DSWD or any other
with certainty the particular penalty (U.S. vs. Chong Ting, 23
accredited government institution until he reaches the age
Phil. 120).
of twenty one (21) or until the court so determines (Sec. 40,
R.A. 9344, Juvenile Justice and Welfare Act of 2006).
PROMULGATION OF JUDGMENT; INSTANCES OF Q: What are the instances when judgment may be
PROMULGATION OF JUDGMENT IN ABSENTIA promulgated even if the accused is not present?
Q: When should a motion for new trial or consideration be newly discovered evidence maybe filed in the appellate
filed? court.
A: It should be filed with the trial court within 15 days from REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON
the promulgation of the judgment. If an appeal has already GROUND OF NEWLY DISCOVERED EVIDENCE
been perfected, a motion for new trial on the ground of
of sound discretion.
Made by the court on Does not require the A: It is a proceeding for review by which the whole case is
motion of the accused consent of the accused; transferred to the higher court for a final determination. It
or at its own instance may be at the instance is not an inherent right of a convicted person. The right of
but with the consent of of either party who can appeal is statutory. Only final judgments and orders are
the accused. thereafter present appealable.
additional evidence.
Q: Who may appeal?
APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES
A: Any party may appeal from a judgment or final order,
Q: What is the effect of filing a motion for new trial or unless the accused will be placed in double jeopardy (Sec. 1,
reconsideration on the period of perfecting an appeal? Rule 122).
A: A fresh period of fifteen (15) days to appeal is counted Q: When should appeal be taken?
from the denial of the motion for reconsideration or new
trial (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005). A: It must be taken within fifteen (15) days from
promulgation of judgment or from notice of final order
Q: Does the fresh period rule apply to criminal cases? appealed from (Sec. 6, Rule122).
A: Yes. The raison dtre for the "fresh period rule" is to EFFECT OF AN APPEAL
standardize the appeal period provided in the Rules and do
away with the confusion as to when the 15-day appeal Q: What is the effect of an appeal?
period should be counted. The Court held in the case of Yu
v. Samson-Tatad, G.R. No. 170979, Feb. 9, 2011 that the A: An appeal in a criminal case opens the whole case for
pronouncement of a fresh period to appeal should review and this includes the review of penalty, indemnity,
equally apply to the period for appeal in criminal cases and the damages involved. Consequently, on appeal, the
under Section 6 of Rule 122, for the following reasons: appellate court may increase the penalty and indemnity of
damages awarded by the trial court although the offended
First, BP 129, as amended, the substantive law on party had not appealed from said award, and the party who
which the Rules of Court is based, makes no distinction sought a review of the decision was the accused.
between the periods to appeal in a civil case and in a
criminal case. Q: What are the modes of appeal that may be taken from
a judgment convicting the accused?
Second, the provisions of Section 3 of Rule 41 of the
1997 Rules of Civil Procedure and Section 6 of Rule 122 A:
of the Revised Rules of Criminal Procedure mean 1. The accused may seek a review of said judgment
exactly the same. There is no substantial difference as regards both criminal and civil actions; or
between the two provisions insofar as legal results are 2. The complainant may appeal only with respect to
concerned the appeal period stops running upon the the civil action either because the lower court has
filing of a motion for new trial or reconsideration and refused or failed to award damages or because the
starts to run again upon receipt of the order denying award made is unsatisfactory to him.
said motion for new trial or reconsideration. It was this
situation that Neypes addressed in civil cases. No WHERE TO APPEAL
reason exists why this situation in criminal cases
cannot be similarly addressed. Q: Where is the appeal taken?
Third, while the Court did not consider in Neypes the A: To the:
ordinary appeal period in criminal cases under Section 1. RTC, in cases decided by the MTC, MTCC, MeTC, or
6, Rule 122 of the Revised Rules of Criminal Procedure MCTC;
since it involved a purely civil case, it did include Rule 2. CA or to the SC in the proper cases provided by law, in
42 of the 1997 Rules of Civil Procedure on petitions for cases decided by the RTC;
review from the RTCs to the Court of Appeals (CA), and 3. SC, in cases decided by the CA (Sec. 2, Rule122).
Rule 45 of the 1997 Rules of Civil Procedure governing
appeals by certiorari to this Court, both of which also Q: May the prosecution appeal a judgment of acquittal?
apply to appeals in criminal cases, as provided by
Section 3 of Rule 122 of the Revised Rules of Criminal A: GR: No, because the accused would be subjected to
Procedure. double jeopardy.
APPEAL XPNs:
RULE 122 1. If the dismissal is made upon motion or with the
express consent of the accused.
Q: What is an appeal?
A:
Appeal to From decision of How taken
RTC MTC 1. File a notice of appeal with the
MTC;
2. Serve a copy of the notice to the
adverse party.
CA RTC 1. File a notice of appeal with the RTC;
1. Exercising its original jurisdiction for 2. Serve a copy of the notice to the
offenses with imposable penalties less than adverse party.
reclusion perpetua or life imprisonment
2. Exercising its appellate jurisdiction File a petition for review under Rule 42.
3. Where the imposable penalty is: 1. File a notice of appeal with the RTC;
a. life imprisonment or reclusion 2. Serve a copy of the notice to the
perpetua; or adverse party.
b. a lesser penalty for offenses
committed on the same occasion or
which arose from the same occurrence
that gave rise to the offense
punishable reclusion perpetua or life
imprisonment
4. Where the imposable penalty is death Automatic review to CA (Sec. 10, Sec.
122)
SC 1. All other appeals except: Petition for review on certiorari via Rule
a. Decision of RTC where the imposable 45
penalty is life imprisonment or
reclusion perpetua or a lesser penalty
for offenses committed on the same
occasion or which arose from the same
occurrence that gave rise to the
offense punishable by reclusion
perpetua or life imprisonment; and
b. Decisions of RTC imposing the penalty
of death.
2. CA Automatic review (Sec. 13, Rule 124)
Q: What are the modes of review recognized by the Rules a. He voluntarily submits to the jurisdiction of the
of Court? court; or
b. He is otherwise arrested within fifteen (15) days
A: from notice of judgment against him.
1. Ordinary appeal;
2. Petition for review; EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
3. Petition for review on certiorari;
4. Automatic appeal. Q: What are the effects of appeal by any of the several
accused?
Q: How is notice of appeal served?
A:
A: GR: Through personal service made upon the adverse 1. An appeal taken by one or more of several accused
party or his counsel. shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
XPN: If personal service cannot be made, through: favorable and applicable to the latter;
1. registered mail; or 2. The appeal of the offended party from the civil aspect
2. by substituted service pursuant to Secs. 7 and 8, shall not affect the criminal aspect of the judgment or
Rule 13 (Sec. 4, Rule122). order appealed from; and
3. By publication, made in a newspaper of general 3. Upon perfection of the appeal, the execution of the
circulation in the vicinity once a week for a period judgment or final order appealed from shall be stayed
not exceeding 30 days. (Pamaran, p.636) as to the appealing party (Sec. 11, Rule122).
Note: The appellee may waive his right to notice of appeal. Note: In People v. Olivo, G.R. No. 177768, July 27, 2009, an accused
However, the appellate court may, in its discretion, entertain an has benefitted from the acquittal of his co-accused despite the
appeal notwithstanding failure to give such notice if the interests formers failure to appeal from the judgment.
of justice so require (Sec. 5, Rule122).
Q: When may appeal be withdrawn?
Q: What is the effect of perfection of appeal with regard
to the jurisdiction of the court? A:
1. An appellant may withdraw his appeal before the
A: Once an appeal in a case, whether civil or criminal, has record has been forwarded by the clerk of court to the
been perfected, the court a quo loses jurisdiction over the proper appellate court as provided by Sec. 8, Rule 122,
case both over the record and over the subject of the case in which case the judgment shall become final (Sec.
(Director of Prisons v. Teodoro, G.R. No. L-9043, July 30, 12).
1955). Failure to serve a copy to the prosecutor is not a 2. The court may also, in its discretion, allow the
defect which can nullify the appeal or prejudice the appellant to withdraw his appeal, provided a motion
unquestionable rights of the accused. to that effect is filed before the rendition of the
judgment in the case on appeal (Sec. 12, Rule122).
Q: What are the effects of failure to prosecute an appeal? GROUNDS FOR DISMISSAL OF APPEAL
1. Failure of the record on appeal to show on its face that A: It is a warrant issued for more than one offense. It is
the appeal was taken within the period fixed by these invalid because it violates the Constitution.
Rules;
2. Failure to file the notice of appeal or the record on Note: There must be strict compliance with the constitutional and
appeal within the period prescribed by these Rules; statutory requirements. Otherwise, it is void. No presumptions of
3. Failure of the appellant to pay the docket and other regularity are to be invoked in aid of the process when an officer
undertakes to justify it (People v. Veloso, G.R. No. 23051, Oct. 20,
lawful fees as provided in section 5 of Rule 40 and
1925). It will always be construed strictly without going the full
section 4 of Rule 41; length of requiring technical accuracy.
4. Unauthorized alterations, omissions or additions in the
approved record on appeal as provided in section 4 of NATURE OF SEARCH WARRANT
Rule 44;
5. Failure of the appellant to serve and file the required It is in the nature of a criminal process and may be invoked
number of copies of his brief of memorandum within only in furtherance of public prosecutions. Search warrants
the time provided by these Rules; have no relation to civil process or trials and are not
6. Absence of specific assignment of errors in the available to individuals in the course of civil proceedings,
appellants brief, or of page references to the record nor for the maintenance of a mere private right. It is
as required in section 13, paragraphs (a), (c), (d) and (f) interlocutory in character because it leaves something
of Rule 44; more to be done, which is the determination of the guilt of
7. Failure of the appellant to take the necessary steps for the accused.
the correction or completion of the record within the
time limited by the court in its order; DISTINGUISH FROM WARRANT OF ARREST
8. Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders, Warrant of Arrest Search Warrant
circulars, or directives of the court without justifiable
Order directed to the Order in writing in the
cause; and
peace officer to execute name of the People of
9. The fact that the order or judgment appealed from is
the warrant by taking the Philippines signed by
not appealable (Rule 50, Rule122)
the person stated the judge and directed to
therein into custody so the peace officer to
SEARCH AND SEIZURE
that he may be bound to search personal property
RULE 126
answer for the described therein and to
commission of the bring it to court.
Q: What is search warrant?
offense.
Does not become stale. Validity is for 10 days
A: It is an:
only.
1. order in writing issued in the name of the People of
May be served on any To be served only in
the Philippines;
day and at any time of daytime unless the
2. signed by a judge;
day or night. affidavit alleges that the
3. directed to a peace officer, commanding him to search
property is on the person
for personal property described therein; and
or in the place to be
4. bring it before the court (Sec. 1, Rule 126).
searched.
Note: The warrant must name the person upon whom it is to be Searching examination of The judge must
served except in those cases where it contains a descriptio witnesses is not personally conduct an
personae such as will enable the officer to identify the person. The necessary. examination of the
description must be sufficient to indicate clearly the proper person complainant and the
upon whom it is to be served (People v. Veloso GR No L-23051, witnesses.
October 20, 1925). Judge is merely called Examination must be
upon to examine and probing. Not enough to
Q: What is a general warrant? evaluate the report of merely adopt the
the prosecutor and the questions and answers
A: A general warrant is a search warrant which vaguely evidence asked by a previous
describes and does not particularize the personal investigator
properties to be seized without a definite guidelines to the
searching team as to what items might be lawfully seized, Note: In general, the requirements for the issuance of a search
thus giving the officers of the law discretion regarding what warrant are more stringent than the requirements for the issuance
articles they should seize. of a warrant of arrest. The violation of the right to privacy produces
a humiliating effect which cannot be rectified anymore. This is why
Note: A general warrant is not valid as it infringes on the there is no other justification for a search, except a warrant. On the
constitutional mandate requiring particular description of the other hand, in a warrant of arrest, the person to be arrested can
things to be seized. always post bail to prevent the deprivation of liberty.
A: Search is an examination of a mans house or other Thus, the RTC of Manila does not have the authority to
buildings or premises or of his person for the discovery of issue a search warrant for offenses committed in Cavite.
contraband or illicit or stolen property or some evidence of Nonetheless, this case involves a transitory or continuing
guilt to be used in the prosecution of a criminal action for offense of unfair competition.
some offense with which he is charged. Seizure on the
other hand is the physical taking of a thing into custody. Teds imitation of the general appearance of Barneys
goods was done allegedly in Cavite. It sold the goods
APPLICATION FOR SEARCH WARRANT, WHERE FILED allegedly in Metro Manila. The alleged acts would
constitute a transitory or continuing offense. Thus, clearly,
Q: Where should an application for a search warrant be under Sec. 2 (b), Rule 126; Sec. 168, R.A. 8293 and Art. 189
filed? (1), RPC, Barney may apply for a search warrant in any
court where any element of the alleged offense was
A: GR: It should be filed with the court within whose committed, including any of the courts within the NCR
territorial jurisdiction the crime was committed. (Sony Computer Entertainment, Inc. v. Supergreen, Inc., G.R.
No. 161823, Mar. 22, 2007).
XPNs:
1. For compelling reasons, any court within the Q: What are the requisites before a search warrant may
judicial region where the crime was committed if issue?
the place of the commission of the crime is
known, or any court within the judicial region A:
where the warrant shall be enforced 1. It must be issued upon probable cause;
2. However, if the criminal action has been filed, the 2. Probable cause must be determined by the issuing
application shall only be made in the court where judge personally;
the criminal action is pending (Sec. 2, Rule126); 3. The judge must have personally examined, in the form
3. In case of search warrant involving heinous of searching questions and answers, the applicant and
crimes, illegal gambling, illegal possession of his witnesses;
firearms and ammunitions as well as violations of 4. The search warrant must particularly describe or
the Comprehensive Dangerous Drugs Act of 2002, identify the property to be seized as far as the
the Intellectual Property Code, the Anti- Money circumstances will ordinarily allow;
Laundering Act of 2001, the Tariff and Customs 5. The warrant issued must particularly describe the
Code, the Executive judges and whenever they place to be searched and the persons or things to be
are on official leave of absence or are not seized;
physically present in the station, the Vice- Judges 6. It must be in connection with one specific offense;
of RTCs of Manila and Quezon City shall have the 7. The sworn statements together with the affidavits
authority to act on the application filed by the submitted by witnesses must be attached to the
NBI, PNP and the Anti- Crime Task Force (ACTAF) record. (Prudente v. Dayrit, G.R. No. 82870, Dec. 14,
(Administrative Matter No. 99-10-09-SC). 1989)
Note: The application shall be personally endorsed by Note: The warrant must not have been issued more than ten (10)
the heads of such agencies and shall particularly days prior to the search made pursuant thereto.
describe therein the places to be searched and/ or the
property or things to be seized as prescribed in the PROBABLE CAUSE
Rules of Court. The Executive Judges and the Vice-
Exceutive Judges concerned shall issue the warrants if
Q: What is probable cause?
justified, which may be served outside the territorial
jurisdiction of said courts (Sps. Marimla v. People, G.R.
No. 158467, Oct. 16, 2009). A: It refers to the facts and circumstances which could lead
a reasonably discreet and prudent man to believe that an
Q: Barney filed a complaint with the NBI against Ted offense has been committed and that the objects sought in
alleging that the latter was engaged in the reproduction connection with the offense are in the place sought to be
and distribution of counterfeit products originally searched (Burgos v. Chief of Staff, G.R. No. L-65334, Dec.
produced by Barney. Said products, allegedly, was 26, 1984).
produced in Cavite but sold in Manila. Thus, NBI applied
with the RTC of Manila for warrants to search Teds
premises in Cavite. The RTC of Manila issued a search
warrant covering Teds premises at Cavite. The NBI served Q: What is the basis of probable cause?
the search warrants on Teds premises and seized the said
counterfeit products. Thereafter, Ted filed a motion to A: The basis must be the personal knowledge of the
quash the search warrant questioning the propriety of the complainant or the witnesses he may produce and not
venue where the warrant was enforced. Should the based on mere hearsay. The test of sufficiency of a
motion to quash be granted? deposition or affidavit is whether it has been drawn in a
manner that perjury could be charged thereon and the
A: No. As a general rule, search warrants issued by courts affiant be held liable for damage caused.
may be effectuated only within their territorial jurisdiction.
Mere affidavits of the complainant and his witnesses are Note: The warrant must name the person upon whom it is to be
not sufficient. The judge has to take the depositions of the served except in those cases where it contains a descriptio
complainant and the witnesses in writing and attach them personae such as will enable the officer to identify the person. The
description must be sufficient to indicate clearly the proper person
to the record (Mata v. Bayona, G.R. No. L-50720, Mar. 26,
upon whom it is to be served (People v. Veloso, G.R. No. L-23051,
1984). Oct. 20, 1925).
Q: What is the lifetime of a search warrant?
Q: What are the factors to be considered in the
determination of probable cause? A: A warrant is valid for ten (10) days from the date of its
issue. After such time, it is void (Sec. 10). A search warrant
A: can be used only once, thereafter it becomes functus oficio,
1. Time of the application in relation to the alleged except when the search conducted on one day was
offense committed. The nearer the time at which the interrupted, in which case the same may be continued
observation of the offense is alleged to have been under the under the same warrant the following day if not
made, the more reasonable the conclusion of beyond the ten (10) day period.
establishment of probable cause (Asian Surety
Insurance v. Herrera, G.R. No. L-25232, Dec. 20, 1973). Q: What is the rule with respect to the time of making a
2. There must be competent proof of particular acts or search?
specific omissions but only the best evidence under
the circumstances is required (People v. Judge Estrada, A: GR: A search warrant must be served at day time.
G.R. No. 124461, Sept. 26, 1998).
XPN: A search warrant may be made at night when it is
Q: What does the multi-factor balancing test in positively asserted in the affidavit that the property is on
determining probable cause require? the person or in the place ordered to be searched. The
affidavit making such assertion must itself be sufficient as
A: It requires the officer to weigh the manner and intensity to the fact so asserted, for if the same is based upon
of the interference on the right of the people, the gravity of hearsay, the general rule shall apply. A search warrant
the crime committed, and the circumstances attending the conducted at night without direction to that effect is an
incident. unlawful search. The same rule applies where the warrant
left blank the time for making the search.
Q: Does the absence of probable cause on a particular
article invalidate the entire search warrant? Q: What is the knock and announce principle? Discuss.
A: No. Such particular article may be severed from the rest A: It states that officers implementing a search warrant
of the search warrant, provided that the remaining parts must announce their presence, identify themselves to the
meet the requirements of probable cause and particularity. accused and to the persons who rightfully have possession
of the premises to be searched, and show to them the
PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT search warrant to be implemented by them and explain to
AND WITNESS them said warrant in a language or dialect known to and
understood by them. The requirement is not a mere
Q: What are the requisites of personal examination by the procedural formality but is of the essence of the substantial
judge? provision which safeguards individual liberty.
4. those in the premises, aware of the presence of 2. Stolen or embezzled and other proceeds or fruits of
someone outside, are then engaged in activity which the offense; and
justifies the officers to believe that an escape or the 3. Used or intended to be used as the means of
destruction of evidence is being attempted. committing an offense (Sec. 3, Rule126).
Note: The exceptions above are not exclusive or conclusive. There Note: It is not required that the property to be seized should be
is no formula for the determination of reasonableness. Each case is owned by the person against whom the search warrant is directed.
to be decided on its own facts and circumstances (People v. Huang It is sufficient that the person against whom the warrant is directed
Zhen Hua, G.R. No. 139301, Sept. 29, 2004). has control or possession of the property sought to be seized
Q: What are the rules to be observed in case of search of a (Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984).
house or room?
Q: What may be seized during a search incidental to an
A: In order to insure that the execution of the warrant will arrest of a person even without a search warrant?
be fair and reasonable, and in order to insure that the
officer conducting the search shall not exceed his authority A:
or use unnecessary severity in executing the search 1. Dangerous weapons; and
warrant, as well as for the officers own protection against 2. Anything which may be used as proof of the
unjust accusations, it is required that the search be commission of an offense.
conducted in the presence of the:
1. Lawful occupant of the place to be searched; EXCEPTIONS TO SEARCH WARRANT REQUIREMENT
2. Any member of his family;
3. In their absence, in the presence of two (2) witnesses Q: What are instances of a valid warrantless search?
of sufficient age and discretion residing in the same
locality (Sec. 8, Rule126). A:
1. Search incident to lawful arrest This includes
Note: A public officer or employee who exceeds his authority or searching the person who is arrested, in order to find
uses unnecessary severity in executing the warrant is liable under and seize the things connected with the crime as fruits
Art. 129, RPC. or as the means by which it was committed.
PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS Note: Search made without warrant cannot be justified as an
TO BE SEIZED incident of arrest unless the arrest itself was lawful.
Q: What are the tests to determine particularity of the Immediate control test A search incidental to a lawful
place to be searched? warrantless arrest may extend beyond the person
where the exigencies of the situation justify a
A: warrantless search for dangerous weapons and to
1. When the description therein is as specific as the prevent the arrestee from destroying evidence of the
ordinary circumstance will allow (People v. Rubio, GR crime within reach (People v. Musa, G.R. No. 95329,
No L-35500, Oct. 27, 1932); Jan. 27, 1993)
2. When the description express a conclusion of fact, not
of law which the warrant officer may be guided in 2. Consented search (waiver of right) Consent cannot
making the search and seizure; be presumed simply because the accused failed to
3. When the things described therein are limited to those object to the search. To constitute a waiver, the
which bear direct relation to the offense for which the following requisites must concur:
warrant is being issued. a. The right exists;
b. The person involved had knowledge, actual or
Q: What is the purpose of describing with particularity the constructive, of the existence of such rights; and
place to be searched and the persons or things to be c. Actual intention to relinquish such rights (People
seized? v. Burgos, G.R. No. 92739, Aug. 2, 1991).
A: The purpose of the rule is to leave the officers of the law 3. Search of moving vehicle May validly be made
with no discretion regarding what articles they shall seize, without a search warrant because the vessel or aircraft
to the end that unreasonable searches and seizures may can quickly move out of the jurisdiction before such
not be made- that abuses may not be committed (Stonehill warrant could be secured (People v. Lo Ho Wing, G.R.
v. Diokno, G.R. No. L-19550, June 19, 1967). No. 88017, Jan. 21, 1991).
an individuals right against unreasonable search accused moved to suppress the marijuana leaves as
(People v. Vinecario, G.R. No. 141137, Jan. 20, 2004). evidence for the violation of Sec. 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were not covered
In body checks in airports, passengers attempting to by the search warrant. The State justified the seizure of
board an aircraft routinely pass through metal the marijuana leaves under the plain view doctrine.
detectors; their carry-on baggage as well as checked There was no indication of whether the marijuana leaves
luggage are routinely subjected to x-ray scans. Should were discovered and seized before or after the seizure of
these procedures suggest the presence of suspicious the shabu. If you are the judge, how would you rule the
objects, physical searches are conducted to determine motion to suppress? (2008 Bar Question)
what the objects are. There is little question that such
searches are reasonable, given their minimal A: It should be granted. The search warrant violates the
intrusiveness, the gravity of the safety interests constitutional and statutory requirement that should
involved, and the reduced privacy expectations particularly describe the person or things to be seized (Sec.
associated with airline travel. Indeed, travelers are 2, Art. III, 1987 Constitution; Sec. 2, Rule 126). The plain
often notified through airport public address systems, view doctrine cannot be invoked because the marijuana
signs, and notices in their airline tickets that they are leaves were wrapped in newsprint. Besides the marijuana
subject to search and, if any prohibited materials or leaves are not the subject of the search warrant. There was
substances are found, such would be subject to no evidence as to whether the marijuana leaves were
seizure. These announcements place passengers on discovered and seized before or after the seizure of the
notice that ordinary constitutional protections against shabu. If they were discovered after the seizure of the
warrantless searches and seizures do not apply to shabu, then they could not have been seized in plain view.
routine airport procedures (People v. Johnson, G.R. No. The confiscation of the marijuana leaves must not be
138881, Dec. 18, 2000). upheld, hence rendering the same inadmissible in evidence
against the accused.
5. Plain view situation The plain view doctrine
authorizes a search and a seizure without a warrant. REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE
For the doctrine to apply, the following requisites must
be met: Q: Who may question the validity of search and seizure?
a. There must have been a legal presence in
the place where the search is made; A: It can be contested only by the party whose rights have
b. The evidence was discovered inadvertently been impaired thereby, and that the objection to an
by an officer with a right to be where he is; unlawful search and seizure is purely personal and cannot
c. The evidence is immediately apparently be availed by third parties (Stonehill v. Diokno, G.R. L-
illegal; and 19550, June 19, 1967).
d. There is no need for any further search to
obtain the evidence (People v. Concepcion, Q: What are the remedies against an unlawful search?
361 SCRA 540; People v. Sarap, 399 SCRA
503; People v. Go; 411 SCRA 81) A:
1. Motion to quash the search warrant;
6. Stop and frisk situations This is a limited protective 2. Motion to suppress as evidence the objects illegally
search of the outer clothing of a person to determine taken (exclusionary rule any evidence obtained
the presence of weapons. Probable cause is not through unreasonable searches and seizures shall be
required but a genuine reason (not mere suspicion) inadmissible for any purpose in any proceeding);
must exist, in the light of the officers experience and 3. Replevin, if the objects are legally possessed; and
surrounding circumstances, to warrant the belief that 4. Certiorari, where the search warrant is a patent nullity.
the persons has concealed weapons (Malacat v. Court
of Appeals, 283 SCRA 159). Its object is either to: Note: The remedies are alternative. If a motion to quash is denied,
a. determine the identity of a suspicious a motion to suppress cannot be availed consequently. The illegality
individual; or of the search warrant does not call for the return of the things
seized, the possession of which is prohibited by law. However,
b. maintain the status quo momentarily while
those personalties seized in violation of the constitutional
the police officer seeks to obtain more immunity whose possession is not illegal or unlawful per se ought
information. to be returned to their rightful owner or possessor.
Note: The officer may search the outer clothing of the person Q: In what court may a motion to quash search warrant be
in an attempt to discover weapons which might be used to
filed?
assault him (Manalili v. CA, G.R. No. 113447, Oct. 9, 1997).
A:
7. Enforcement of custom laws
1. It may be filed and acted upon only by the court where
the action has been instituted;
Q: The search warrant authorized the seizure of
2. If no criminal action has been instituted, it may be filed
undetermined quantity of shabu. During the service of
in and resolved by the court that issued the search
the search warrant, the raiding team also recovered a kilo
warrant. However, if such court failed to resolve the
of dried marijuana leaves wrapped in newsprint. The
motion and a criminal case is subsequently filed in
Q: What is attachment?
The rules of evidence shall be the same in all courts and in An offer of GR: An offer of
all trials and hearings, except as otherwise provided by law compromise is not an compromise by the
or by the Rules of Court. (Sec. 2, Rule 128) It is therefore admission of any accused may be
guided by the principle of uniformity. liability, and is not received in evidence
admissible in evidence as an implied
Q: In what cases will the Rules on Evidence not apply? against the offeror admission of guilt
(Sec. 27, Rule 130);
A: XPN: There is no
1. Election Cases; admission of guilt in
2. Land Registration; compromises offered
3. Cadastral; in quasi-offenses or
4. Naturalization; those allowed by law
5. Insolvency proceedings; and to be compromised
(Sec. 27, Rule 130);
6. Other cases, except by analogy or in suppletory
The concept of The accused enjoys
character and whenever practicable and convenient
presumption of the constitutional
(Sec. 4, Rule 1, Rules of Court).
innocence does not presumption of
Note: The Rules of Evidence are specifically applicable only in apply (Riano p. 9) innocence
judicial proceedings. In quasi-judicial proceedings, the same apply (Sec. 14, Art. III,
by analogy, or in suppletory character. Constitution of the
Phils.)
Q: Are there vested rights under the Rules of Evidence? The parties attend by The accused attend by
accord. compulsion. (Evidence,
A: No. There are no vested rights in the rules of evidence Francisco 1996, p. 7)
because these are subject to change by the Supreme Court
pursuant to its powers to promulgate rules concerning PROOF VERSUS EVIDENCE
pleading, practice and procedure. Hence, evidence
inadmissible according to the laws in force at the time the Proof Evidence
action was instituted may be admitted if the same is The effect when the The mode and manner
admissible at the time of trial. The change in the rules of requisite quantum of of proving competent
evidence is however, subject to the constitutional limitation evidence of a particular facts in judicial
on the enactment of ex post facto laws. (Francisco, fact has been duly proceedings
Evidence, p. 8, 1996 ed; Riano, Evidence: A Restatement for admitted and given
the Bar, p. 47, 2009 ed) weight (Regalado p. 699)
Q: Is waiver of the Rules of Evidence allowed? The probative effect of The means of proof
evidence (Riano p. 10)
A: Yes. The Rules of Evidence may be waived. When an
otherwise objectionable evidence is not objected to, the FACTUM PROBANS VERSUS FACTUM PROBANDUM
evidence becomes admissible because of waiver. However,
if the rule of evidence waived by the parties has been Q: What is a fact?
established by law on grounds of public policy, the waiver is
void. Accordingly, the waiver of privilege against the A: It is a thing done or existing. Whether a thing was done
disclosure of state secrets is void. (Francisco, Evidence, p. 9, or does not exist, is a question of fact for the court.
1996 ed)
Q: Distinguish factum probans from factum probandum
A:
Factum Probans Factum Probandum
The ultimate fact
The evidentiary fact or
sought to be
EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL the fact by which the
established. The fact in
CASES factum probandum is
issue and to which
to be established.
evidence is directed.
Civil Cases Criminal Cases Materials which
Proposition to be
The party having the The guilt of the establish the
established (Riano p.
burden of proof must accused has to be proposition (Regalado
28)
prove his claim by a proven beyond p. 699)
preponderance of reasonable doubt (Sec. Existent Hypothetical
evidence (Sec. 1, Rule 2, Rule 133);
133); Note: Every evidentiary question involves the relationship between
the factum probandum and factumprobans.
Q: What are the requisites for admissibility of evidence? A: Evidence of a message or a speech by means of radio
broadcast is admissible as evidence when the identity of
A: In order that evidence may be admissible, the two the speaker is established either by the testimony of a
requisites must concur, namely: witness who saw him broadcast his message or speech, or
1. Relevancy such a relation to the fact in issue as to by the witness recognition of the voice of the speaker.
induce belief in its existence or non-existence (Sec. 4 (Francisco, Evidence, p. 13, 1996 ed)
Rule 128).
2. Competency if not excluded by law or by the rules Q: Mark filed a complaint for annulment of marriage
(Sec. 3, Rule 128). against Kris on the ground of lack of marriage license
and/or psychological incapacity. Among the exhibits
Q: What is the test to determine the relevancy and offered by Mark were three cassette tapes of alleged
competency of evidence? telephone conversations between Kris and unidentified
persons, which were obtained without Kris knowledge.
A: Relevancy is determinable by the rules of logic and She submitted her objection but the trial court still
human experience, while competency is determined by the admitted such pieces of evidence. Are the assailed
prevailing exclusionary rules of evidence (Regalado, Vol. II, cassette tapes admissible in evidence?
p704, 2008 ed.).
A: No. The Constitution explicity provides that the privacy
Note: Competence, in relation to evidence in general, refers to the of communication and correspondence shall be inviolable
eligibility of an evidence to be received as such. However, when except upon lawful order of the court, or when public
applied to witness, the term competent refers to his eligibility to safety or order requires otherwise, as prescribed by law.
take the stand and to testify. Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the
Q: What is the doctrine of Fruit of the Poisonous Tree? inadmissibility of the subject tapes is mandatory under R.A.
4200. (Salcedo-Ortanez v. CA, G.R. No. 110662, Aug. 4,
A: Under this exclusionary rule, once the primary source 1994)
(the tree) is shown to have been unlawfully obtained, any
secondary or derivative evidence (the fruit) derived from
it is also inadmissible (People vs. Alicando, 251 SCRA 293).
Q: What are the exempted acts under R.A. 4200?
Q: What are the two axioms of admissibility according to
Wigmore? A:
1. Use of such record or any copies thereof as evidence in
A: any civil, criminal investigation or trial of offenses
1. Axiom of relevancy none but facts having rational mentioned below (par. 2, Sec. 1);
probative value are admissible. 2. Any peace officer authorized by a written order of the
court in cases involving:
It prescribes merely that whatever is presented, as a. Treason;
evidence shall be presented on the hypothesis that it is b. Espionage;
c. Provoking war and disloyalty in cases of war; Q: What is meant by relevance of evidence?
d. Piracy;
e. Mutiny in the high seas; A: Evidence must have such a relation to the fact in issue as
f. Rebellion; to induce belief in its existence or non-existence (Sec. 4,
g. Conspiracy and proposal to commit rebellion; Rule 128).
h. Inciting to rebellion;
i. Sedition Q: Gaston Walangawa was charged with the crime of
j. Conspiracy to commit sedition; statutory rape of a five year old child. Denial was
k. Inciting to sedition; presented as a defense. According to the accused, he
l. Kidnapping as defined by the rpc; cajoled the child while throwing her up and down, his
m. Violations of commonwealth act no. 616 right hand holding the child and his left hand covering her
punishing espionage; and vagina. Upon lifting up the child, his left ring finger was
n. Other offenses against national security. accidentally inserted into the vagina of the child since his
finger was long and the child was not wearing any
3. The provisions of Republic Act No. 4200 to the contrary underwear. Consequently the child began to cry because
notwithstanding, a police or law enforcement official and her vagina began to bleed. However, it was established by
the members of his team may, upon a written order of the the prosecution that the child was wearing shorts at that
Court of Appeals, listen to, intercept and record, with the time. Was the testimony of the accused relevant to the
use of any mode, form, kind or type of electronic or other fact in issue?
surveillance equipment or intercepting and tracking
devices, or with the use of any other suitable ways and A: No. Sec. 4, Rule 128 of the Rules of Court provides that
means for that purpose, any communication, message, "evidence must have such a relation to the fact in issue as
conversation, discussion, or spoken or written words to induce belief in its existence or nor-existence." This
between members of a judicially declared and outlawed simply means that relevancy is determinable by the rules of
terrorist organization, association, or group of persons or of logic and human experience. There is no precise and
any person charged with or suspected of the crime of universal test of relevancy provided by law. The contention
terrorism or conspiracy to commit terrorism. of the accused raises serious doubts to his credibility. He
failed to explain how his finger accidentally came in contact
Provided, That surveillance, interception and recording of with the genitalia of the child, while it was established by
communications between lawyers and clients, doctors and the prosecution that at that time the child was wearing
patients, journalists and their sources and confidential shorts. Even assuming ex gratia argument that she was
business correspondence shall not be authorized. (Sec. 7, panty less, how could it be possible for his finger to
R.A. 9372) penetrate to the vagina for about one-fourth of an inch
when she was in shorts. (People v. Joeral Galleno, G.R. No.
Q: What shall the order allowing a peace officer to make 123546, July 2, 1998)
recordings specify?
Q: What is evidence on collateral matters?
A: It shall specify the following:
1. The identity of the person or persons whose A: These are matters other than the facts in issue and
communications, conversations, discussions, or spoken which are offered as basis for inference as to the existence
words are to be overheard, intercepted, or recorded or non-existence of the facts in issue. This term connotes an
and, in the case of telegraphic or telephonic absence of direct connection between the evidence and the
communications, the telegraph line or the telephone matter in dispute (Regalado, Remedial Law Compendium,
number involved and its location; Vol II, p. 708, 2008 ed.).
2. The identity of the peace officer authorized to
overhear, intercept, or record the communications, Q: Is evidence on collateral matters allowed?
conversations, discussions, or spoken words;
3. The offense or offenses committed or sought to be A: GR: Evidence on collateral matters shall not be allowed
prevented; and
4. The period of the authorization. (Sec. 3) XPN: When it tends in any reasonable degree to
establish the probability or improbability of the fact in
Q: What are the pieces of evidence considered issue (Sec. 4, Rule 128).
inadmissible if obtained in violation of the Anti-Wire
Tapping Law? Note: Collateral matters will be admitted if it has the
tendency to corroborate or supplement facts
A: established previously by direct evidence, or to induce
1. Any communication or spoken word; and belief as to the probability or improbability of a fact in
2. The existence, contents, substance, purport, effect or issue (Riano, Evidence: Bar Lecture Series, p. 69, 2009
meaning of the communication or spoken word or any ed.). What the rules prohibit is evidence of irrelevant
part thereof (Sec. 4, R.A. 4200). collateral facts.
Q: Give the concept of Prospectant collateral matters, requirements of law for its
Concomitant collateral matters, and Retrospectant admissibility therefor. (Regalado,
collateral matters. Remedial Law Compendium, Vol. II,
p.706, 2008 ed.).
A: CONDITIONAL Where the evidence at the time of
PROSPECTANT Are those preceding of the fact in its offer appears to be immaterial
issue but pointing forward to it, or irrelevant unless it is connected
like moral character, motive, with the other facts to be
conspiracy, etc; subsequently proved, such
CONCOMITANT Are those accompanying the fact in evidence may be received on
issue and pointing to it, like alibi, or condition that the other facts will
opportunity and incompatibility; be proved thereafter, otherwise
RETROSPECTANT Are those succeeding the fact in evidence already given will be
issue but pointing backward to it, stricken out, provided further, that
like flight and concealment, there should be no bad faith on the
behavior of the accused upon part of the proponent. (People v.
being arrested, fingerprints or Yatco, etc., et al., 97 Phil 940;
footprints, articles left at the scene Regalado, Remedial Law
of the crime which may identify Compendium, Vol. II, p.705, 2008
the culprit (1 Wigmore 442-43, ed.)
Albano, Remedial Law Reviewer, p.
1199, 2010 ed.). Note: Conditions: (1) to state the
supposed connecting facts and (2)
Q: What is motive? to promise to evidence them later
(Francisco, Evidence, p. 12, 1996
A: It is the moving power which impels one to action for a ed.)
definite result (The Revised Penal Code [Book One] by L. CURATIVE Evidence that is otherwise
Reyes, p.57, 2001 ed.). improper is admitted (despite
objection from the other party) to
Q: When is evidence of motive relevant? contradict improper evidence
presented or introduced by the
A: other party, to cure, contradict or
1. Where the identity of the assailant is in question; neutralize such improper evidence.
2. To determine the voluntariness of the criminal act or (Regalado, Remedial Law
the sanity of the accused; Compendium, Vol. II, p.706, 2008
3. To determine from which side the unlawful aggression ed.)
commenced, as where the accused invoked self-
defense wherein unlawful aggression on the part of his Q: What are the three theories on curative admissibility?
opponent is an essential element;
4. To determine the specific nature of the crime A:
committed; 1. American Rule the admission of such incompetent
5. To determine whether a shooting was intentional or evidence, without objection by the opponent does not
accidental, the fact that the accused had personal justify such opponent in rebutting it by similar
motives to shoot the victim being weighty; and incompetent evidence;
6. Where the accused contends that he acted in defense
of a stranger, since it is essential, for such defense to 2. English Rule if a party has presented inadmissible
prosper, that the accused was not induced by revenge, evidence, the adverse party may resort to similar
resentment or other evil motive (Regalado, Vol. II, pp. inadmissible evidence;
893-894, 2008 ed.).
3. Massachusetts Rule the adverse party may be
MULTIPLE ADMISSIBILITY, CONDITIONAL ADMISSIBILITY, permitted to introduce similar incompetent evidence
CURATIVE ADMISSIBILITY In order to avoid a plain and unfair prejudice cause by
the admission of the other partys evidence (Regalado,
Q: What are the kinds of admissibility of evidence? Remedial Law Compendium, Vol. II, p.706-707, 2008
ed)
A:
MULTIPLE Where the evidence is relevant and Q: What are the factors considered in determining the
competent for two or more application of the rule of curative admissibility?
purposes, such evidence should be
admitted for any or all the A:
purposes for which it is offered 1. Whether the incompetent evidence was seasonably
provided it satisfies all the objected to; and
2. Regardless of the objection, whether the admission of Q: When is negative evidence admissible?
such evidence shall cause a plain and unfair prejudice
to the party against whom it is admitted (Regalado, A: It is admissible only if it tends to contradict positive
Remedial Law Compendium, Vol. II, p.707, 2008 ed.). evidence of the other side or would tend to exclude the
existence of fact sworn to by the other side. (Francisco,
DIRECT AND CIRCUMSTANTIAL EVIDENCE Evidence, p. 2 , 1996 ed)
DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE Note: The rule does not apply where two witnesses with equal
opportunity for knowledge contradict each other as to the
Establishes the Is the proof of facts from
existence or non-existence of fact. (ibid.)
existence of a fact which, taken collectively, the
in issue without existence of the particular
COMPETENT AND CREDIBLE EVIDENCE
the aid of any fact in dispute may be
inference or inferred as a necessary or
COMPETENT CREDIBLE
presumption. probable consequence
Evidence is not excluded Refers to worthiness of
(Regalado, Vol. II, (Francisco, Evidence, p. 2,
by the rules belief (believability)
p.702, 2008 ed.) 1996 ed.)
It is that quality which
renders a witness
Q: When is circumstantial evidence sufficient to convict
worthy of belief
the accused? th
(Blacks, 5 Ed., 330)
A: It is sufficient for conviction if:
Q: Distinguish rules of exclusion from exclusionary rules.
1. There is more than one circumstance;
2. The facts from which the inferences are derived are
A:
proven; and
Rules of Exclusion Exclusionary Rules
3. The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt (Sec. 4, Governed by the rules Commonly used for
Rule 133; People vs Sevilleno, G.R. No. 152954, March on evidence evidence excluded by the
11, 2004). Constitution
e.g. Best Evidence Scope
Q: Is direct proof of previous agreement to commit a Rule, Parol Evidence
crime necessary to prove conspiracy? Rule & Hearsay Rule 1. Right against
unreasonable
A: No. Considering the difficulty in establishing the search and seizure
existence of conspiracy, settled jurisprudence finds no need (Sec. 2)
to prove it by direct evidence (Fernan, Jr. and Torrevillas v. 2. Right to privacy and
People, G.R. No. 145927, Aug. 24, 2007). It may be deduced inviolability of
from the acts of the perpetrators before, during and after communication
the commission of the crime which are indicative of a (Sec. 3)
common design, concerted action and concurrence of 3. Right of a person
sentiments. (Serrano v. CA, G.R. No. 123896, June 25, 2003) under investigation
for an offense (Sec.
POSITIVE AND NEGATIVE EVIDENCE 12)
4. Right against self-
Q: What is positive and negative evidence? incrimination (Sec.
17)
A:
1. Positive when a witness affirms that a certain fact did
or did not occur. It is entitled to greater weight since
the witness represents of his personal knowledge the
presence or absence of a fact.
Note: In Philippine jurisprudence, a positive testimony BURDEN OF PROOF AND BURDEN OF EVIDENCE
normally enjoys more weight than a negative testimony.
(People v. Cerilla, G.R. No. 177147, Nov. 28, 2007) Q: What is burden of proof?
2. Negative when the witness states that he did not see A: It is the duty of a party to present evidence to establish
or know of the occurrence of a fact and there is total his claim or defense by the amount of evidence required by
disclaimer of personal knowledge. Such is admissible law (Sec. 1, Rule 131). It is also called onus probandi. It
only if he has to contradict positive acts of the other means the burden of establishing a case, whether by a
side or would tend to exclude the existence of fact preponderance of evidence, or beyond reasonable doubt,
sworn to by the other side (Regalado, Remedial Law or by substantial evidence (Francisco, Evidence, p. 382,
Compendium, Vol. II, p.703, 2008 ed.). 1996 ed.).
Q: What is meant by burden of evidence? Q: What is the test to determine where the burden of
proof lies?
A: It is the duty of a party to provide evidence at any stage
of the trial until he has established a prima facie case, or A: The test is to ask which party to an action or suit will fail
the like duty of the adverse party to meet and overthrow if he offers no evidence competent to show the facts
that prima facie case thus established. In both civil and averred as the basis for the relief he seeks to obtain. If the
criminal cases, the burden of evidence lies on the party defendant has affirmative defenses, he bears the burden of
who asserts an affirmative allegation (Regalado, Remedial proof as to those defenses which he sets up in answer to
Law Compendium Vol. II, p. 817, 2008 ed.). the plaintiffs cause of action. (Bank of the Philippine Islands
v. Spouses Royeca, G.R. No. 176664, July 21, 2008)
Q: What are the two concepts of burden of proof?
Q: Who has the burden of proof?
A:
1. Burden of evidence (or burden of going forward with A:
the evidence) Partys obligation of producing CIVIL CASE
evidence. Plaintiff Defendant
2. Burden of persuasion The burden of persuading the The plaintiff has the If he raises an
trier of fact that the burdened party is entitled to burden of proving the affirmative defense, i.e
prevail material allegations of avoidance of claim
the complaint, which
Q: Distinguish burden of proof from burden of evidence. are denied by the
(2004 Bar Question) answer.
c. To convict an accused Evidence of guilt beyond burden of going forward with evidence to meet or rebut the
reasonable doubt presumption. (Bautista, Basic Evidence, (2004) at 283 citing
d. Accused claims justifying/exempting Mueller and Kirkpatrick, 3.4.).
circumstances Clear and convincing evidence
Q: What are matters which need not be proved?
Q: Who has the burden of proof if the accused seeks
dismissal under the Speedy Trial Act? A:
1. Facts admitted or not denied provided they have been
A: If the accused is not brought to trial within the time sufficiently alleged (Sec. 11, Rule 8);
required, the Information shall be dismissed upon motion 2. Agreed and admitted facts (Sec. 4, Rule 129);
of the accused. In such a case, the burden of proof of 3. Facts subject to judicial notice and judicial admission
supporting his motion is with the accused (Sec. 13, R.A. (Sec. 3, Rule 129); and
8493). 4. Facts legally presumed (Secs. 2 & 3, Rule 131).
Q: Who has the burden of proof in self-defense? Q: Distinguish presumption from inference.
Q: What is a presumption? A: A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a
A: It is an inference of the existence or non-existence of a fact in issue. One need not introduce evidence to prove the
fact which courts are permitted to draw from the proof of fact for a presumption is prima facie proof of the fact
other facts (In the matter of the Intestate Estates of presumed (Diesel Construction, Inc v. UPSI property
Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006). Holdings, Inc., GR No. 154937, March 24, 2008).
Note: A presumption shifts the burden of going forward with the Q: What are the kinds of presumptions of law?
evidence. It imposes on the party against whom it is directed the
A:
1. Conclusive presumptions (presumptions juris et de Q: What is the basis of Estoppel in pais?
jure)
2. Disputable presumptions (presumptions juris tantum) A: It is founded upon principles of morality and fair dealing
(Rule 131; Regalado Vol. II, pp. 819, 2008 ed.) and is, intended to promote the ends of justice. It always
presupposes error on one side and fault or fraud upon the
CONCLUSIVE PRESUMPTIONS other and some defect of which it would be equitable for
the party against whom the doctrine is asserted to take
Conclusive presumptions are those which are irrebuttable advantage (19 Am. Jur. 640-642; Francisco p. 404).
upon the presentation of the evidence and any evidence
tending to rebut the presumption is not admissible. This Q: What is the effect of estoppel in pais?
presumption is in reality a rule of substantive law (Riano,
Evidence: A Restatement for the Bar, p. 429, 2009 ed.). A: The effect of an estoppel in pais, is to prevent the
assertion of what would otherwise be an unequivocal right
Q: What are the classes of conclusive presumptions? or to preclude what would otherwise be a good defense.
Such estoppel operates always as a shield, never as a
A: sword.
1. Estoppel in pais (Equitable Estoppel) Whenever a
party has, by his own declaration, act or omission, Q: What are the requisites for a party to be estopped?
intentionally and deliberately led another to believe a
particular thing to be true, and to act upon such belief, A:
he cannot, in any litigation arising out of such 1. Conduct amounting to false representation or
declaration, act or omission, be permitted to falsify it concealment of material facts; or at least calculated to
[Sec. 2, (par. a), Rule 131]. convey the impression that the facts are otherwise
than, and inconsistent with, those which the party
2. Estoppel by deed A party to a property deed is subsequently attempts to assert;
precluded from asserting, as against another party to 2. Intent, or at least, expectation, that this conduct shall
the deed, any right or title in derogation of the deed, be acted upon by, or at least influence, the other
or from denying the truth of any material fact asserted party; and
in the deed e.g. The tenant is not permitted to deny 3. Knowledge, actual or constructive, of the real facts
the title of his landlord at the time of the (Riano, Evidence: A Restatement for the Bar, p. 431,
commencement of the relation of landlord and tenant 2009 ed.).
between them [Sec. 2 (par. b), Rule 131]
Q: What are the requisites before estoppel may be
Note: Estoppel may attach even though the landlord claimed?
does not have title at the commencement of the
relations. It may inure in favor of the successor (Golden A:
Horizon Realty Corporation vs. St Chuan, 365 SCRA 593
1. Lack of knowledge and of the means of knowledge of
citing Geminiano vs. CA, 259 SCRA 344). If the title
asserted is one that is alleged to have been acquired the truth as to the facts in question;
subsequent to the commencement of that relation, the 2. Reliance, in good faith, upon the conduct or
presumption will not apply (Santos vs. NSO, G.R. No. statements of the party to be estopped; and
171129 April 6, 2011 citing Herrera, Remedial Law, 3. Action or inaction based thereon of such character as
Volume VI, 1999 Ed., p. 49.). to change the position or status of the party claiming
the estoppel, to his injury, detriment or prejudice.
Q: What is estoppel? (Kalalo v. Luz, G.R. No. L-27782, July 31, 1970)
A: Is a bar which precludes a person from denying or Q: What are the other forms of estoppel akin to estoppel
asserting anything to the contrary of that which has, in in pais?
contemplation of law, been established as the truth, either
by the acts of judicial or legislative officers or by his own A:
deed or representations, either express or implied (a) Estoppel by silence - where a person, who by force of
(Francisco, Evidence, p. 402, 1996 ed.). circumstances is under a duty to another to speak,
refrains from doing so and thereby leads the other to
Q: Distinguish Estoppel from waiver believe in the existence of a state of facts in reliance
on which he acts to his prejudice. Silence may support
A: A waiver is a voluntary and intentional abandonment or an estoppel whether the failure to speak is intentional
relinquishment of a known right. It must be supported by or negligent (Pasion vs. Melegrito, G.R. No. 166558,
an agreement founded upon a valid consideratipn. An March 28, 2007).
equitable estoppel may arise however, in the absence of (b) Estoppel by laches is unreasonable delay to seek or
any intention on the part of the person estopped to to enfore a right at a proper time. A neglect to do
relinquish or change any existing right, and it need not be something which one should do or to seek to enforce a
supported by any consideration, agreement, or legal right at a proper time.
obligation (Francisco, Evidence, p. 402, 1996 ed.).
(c) Promissory estoppel- may arise from the making of a substantially the same motives. When of age and sane, they
promise, even though without consideration, if it was must take care of themselves. Courts operate not because
intended that the promise should be relied upon and one person has been defeated or overcome by another but
because that person has been defeated or overcome illegally.
in fact relied upon, and if a refusal to enforce it would
There must be a violation of the law (Vales v. Villa, G.R. No.
be virtually to sanction the perpetration of fraud or 10028, Dec. 16, 1916).
would result in other injustice.
(d) Estoppel on question of jurisdiction A party is (e) Evidence willfully suppressed would be adverse if
barred from assailing the legality of an order issued at produced.
his own motion since a person cannot be allowed to
take advantage of his own wrong when such would The requisites for the presumption to apply are:
work substantial injury to the other party (21 C.J. 1152, a. The evidence is material;
Francisco, Evidence, p. 407-408, 1996 ed.). b. The party had the opportunity to produce it;
and
Q: What is the reason for the rule on estoppel by deed? c. The evidence is available only to the said
party.
A: The doctrine is founded in public convenience and policy,
because it tends to encourage honesty and good faith The presumption will not be applicable when:
between landlord and tenant. (32 Am. Jur. 109; Francisco p. a. Suppression of evidence is not willful;
412) b. Evidence suppressed or withheld is merely
corroborative or cumulative;
Q: What are the requisites of estoppel by deed? c. Evidence is at the disposal of both parties;
and
A: d. Suppression is by virtue of an exercise of
(a) The recitals should be clear and unambiguous; privilege.
(b) There should be distinct and precise admission of
facts; Note: Failure of the prosecution to present a
(c) The deed must be delivered; and certain witness and to proffer a plausible
(d) That it must be a valid instrument (Francisco, Evidence, explanation does not amount to willful
p. 412, 1996 ed.). suppression of evidence since the prosecutor has
the discretion/prerogative to determine the
DISPUTABLE PRESUMPTIONS witnesses he is going to present (People v.
Jalbuena, G.R. No. 171163, July 4, 2007).
Q: What are disputable presumptions?
(f) Money paid by one to another was due to the latter.
(g) Thing delivered by one to another belonged to the
A: Those which are satisfactory if uncontradicted, but may
latter.
be contradicted and overcome by other evidence (Sec. 3,
(h) Obligation delivered up to the debtor has been paid.
Rule 131).
(i) Prior rents or installments had been paid when a
receipt for the later ones is produced.
(j) A person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and doer of
the whole act; otherwise, that things which a person
Q: What are the disputable presumptions under Section 3
possesses or exercises acts of ownership over, are
of Rule 131?
owned by him.
A: Note: In order to raise the presumption, the following must
(a) A person is innocent of a crime or wrong. be proved:
1. That a crime was committed;
Note: It applies to both civil and criminal cases. 2. That it was committed recently;
Presumption of innocence of the accused accompanies 3. That the stolen property was found in the possession of
him until the rendition of judgment and disappears the defendant; and that the defendant is unable to
after conviction, such that upon appeal, the appellate explain his possession satisfactorily (U.S v. Espia 16 Phil
506).
court will then presume the guilt of the accused. The
prosecutions case must rise and fall on its own merits
(k) That a person in possession of an order for the
and cannot draw strength from the weakness of the
payment of the money, or the delivery of anything, has
defense (People vs. Mingming, G.R. No. 174195, Dec.
paid the money or delivered the thing accordingly;
10, 2008).
(l) Person acting in public office was regularly appointed
or elected to it.
(b) Unlawful act is done with an unlawful intent.
(c) Person intends the ordinary consequences of his
Ratio: It would cause great inconvenience if in the first
voluntary act.
instance strict proof were required of appointment or
(d) Person takes ordinary care of his concerns.
election to office in all cases where it might be
Note: All people are sane and normal and moved by collaterally in issue.
equal.
(dd) If the marriage is terminated and the mother
contracted another marriage within 300 hundred days
after such termination of the former marriage, these
rules shall govern in the absence of proof to the
contrary:
Presumptions of paternity:
a. A child born before 180 days after the
subsequent marriage is conceived during the
former marriage, provided it is born within
300 days after the termination of the former
marriage.
b. A child born after 180 days following the
subsequent marriage is considered to have
been conceived during the subsequent
marriage, even though it be born within the
300 days after the termination of the former
marriage.
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of subsequent marriage 180 days after the 300 days after termination of 1st
1st marriage subsequent marriage marriage
(ee) A thing once proved to exist continues as long as is (jj) Except for purposes of succession, when 2 persons
usual with things of that nature. perish in the same calamity, and it is not shown who
(ff) The law has been obeyed. died first, and there are no particular circumstances
(gg) A printed or published book, purporting to be printed from which it can be inferred, the survivorship is
or published by public authority, was so printed or determined from the probabilities resulting from the
published. strength and age of the sexes, according to the
(hh) A printed or published book, purporting to contain following rules:
reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports Presumed To
First Person Second Person
of such cases. Have Survived
(ii) A trustee or other person whose duty it was to convey < 15 yrs old < 15 yrs old older
real property to a particular person has actually
conveyed it to him when such presumption is > 60 yrs old > 60 yrs old younger
necessary to perfect the title of such person or his < 15 > 60 yrs old < 15
successor in interest. >15 and < 60 >15 and < 60 The male
Q: What is Equipoise Rule or Equiponderance Doctrine and A: It is credible if it is admissible and believable and worthy
cite its constitutional basis? of belief, such that it can be used by the courts in deciding a
case.
A: The doctrine is based on the principle that no one shall
be deprived of life, liberty or property without due process Q: What are the guidelines in the assessment of credibility
of law. (Sec. 1, Art. III, 1987 Constitution) The doctrine of a witness?
refers to a situation where the evidence of the parties are
A:
1. A witness who testified in clear, positive and conviction if found positive and credible (Ceniza-Manantan
convincing manner and remained consistent in cross- v. People, G.R. No. 156248, Aug. 28, 2007).
examination is a credible witness (People v. Comanda,
G.R. No. 175880, July 6, 2007); and Q: What is the Rule on Partial Credibility of a witness?
2. Findings of fact and assessment of credibility of a
witness are matters best left to the trial court that had A: The testimony of a witness may be believed in part and
the front-line opportunity to personally evaluate the disbelieved in another part, depending on the probabilities
demeanor, conduct, and behavior of the witness while and improbabilities of the case (People v. Tan, G.R. No.
testifying (Sps. Paragas v. Heirs of Balacano, G.R. No. 176526, Aug. 8, 2007).
168220, Aug. 31, 2005).
Note: If the testimony of the witness on a material issue is willfully
Q: May the trial courts findings as to the credibility of false and given with an intention to deceive, the court may
witnesses be disturbed on appeal? disregard all the witness testimony. Falsus in uno, falsus in
omnibus (False in one thing, false in everything)(Riano, Evidence: A
Restatement for the Bar, pp. 10, 2009 ed.). This is not a mandatory
A: The trial courts findings of fact will not be disturbed on rule of evidence but is applied by the courts in its discretion. It
appeal, unless there is a clear showing that it plainly deals only with the weight of evidence and not a positive rule of
overlooked matters of substance which, if considered, law. The witnesses false or exaggerated statements on other
might affect the results of the review. The credibility of matters shall not preclude the acceptance of such evidence as is
witnesses is best determined by the trial judge, who has the relieved from any sign of falsehood. The court may accept and
direct opportunity to observe and evaluate their demeanor reject portions of the witness testimony depending on the
on the witness stand (People v. Pacuancuan, G.R. No. inherent credibility thereof (Regalado, Remedial Law, Vol. II, p.
883, 2008 ed.).
144589, June 16, 2003).
Q: What are the requirements for the maxim of falsus in
Q: May the uncorroborated testimony of an accused who
uno, falsus in omnibus to apply?
turned into a State witness suffice to convict his co-
accused?
A:
1. That the false testimony is as to one or more material
A: Yes. It may suffice to convict his co-accused if it is given
points; and
unhesitatingly and in a straightforward manner and is full of
2. That there should be conscious and deliberate
details which by their nature could not have been the result
intention to falsity (People vs. Pacapac, 248 SCRA 77).
of deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may ultimately
Q: What is alibi?
decide the case of the prosecution and the fate of the
accused (People v. Sunga, G.R. No. 126029, Mar. 27, 2003).
A: It is a defense where an accused claims that he was
Note: Requisites to be admitted as a State Witness: somewhere else at the time of the commission of the
a) the offense in which his testimony will be used is a offense. It is one of the weakest defenses an accused may
grave felony as defined under the Revised Penal Code or avail because of the facility with which it can be fabricated,
its equivalent under special laws; just like a mere denial (People v. Esperanza, G.R. Nos.
b) there is absolute necessity for his testimony; 139217-24, June 27, 2003). When this is the defense of the
c) there is no other direct evidence available for the accused, it must be established by positive, clear and
proper prosecution of the offense committed; satisfactory evidence.
d) his testimony can be substantially corroborated on its
material points;
Note: A categorical and positive identification of an accused,
e) he does not appear to be most guilty; and
without any showing of ill-motive on the part of the eyewitness
f) he has not at any time been convicted of any crime
testifying on the matter, prevails over an alibi (People v. Gingos
involving moral turpitude. and Margote, G.R. No. 176632, Sept. 11, 2007). For the defense of
alibi to prosper, the accused must show that:
An accused discharged from an information or criminal 1. He was somewhere else; and
complaint by the court in order that he may be a State 2. It was physically impossible for him to be at the
Witness pursuant to Section 9 and 10 of Rule 119 of the scene of the crime at the time of its commission.
Revised Rules of Court may upon his petition be admitted (People v. Gerones, et.al., G.R. No. L-6595, Oct. 29,
to the Program if he complies with the other requirements 1954)
of this Act. Nothing in this Act shall prevent the discharge of
an accused, so that he can be used as a State Witness under Q: What is Out-of-Court Identification?
Rule 119 of the Revised Rules of Court. (Sec. 10, RA 6981)
A: It is a means of identifying a suspect of a crime and is
Q: Is the testimony of only one witness sufficient to done thru:
convict the accused? 1. Show-ups: where the suspect alone is brought face to
face with the witness for identification;
A: Yes. In determining the sufficiency of evidence, what
Note: Eyewitness identification is often decisive of the
matters is not the number of witnesses but the credibility
conviction or acquittal of an accused. Identification of an
and the nature and quality of their testimonies. The accused through mug shots is one of the established
testimony of a lone witness is sufficient to support a procedures in pinning down criminals. However, to avoid
charges of impermissible suggestion, there should be nothing of corpus delicti. In contrast, an extrajudicial confession
in the photograph that would focus attention on a single made by defendant does not warrant a conviction unless
person. (People v. Villena, G.R. No. 140066, Oct. 14, 2002) corroborated by independent evidence of corpus delicti
(Francisco Evidence, p. 532, 1996 ed.).
2. Mug shots: where photographs are shown to the
witness to identify the suspect; or Q: Jose Mariposa was charged with violation of Sec. 4, Art.
3. Line-ups: where a witness identifies the suspect from a 2 of the Dangerous Drugs Act of 1972. He was
group of persons lined up for the purpose (People v. apprehended thru a buy-bust operation. During trial the
Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, prosecution failed to produce the marijuana sticks that
1995). Mariposa sold during the entrapment operation. Is there a
need to produce the marijuana sticks in order to convict
Note: A police line-up is merely a part of the investigation
the accused?
process by police investigators to ascertain the identity of
offenders or confirm their identification by a witness to the
crime. Police officers are not obliged to assemble a police A: Yes. The elements necessary for a charge of illegal sale of
line-up as a condition sine qua non to prove the identity of an marijuana are: (1) the identity of the buyer and the seller,
offender. If on the basis of the evidence on hand, police the object, and consideration; and (2) the delivery of the
officers are certain of the identity of the offender, they need thing sold and the payment therefore. It is indispensable
not require any police line-up anymore. (Tapdasan, Jr. v. that the identity of the marijuana which constitutes the
People, G.R. No. 141344, Nov. 21, 2002) corpus delicti must be established before the court. During
the trial, the sticks of marijuana were never presented as
Q: When is out-of-court identification admissible and evidence to prove that appellant indeed sold the same
reliable? during the entrapment operation. It is an entrenched rule
in our jurisprudence that indispensable in every
A: It is admissible and reliable when it satisfies the totality prosecution for illegal sale of marijuana, a prohibited drug,
of circumstances test. Under the totality of is the submission of proof that the sale for the illicit drug
circumstances test, the following factors are considered: took place between the poseur-buyer and the seller
1. Witness opportunity to view the criminal at the time thereof, and the presentation further of the marijuana, the
of the crime; corpus delicti, as evidence in court (People v. Rigodon, G.R.
2. Witness degree of attention at that time; No. 111888, Nov. 8, 1994).
3. Accuracy of any prior description given by the witness;
4. Level of certainty demonstrated by the witness at the Q: What is the doctrine of res ipsa loquitur?
identification;
5. Length of time between the crime and the A: It literally means the thing speaks for itself. This doctrine
identification; and provides that the fact of the occurrence of an injury, taken
6. Suggestiveness of the identification procedure (People with the surrounding circumstances, may permit an
v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, inference or raise a presumption of negligence, or make out
1995) a plaintiff's prima facie case, and present a question of fact
for defendant to meet with an explanation. Where the
Q: What is corpus delicti? thing which caused the injury complained of is shown to be
under the management of the defendant or his servants
A: It is the actual commission by someone of the particular and the accident is such as in ordinary course of things does
crime charged. It refers to the fact of the commission of the not happen if those who have its management or control
crime, not to the physical body of the deceased or to the use proper care, it affords reasonable evidence, in the
ashes of a burned building. The corpus delicti may be absence of participation by the defendant, that the
proven by the credible testimony of a sole witness, not accident arose from or was caused by the defendant's want
necessarily by physical evidence (Rimorin v. People, G.R. No. of care (Ramos v. CA, G.R. No. 124354, Dec. 29, 1999).
146481, Apr. 30, 2003).
Q: Does the application of the doctrine dispense with the
Q: What are the elements of corpus delicti? requirement of proof of negligence?
A: It is that state of the case which, after the entire SUBSTANTIAL EVIDENCE
comparison and consideration of all the evidence leaves the
mind of the judge in that condition that he cannot say that That amount of relevant evidence which a reasonable mind
he feels an abiding conviction to a moral certainty of the might accept as adequate to justify a conclusion (Sec. 5,
truth of the charge. (People v. Calma, G.R. No. 127126, Rule 133).
Sept. 17, 1998).
CLEAR AND CONVINCING EVIDENCE
Q: Must the identity of the accused be proved beyond
reasonable doubt? It is that degree of evidence that produces in the mind of
the trier of fact a firm belief or conviction as to allegations
A: Yes. When the identity of the accused is not established sought to be established; It is intermediate, being more
beyond reasonable doubt, acquittal necessarily follows. than preponderance, but not to the extent of such certainty
Conviction for a crime rests on the strength of the as is required beyond reasonable doubt as in criminal cases
prosecutions evidence, never on the weakness of that of th
(Blacks Law Dictionary. 5 ed., 227).
the defense (People vs. Jalon, G.R. No. 93729, Nov. 13,
1992). Q: What are the instances when clear and convincing
evidence is required as quantum of proof?
Note: In every criminal prosecution, the prosecution must prove
two things:
1. The commission of the crime; and
A:
2. The identification of the accused as the perpetrator of 1. Granting or denial of bail in extradition proceedings
the crime. What is needed is positive identification (Government of Hong Kong Special Administrative
made with moral certainty as to the person of the Region v. Olalia, Jr., G.R. No. 153675, April 19, 2005);
offender (People v. Maguing, G.R. No. 144090, June 26, 2. When proving a charge of bias and partiality against a
2003). judge (Rivera v. Mendoza, A.M. No. RTJ-06-2013, Aug.
4, 2006);
PREPONDERANCE OF EVIDENCE 3. When proving fraud (Alonso v. Cebu Country Club, Inc.,
G.R. No. 130876, Dec. 5, 2003)
It is the weight, credit, and value of the aggregate evidence
on either side and is usually considered to be synonymous XPN: Under Art. 1387 of the New Civil Code, certain
with the term greater weight of the evidence or greater alienations of property are presumed fraudulent.
weight of the credible evidence. It is a phrase which, in the
last analysis, means probability of the truth, evidence which 4. When proving forgery (Citibank, N.A. v. Sabeniano, G.R.
is more convincing to the court as worthy of belief than No. 156132, Feb. 6, 2007);
that which is offered in opposition thereto (Philippine 5. When proving ownership over a land in annulment or
Commercial International Bank vs. Balmaceda, 658 SCRA reconveyance of title (Manotok Realty, Inc. v. CLT Realty
33). Development Corp., G.R. No. 123346, Dec. 14, 2007);
6. When invoking self-defense, the onus is on the accused-
Note: However, even if the evidence adduced by the plaintiff appellant to establish by clear and convincing evidence
appears to be stronger than that presented by the defendant, a his justification for the killing (People v. Tomolin, G.R.
judgment cannot be entered in the plaintiffs favor if his evidence
No. 126650, July 28, 1999);
still does not suffice to sustain his cause of action. (Ibid.)
7. When proving the allegation of frame-up and extortion
Q: What are the matters that the court may consider in by police officers in most dangerous drug cases (People
determining whether or not there is preponderance of v. Boco, G.R. No. 129676, June 23, 1999);
evidence? 8. When proving physical impossibility for the accused to
be at the crime scene when using alibi as a defense
A: (People v. Cacayan, G.R. No.180499, July 9, 2008);
1. All the facts and circumstances of the case; 9. When using denial as a defense like in prosecution for
violation of the Dangerous Drugs Act (People v.
2. The witnesses' manner of testifying, their intelligence,
Mustapa, G.R. No. 141244, Feb. 19, 2001);
their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to
which they testify, the probability or improbability of
Q: What is meant by matters of public knowledge? A: Judicial notice of a fact may be taken:
1. During trial;
A: They are those matters coming to the knowledge of men 2. After trial and before judgment; or
generally in the course of ordinary experiences of life, or 3. Appeal.
they may be matters which are generally accepted by
mankind as true and are capable of ready and In all instances, the court may act on its own initiative
unquestioned demonstration. or on request of a party (Sec. 3, Rule 129).
Q: In discretionary judicial notice, when is hearing establishments (Commander Realty, Inc. v. CA, 168 SCRA
necessary? 181)
A: JUDICIAL ADMISSIONS
DURING TRIAL AFTER TRIAL BUT
BEFORE JUDGMENT OR Q: What is judicial admission?
ON APPEAL
The court on its own The proper court, on its A: It is an admission, verbal or written, made by a party in
initiative, or on own initiative or on the course of the proceedings in the same case, which does
request of a party, request of a party, may not require proof (Sec. 4, Rule 129).
may announce its take judicial notice of any
Note: Judicial admissions are conclusive and no evidence is
intention to take matter and allow the
required to prove the same. (Solivio vs. CA, 182 SCRA 119).
judicial notice of any parties to be heard
matter and allow the thereon if such matter is
Q: What are the elements of judicial admission?
parties to be heard decisive of a material
thereon (Sec. 3, Rule issue in the case (ibid).
A:
129).
1. It must be made by a party to the case or his counsel;
2. It must be made in the course of the proceedings in
Note: Hearing is necessary in the foregoing instances to afford the
parties reasonable opportunity to present information relevant to the same case; and
the propriety of taking such judicial notice or the tenor of the 3. It can be verbal or written admission. There is no
matter to be judicially noticed. particular form required. (Regalado, Remedial Law
Compendium, Volume II, p. 836, 2008 ed)
MANDATORY
Q: Distinguish judicial admission from extrajudicial
Q: What is mandatory notice? admission.
3. In other stages of the judicial proceedings, as in pre- document is a forgery because the genuineness of document is
trial (Binarao vs. Plus Builders, Inc., 491 SCRA 49). impliedly admitted. (Acabal v. Acabal, 454 SCRA 555; PNB v.
Refrigeration Industries, Inc, ibid.)
Q: What are the different forms of judicial admission?
Note: When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading as
A: provided by Sec. 7, the genuineness and due execution of the
1. Verbal verbal waiver of proof made in open court, a instrument shall be deemed admitted unless the adverse party,
withdrawal of contention, or disclosure made before under oath, specifically denies them, and sets forth what he claims
the court, or admission made by witness in his to be the facts; but the requirement of an oath does not apply
testimony or deposition; when the adverse party does not appear to be a party to the
2. Writing pleading, bill of particulars, stipulation of instrument or when compliance with an order for an inspection of
the original instrument is refused. (Sec. 8, Rule 8)
facts, request for admission, or a judicial admission
contained in an affidavit used in the case. (31 C.J.S
Q: What is the rule in case of admissions made in
1069; Programme Inc. v. Province of Bataan, GR No.
amended pleadings?
144635, June 26, 2006)
A: Admissions in a pleading which had been withdrawn or
Q: What remedy is available to a party who gave a judicial
superseded by an amended pleading, although filed in the
admission?
same case, are considered as extrajudicial admissions. The
original must be proved by the party who relies thereon by
A:
formally offering it in evidence (Torres v. CA, G.R. Nos. L-
1. Written admission File a motion to withdraw such
37420-21, July 31, 1984). Pleadings that have been
pleading, or any other written instrument containing
amended disappear from the record, lose their status as
such admission.
pleadings and cease to be judicial admissions, and to be
2. Oral admission The counsel may move for the
utilized as extrajudicial admission, they must, in order to
exclusion of such admission.
have such effect, be formally offered in evidence (Ching v.
Court of Appeals 331 SCRA 16).
Q: What are the two ways in which admissions are made
in pleadings?
Q: What is self-serving evidence?
A:
A: It refers to the extrajudicial statement of a party which is
1. Actual Admission when a party categorically admits a
being urged for admission in court (Regalado,Vol. II, p. 755,
material allegation made by the adverse party.
2008 ed.).
2. Implied Admission when the admission is inferred
from the failure to specifically deny the material
Q: Is a guilty plea made by the accused during his
allegations in the other partys pleadings.
arraignment considered as an admission?
Q: What are the rules on admissions made in pleadings
A: No. A plea of guilty entered by the accused may be later
which were not filed with the court?
withdrawn at any time before the judgment of conviction
becomes final. Such plea is not admissible in evidence
A: Admissions made therein are not judicial admissions
against the accused and is not even considered as an
1. If signed by the party litigant himself considered as
extrajudicial admission.
extrajudicial admission.
2. If signed by the counsel not admissible because a
EFFECT OF JUDICIAL ADMISSIONS
counsel only binds his client with respect to
admissions in open court and in pleadings actually filed
Q: What are the consequences of judicial admissions?
with the court (Riano, Evidence, p. 102, 2009 ed.).
A:
Q: What is the effect of an invalid and ineffective denial of
1. A party who judicially admits a fact cannot later
actionable documents attached to the complaint?
challenge that fact as judicial admissions constitute
waiver of proof; production of evidence is dispensed
A: When an action or defense is founded upon an
with (Riano, Evidence: A Restatement for the Bar, p.
actionable document, the genuineness and due execution
110, 2009 ed. Citing Alfelor v. Halasan, G.R. No.
of the same instrument shall be deemed admitted unless it
165987, March 31, 2006);
is specifically denied under oath. The failure to deny the
2. No evidence is needed to prove a judicial admission
genuineness and due execution of said document amounts
and it cannot be contradicted unless it is shown to
to a judicial admission. (PNB v. Refrigeration Industries, Inc.
have been made through palpable mistake or that no
GR No. 156178, Jan. 20, 2006)
such admission was made (Riano, Evidence: A
Note: But the failure to deny the genuineness and due execution of Restatement for the Bar, p. 110, 2009 ed. Citing
an actionable document does not preclude a party from arguing Arroyo, Jr. vs. Taduran, 421 SCRA 423).
against the document by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want of HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
consideration. He is however, precluded from arguing that the
2. RTCs must take judicial notice of ordinances in force in A: No. The appreciation of one judge of the testimony of a
the municipalities within their jurisdiction only: certain witness is not binding on another judge who heard
a. When expressly authorized to do so by the testimony of the same witness on the same matter.
statute; or Each magistrate who hears the testimony of a witness is
b. In case on appeal before them and wherein called upon to make his own appreciation of the evidence.
the inferior court took judicial notice of an It is, therefore, illogical to argue that because one judge
ordinance involved in the same case. made a conclusion in a certain way with respect to one or
more of the accused; it necessarily dictates that the
3. Appellate courts may also take judicial notice of succeeding judge who heard the same case against the
ordinances not only because the lower courts took other accused should automatically make the same
judicial notice thereof but because these are facts conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4,
capable of unquestionable demonstration (Riano, 2000).
Evidence: A Restatement for the Bar, pp. 90-91, 2009
ed.) Q: May judicial notice be taken of the financial condition
of the government?
Q: What are the purposes of authentication of object Q: What does object evidence include?
evidence?
A:
A: 1. Any article or object which may be known or perceived
1. Prevent the introduction of an object different from by the use of the senses;
the one testified about; and 2. Examination of the anatomy of a person or of any
2. Ensure that there have been no significant changes in substance taken therefrom;
the objects condition. 3. Conduct of tests, demonstrations or experiments; and
4. Examination of representative portrayals of the object
Q: What is paraffin test? in question (e.g. maps, diagrams)
5. Documents, if the purpose is to prove their existence
A: A test which can establish the presence or absence of or condition, or the nature of the handwriting thereon
nitrates or nitrites on the hand but the test alone cannot or to determine the age of the paper used, or the
determine whether the source of the nitrates or nitrites blemishes or alterations (Regalado,Vol. II, p. 717, 2008
was discharge of a firearm. ed.).
6. A persons appearance, where relevant (People vs.
Note: The paraffin test is merely corroborative evidence, neither
Rullepa, 398 SCRA 567).
proving nor disproving that a person did indeed fire a gun. The
positive or negative results of the test can be influenced by certain
factors such as the wearing of gloves by the subject, perspiration of Q: May the courts refuse the introduction of object or real
the hands, wind direction, etc., (People v. Buduhan, G.R. 178196, evidence and rely on testimonial evidence alone?
August 6, 2008)
A: Yes, but only if:
Q: Ron was charged with murder for shooting Carlo. After 1. Its exhibition is contrary to public morals or decency;
trial, Ron was found guilty as charged. On appeal, Ron
argued that the trial court should have acquitted him as Note: But if the exhibition of such object is necessary in the
his guilt was not proved beyond reasonable doubt. He interest of justice, it may still be exhibited, and the court may
exclude the public from such view. Such exhibition may not from the [accused]'s own lips, against his will, admission of
be refused if the indecent or immoral objects constitute the his guilt. It does not apply to the instant case where the
very basis of the criminal or civil action. (Moran, p. 73) evidence sought to be excluded is not an incriminating
statement but an object evidence. Infractions on the so-
2. To require its being viewed in court or in ocular called Miranda rights render inadmissible only the
inspection would result in delays, inconvenience, or extrajudicial confession or admission made during custodial
unnecessary expenses which are out of proportion to investigation. The admissibility of other evidence is not
the evidentiary value of such object; affected even if obtained or taken in the course of custodial
3. Such object evidence would be confusing or investigation. Concededly, Thor was not informed of his
misleading, as when the purpose is to prove the rights during the custodial investigation. Neither did he
former condition of the object and there is no execute a written waiver of these rights in accordance with
preliminary showing that there has been no the constitutional prescriptions. Nevertheless, these
substantial change in said condition; or constitutional shortcuts do not affect the admissibility of
4. The testimonial or documentary evidence already the victim's wallet and its contents (People v. Malimit, G.R.
presented clearly portrays the object in question as to No. 109775, Nov. 14, 1996).
render a view thereof unnecessary (Regalado, Vol. II,
p. 716, 2008 ed). CATEGORIES OF OBJECT EVIDENCE
Q: In a criminal case for murder, the prosecution offered Q: What are the categories of object evidence for
as evidence, photographs showing the accused mauling purposes of authentication?
the victim with several of the latters companions. The
person who took the photograph was not presented as a A:
witness. Be that as it may, the prosecution presented the 1. Unique objects those that have readily identifiable
companions of the victim who testified that they were the marks (e.g. a calibre 40 gun with serial number
ones in the photographs. The defense objected to the XXX888)
admissibility of the photographs because the person who 2. Objects made unique those that are made readily
took the photographs was not presented as witness. Is the identifiable (e.g. a bolo knife used to hack a victim
contention of the defense tenable? which could be identified by a witness in court)
3. Non-unique objects those which have no identifying
A: No. Photographs, when presented in evidence, must be marks and cannot be marked (e.g. drops of blood)
identified by the photographer as to its production and (Riano, Evidence: A Restatement for the Bar, p. 148,
testified as to the circumstances under which they were 2009 ed.).
produced. The value of this kind of evidence lies in its being
a correct representation or reproduction of the original, DEMONSTRATIVE EVIDENCE
and its admissibility is determined by its accuracy in
portraying the scene at the time of the crime. Real evidence Demonstrative Evidence
Tangible object that Tangible evidence that
The photographer, however, is not the only witness who played some actual role merely illustrates a
can identify the pictures he has taken. The correctness of in the matter that gave matter of importance in
the photograph as a faithful representation of the object rise to the litigation the litigation
portrayed can be proved prima facie, either by the
Intends to prove that Intends to show that the
testimony of the person who made it or by other
the object is used in the demonstrative object
competent witnesses who can testify to its exactness and
underlying event fairly represents or
accuracy, after which the court can admit it subject to
illustrates a real evidence
impeachment as to its accuracy. Here, the photographs are
admissible as evidence inasmuch as the correctness thereof
Illustration : Where a
was testified to by the companions of the victim (Sison v.
drawing is presented to
People, G.R. Nos. 108280-83, Nov. 16, 1995).
illustrate the relative
positions of the
Q: Appellant Thor was charged with and convicted of the
protagonists and
special complex crime of robbery with homicide by the
witnesses to the killing,
trial court. On his appeal, he asseverates that the
the foundation for
admission as evidence of victim's wallet together with its
demonstrative evidence
contents, violates his right against self-incrimination.
will normally consist of
Likewise, Thor sought for their exclusion because during
the testimony of an
the custodial investigation, wherein he pointed to the
eyewitness or investigator
investigating policemen the place where he hid the
stating that the drawing
victim's wallet, he was not informed of his constitutional
was indeed fairly
rights (Miranda rights). Decide the case.
represents the position of
those present in the event
A: The right against self-incrimination guaranteed under
(Francisco, Evidence, p.
our fundamental law finds no application in this case. This
40, 1996 ed.).
right is simply a prohibition against legal process to extract
VIEW OF AN OBJECT OR SCENE transfer of custody were made in the course of safekeeping
and used in court as evidence and the final disposition (Sec.
Q: When is it proper for the court to go to the place where 1, DDB Reg. No. 1, Series of 2002).
the object in question is and observe it?
Q: What is the rule in case of non-compliance with the A: Is the genetic information derived from DNA testing of a
procedure? biological sample obtained from a person, which biological
sample is clearly identifiable as originating from that person
A: Non-compliance with the procedure shall not render (Sec. 3(d), AM No. 06-11-5-SC).
void and invalid the seizure of and custody of the drugs only
when: Q: What is DNA evidence?
1. Such non-compliance was under justifiable grounds;
and A: It constitutes the totality of the DNA profiles, results and
2. The integrity and the evidentiary value of the seized other genetic information directly generated from DNA
items are properly preserved by the apprehending testing of biological samples (Sec. 3(c), AM No. 06-11-5-SC).
team. (People v. Dela Cruz, G.R. No. 177222, Oct.
29,2008; People v. Rivera, G.R. No. 182347, Oct. 17, Q: What is DNA testing?
2008; Sec. 21 (a), Art. II, IRR of RA 9165).
A: It means verified and credible scientific methods which
Note: What is of utmost importance is the preservation of the include the extraction of DNA from biological samples, the
integrity and evidentiary value of the seized items, as the same generation of DNA profiles and the comparison of the
would be utilized in the determination of the guilt or innocence of information obtained from the DNA testing of biological
the accused. The existence of the dangerous drug is a condition
samples for the purpose of determining, with reasonable
sine qua non for conviction for the illegal sale of dangerous drugs.
The dangerous drug itself constitutes the very corpus delicti of the certainty, whether or not the DNA obtained from two or
crime and the fact of its existence is vital to a judgment of more distinct biological samples originates from the same
conviction. The chain of custody requirement performs the person (direct identification) or if the biological samples
function of ensuring that the integrity and evidentiary value of the originate from related persons (Kinship Analysis) (Sec. 3(e),
seized items are preserved, so much so that unnecessary doubts as AM No. 06-11-5-SC).
to the identity of the evidence are removed (People v. Rivera,
ibid.). Note: The scientific basis of this test comes from the fact that our
differences as individuals are due to the differences in the
Q: When is there a need to establish a chain of custody? composition of our genes. These genes comprise a chemical
substance, the deoxyribonucleic acid or DNA [The Court Systems
A: It is necessary when the object evidence is non-unique as Journal (1999)].
it is not readily identifiable, was not made identifiable or
cannot be made identifiable, e.g. drops of blood or oil, Q: What is the significance of DNA?
drugs in powder form, fiber, grains of sand and similar
objects. (Riano, Evidence: A Restatement for the Bar, p. 149, A: The significance lies in the uniqueness of the totality of
2009 ed) the DNA of a person. It is a scientific fact that the totality of
individuals DNA is unique for the individual, except
RULE ON DNA EVIDENCE identical twins (Sec. 3, AM No. 06-11-5-SC).
(A.M. NO. 06-11-5- SC)
Q: During Alexis trial for rape with murder, the
Q: In what situations does the Rule on DNA Evidence prosecution sought to introduce DNA evidence against
apply? him, based on forensic laboratory matching of the
materials found at the crime scene and Alexis hair and
A: It shall apply whenever DNA evidence is offered, used, or blood samples. Alexis counsel objected, claiming that
proposed to be offered or used as evidence in all criminal DNA evidence is inadmissible because the materials taken
and civil actions as well as special proceedings (Sec. 1, AM from Alexis were in violation of his constitutional right
No. 06-11-5-SC). against self-incrimination as well as his right of privacy
and personal integrity. Should the DNA evidence be
admitted or not? Reason. (2004 Bar Question)
Q: To whom is the post-conviction DNA testing available? Q: What are the things to be considered in evaluating
whether or not the DNA testing methodology is reliable?
A: Post-conviction DNA testing may be available, without
need of prior court order, to the prosecution or any person A:
convicted by final and executory judgment (Sec. 6, Rules on 1. The falsifiability of the principles or methods used,
DNA Evidence). that is, whether the theory or technique can be and
has been tested;
Q: What are the requisites for the applicability of the Post- 2. The subjection to peer review and publication of the
conviction DNA testing? principles or methods;
3. The general acceptance of the principles or methods
A: by the relevant scientific community;
1. Existing biological sample; 4. The existence and maintenance of standards and
2. Such sample is relevant to the case; and controls to ensure the correctness of data generated;
3. The testing would probably result in the reversal or 5. The existence of an appropriate reference population
modification of the judgment of conviction (Sec. 6). database; and
6. The general degree of confidence attributed to
Q: What is the remedy of the convict if the post-conviction mathematical calculations used in comparing DNA
DNA testing result is favorable to him? profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles (Sec. 8)
A: Either the convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin. In case the
court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless
continued detention is justified for a lawful cause (Sec. 10).
The petition shall be filed in the court of origin as a rule.
However, the rule also allows the petition to be filed either
in the CA or in the SC, or with any member of said courts. A DOCUMENTARY EVIDENCE
hearing may be conducted by the latter courts or by any
member thereof or instead of conducting a hearing, may MEANING OF DOCUMENTARY EVIDENCE
instead remand the petition to the court of origin and issue
the appropriate orders (Sec. 10). Q: What is a document?
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE A: A document is a deed, instrument or other duly
AND ADMISSIBILITY notarized paper by which something is proved, evidenced
or set forth.
Q: What should the courts consider in determining the
probative value of DNA evidence?
offered, and the latter fails to produce it after credit card transactions. He was dismissed by the
reasonable notice; Ombudsman. Can photocopies be the basis of his
conviction in the administrative case to establish
Note: Secondary evidence may be presented substantive evidence?
provided that the requisites for its admissibility
are followed: A: In an administrative proceeding, the law does not
require evidence beyond reasonable doubt or
a. The original is in the possession or under the
control of the opponent; preponderance of evidence. Substantial evidence is
b. Demand or notice is made to him by the enough. This presupposes, however, that the evidence
proponent signifying that the document is proffered is admissible under the rules. With respect to
needed; photocopied private documents, the rule is that before it
c. Failure or refusal of opponent to produce can be considered admissible in evidence, its due execution
document in court; and or genuineness should first be shown. Failing in this, the
d. Satisfactory proof of existence of original photocopies are inadmissible in evidence; at the very least,
document (Sec. 6, Rule 130).
it has no probative value. (Office of the Ombudsman, vs.
Manuel P. Valencia, G.R. No. 183890, April 13, 2011)
3. When the original consists of numerous accounts
or other documents which cannot be examined in
Q: What is the reason underlying the adoption of the best
court without great loss of time and the fact
evidence rule? (1998 Bar Question)
sought to be established from them is only the
general result of the whole;
A: There is a need to present to the court the exact words
of a writing where a slight variation of words may mean a
Note: A summary of the documents or a chart may
then be presented as evidence. great difference in rights. It is also for the prevention of
fraud or mistake in the proof of the contents of a writing.
4. When the original is a public record in the custody
of a public officer or is recorded in a public office Q: Why is the best evidence rule often described as a
(Sec. 3, Rule 130). misnomer?
Note: Written official acts, or records of the A: Despite the word best, the rule does not proclaim itself
official acts of the sovereign authority, official as the highest and most reliable evidence in the hierarchy
bodies and tribunals, and public officers, e.g. a of evidence. The term best has nothing to do with the
written foreign law, may be evidenced by: degree of its probative value in relation to other types of
evidentiary rules. It is not intended to mean the most
a. If it is within the Philippines superior evidence. More accurately, it is the original
i. An official publication thereof; or
document rule, or primary evidence rule (Riano, Evidence,
ii. By a copy attested by the officer
having the legal custody of the p. 183, 2009 ed.).
record, or by his deputy.
b. If it is kept in a foreign country Q: What is collateral facts rule?
i. An official publication thereof; or
ii. By a copy attested by the officer A: A document or writing which is merely collateral to the
having the legal custody of the issue involved in the case on trial need not be proved.
record, or by his deputy and Where the purpose of presenting a document is not to
accompanied with a certificate
prove its contents, but merely to give coherence to, or to
that such officer has the custody.
The certificate may be made by a make intelligible the testimony of a witness regarding a fact
secretary of the embassy or contemporaneous to the writing, the original of the
legation, consul general, consul, document need not be presented.
vice consul, or consular agent or
by any officer in the foreign
service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his
office (Sec. 24, Rule 132).
WHEN APPLICABLE
Note: Where the issue is only as to whether such a document was
actually executed, or exists, or on the circumstances relevant to or Q: When is the best evidence rule applicable?
surrounding its execution or delivery (external facts), the best
evidence rule does not apply and testimonial evidence is A: For the best evidence rule to apply, the following
admissible (5 Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78). requisites must concur:
1. The subject matter must involve a document; and
Q: Valencia was charged with dishonesty, it was alleged 2. The subject of the inquiry is the contents of the
that his SALN was not reflective of his actual net worth. In document.
the proceedings with the Office of the Ombudsman, the
evidence that were presented were photocopies of his
Note: When the truth of the document is in issue and not the Q: When Anna loaned a sum of money to Blair, Anna
contents thereof, the best evidence rule will not be applicable. In typed a single copy of the promissory note, which they
such case, it is the hearsay rule that will apply (Riano, Evidence: A both signed. Anna made two photocopies of the
Restatement for the Bar, p. 190, 2009 ed).
promissory note, giving one copy to Blair and retaining the
other copy. Anna entrusted the typewritten copy to his
Q: At a trial for violation of the Dangerous Drugs Act, the
counsel for safekeeping. The copy with Anna's counsel
prosecution offers in evidence a photocopy of the marked
was destroyed when the law office was burned.
P100.00 bills used in the buy-bust operation. The
1. In an action to collect on the promissory note, which
accused objects to the introduction of the photocopy on
is deemed to be the "original" copy for the purpose
the ground that the best evidence rule prohibits the
of the best evidence rule?
introduction of secondary evidence in lieu of the original.
2. Can the photocopies in the hands of the parties be
1. Is the photocopy real (object) evidence or
considered "duplicate original copies"?
documentary evidence?
3. As counsel for Anna, how will you prove the loan
2. Is the photocopy admissible in evidence? (1994 Bar
given by Anna to Blair? (1997 Bar Question)
Question)
A:
A:
1. The copy that was signed and lost is the only "original"
1. It is real (object) evidence, because the contents of the
copy for purposes of the best evidence rule (Sec. 4 [b],
marked bills are not in issue.
Rule 130).
2. Yes, it is admissible in evidence, because the best
2. No, because they are merely photocopies which were
evidence rule does not apply to object or real
not signed (Mahilum v. CA, G.R. No. L-17970, July 10,
evidence. The best evidence rule is inapplicable since
1966). They constitute secondary evidence (Sec. 5,
such secondary evidence is only intended to establish
Rule 130).
the existence of a transaction and not the contents of
the document.
3. It may be proved by secondary evidence through the
photocopies of the promissory note. When the original
MEANING OF ORIGINAL
document is lost or destroyed, or cannot be produced
in court, the offeror, upon proof of its execution or
Q: What is original document?
existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy,
A: There are three concepts of original document:
or by a recital of its contents in some authentic
1. The original of a document is one the contents of
document, or by the testimony of witnesses in the
which are the subject of inquiry;
order stated (Sec. 5, Rule 130).
2. When a document is in two or more copies executed
at or about the same time, with identical contents,
REQUISITES FOR INTRODUCTION OF SECONDARY
including signed carbon copies, all such copies are
EVIDENCE
equally regarded as originals; or
Q: What is secondary evidence?
Note: When carbon sheets are inserted between two
or more sheets of writing paper so that the writing of a
A: Secondary evidence refers to evidence other than the
contract upon the outside sheet, including the
original instrument or documents itself. It is the class of
signature of the party to be charged thereby, produces
evidence that is relevant to the fact in issue, it being first
a facsimile upon the sheets beneath, such signature
shown that the primary evidence of the fact is not
being thus reproduced by the same stroke of pen
obtainable. It performs the same functions as that of
which made the surface or exposed impression, all of
primary evidence (EDSA Shangri-La Hotel and Resort, Inc., v.
the sheets so written on are regarded as duplicate
BF Corporation, GR 145873, June 27, 2008; Francisco, p. 68,
originals and either of them may be introduced in
1992 ed.).
evidence as such without accounting for the
nonproduction of the others (Trans-pacific Industrial Note: All duplicates or counter parts of such document must first
supplies v. CA, G.R. No. 109172 Aug. 19, 1994). be accounted before one can resort to secondary evidence. It must
appear that all of them have been lost or destroyed or cannot be
3. When an entry is repeated in the regular course of produced in court. The non-production of the original document,
business, one being copied from another at or near unless it falls under any of the exceptions in Sec. 3, Rule 130, gives
the time of the transaction, including entries in rise to the presumption of suppression of evidence (De Vera, et al.
journals and ledgers, all the entries are likewise vs. Aguilar, et al. G.R. No. 83377, Feb. 9, 1993).
equally regarded as originals (Sec. 4, Rule 130).
Q: What are the requisites before the contents of the
Note: Writings with identical contents made by printing, original document may be proved by secondary evidence?
mimeographing, lithography and other similar methods
executed at the same time are considered as original A: The offeror must prove the following:
document. Thus, each newspaper sold in the stand is an a. Execution or existence of the original document;
original in itself (Riano, Evidence, p. 202, 2009 ed.). b. The cause of its unavailability; and
c. The unavailability of the original is not due to bad faith Note: The hierarchy of preferred secondary evidence must strictly
on his part. (Sec. 5, Rule 130) followed.
Accordingly, the correct order of proof is as follows: Q: What is definite evidentiary rule?
EXISTENCE, EXECUTION, LOSS, AND CONTENTS. This order
may be changed if necessary at the sound discretion of the A: Where the law specifically provides for the class and
court (Citibank N.A. Mastercard v. Teodoro, G.R. No. quantum of secondary evidence to establish the contents of
150905, Sept. 23, 2003). a document, or bars secondary evidence of a lost
document, such requirement is controlling. E.g. Evidence of
Note: Intentional destruction of the originals by a party who acted a lost notarial will should consist of a testimony of at least
in good faith does not preclude the introduction of secondary two credible witnesses who can clearly and distinctly
evidence of the contents thereof (Regalado, Remedial Law establish its contents. (Sec. 6, Rule 76; Regalado, Remedial
Compendium, Vol II, p. 724, 2008 ed. Or 10th ed.). Law Compendium, Vol II, p. 724, 2008 ed)
Q: How may the due execution of the document be Q: May the presentation or the offer of the original be
proved? waived?
A: It may be proved through the testimony of: A: Yes, if the party against whom the secondary evidence is
1. The person who executed it; offered does not object thereto when the same is offered in
2. The person before whom its execution was evidence, the secondary evidence becomes primary
acknowledged; evidence. But even admitted as primary evidence, its
3. Any person who was present and saw it executed and probative value must still meet the various tests by which
delivered; its reliability is to be determined. Its admissibility should
4. Any person who thereafter saw and recognized the not be confused with its probative value (Heirs of Teodoro
signature; De la Cruz v. CA, G.R. No. 117384, Oct. 21, 1998).
5. One to whom the parties, thereto had previously
confessed the execution thereof; or Q: What facts must be shown by the party offering
6. By evidence of the genuineness of the signature or secondary evidence if the original is in the custody of the
handwriting of the maker (Sec. 20, Rule 132). adverse party?
produce the same within 6 hours from receipt of such 1. The original must consist of numerous accounts or
notice, Lynette failed to do so. Paula presented a copy of other documents;
the note which was executed at the same time as the 2. They cannot be examined in court without great loss
original and with identical contents. Over the objection of of time; and
Lynette, can Paula present a copy of the promissory note 3. The fact sought to be established from them is only
and have it admitted as valid evidence in her favor? Why? the general result of the whole (Sec. 3c, Rule 130)
(2001 Bar Question)
Note: The production of the original writings and their examination
A: Yes. Although the failure of Lynette to produce the in court would result in great loss of time considering that the
original of the note is excusable since she was not given evidence desired from the voluminous accounts is only the general
result of the whole like a summary of the accounts.
reasonable notice, a requirement under the Rules before
secondary evidence may be presented, the copy in
Q: What secondary evidence may be offered in lieu of
possession of Paula is not a secondary evidence but a
document consists of numerous accounts to prove its
duplicate original because it was executed at the same
contents?
time as the original and with identical contents. Hence,
being the best evidence, the rule on secondary evidence
A: A witness may be allowed to offer a summary of a
need not be complied with.
number of documents, or summary of the contents may be
Note: The promissory note is an actionable document and the admitted if documents are so voluminous and intricate as
original or a copy thereof should have been attached to the to make an examination of all of them impracticable. They
complaint (Sec. 7, Rule 8). In such a case, the genuineness and due may also be presented in the form of charts or calculations
execution of the note, if not denied under oath, would be deemed (Riano, Evidence, p. 200, 2009 ed.).
admitted (Sec. 8, Rule 9).
Note: Voluminous records must be made accessible to the adverse
Q: What is the effect of not offering a document in party so that the correctness of the summary of the voluminous
evidence after calling for its production and inspection? records may be tested on cross-examination (Compania Maritima
v. Allied Free Workers Union, et. al, G.R. No. L-28999, May 24,
A: If the party who calls for the production of a document 1977).
does not offer the same in evidence, no unfavorable
inference may be drawn from such failure. This is because a Q: How may the contents of the document be proved
party who calls for the production of a document is not when the original is a public record or in the custody of a
required to offer it (Sec. 8, Rule 130). public officer?
Q: What are the distinctions between the production of A: The contents may be proved by:
documents under Sec. 8, Rule 130 and Rule 27 (mode of 1. A certified copy issued by the public officer in custody
discovery)? thereof (Sec. 7, Rule 130); and
2. Official publication (Herrera, Vol. V, p. 203, 1999 ed.).
A:
Note: Public records are generally not to be removed from the
Sec. 8, Rule 130 Rule 27
places where they are recorded and kept (Sec. 26, Rule 132).
Procured by mere The production of Hence, proof of the contents of a document which forms part of a
notice to the adverse document is in the public record may be done by secondary evidence.
party, which is a nature of a mode of
condition precedent for discovery and can be
the subsequent sought only by proper
introduction of motion in the trial court
secondary evidence by and is permitted only
the proponent. upon good cause shown.
Presupposes that the Contemplates a situation
document to be wherein the document is
produced is intended as either assumed to be
evidence for the favorable to the party in
proponent who is possession thereof or
presumed to have that the party seeking its RULES ON ELECTRONIC EVIDENCE (REE)
knowledge of its production is not A.M. No. 01-7-01-SC
contents. sufficiently informed of
the contents of the SCOPE; COVERAGE; MEANING OF ELECTRONIC EVIDENCE;
same. ELECTRONIC DATA MESSAGE
Q: What are the requisites for the admission of secondary Q: In what cases do the Rules on Electronic Evidence
evidence when the original consists of numerous applies?
accounts?
A: It shall apply to all civil actions and proceedings, as well
A: as quasi-judicial and administrative cases (Sec. 2, Rule 1).
Note: The Supreme Court issued a resolution on Sept. 24, which a right is established or an obligation extinguished, or
2002, which took effect on October 14, 2002, to include by which a fact may be proved and affirmed, which is
criminal proceedings in the coverage of A.M. No. 01-7-01-SC. received, recorded, transmitted, stored, processed,
retrieved or produced electronically. It includes digitally
Note: In the case of Ang v. Court of Appeals, G.R. No. 182835,
April 20, 2010, it held that the rules on electronic evidence is signed documents and any print-out or output, readable by
not applicable to criminal actions. However, the RTC decided sight or other means, which accurately reflects the
the case in 2001. Thus, following the maxim that laws and electronic data message or electronic document (Sec. 1(h),
rules should be interpreted in favor of the accused, the SC did Rule 2, REE).
not apply the amendment which took effect on October
2002. Note: Electronic documents are the functional equivalents of
paper-based documents (Sec. 1, Rule 3, REE).
Q: State the rule on the admissibility of electronic
evidence. Q: What is Electronic Data Message?
A: Whenever a rule of evidence refers to the term writing, A: Electronic data message refers to information generated,
document, record, instrument, memorandum or any other sent, received or stored by electronic, optical or similar
form of writing, such term shall be deemed to include an means (Sec.1 (g), Rule 2, REE).
electronic document as defined in these Rules (Sec. 1 of
Rule 3, REE). An electronic document is admissible in Q: When is electronic evidence regarded as being the
evidence if it complies with the rules on admissibility equivalent of an original document under the best
prescribed by the Rules of Court and related laws and is evidence rule?
authenticated in the manner prescribed by these Rules.
(Sec. 2 of Rule 3,Id.). A: If it is a printout or output readable by sight or other
means, shown to reflect the data accurately (Sec. 1, Rule 4).
Note: The authenticity of any private electronic document must be As to copies equivalent of the originals, electronic evidence
proved by evidence that it had been digitally signed and other is an original document when it is:
appropriate security measures have been applied. (Sec.2 of Rule 5, 1. In 2 or more copies executed at or about the same
Id.)
time with identical contents;
2. A counterpart produced by the same impression as the
Q: What is Electronic Evidence?
original;
3. From the same matrix;
A: It is information stored in electronic form that is
4. By mechanical or electronic re-recording;
relevant to the issues in a particular litigation (Overly).
5. By chemical reproduction; or
6. By other equivalent techniques which accurately
According to Black's Law Dictionary, evidence is "any
reproduces the original (Sec. 2, Rule 4; 2003 Bar
species of proof, or probative matter, legally presented at
Question)
the trial of an issue, by the act of the parties and through
the medium of witnesses, records, documents, exhibits, Note: In all matters not specifically covered by the rules on
concrete objects, etc. for the purpose of inducing belief in evidence, the Rules of Court and pertinent provisions of statutes
the minds of the court or jury as to their contention." containing rules on evidence shall apply. Thus the confidential
Electronic information (like paper) generally is admissible character of a privileged communication is not lost solely on the
into evidence in a legal proceeding. ground that it is in the form of an electronic document. (Sec. 3,
Rule 3, REE)
Q: May a facsimile transmission be considered as
electronic evidence? Q: During the hearing of a case, Jeff, a party litigant
therein, offered as evidence photocopies of documents
A: No. In enacting R.A. 8792 (E-Commerce Act of 2000), with information most of which were originally manually
Congress intended virtual or paperless writings to be the written and signed. The court ordered Jeff to present the
functional equivalent and to have the same legal function original of the documents but he refused to do so. Jeff
as paper-based documents. The terms electronic data argued that the photocopies of documents he presented
message and electronic document, as defined under R.A. are considered as electronic documents and, hence,
8792, do not include a facsimile transmission. Accordingly, equivalent to original ones. Is Jeff correct?
a facsimile transmission cannot be considered as electronic
evidence. It is not the functional equivalent of an original A: No. Photocopies of documents do not constitute the
under the best evidence rule and is not admissible as electronic evidence defined in Section 1 of Rule 2 of the
electronic evidence (MCC Industrial Sales Corporation v. Rules on Electronic Evidence. Here, the information in the
Sangyong Corp., G.R. No. 170633, Oct. 17, 2007). photocopies of documents offered by Jeff was not received,
recorded, retrieved or produced electronically. Moreover,
Q: What is Electronic Document? such electronic evidence must be authenticated, which Jeff
failed to do. Finally, the required affidavit to prove the
A: Refers to information or the representation of admissibility and evidentiary weight of the alleged
information, data, figures, symbols or other modes of electronic evidence was not executed, much less presented
written expression, described or however represented, by in evidence (NPC v. Codilla, G.R. No. 170491, Apr. 4, 2007).
Q: How is an electronic DOCUMENT authenticated? ELECTRONIC DOCUMENTS vis a vis THE HEARSAY RULE
or data compilation by electronic, optical or similar means, Note: Among the evidentiary rules, it is the parol evidence rule
all of which are shown by the testimony of the custodian or that has direct application to the law on contracts. The rule applies
other qualified witnesses, is excepted from the rule on only to contracts which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to oral contracts
hearsay evidence (Sec. 1, Rule 8).
(Riano, Evidence: A Restatement for the Bar, p. 209, 2009 ed).
Note: The presumption provided by the rules may be overcome by
evidence of the untrustworthiness of the source of information or Q: What does the Parol Evidence Rule state?
the method or circumstances of the preparation, transmission or
storage thereof (Sec. 2, Rule 8). A: It states that when the terms of an agreement have been
reduced to writing, it is considered as containing all the
AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL terms agreed upon and there can be, between the parties
EVIDENCE and their successors-in-interest, no evidence of such terms
other than the contents of the written agreement (Sec. 9,
Q: What is ephemeral electronic communication? Rule 130).
A: It refers to telephone conversations, text messages, chat Note: The parol evidence rule does not apply, and may not
room sessions, streaming audio, streaming video, and other properly be invoked by either party to the litigation against the
other, where at least one party to the suit is not a party or privy of
electronic forms of communication the evidence of which is
a party to the written instrument in question and does not base a
not recorded or retained [Sec. 1(k)]. claim or assert a right originating in the instrument of the relation
established thereby. Thus, if one of the parties to the case is a
complete stranger to the contract involved therein, he is not bound
Q: May parties present audio, photographic or video by this rule and can introduce extrinsic evidence against the
evidence? efficacy of the writing. (Lechugas v. CA, et.al, G.R. Nos. L-39972 & L-
40300, Aug. 6, 1986)
A: Yes. Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it shall be Q: Can the parol evidence rule be waived?
shown, presented or displayed to the court and shall be
identified, explained or authenticated by the person who A: Yes, failure to invoke the benefits of the rule constitutes
made the recording or by some other person competent to as waiver of the rule. Inadmissible evidence may be
testify on the accuracy thereof (Sec. 1, Rule 11). rendered admissible by failure to object (Riano, Evidence: A
Restatement for the Bar, p. 229, 2009 ed).
Q: How shall ephemeral electronic communication be
proven? Note: However, even if the parol evidence is admitted, it does not
mean that the court would give probative value to the parol
evidence. Admissibility is not the equivalent of probative value or
A: It shall be proven by the testimony of a person who was credibility (Riano, Evidence: A Restatement for the Bar, p. 230,
a party to the same or has personal knowledge thereof. In 2009 ed).
the absence or unavailability of such witnesses, other
competent evidence be admitted. A recording of the Q: What is the underlying reason for the adoption of the
telephone conversation or ephemeral electronic parol evidence rule? (1998 Bar Question)
communication shall be covered by the immediately
preceding section. If the foregoing communications are A: It is designed to give certainty to a transaction which has
recorded or embodied in an electronic document, then the been reduced to writing, because written evidence is much
provisions of Rule 5 regarding Authentication of Electronic more certain and accurate than that which rests on fleeting
Documents shall apply (Sec. 2, Rule 11). memory only (Francisco, Rules of Court Vol. VII, Part I. p.
154). Moreover, it gives stability to written statements,
Q: Are text messages admissible as evidence? removes the temptation and possibility of perjury and
prevents possible fraud.
A: Yes. Text messages have been classified as ephemeral
electronic communication under Section 1(k), Rule 2 of the
Rules on Electronic Evidence, and shall be proven by the
testimony of a person who was a party to the same or has Q: May a condition precedent and a condition subsequent
personal knowledge thereof (Vidallon-Magtolis v. Cielito be established by parol evidence?
Salud, A.M. No. CA-05-20-P, Sept. 9, 2005).
A: Condition precedent may be established by parol
PAROL EVIDENCE RULE evidence because there is no varying of the terms of the
written contract by extrinsic agreement for the reason that
Q: What is parol evidence? there is no contract in existence. There is nothing in which
to apply the excluding rule. Conditions subsequent may not
A: It is any evidence aliunde (extrinsic evidence) which is be established by parol evidence since a written contract
intended or tends to vary or contradict a complete and already exists.
enforceable agreement embodied in a document
(Regalado, Vol. II, p. 730, 2008 ed.). It may refer to APPLICATION OF THE PAROL EVIDENCE RULE
testimonial, real or documentary evidence.
Q: What are the requisites for the application of the parol extrinsic
evidence rule? ambiguity
which serves as
A: an exception to
1. There must be a valid contract; the parol
2. The terms of the agreement must be reduced to evidence rule
writing; (Regalado, Remedial Law Compendium, Vol II, p. 733, 2008
ed)
Note: Agreement includes wills.
Q: Paula filed a complaint against Lynette for the recovery
3. The dispute is between the parties or their successors- of a sum of money based on a promissory note executed
in-interest; and by the latter. Paula alleged in her complaint that although
4. There is dispute as to the terms of the agreement. the promissory note says that it is payable within 120
days, the truth is that the note is payable immediately
Note: Parol evidence is evidence outside of the agreement of the after 90 days but that if Paula is willing, she may, upon
parties while the parol evidence rule prevents the presentation of request of Lynette give the latter up to 120 days to pay
such parol evidence.
the note. During the hearing, Paula testified that the truth
is that the agreement between her and Lynette is for the
WHEN PAROL EVIDENCE CAN BE INTRODUCED
latter to pay immediately after 90 days time. Also, since
the original note was with Lynette and the latter would
Q: What are the exceptions to the parol evidence rule?
not surrender to Paula the original note which Lynette
kept in a place about one day's trip from where she
A: A party may present evidence to modify, explain or add
received the notice to produce the note and in spite of
to the terms of the written agreement if he puts in issue in
such notice to produce the same within 6 hours from
his pleadings the following:
receipt of such notice, Lynette failed to do so. Paula
presented a copy of the note which was executed at the
1. An intrinsic ambiguity, mistake or imperfection in the
same time as the original and with identical contents.
written agreement;
Over the objection of Lynette, will Paula be allowed to
testify as to the true agreement or contents of the
Note: The mistake contemplated is one which is a mistake of
fact mutual to both parties (Bernardo, Evidence Annotated promissory note? Why? (2001 Bar Question)
2008, pg. 38 citing Gurango vs. IAC, 215 SCRA 332). Parol
evidence may only be allowed, if any of the foregoing matters A: Yes. As an exception to the parol evidence rule, a party
is put in issue in the pleadings. may present evidence to modify, explain or add to the
terms of the written agreement if he puts in issue in his
2. Failure of the written agreement to express the true pleading the failure of the written agreement to express
intent of the parties thereto; the true intent and agreement of the parties thereto. Here,
3. Validity of the written agreement; or Paula has alleged in her complaint that the promissory note
4. Existence of other terms agreed to by the parties or does not express the true intent and agreement of the
their successors in interest after the execution of the parties.
written agreement (Sec. 9, Rule 130).
DISTINCTIONS BETWEEN THE PAROL EVIDENCE RULE AND
Q: Distinguish the kinds of ambiguities. THE BEST EVIDENCE RULE
PUBLIC AND PRIVATE DOCUMENTS Note: In addition to the modes of authenticating a private
document under Sec. 20, Rule 132, American Jurisprudence also
Public Document Private Document recognizes the doctrine of self-authentication - where the facts in
What comprises it writing could only have been known by the writer; and the rule of
1. The written official acts, or All other writings are authentication by the adverse party - where the reply of the
adverse party refers to and affirms the sending to him and his
records of the official acts private (Sec. 19, Rule
receipt of the letter in question, a copy of which the proponent is
of the sovereign authority, 132). offering as evidence (Regalado, Remedial Law Compendium 2010
official bodies and tribunals, ed.).
and public officers, whether
of the Philippines, or of a Q: Is the testimony of a handwriting expert indispensable
foreign country; to the examination or the comparison of handwritings in
2. Documents acknowledged cases of forgery?
before a notary public
A: No. A finding of forgery does not depend entirely on the b. By a copy attested by the officer having the legal
testimonies of handwriting experts, because the judge must custody of the record or by his deputy and
conduct an examination of the questioned signature in accompanied with a certificate that such officer
order to arrive at a reasonable conclusion as to its has the custody. The certificate may be made by a
authenticity. The opinions of handwriting experts are not secretary of the embassy or legation, consul
binding upon courts, especially when the question involved general, consul, vice consul, or consular agent or
is mere handwriting similarity or dissimilarity, which can be by any officer in the foreign service of the
determined by a visual comparison of specimens of the Philippines stationed in the foreign country in
questioned signatures with those of the currently existing which the record is kept, and authenticated by
ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008). the seal of his office (Sec. 24, Rule 132).
WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE Note: Upon failure to comply with the above-
WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS) mentioned requirements, courts will apply the doctrine
of processual presumption.
Q: What are the requisites for an ancient document to be
exempt from proof of due execution and authenticity (rule Q: May a public record be removed from its office?
on ancient document/authentic document rule)?
A: GR: No. Any public record must not be removed from
A: the office in which it is kept.
1. That the private document be more than 30 years old;
2. That it be produced from a custody in which it would XPN: Upon order of a court where the inspection
naturally be found if genuine; and of the record is essential to the just
3. That it is unblemished by any alteration or determination of a pending case (Sec. 26, Rule
circumstances of suspicion (Sec. 21, Rule 132). 132).
Note: This rule applies only if there are no other witnesses to Q: What is the probative value of documents consisting of
determine authenticity. entries in public records?
HOW TO PROVE GENUINENESS OF A HANDWRITING A: They are prima facie evidence of the facts stated therein
if entered by a public officer in the performance of a duty.
Q: How is the genuineness of a persons handwriting All other public documents are evidence, even against a
proved? third person, of the fact which gave rise to their execution
and of the date of the latter (Sec. 23, Rule 132).
A:
1. It may be proved by any witness who actually saw the Q: Is a special power of attorney executed and
person writing the instrument; acknowledged before a notary public in a foreign country
2. By any person who is familiar or has acquired authorizing a person to file a suit against certain persons
knowledge of the handwriting of such person, his in the Philippines admissible in evidence?
opinion as to the handwriting being an exception to
the opinion rule under Secs. 48 & 50 of Rule 130; A: No, because a notary public in a foreign country is not
3. By a comparison of the questioned handwriting from one of those who can issue the certificate mentioned in
the admitted genuine specimens thereof; or Sec. 24, Rule 132 of Rules of Court. Non-compliance with
4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, the said rule will render the SPA inadmissible in evidence.
Rule 130). Not being duly established in evidence, the SPA cannot be
used to file a suit in representation of another. The failure
to have the SPA authenticated is not a mere technicality
but a question of jurisdiction (Heirs of Medina v. Natividad,
G.R. No. 177505, Nov. 27, 2008).
PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL
RECORD ATTESTATION OF A COPY
Q: How are public records proved? Q: What must the attestation of a copy state?
A: Written official acts, or records of the official acts of the A: Whenever a copy of a document or record is attested for
sovereign authority, official bodies and tribunals, and public the purpose of evidence, the attestation must state, in
officers, e.g. a written foreign law, may be evidenced by: substance:
1. If it is within the Philippines 1. That the copy is a correct copy of the original, or a
a. An official publication thereof; or specific part thereof, as the case may be;
b. By a copy attested by the officer having the legal 2. It must be under the official seal of the attesting
custody of the record, or by his deputy. officer, if there be any, or if he be the clerk of a court
2. If it is kept in a foreign country having a seal, under the seal of such court (Sec. 25,
a. An official publication thereof; or Rule 132).
A: Generally, a person who takes the witness stand, is XPNs: Unless otherwise provided by law, like the
presumed to be qualified to testify. A party who desires to following:
question the competence of a witness must do so by 1. Those convicted of falsification of document,
making an objection as soon as the facts tending to show perjury or false testimony are prohibited from
incompetency are apparent (Jones on Evidence, Vol. 3, Sec. being witnesses to a will (Art. 821, NCC).
796). 2. Those convicted of an offense involving moral
turpitude cannot be discharged to become a State
Q: Who are qualified to be witnesses? witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification provided
A: All persons who: under Secs. 21-24, Rule 130.
1. Can perceive and in perceiving;
2. Can make known their perception to others (Sec. 20, COMPETENCY VERSUS CREDIBILITY OF A WITNESS
Rule 130);
Q: Distinguish competency from credibility of the witness
Note: The ability to make known the perception of the (2004 Bar Question)
witness to the court involves two factors: (a) the ability to
remember what has been perceived; and (b) the ability to A:
communicate the remembered perception. It is of common
Competency of Witness Credibility of Witness
reason to realize that a witness is presented to testify on a
matter he has perceived. If he cannot remember, he cannot Refers to a witness who Refers to a witness
be a competent witness. (Riano, Evidence: A Restatement for can perceive, and in whose testimony is
the Bar, p. 248-249, 2009 ed) perceiving, can make believable.
known his perception to
3. Must take either an oath or an affirmation (Sec. 1, Rule others.
132; Riano, Evidence: A Restatement for the Bar, p. Is a matter of law or a Refers to the weight
245, 2009 ed.); and matter of rule and trustworthiness or
4. Must not possess the disqualifications imposed by law reliability of the
or the rules (Riano, Evidence: A Restatement for the It also includes the testimony.
Bar, p. 246, 2009 ed.). absence of any of the
disqualifications imposed
Q: Distinguish oath from affirmation? upon a witness.
A: An oath signifies that he is swearing to the Creator to tell Note: Inconsistency in the affidavit and those made in the witness
the truth and nothing but the truth and that if he does not, stand will not discredit him, because it is a matter of judicial
he will later on answer for all the lies he is guilty of while an experience that an affidavit being taken ex parte, is almost always
affirmation is a formal declaration of truth in the absence incomplete and often inaccurate.
of swearing to a Creator. It is a declaration about something
to be true. XPN: The credibility of a witness will be impaired if (1)
the omission in the affidavit refers to a very important
Note: The judge must determine first whether the witness detail of the incident that one relating the incident as
understands the nature of the oath, realizes the moral duty to tell an eyewitness would not be expected to fail to
the truth and understands the prospect of being punished for a mention and (2) when the narration in the sworn
falsehood. A person is not qualified to be a witness if he is statement substantially contradicts the testimony in
incapable of understanding the duty to tell the truth. (Riano, court. The point of inquiry is whether the omission is
Evidence: The Bar Lectures Series, pp. 246, 2009 ed)
important or substantial (People vs. Calegan, 233 SCRA
537)
Q: What are the qualifications of a witness?
In relation to the credibility of a witness, a testimony must
A: A prospective witness must show that he has the
not only come from a credible witness, but must be
following abilities:
credible in itself, tested by human experience, observation,
common knowledge and accepted conduct that has evolved c. Doctor-patient privilege;
through the years (People vs. Mirandilla Jr., July 27, 2011) d. Minister-penitent privilege; or
e. Public officer as regards communications made in
Q: What is the rule on competency of witness? official confidence.
A: GR: A person who takes the witness stand is presumed Note: The qualifications and disqualifications of witnesses are
to possess the qualifications of a witness (Presumption of determined as of the time they are produced for examination in
competency). court or at the taking of the depositions. Blood relationship does
not disqualify a witness (Bernardo, Evidence Annotated 2008, pg.
49 citing Angelo vs. CA 210 SCRA 402).
XPN: There is prima facie evidence of incompetency in
the following:
Absolute Disqualification Relative Disqualification
1. The fact that a person has been recently found of
The proposed witness is The proposed witness is
unsound mind by a court of competent
prohibited to take the prohibited to testify only
jurisdiction; or
witness stand on certain matters
2. That one is an inmate of an asylum for the insane.
specified under the Rules
(Torres v. Lopez 48 Phil. 722)
1. Disqualification by 1. Disqualification by
Q: Does mental unsoundness of the witness, at the time reason of mental reason of death or
the facts to be testified to occurred, affect his incapacity or insanity of the adverse
competency? immaturity (Sec. 21, party (dead mans
Rule 130). statute) (Sec. 23, Rule
A: No, it only affects his credibility. Nevertheless, as long as 2. Disqualification by 130).
the witness can convey ideas by words or signs and give reason of marriage 2. Disqualification by
sufficiently intelligent answers to questions propounded, (Sec. 22, Rule 130). reason of privileged
she is a competent witness even if she is feeble-minded or communication (Sec.
is mental retardate or is a schizophrenic (People v. De Jesus, 24, Rule 130).
G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No.
91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July DISQUALIFICATION BY REASON OF MENTAL INCAPACITY
31, 2000). OR IMMATURITY (Sec. 21, Rule 130)
Note: Testimony of children whose mental maturity is such as to Q: Who are disqualified by reason of mental incapacity or
render them incapable of perceiving the facts respecting which immaturity?
they are examined and of relating them truthfully does not only
affect his/her credibility but his/her competence. A:
1. Mental incapacity those whose mental condition, at
Questions concerning the credibility of a witness are best the time of their production for examination, is such
addressed to the sound discretion of the trial court as it is in the
that they are incapable of intelligently making known
best position to observe his demeanor and bodily movements
(Llanto v. Alzona, 450 SCRA 288). The findings of the trial courts
their perception to others
carry great weight and respect and, generally, the appellate courts
will not overturn the said findings. 2. Mental immaturity children whose mental maturity
is such as to render them incapable of perceiving the
XPNs: facts respecting which they are examined and of
1. The lower court has reached conclusions that are relating them truthfully (Sec. 21, Rule 130).
clearly unsupported by evidence,
2. It has overlooked some facts or circumstances of
weight and influence which, if considered, would
affect the result of the case (People vs. Dalag, Q: What are the tests considered in determining insanity
G.R. No. 129895. April 30, 2003). of a person?
DISQUALIFICATION OF A WITNESS A:
1. The test of cognition, which is a complete deprivation
Q: Who are disqualified to be witnesses under the rules? of intelligence; and
A: Those who are: 2. The test of volition, which is the total deprivation of
1. Disqualified by reason of mental incapacity or the freedom of the will.
immaturity (Sec. 21, Rule 130); Note: The test of cognition is the applicable test in the Philippines
2. Disqualified by reason of marriage(sec. 22, Rule 130); (People vs. Pascual, 220 SCRA 440).
3. Disqualified by reason of death or insanity of adverse
party (Sec. 23, Rule 130); and Q: When must the incompetence of the witness by reason
4. Disqualified on the ground of privileged of mental incapacity or immaturity exist?
communication (Sec. 24, Rule 130):
a. Marital privilege; A:
b. Attorney-client privilege; Mental Incapacity Mental Immaturity
The incompetence of the her sister in Pasig City. For unknown reasons, the house of
witness must exist not at Ivys sister was burned, killing the latter. Ivy survived. Ivy
The incompetence of
the time of his perception saw her husband in the vicinity during the incident. Later,
the witness must
of the facts but at the Bob was charged with arson in an Information filed with
occur at the time the
time he is produced for the RTC, Pasig City. During the trial, the prosecutor called
witness perceives the
examination, and consists Ivy to the witness stand and offered her testimony to
event including his
in his inability to prove that her husband committed arson. Can Ivy testify
incapability to relate
intelligently make known over the objection of her husband on the ground of
his perceptions
what he has perceived. marital privilege? (2006 Bar Question)
truthfully.
(Riano, Evidence: A
(Ibid.)
Restatement for the Bar, A: Yes. The marital disqualification rule is aimed at
p. 255, 2009 ed.) protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic relations
Q: Cyrus, a deaf-mute, was presented as a witness in a are so strained that there is no more harmony to be
criminal case. The accused objected to the presentation of preserved nor peace and tranquility which may be
the testimony of Cyrus on the ground that, being a deaf- disturbed, the marital disqualification no longer applies.
mute, he was not a competent witness. Is the contention
of the accused correct? The act of Bob in setting fire to the house of his sister-in-
law, knowing fully well that his wife was there, is an act
A: No. A deaf-mute is not incompetent as a witness. Deaf- totally alien to the harmony and confidences of marital
mutes are competent witnesses where they can: relation which the disqualification primarily seeks to
1. understand and appreciate the sanctity of an oath; protect. The criminal act complained of had the effect of
2. comprehend facts they are going to testify on; and directly and vitally impairing the conjugal relation. It
3. communicate their ideas through a qualified interpreter underscored the fact that the marital and domestic
(People v. Tuangco, G.R. No. 130331, Nov. 22, 2001). relations between her and the accused-husband have
become so strained that that there is no more harmony,
DISQUALIFICATION BY REASON OF MARRIAGE (MARITAL peace or tranquility to be preserved (Alvarez v. Ramirez,
DISQUALIFICATION RULE; SEC. 22) G.R. No. 143439, Oct. 14, 2005)
Q: What are the requisites in order for the spousal Q: Can spousal immunity be waived?
immunity to apply?
A: Yes, it can be waived just like any other objection to the
A: competency of other witnesses, through failure to
1. That the spouse for or against whom the testimony is interpose timely objection at the time the other spouse is
offered is a party to the case; called as a witness (People vs. Francisco, 78 Phil. 694).
2. That the spouses are validly married;
3. The testimony is one that is given or offered during the Q: What kind of testimony is covered by the prohibition?
existence of the marriage (Riano, Evidence: A
Restatement for the Bar, p. 266, 2009 ed); and A: The prohibition extends not only to a testimony adverse
4. The case is not one of the exceptions provided in the to the spouse but also to a testimony in favor of the
rule (Herrera, Vol. V, p. 302, 1999 ed.). spouse. It also extends to both criminal and civil cases and
not only consists of utterances but also the production of
Q: What is the purpose of this disqualification? documents. (State vs. Bramlet, 114 S.C. 389,103 S.E. 755;
Riano, Evidence: A Restatement for the Bar, p. 266, 2009
A: The rule forbidding one spouse to testify for or against ed)
the other is based on principles which are deemed
important to preserve the marriage relation as one of full Q: May a spouse testify in a trial where the party-spouse is
confidence and affection, and that this is regarded as more a co-accused?
important to the public welfare than the exigencies of the
lawsuits which authorize domestic peace to be disregarded A: Yes. The spouse could testify in a murder case against
for the sake of ferreting out facts within the knowledge of the other co-accused, which was jointly tried with accused-
strangers. (Alvarez vs. Ramirez, G.R. No. 143439, Oct. 14, spouses case. This testimony cannot, however, be used
2005) against accused-spouse directly or through the guise of
taking judicial notice of the proceedings in the murder case
Q: Who can claim spousal immunity (marital without violating the marital disqualification rule, if the
disqualification)? testimony is properly objected. What cannot be done
directly cannot be done indirectly. (People v. Quidato, 297
A: The spouse who can object is the spouse-party and not SCRA 1)
the spouse-witness.
Q: What are the exceptions to the spousal immunity?
Q: Ivy was estranged from her husband Bob for more than
a year due to Bobs suspicion that she was having an affair A:
with Jeff, their neighbor. Ivy was temporarily living with 1. Consent is given by the party-spouse;
party to the action other spouse is a A: No. The law requires that both the marital
party to the action disqualification rule under Sec. 22 and the marital privilege
Applies only if the Can be claimed even rule under Sec. 24 can only be invoked by spouses who are
marriage is existing at the after the marriage is validly married to each other. In this case, the bigamous
time the testimony is dissolved marriage between A and C is void.
offered
Applies to information Applies only to Q: When is the privilege inapplicable?
received prior to confidential
marriage as long as such communications A:
is offered during the received during the 1. In a civil case by one against the other; or
marriage marriage between the 2. In a criminal case for a crime committed by one
spouses against the other or the latters direct ascendants or
The married witness The married person is descendants (Sec. 24, par A. Rule 130).
would not be allowed to on the stand but the 3. Information acquired by a spouse before the marriage
take the stand at all objection of privilege even if received confidentially will not fall squarely
because of the is raised when with the privilege.
disqualification. Even if confidential marital
the testimony is, for or communication is Q: James, an alien, was criminally charged of promoting
against the objecting inquired into and facilitating child prostitution and other sexual abuses
spouse, the spouse- under R.A. 7610. The principal witness against him was his
witness cannot testify Filipina wife, Conching. Earlier, she had complained that
James hotel was being used as a center for sex tourism
Q: In June 1998, A told B that he killed C. After a year, A and child trafficking. The defense counsel for James
married B. Upon the offer of testimony of B for the alleged objected to the testimony of Conching at the trial of the
killing of C, can A validly make an objection? child prostitution case and the introduction of the
affidavits she executed against her husband as a violation
A: Yes. Irrespective of the fact that B was informed of the of spousal confidentiality and marital privilege rule. It
killing before her marriage to A, still, the testimony was turned out that Patring, the minor daughter of Conching
offered during their marriage, which brings it into the ambit by her first husband who was a Filipino, was molested by
of the marital disqualification rule under Sec. 22. James earlier. Thus, Conching had filed for legal separation
against James since last year. May the court admit the
Q: Supposed in the above problem, the testimony was testimony and affidavits of the wife, Conching, against her
offered at the time the marriage between A and B was husband, James, in the criminal case involving child
already terminated, can A still validly object, this time on prostitution? Reason (2004 Bar Question)
the ground of marital privilege rule under Sec. 24?
A: Yes. The court may admit the testimony and affidavits of
A: No. The testimony even if confidential was not the wife against her husband in the criminal case where it
communicated to B during the time of marriage, but before involves child prostitution of the wife's daughter. It is not
the marriage. covered by the marital privilege rule. One exception is
where the crime is committed by one against the other or
Q: Supposed in the above problem, the information the latter's direct descendants or ascendants (Sec. 24, Rule
received by B was communicated to A during their 130). A crime by the husband against the daughter is a
marriage, can A validly object to the testimony of B if it crime against the wife and directly attacks or vitally impairs
was offered after the dissolution of their marriage on the the conjugal relation (Ordono v. Daquigan, G.R. No. L-
ground of marital disqualification rule under Sec. 22? 39012, Jan. 31, 1975).
A: No. He can only object based on the marital Q: Are third persons who overheard the communication
disqualification rule if the testimony was offered during between the spouses bound by the privilege?
their marriage and not to testimony offered after the
dissolution of the marriage. The proper objection must be A: GR: Third persons who, without the knowledge of the
based on marital privilege rule under Sec. 24 because such spouses, overhear the communication are not disqualified
defense is applicable even after the dissolution of marriage to testify.
provided that the communication was made confidentially
to B during their marriage. XPN: When there is collusion and voluntary disclosure
to a third party, that third party becomes an agent and
Q: A was prosecuted and convicted for bigamy for cannot testify.
allegedly contracting a second marriage with C.
Thereafter, C was presented as a witness to testify against Attorney-Client Privilege
A for the alleged killing of D. A objected on the ground
that the matters to be testified by C were communicated Q: What are the requisites for the application of the
to her during their marriage. Is he correct? privilege?
A:
1. Attorney-client relation;
2. The privilege is invoked with respect to a confidential XPNs:
communication or advice between them in the course 1. Where a strong possibility exists that revealing
of or with a view to professional employment; and the clients name would implicate the client in the
3. The client has not given his consent to the attorneys very activity for which he sought the lawyers
testimony; or if the attorneys secretary, stenographer advice;
or clerk is sought to be examined, that both the client 2. Where disclosure would open the client to civil
and the attorney have not given their consent liability; or
(Regalado, Vol. II, p. 749, 2008 ed.). 3. Where the prosecutors have no case against the
client unless by revealing the clients name, the
Note: This rule does not require a perfected attorney client said name would furnish the only link that would
relationship. It is enough that the communication or advice be with form the chain of testimony necessary to convict
a view to professional employment (Sec. 24b, rule 130). an individual for a crime (Regala vs.
Sandiganbayan, G.R. No. 105938, Sept. 20, 1996).
This rule shall apply to similar communications made to or received
by a law student, acting for the legal clinic (Sec. 3, Rule 138-A).
Note: Communication in furtherance of crime or fraud is not Q: On August 15, 2008, Edgardo committed estafa against
privileged (8 Wigmore, Evidence) or for the purpose of committing Petronilo in the amount of 3 million pesos. Petronilo
a crime or a tort or those made in furtherance of an illicit activity. brought his complaint to the National Bureau of
Investigation, which found that Edgardo had visited his
Q: What is the purpose of this privilege? lawyer twice, the first time on August 14, 2008 and the
second August 16, 2008; and that both visits concerned
A: To encourage full disclosure by client to his attorney of the swindling of Edgardo.
all pertinent matters as to further the administration of
justice and to protect the client from possible breach of During the trial, the RTC issued a subpoena ad
confidence as a result of a consultation with a lawyer testificandum to Edgardos lawyer for him to testify the
(Hadjula v. Mdianda A.C. No. 6711, July 3, 2007). conversations during their first and second meetings. May
the subpoena be quashed on the ground of privileged
communication? Explain fully. (2008 Bar Question)
Q: What is the test in applying the attorney-client
privilege? A: No. The subpoena may not be simply quashed on the
allegation that the testimony to be elicited constitutes
A: The test is whether the communication made is with the privileged communication. It may be noted that the
view of obtaining from the lawyer his professional accused committed the crime swindling on August 15,
assistance or advice regardless of the existence or absence 2008, whereas he first visited his lawyer on August 14, 2008
of a pending litigation. or before he committed the swindling.
Q: What is meant by confidential communication? Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling
A: It refers to information transmitted by voluntary act of cannot be protected by the privilege between attorney and
disclosure between attorney and client in confidence and client because the crime had not been committed yet and it
by means which, so far as the client is aware, discloses the is no part of a lawyers professional duty to assist or aid in
information to no third person other than one reasonably the commission of a crime; hence not in the course of
necessary for the transmission of the information or the professional employment.
accomplishment of the purpose for which it was given
(Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005). The second visit by accused Edgardo to his lawyer on the
next day (Aug. 16, 2008) after the swindling was committed
Q: When is the privilege inapplicable? may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as
A: It does not apply to communications which are: there could not be a complaint made immediately after the
1. Intended to be made public; estafa was committed. The privilege covering a lawyer-
2. Intended to be communicated to others; client relation under Sec. 24, par(b), Rule 130, may not be
3. Intended for an unlawful purpose; invoked, as it is not a ground for quashal of a subpoena ad
4. Received from third persons not acting in behalf or as testificandum under Sec. 4, Rule 21 of the Rules of Court.
agents of the client; or
5. Made in the presence of third parties who are Q: A tugboat owned by Speedy Port Service, Inc. (SPS)
strangers to the attorney-client relationship (Regalado, sank in Manila Bay while helping to tow another vessel,
Remedial Law Compendium, Vol. II, p. 750, 2008 ed.). drowning 5 of the crew in the resulting shipwreck. At the
maritime board inquiry, the 4 survivors testified. SPS
Q: May a lawyer refuse to divulge the identity of his engaged Atty. Ely to defend against potential claims and
clients? to sue the company owning the other vessel for damages
to the tug. Ely obtained signed statements from the
A: GR: Lawyers may not invoke the privilege and refuse to survivors. He also interviewed other persons, in some
divulge the name or identity of their client.
instance making memoranda. The heirs of the 5 victims 3. The advice or treatment given by him or any
filed an action for damages against SPS. information was acquired by the physician while
professionally attending to the patient;
The counsel of the heirs of the 5 victims sent written 4. The information was necessary for the performance of
interrogatories to Ely, asking whether statements of the his professional duty; and
witnesses may be obtained if written, copies were to be 5. The disclosure of the information would tend to
furnished; if oral, the exact provisions were to be set forth blacken the reputation of the patient.
in detail. Ely refused to comply, arguing that the
documents and information asked are privileged Q: What is the purpose of this privilege?
communication. Is the contention tenable? Explain. (2008
Bar Question) A: The privilege is intended to facilitate and make safe, full
and confidential disclosure by patient to doctor of all facts,
A: Yes, the contention of Ely, as counsel for SPS, is tenable circumstances, and symptoms, untrammeled by
considering that he was acting in his professional capacity apprehension of their subsequent and enforced disclosure
in bringing about the statement he obtained from the and publication on the witness stand, to the end that the
witnesses and the memoranda he made. The notes, physician may form a correct opinion, and be enabled
memoranda, and writings made by the counsel in safely and efficaciously to treat his patient.
pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence Q: When is the privilege inapplicable?
privileged (Air Philippines Corp v. Penswell, Inc., G.R. No.
172835, Dec. 13, 2007). A: It does not apply to communications which are:
1. Not given in confidence;
Note: The weight of authority supports the view that when 2. Irrelevant to the professional employment;
the client and attorney become embroiled in a controversy 3. Made for an unlawful purpose;
between themselves, as in action filed for payment of 4. Intended to be made public; or
attorneys fee, the privilege is removed fron the attorneys 5. Waived either by contract or law (Regalado, Remedial
lips. (Riano, Evidence, pp. 285, 2009 ed) Law Compendium, Vol. II, p. 751, 2008 ed.).
Q: May this rule be waived? Q: What are the pieces of information which cannot be
disclosed?
A: Yes. The privilege is personal and belongs to the client. If
the client waives the privilege such as client reveals the A:
confidential communication during cross-examination and 1. Any advice given to the client;
if the client does not object to his attorneys testimony on 2. Any treatment given to the client;
the communication, no one else including the attorney can 3. Any information acquired in attending such patient
invoke it (In Re Youngs Estate, 33 Utah 382; Riano, provided that the advice, treatment or information
Evidence, p. 285, 2009 ed.). was made or acquired in a professional capacity and
was necessary to enable him to act in that capacity;
and
4. That the information sought to be disclosed would
tend to blacken the reputation of the patient (Sec.
24(c), Rule 130).
Physician and Patient Privilege Q: Is it necessary that the professional relationship exists
between the doctor and patient when the communication
Q: What are the requisites for the application of the was made?
privilege? A: Yes. It is essential that at the time the communication
was made, the professional relationship is existing, that is,
A: while the doctor was attending to the patient for curative,
1. The action involves a civil case; preventive or palliative treatment. It is not however
necessary that the relationship was created through the
Note: This privilege cannot be claimed in a criminal case voluntary act of the patient. The treatment may have been
presumably because the interest of the public in criminal given at the behest of another, the patient being in
prosecution should be deemed more important than the extremis (Ibid.).
secrecy of the communication. (Riano, Evidence: A
Restatement for the Bar, p. 290, 2009 ed)
Q: Can such privilege be waived?
2. The relation of physician and patient existed between
A: Yes. The waiver may be made expressly or impliedly. The
the person claiming the privilege or his legal
waiver may be by a contract as in medical or life insurance.
representative and the physician;
When there is disclosure by the patient of the information,
there is necessarily, a waiver. When the patient answers
questions under cross-examination on matters which are
supposedly privileged, the waiver also exists. There could 1. The confession must have been made to the priest in
also be waiver by operation of law (Sec. 4, Rule 28) his professional character according to the discipline of
the church to which the priest or minister belongs
Q: In a proceeding for annulment of marriage on the [Sec. 24(d)]; and
ground of psychological incapacity, the husband 2. Communications made must be confidential and must
presented a confidential psychiatric report prepared by a be penitential in character e.g., under the seal of the
physician after examining his wife, but without the confessional (Regalado, Remedial Law Compendium,
knowledge of the physician. Can the wife invoke the Vol. II, p. 752, 2008 ed.)
physician patient privilege?
Note: This rule is not limited to confessions made by a penitent but
A: No. The person against whom the privilege is claimed is also to any advice given by the minister or priest (Riano, Evidence:
not one duly authorized to practice medicine, surgery, or A Restatement for the Bar, p. 293, 2009 ed). The advice given as a
result of confession must be made in the ministers professional
obstetrics. He is simply the patient's husband who wishes
character. (ibid.)
to testify on a document executed by medical practitioners.
Neither can his testimony be considered a circumvention of
Q: When is the privilege inapplicable?
the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who
A: When the communication is not penitential in character
examined the patient and executed the report. The proper
as when what is divulged is the plan to commit a crime or
objection should be hearsay and not privileged
where the penitent discussed business arrangements with
communication. (Krohn v. Court of Appeals, 233 SCRA 146)
the priest (ibid.).
Q: Aimee sought to offer as evidence the testimony of Dr.
Q: What is the purpose of this privilege?
Naval to prove that Bob is not the illegitimate son of
Yuring as the latter was sterile. Bob objected to the
A: To allow and encourage individuals to fulfill their
admissibility of the said testimony arguing that the same
religious, emotional or other needs by protecting
is covered by the physician-patient privilege because the
confidential disclosures to religious practitioners (Peralta,
testimony would blacken the reputation of Yuring. It was
Jr.,Perspectives of Evidence, p. 220, 2005 ed., citing
alleged that Yuring became sterile because he contracted
Evidence, Oregon State Bar Committee on Continuing Legal
gonorrhea. Aimee argues that Yuring is long dead and, as
Education).
such, the privilege may not be invoked.
1. Is the testimony of Dr. Naval covered by the
Public Officer As Regards Communications Made In
physician-patient privilege?
Official Confidence
2. Does the fact that Yuring is long dead bar the
application of the physician-patient privilege?
Q: What are the requisites for its application?
A:
A:
1. Yes. Yuring's sterility arose when he contracted
1. The communication was given to the public officer in
gonorrhea, a fact which most assuredly blackens his
official confidence;
reputation. In fact, given that society holds virility at a
2. The public interest would suffer by the disclosure of
premium, sterility alone, without the attendant
the communication;
embarrassment of contracting a sexually-transmitted
3. The holder of the privilege is the government, acting
disease, would be sufficient to blacken the reputation
through a public officer;
of any patient (Gonzales v. CA, G.R. No. 117740, Oct.
4. The communication was given during the term of
30, 1998).
office of the public officer but the privilege may be
invoked not only during the term of office of the public
2. No. The privilege of secrecy is not abolished or
officer but also after (Regalado, Vol. II, p. 752, 2008
terminated because of death. The purpose of the law
ed.)
would be thwarted and the policy intended to be
promoted thereby would be defeated, if death
Q: When is the privilege inapplicable?
removed the seal of secrecy, from the communications
and disclosures which a patient should make to his
A: If what is asked:
physician. After one has gone to his grave, the living
1. Is useful evidence to vindicate the innocence of an
are not permitted to impair his name and disgrace his
accused;
memory by dragging to light communications and
2. Lessen the risk of false testimony;
disclosures made under the seal of the statute
3. Is essential to the proper disposition of the litigation;
(Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).
or
4. The benefit to be gained by a correct disposition of the
Priest-Penitent Privilege
litigation was greater than any injury which could inure
to the relation by a disclosure of the information
Q: What are the requisites for its application?
(Francisco, Evidence, p. 171, 1992 ed.).
A:
Q: Is the privilege applicable to public officers in general?
A: No. The privilege only applies to communications to such Q: A was convicted of raping his own daughter. His son, an
officers who have a responsibility or duty to investigate or 8 year old boy testified against him. Can he object to the
to prevent public wrongs, and not to officials in general testimony on the ground of filial privilege and invoke the
(Francisco, Evidence, p. 139, 1992 ed.). incompetence of the child?
Note: The court, not the witness, will determine the necessity of A: No. The competency of his son is not affected by the filial
regarding the communication as privileged (Francisco, Evidence, p. privilege Rule. The Rule is not strictly speaking a
143, 1992 ed) disqualification but refers to a privilege not to testify, which
can be invoked and waived like other privileges. The son
Q: What is the concept of executive privilege? was not compelled to testify against his father but chose to
waive that filial privilege when he voluntarily testified
A: Certain types of information like military, diplomatic and against the accused. (People v. Invencion, 398 SCRA 592)
other national security matters may be withheld from the
public. Q: A married to B killed the latter. One of the witnesses
was C, the mother of B, who was being compelled to
Q: Secretary of Fisheries Nenito Abesamis received an testify against A. Can A object on the ground of parental
invitation for questioning in a hearing from the Senate of privilege?
the Philippines regarding the Fish Feeds Scam. During the
hearing, Abesamis didnt answer the questions A: No. C is not a direct ascendant of A but that of B, being
propounded to him by Senator Renato Pamintuan the mother of the latter. Thus, the privilege does not
claiming that his position entitles him to invoke the belong to A.
executive privilege. Is his contention correct?
Q: C is the child of the spouses H and W. H sued his wife W
A: No. As held in the case of Senate of the Philippines vs. for judicial declaration of nullity of marriage under Article
Ermita, G.R. No. 169777, April 25, 2006), the Court upheld 36 of the Family Code. In the trial, the following testified
the doctrine of executive privilege but it found E.O. 464 over the objection of W: C, H and D, a doctor of medicine
partly constitutionally defective, specifically Secs. 2(b) and 3 who used to treat W. Rule on W's objections which are the
which required government officials below the heads of following:
executive departments to secure consent from the 1. H cannot testify against her because of the rule on
President before appearing in congressional hearings and marital privilege;
investigations. The Court noted that E.O. 464 covers 2. C cannot testify against her because of the doctrine
persons, which is a misuse of the doctrine because the on parental privilege; and
privilege is to be properly invoked in relation to specific 3. D cannot testify against her because of the doctrine
categories of information and not categories of persons of privileged communication between patient and
(Riano, Evidence, 2009 ed., p. 298). physician. (1998 Bar Question)
A:
1. If the witness was not cross-examined because of
causes attributable to the cross-examining party and
the witness had always made himself available for
cross-examination, the direct testimony of the witness
shall remain on record and cannot be stricken off
because the cross-examiner is deemed to have waived
his right to cross-examine (Dela Paz v. IAC, G.R. No.
75860, Sept. 17, 1987).
2. If the witness was partially cross-examined but died
before the completion of his cross-examination, his
testimony on direct may be stricken out but only with
respect to the testimony not covered by the cross-
Q: What are the purposes of each stage of the examination (People v. Seeris, G.R. No. L-48883, Aug.
examination? 6, 1980).
3. The absence of a witness is not sufficient to warrant
A: the striking out of his testimony for failure to appear
1. Direct examination To establish the case of the for further cross-examination where the witness has
proponent of the witness. already been sufficiently cross-examined, and the
2. Cross examination matter on which cross-examination is sought is not in
a. To impeach the credibility of the testimony; controversy (Ibid.).
b. To impeach the credibility of the witness;
c. To elicit admissions; and Q: What is the Doctrine of Incomplete Testimony?
d. To clarify certain matters.
3. Redirect examination A: GR: When cross-examination cannot be done or
a. To afford opportunity to the witness to explain or completed due to causes attributable to the party who
amplify his testimony during cross-examination; offered the witness, the incomplete testimony is rendered
and incompetent and should be stricken from the record.
b. To explain any apparent contradiction or
inconsistency in his statements. XPN: Where the prosecution witness was extensively
4. Re-cross examination cross-examined on the material points and thereafter
a. To overcome the proponents attempt failed to appear and cannot be produced despite a
to rehabilitate the witness; and warrant of his arrest. (People v. Gorospe, G.R. No.
b. To rebut damaging evidence brought 51513, May 15, 1984).
out during redirect examination.
Q: Is the party who offered the testimony of a witness
Q: What is the scope of a cross-examination? bound by such testimony?
A: GR: A witness cannot be recalled without leave of court A: It is one which assumes as true a fact not yet testified to
as the recalling of a witness is a matter of judicial discretion by the witness, or contrary to that which he has previously
(Sec. 9, Rule 132). stated. It is not allowed (Sec. 10, Rule 132) unless waived or
when asking hypothetical questions to an expert witness.
XPNs:
1. The examination has not been concluded; or Note: The adverse party should object thereto or ask the court to
2. If the recall of the witness was expressly expunge the answer from the records, if he has already given his
reserved by a party with the approval of the answer.
court. In these two cases the recall of a
witness is a matter of right (Regalado, Vol. II, METHODS OF IMPEACHMENT OF ADVERSE PARTYS
p. 848, 2008 ed.). WITNESS
Note: Something more than the bare assertion of the need to Q: What is impeachment of a witness?
propound additional questions is essential before the court's
discretion may rightfully be exercised to grant or deny recall. There A: It is a technique employed usually as part of cross-
must be a satisfactory showing of some concrete, substantial examination to discredit a witness testimony by attacking
ground for instance, that particularly identified material points his credibility (Riano, Evidence: A Restatement for the Bar,
were not covered in the cross-examination, or that particularly p. 323, 2009 ed.).
described vital documents were not presented to the witness
whose recall is prayed for, or that the cross-examination was
conducted in so inept a manner as to result in a virtual absence Q: What is meant by impeachment of the adverse party as
thereof. Absent such particulars, to repeat, there would be no a witness?
foundation for a trial court to authorize the recall of any witness
(People v. Rivera, G.R. No. 98376, Aug. 16, 1991). A: That the witness is the adverse party does not
necessarily mean that the calling party will not be bound by
LEADING AND MISLEADING QUESTIONS the formers testimony. The fact remains that it was at his
instance that his adversary was put on the witness stand.
Q: What is a leading question? He is not bound only in the sense that he may contradict
him by introducing other evidence to prove a state of facts
A: It is one which suggests to the witness the answer which contrary to what the witness testifies. Unlike an ordinary
the examining party desires. It is not allowed except: witness, the calling party may impeach an adverse witness
1. On cross-examination; in all respects as if he had been called by the adverse party,
2. On preliminary matters; except by evidence of his bad character. Under a rule
3. When there is difficulty in getting direct and intelligible permitting the impeachment of an adverse witness,
answers from a witness who is ignorant, or a child of although the calling party does not vouch for the witness
tender years, or is of feeble mind or a deaf-mute; veracity, he is nonetheless bound by his testimony if it is
4. To unwilling witness or hostile witness; not contradicted or remains unrebutted (Gaw v. Chua, G.R.
No. 160855, April 16, 2008).
Note: A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate showing of his Q: May a witness be impeached by evidence of particular
adverse interest, unjustified reluctance to testify or his having wrongful acts?
misled the party into calling him to the witness stand. (Sec.
12, Rule 132)
A: GR: No. A witness may not be impeached by evidence of
particular wrongful acts.
5. Witness is an adverse party or an officer, director, or
managing agent of a public or private corporation or of
XPN: If it may be shown by the examination of the
a partnership or association which is an adverse party
witness, or the record of the judgment, that he has
(Sec. 10, Rule 132); or
been convicted of an offense (Sec. 11, Rule 132).
6. In all stages of examination of a child if the same will
further the interests of justice (Sec. 20, AM 004-07-SC).
Q: What are the ways of impeaching an adverse partys
Q: When is a question preliminary?
witness?
A: When the question does not touch on any issue.
A:
1. By contradictory evidence;
Q: Why are leading questions allowed during cross-
2. By evidence that the general reputation for truth,
examination?
honesty or integrity of the witness is bad and
3. By prior inconsistent statements (Sec. 11, Rule 132).
A: The adverse party has a right to inspect it to enable him (2) Neither he nor any other person then present or
to cross-examine the witness (Sec. 18, Rule 132). assisting him coached the witness regarding the latter's
answers (Sec. 4).
JUDICIAL AFFIDAVIT RULE
A.M. No. 12-8-8-SC Q: What is the effect of the failure to comply with the
content requirements under Sec. 3 and the attestation
Q: What is the effect of the judicial affidavit rule as to requirement under Sec. 4?
direct examination of witnesses?
A: The court shall not admit those judicial affidavits as
A: The judicial affidavits of the witnesses shall take the evidence. The court may however allow only once the
place of such witnesses direct testimonies (Sec. 2). subsequent submission of the complaint replacement
Moreover, the party presenting the judicial affidavit of his affidavits before hearing or trial provided the delay is for a
witness in place of direct testimony shall state the purpose valid reason and would not unduly prejudice the opposing
of such testimony at the start of the presentation of the party and provided further, that public or private counsel
witness (Sec. 6). responsible for their preparation and submission pays a fine
of not less than P1,000.00 nor more than P5,000.00, at the
Q: What must the judicial affidavit contain? discretion of the court.
A: A judicial affidavit shall be prepared in the language Q: What proper actions may be maintained by the adverse
known to the witness and, if not in English or Filipino party against the judicial affidavit of a witness?
accompanied by a translation in English or Filipino, and
shall contain the following: A:
a. The adverse party may move to disqualify the witness or
(a) The name, age, residence or business address, and strike out his affidavit or any answers found in it on the
occupation of the witness; ground of inadmissibility (Sec. 6).
(b) The name and address of the lawyer who conducts or Note: The court shall promptly rule on the motion and, if
supervises the examination of the witness and the place granted, shall cause the marking of any excluded answer by
where the examination is being held; placing it in brackets under the initials of an authorized court
personnel, without prejudice to the tender of excluded
(c) A statement that the witness is answering the questions
evidence under Sec. 40, Rule 132.
asked of him, fully conscious that he does so under oath,
and that he may face criminal liability for false testimony or
b. The adverse party shall have the right to cross-examine
perjury;
the witness on his judicial affidavit and on the exhibits
attached to the same without prejudice to a re-direct
(d) Questions asked of the witness and his corresponding
examination that may be conducted by the party who
answers, consecutively numbered, that:
presented the witness (Sec. 7).
(i) Show the circumstances under which the witness Note: In every case, the court shall take active part in
acquired the facts upon which he testifies; examining the witness to determine his credibility as well as
(ii) Elicit from him those facts which are relevant to the the truth of his testimony and to elicit the answers that it
issues that the case presents; and needs for resolving the issues.
(iii) Identify the attached documentary and object
evidence and establish their authenticity in accordance Q: Can a party immediately present documentary
with the Rules of Court; evidence after the testimony of the last witness?
(e) The signature of the witness over his printed name; and A: Yes. Upon the termination of the testimony of his last
witness, a party shall immediately make an oral offer of
(f) A jurat with the signature of the notary public who evidence of his documentary or object exhibits, piece by
administers the oath or an officer who is authorized by law piece, in their chronological order, stating the purpose or
to administer the same (Sec. 3) purposes for which he offers the particular exhibit.
Q: What is the duty of the lawyer who conducted the After each piece of exhibit is offered, the adverse party
examination of a witness? shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
A: The judicial affidavit shall contain a sworn attestation at respecting that exhibit (Sec. 8).
the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect ADMISSIONS AND CONFESSIONS
that:
Q: What is admission?
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that the A: It is an act, declaration or omission of a party as to a
witness gave; and relevant fact which may be given in evidence against him
(Sec. 26, Rule 130).
A:
Q: What are the other rules on admissibility in cases of contract on the ground that when she went on a European
offer or plea? tour, there was no European tour manager, the Filipino
guide was a first timer, and the hotels where they were
A: billeted were not first class. Kenstar contended that the
Offer or Plea Admissibility tour was satisfactory because out of 18 participants, only
Plea of guilty later Not admissible in Mau actually complained. Can the fact that the other
withdrawn by the evidence agains tthe participants in the tour filed no case against Kenstar be
accused accused who made the used as evidence to show that B has no cause of action?
plea
Offer by the accused to Not admissible in A: No. Rule 130, Sec. 28 of the Rules of Court provides that
plead guilty to a lesser evidence agains tthe the rights of a party cannot be prejudiced by an act,
offense but unaccepted accused who made the declaration or omission of another. The failure of the other
by prosecution offer participants to file and action should not prejudice Mau
Offer to pay or Not admissible in (Geraldez v. Court of Appeals, 230 SCRA 320).
payment of medical, evidence as proof of
hospital or other civil or criminal liability ADMISSION BY A PARTY
expenses occasioned by for the injury (Suarez
injury (Good Samaritan and De la Banda, Q: What is admission?
Rule) Evidence: A Lawyers
Companion, 2006 ed.) A: It is an act, declaration or omission of a party as to a
relevant fact which may be given in evidence against him
RES INTER ALIOS ACTA RULE (Sec. 26, Rule 130). Facts alleged in the complaint are
deemed admissions of the plaintiff and binding upon him.
Q: What is the principle of res inter alios acta alteri nocere These are also conclusive as against the pleader. (Del
non debet? Rosario v. Gerry Roxas Foundation, June 8, 2011)
A: This principle literally means things done between Q: What are the requisites for an admission to be
strangers ought not to injure those who are not parties to admissible?
it. It has two branches:
A:
1. The rights of a party cannot be prejudiced by an act, 1. Must involve matters of fact and not of law;
declaration, or omission of another (Sec. 28). 2. Must be categorical and definite;
2. Evidence that one did or did not do a certain thing at 3. Must be knowingly and voluntarily made; and
one time is not admissible to prove that he did or did 4. Must be adverse to the admitters interests (Ibid.).
not do the same or similar thing at another time (Sec.
34, Rule130). Q: What is a self-serving declaration?
Q: What are the exceptions to the res inter alios acta rule A: It is one which has been made extra-judicially by the
(first branch)? party to favor his interest. It is not admissible in evidence
because they are inherently untrustworthy, and would
A: open the door to fraud and fabrication of testimony.
1. Admission by a co-partner or agent (Sec. 29, Rule 130);
2. Admission by a co-conspirator (Sec. 30, Rule 130); and Note: Self-serving evidence are inadmissible because the adverse
party is not given the opportunity for cross-examination, and their
3. Admission by privies (Sec. 31, Rule 130).
admission would encourage fabrication of testimony (Hernandez
vs. CA, 228 SCRA 429). Statements in affidavits are not sufficient to
Note: The rule has reference to extrajudicial declarations. Hence, prove the existence of agricultural tenancy. It is self-serving. It will
statements made in open court by a witness implicating persons not suffice to prove consent of the owner. Independent evidence is
aside from him are admissible as declarations from one who has necessary (Rodriguez vs. Salvador, G.R. No. 171972, June 8, 2011).
personal knowledge of the facts testified to.
Q: After working as a laborer for 43 years, A resigned from
Q: What is the reason for the rule on res inter alios acta?
Rufina Patis Factory. Thereafter, he availed of his pension
from the SSS and executed an affidavit stating that he was
A: On principle of good faith and mutual convenience, a
never re-employed. However, when he filed a claim for
mans own acts are binding upon himself and are evidence
retirement benefits from his employer before the NLRC,
against him. So are his conduct and declarations. It would
he alleged that he continued working for Rufina Patis
not only be rightly inconvenient but also manifestly unjust,
Factory for 4 more years. Can Rufina Patis Factory use As
that a man should be bound by the acts of mere
affidavit executed before the SSS as an admission against
unauthorized strangers; and if a party ought not to be
his interest?
bound by the acts of strangers, neither ought their acts or
conduct be used as evidence against him (People v. Vda. De
A: Yes. The document is the best evidence which affords
Ramos, 403 SCRA 167)
greater certainty of the facts in dispute. While the affidavit
may have facilitated the release of the retirement benefits
Q: Mau sued Kenstar Travel Corporation for breach of
from SSS, hence, beneficial to him at that time, it may still
Q: Distinguish judicial admission from extrajudicial Q: What is the rationale for the rule on admission against
admission. interest?
a mere acknowledgment of a fact or of circumstance from 1. The act or declaration of a partner or agent of the
which guilt may be inferred, tending to incriminate the party must be within the scope of his authority;
speaker, but not in itself sufficient to establish guilt beyond 2. The admission was made during the existence of the
reasonable doubt. By itself, the letter acknowledging that partnership or agency; and
Anabelle issued the checks and that she was replacing them 3. The existence of the partnership or agency is proven
does not prove beyond reasonable doubt her culpability by independent evidence other than such act or
under BP 22. It is indispensable that the checks she issued declaration (Sec. 29). The Articles of Incorporation or a
be offered in evidence because the gravamen of the Special Power of Attorney may be presented for such
offense charged is the act of knowingly issuing a check with purpose (Suarez and De la Banda, Evidence: A Lawyers
insufficient funds (Gutierrez v. Palattao, 292 SCRA 26). Companion, 2006 ed.)
ADMISSION BY A THIRD PARTY Note: The same rule applies to an act or declaration of a joint
owner, joint debtor or other person jointly interested with the
Q: What is the rule with respect to admission made by a party.
third party? Q: The Republic of the Philippines filed a forfeiture case
against the heirs of the late former President Marcos. In
A: GR. The act, declaration or omission made out of court one of her manifestations before the Sandiganbayan,
of a party as to a relevant fact may be given in evidence Imelda Marcos admitted that she owned 90% of the Swiss
against him but may not be given in evidence against bank deposits and only 10% belongs to the estate of the
another person. late President Marcos. The other heirs also made separate
admissions in their pleadings. What is the value of these
XPN. The act or omission of one party made out of court admissions?
may be used as evidence against another when its
admission is made by: A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29 of Rule 130
a. A partner of the Rules of Court. The declaration of a party is
b. An agent admissible against a party whenever a privity of estate
c. A joint owner exists between the declarant and the party. It generally
d. A joint debtor denotes a succession of rights. Without doubt, privity exists
e. A person jointly interested with the party among the respondents in this case. Where several co-
f. A conspirator parties exists who are jointly interested in the subject
g. A privy or successor in interest (Suarez and De la Banda, matter of the controversy, the admission of one is
Evidence: A Lawyers Companion, 2006 ed.) competent against all (Republic v. Sandiganbayan, 406
SCRA 190).
Q: Francisco was charged with violating PD No. 1612 or
the Anti Fencing Decree. Among the evidence submitted Q: Are admissions made after a partnership has been
against him was the testimony of Jovita in a previous dissolved fall within the exception?
criminal case wherein the accused therein, Pacita, was
convicted of theft and where she stated that Francisco A: GR: No, because such are made when the partnership
bought stolen jewelries from her. Can the admission in the ceased to exist.
previous case be used against Francisco?
XPN: Where the admissions are made in connection
A: No. It bears stressing that Francisco was not a party to with the winding up of the partnership affairs, said
the previous criminal case where Pacita was the accused. admissions are still admissible as the partner is acting
The rule is that the acts, or declarations of a person are not as an agent of his co-partner in said winding up.
admissible against a third party. Only parties to a case are (Regalado, Vol. II, p. 759, 2008 ed.)
bound by a judgment of the trial court (Francisco v. People,
434 SCRA 122). Without presenting Jovita to testify on her ADMISSION BY A CONSPIRATOR
admission during the previous criminal case, even if made
in a previous judicial proceeding, it remains an extrajudicial Q: When does conspiracy exist?
admission without any effect, insofar as the present action
against Francisco is concerned. A: It exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it.
Note: Once conspiracy is proven, the act of one is the act of all. The
statement therefore of one may be admitted against the other co-
ADMISSION BY A CO-PARTNER OR AGENT conspirators as an exception to the rule of res inter alios acta.
Q: What are the requisites for an admission of a partner to Q: What are the requisites of an admission by a
bind his co-partners or an agent to bind his principal? conspirator?
A: A:
1. The declaration or act be made or done during the De la Banda, Evidence: A Lawyers Companion, 2006
existence of the conspiracy; ed.).
2. The declaration or act must relate to the purpose and
object of the conspiracy; and Q: Del Monte Development Corporation filed a case to be
3. The conspiracy must be shown by evidence other than adjudged owner of a piece of land against Ababa claiming
the declaration or act (evidence aliunde) (Sec. 30). that it acquired a lot from Lucero in 1964. As a defense,
Ababa presented a document executed by Lucero in 1968
Note: This rule applies only to extrajudicial acts or admission and to settle the controversy. Can the document bind Del
not to testimony at trial where the party adversely affected has the Monte as successor in interest of Lucero?
opportunity to cross-examine the witness. (People vs. Baharan,
Jan. 10, 2011).
A: No. The admission of a former owner of a property must
have been made while he was the owner thereof in order
Q: A was convicted of robbery with homicide. Among the
that such admission may be binding upon the present
evidence used to convict her was the extrajudicial
owner. Hence, Luceros act of executing the 1968
confession of her co-accused, an alleged co-conspirator,
document have no binding effect on Del Monte, the
which confession was made with the assistance of
ownership of the land having passed to it in 1964 (Gevero v.
counsel. Can such admission be used against A?
IAC, 189 SCRA 201).
A: No. In order for such admission to be admissible in
ADMISSION BY SILENCE
evidence, there must be independent evidence aside from
the extrajudicial confession to prove conspiracy. There
Q: When is there an admission by silence?
being no independent evidence to prove conspiracy, As
culpability was not sufficiently established (People v. Vda.
A: There is admission by silence when a party does or says
De Ramos, 403 SCRA 167).
nothing when he hears or observes an act or declaration
made in his presence when such act or declaration is such
Q: Are extrajudicial admissions made by a conspirator
as naturally to call for action or comment if not true, and
after the conspiracy had been terminated and even before
when proper and possible for him to do so. Such may be
trial, be admissible against the co-conspirator?
given in evidence against him (Sec. 32, Rule 130).
A: No, except in the following cases:
Q: What are the requisites of an admission by
1. If made in the presence of the co-conspirator who
silence/adoptive admission?
expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed in the
A:
individual extrajudicial confessions made by the co-
1. He must have heard or observed the act or declaration
conspirator after their apprehension;
of the other person;
3. As a circumstance to determine the credibility of the
2. He must have had the opportunity to deny it;
witness; or
3. He must have understood the statement;
4. As circumstantial evidence to show the probability of
4. He must have an interest to object, such that he would
the co-conspirators participation in the offense.
naturally have done so, if the statement was not true;
(Regalado, Vol. II, p. 761, 2008 ed.)
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be drawn from
ADMISSION BY PRIVIES
his silence is material to the issue (Sec. 32, Rule 130;
People v. Paragsa, G.R. No. L-44060, July 20, 1978).
Q: Who are privies?
Note: The rule on admission by silence does not apply when a
A: Privies refer to those who have mutual or successive person is under an official investigation. For the silence of a person
relationship to the same rights of property or subject under a custodial investigation for the commission of an offense
matter such as personal representatives, heirs, devisees, should not be construed as an admission by silence because a
legatees, assigns, voluntary guarantees or judgment person has the right to remain silent and to be informed of that
creditors or purchasers from them with notice of the facts. right. (Sec. 12, Art. III, 1987 Constitution; Riano, Evidence: A
Restatement for the Bar, p. 126, 2009 ed) However, if it is not the
Q: What are the elements of an admission by privies? police investigators who confronted the accused but the owner of a
carnapped vehicle, the silence of one after being implicated by the
other accused serves as an admission by silence as he did not refute
A: the statements of his co-accused despite having heard of them (See
1. One (successor in interest) derives title to property People v. Garcia, 400 SCRA 229)
from another (predecessor in interest) through any
legal means of transfer
2. A statement, act or declaration is made by the
predecessor in interest in relation to the property and CONFESSIONS
while holding the title thereof
3. Said statement, act or declaration is evidence against Q: What is a confession?
his successor in interest (Sec. 31, Rule 130; (Suarez and
A: It is a categorical acknowledgment of guilt made by an the cadaver and brought to the police station. The crime
accused of the offense charged or of any offense laboratory determined that the woman had been raped.
necessarily included therein, without any exculpatory While in police custody, Carlito broke down in the
statement or explanation (Sec. 33, Rule 130; Regalado, Vol. presence of an assisting counsel and orally confessed to
II, p. 764, 2008 ed.). the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of
Note: If the accused admits having committed the act in question the body near the creek. He was genuinely remorseful.
but alleges a justification therefor, such as absence of criminal During the trial, the State presented the investigator to
intent, the same is merely an admission (Ibid.). testify the oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar Question)
Q: What are the classifications of confession?
A: No. The oral confession is not admissible as evidence of
A: guilt of Carlito because he was already under arrest and in
1. Judicial confession is one made by the accused police custody when he made the extrajudicial confession
before an open court in which the case is pending and and he was not informed of his right to be warned and the
in the course of legal proceedings therein and, by Miranda rights particularly the right to remain silent.
itself, can sustain conviction and is admissible against Additionally, it does not appear that the counsel present is
ones co-accused. It is governed by Secs., 1, 3 & 4 of his counsel of his choice.
Rule 116.
2. Extrajudicial confession is one made in any other Q: Distinguish admission from confession
place or occasion other than the court where the case
is pending and cannot sustain a conviction unless A:
corroborated by evidence of corpus delicti. It is Admission Confession
generally binding only upon the confessant and is not
A statement of fact A statement of fact
admissible against his co-accused. It is governed by
which does not involve which involves an
Sec. 33 of Rule 130 (Regalado, Remedial Law
an acknowledgment of acknowledgment of
Compendium, Vol. II, p. 765, 2008 ed.).
guilt or liability guilt or liability
May be made by third Can be made only by
Q: What are the requisites for a confession to be
persons and in certain the party himself and, in
admissible as evidence?
cases, are admissible some instances, are
against a party admissible against his
A:
co-accused
1. It must involve an express and categorical
Applies to both criminal Applies only to criminal
acknowledgement of guilt;
and civil cases cases
2. Facts admitted must be constitutive of a criminal
May be express or Always express
offense;
implied
3. It must have been given voluntarily;
4. It must have been intelligently made, the accused
realizing the importance or legal significance of his act; Q: What are the requirements in order that an
ADMISSION OF GUILT of an accused during a custodial
and
investigation be admitted in evidence? (2006 Bar
5. There must have been no violation of Sec, 12 (Miranda
rights), Art. III (Bill of Rights) of the 1987 Constitution Question)
as evidence of the truth. (Moran, vol. 5, p. 257) It is the fruit from other facts and circumstances that other persons had
of a poisonous tree. participated in the perpetration of the crime charged and
proved (People v. Lising, 285 SCRA 595)
Q: May the extra-judicial confession of an accused be
admitted in evidence against his co-accused? SIMILAR ACTS AS EVIDENCE
nd
2 Branch of the Res Inter Alios Acta Rule (Sec. 34, Rule
A: GR: An extrajudicial confession is not admissible against 130)
the confessors co-accused. Said confession is hearsay
evidence and violative of the res inter alios acta rule. Q: What does the rule prohibit?
XPN: It may be admitted in evidence against his co- A: It prohibits the admission of the so-called propensity
accused in the following cases: evidence and decrees that evidence that one did or did not
1. In case of implied acquiescence of the co-accused do a certain thing at one time is NOT admissible to prove
to the extrajudicial confession; that he did or did not do the same or a similar thing at
2. In case of interlocking confessions; another time.
3. Where the accused admitted the facts stated by
the confessant after being apprised of such Q: What is the purpose of the Rule?
confession;
4. If they are charged as co-conspirators of the A: Evidence of similar acts or occurrences compels the
crime which was confessed by one of the accused defendant to meet allegations that are not mentioned in
and said confession is used only as corroborating the complaint, confuses him in his defense, raises a variety
evidence; of relevant issues, and diverts the attention of the court
5. Where the confession is used as circumstantial from the issues immediately before it. Hence, the
evidence to show the probability of participation evidentiary rule guards the practical inconvenience of trying
by the co-conspirator; collateral issues and protracting the trial, and prevents
6. When the confessant testified for his co- surprise or other mischief prejudicial to litigants (Cruz v. CA,
defendant; and G.R. No. 126713, July 27, 1998).
7. Where the co-conspirators extrajudicial
confession is corroborated by other evidence on Q: When is evidence of similar acts or previous conduct
record (Regalado, Vol. II, pp. 772-773, 2008 ed.). admissible?
Q: What is the doctrine of interlocking confessions? A: It is admissible where such evidence may prove:
1. Specific intent
A: It states that extrajudicial confessions independently 2. Knowledge
made without collusion which are identical with each other 3. Identity
in their essential details and corroborated by other 4. Plan
evidence against the persons implicated, are admissible to 5. System
show the probability of the latters actual participation in 6. Scheme
the commission of the crime. 7. Habit
8. Custom
Q: 4 of the 6 suspects in the crime of kidnapping with 9. Usage and
double murder executed separate extrajudicial statements 10. The like (Sec. 34, Rule 130),
confessing to the crime and implicating the others. The
statements were independently executed but are identical Q: Accused was charged with 2 counts of kidnapping.
with each other in their material details. There are also Since the 2 incidents happened almost simultaneously, the
distinct similarities in the narration of events leading to cases were consolidated and joint trial ensued. In the first
the killings. Is the extrajudicial confession admissible case, accused tied the hands of the 2 victims and pointed
against the others? their guns at them. In the second case, however, it
appears that the 2 victims were not physically threatened
A: Yes. The rule that an extrajudicial statement is evidence or tied. Can evidence in the first case be used in the
only against the person making it, also recognizes various second to prove that accused had the intent to deprive
exceptions. One such exception is the rule on interlocking the victims of liberty?
confessions where several extrajudicial statements had
been made by several persons charged with an offense and A: Yes. The evidence shows the intent of the accused. That
there could have been no collusion with reference to said the victims hands were not tied nor guns poked at their
several confessions bu the fact that the statements are in sides when they were taken by the accused in the second
all material respects identical, is (1) confirmatory of the case do not conclusively preclude the deprivation of liberty.
confession of the co-defendants and is admissible against The circumstances surrounding the taking of the victims in
other persons implicated therein. (2) They are also the first case, particularly the previous conduct of accused
admissible as circumstantial evidence against the person in kidnapping them, plainly demonstrates their intent to
implicated therein to show the probability of the latters likewise deprive the victims in the other case, of their
actual participation in the commission of the crime and (3) liberty (People v. Dadles, 278 SCRA 393).
may likewise serve as corroborative evidence if it is clear
Q: What is the rule on unaccepted offer? knowledge of some other person not on the witness
stand (Regalado, Vol. II, p. 776, 2008 ed.).
A: An offer in writing to pay a particular sum of money or 2. It also includes all assertions which have not been
to deliver a written instrument or specific personal subjected to cross-examination by the adverse party at
property is, if rejected without valid cause, equivalent to the trial in which they are being offered against him
the actual production and tender of the money, instrument, (Herrera, Vol. V, p. 581, 1999 ed.).
or property (Sec. 35, Rule 130).
Q: What is double hearsay?
HEARSAY
A: It is a testimony based on third hand information related
MEANING OF HEARSAY to the witness by someone who heard it from others.
Q: Define hearsay evidence (1999 Bar Question) Q: Romeo is sued for damages for injuries suffered by the
plaintiff in a vehicular accident. Julieta, a witness in court,
A: It signifies all evidence which is not founded upon the testifies that Romeo told her that he heard Antonio, a
personal knowledge of the witness from whom it is elicited witness to the accident, gives an excited account of the
and which consequently does not depend for its credibility accident immediately after its occurrence. Is Julietas
and weight upon the confidence which the court may have testimony admissible against Romeo over proper and
in him. It is information relayed from another person to the timely objection? Why? (2002 Bar Question)
witness before it reaches the court (Go v. CA, G.R. No.
112550, Feb. 5, 2001). It also includes all assertions where, A: No, because while the excited account of Antonio, a
though derived from personal knowledge, the adverse witness to the accident, was told to Romeo, it was only
party is not given an opportunity to cross-examine. Romeo who told Julieta about it, which makes it hearsay.
The testimony of a witness regarding a statement made by REASON FOR EXCLUSION OF HEARSAY EVIDENCE
another person, if intended to establish the truth of the
facts asserted in the statement, is clearly hearsay evidence, Q: What is the rationale of excluding hearsay evidence?
it is otherwise if the purpose of placing the statement in the
record is merely to establish the fact that the statement A: There is no opportunity for cross-examination hence, it is
was made or the tenor of such statement. not subject to the test of truth since the declarant is not
available and available for cross-examination.
Q: What is the hearsay rule? (2007 Bar Question)
In criminal cases, its admission would be a violation of the
A: It states that a witness can testify only to those facts constitutional provision that the accused shall enjoy the
which he knows of based on his personal knowledge or right of being confronted with the witnesses testifying
those which are derived from his own perception (Sec. 36, against him and to cross-examine them. Moreover, the
Rule 130). court is without opportunity to test the credibility of
Q: What are the elements of hearsay evidence? hearsay statements by observing the demeanor of the
person who made them.
A:
1. There must be an out-of-court statement; and Q: What are the classifications of out-of-court statements?
2. The statement made out of court, is repeated and
offered by the witness in court to prove the truth of A:
the matters asserted by the statement (Riano, 1. Hearsay Its probative force depends, in whole or in
Evidence: A Restatement for the Bar, p. 348, 2009 ed.). part, on the competency and credibility of some
persons other than the witness by whom it is sought to
Note: Newspaper clippings are hearsay and of no evidentiary value produce it. It is inadmissible as evidence when the
at all whether objected to or not, unless offered for a purpose purpose for introducing the out-of-court statement is
other than proving the truth of the matter asserted. (Feria vs. CA, to prove the truth of the facts asserted therein
325 SCRA 525)
(Estrada v. Desierto, G.R. Nos. 146710-15 & 146738,
Medical certificates cannot be admitted in the absence of the Apr. 3, 2001).
testimony of the physician who examined the complaint for alleged
torture wounds. 2. Non-hearsay This occurs when the purpose for
introducing the statement is not to prove the truth of
Affidavits are inadmissible unless the affiants themselves are the facts asserted therein but only the making of the
placed in the witness stand to testify therefrom. statements and are admissible in evidence when the
making of the statement is relevant. These are the so-
Q: What are the two concepts of hearsay evidence? called independently relevant statements.
Q: What are the classifications of independently relevant EXCEPTIONS TO THE HEARSAY RULE
statements?
Q: What are the exceptions to the hearsay rule? (1999 Bar
A: Question)
1. Those statements which are the very facts in issue;
2. Those statements which are circumstantial evidence of A:
the fact in issue. It includes the following: 1. Dying declaration (Sec. 37);
a. Statements of a person showing his state of mind, 2. Declaration against interest (Sec. 38);
that is, his mental condition, knowledge, belief, 3. Act or declaration about pedigree (Sec. 39);
intention, ill-will and other emotions; 4. Entries in the course of business (Sec. 43);
b. Statements of a person which show his physical 5. Testimony or deposition at a former proceeding (Sec.
condition, as illness and the like; 47);
c. Statements of a person from which an inference 6. Family reputation or tradition regarding pedigree (Sec.
may be made as to the state of mind of another, 40);
i.e., the knowledge, belief, motive, good or bad 7. Common reputation (Sec. 41);
faith, etc. of the latter; 8. Parts of Res gestae (Sec. 42);
d. Statements which may identify the date, place 9. Entries in official records (Sec. 44);
and person in question; and 10. Commercial lists and the like (Sec. 45);
e. Statements showing the lack of credibility of a 11. Learned treatises (Sec. 46);
witness. (Estrada v. Desierto, etc. et al., G.R. Nos.
146710-15, April 3, 2001). Note: Items 1 to 5 requires death or unavailability of declarant.
Q: Annie overheard Billy call Rocky a thief. In an action for It is not correct to say that the exceptions to the hearsay rule are
defamation filed by Rocky against Billy, is the testimony of not hearsay. They are hearsay evidence but they are deemed
admissible by reason of necessity and trustworthiness.
Annie offered to prove the fact of utterance i.e., that Billy
called Rocky a thief, admissible in evidence? Explain.
Q: What are the reasons for the admissibility of these
(1999 Bar Question)
exceptions?
A: Yes. The testimony of Annie is admissible in evidence as
an independently relevant statement. It is offered in A: They are admissible by reason of relevancy, necessity
evidence only to prove the tenor thereof, not to prove the and trustworthiness. (Estrada vs. Desierto, G.R. No. 146710-
truth of the facts asserted therein. Independently relevant 15, April 3, 2001)
statements include statements which are on the very facts
in issue or those which are circumstantial evidence thereof. DYING DECLARATION
The hearsay rule does not apply.
Q: Define dying declaration
Q: Are statements made through an interpreter hearsay?
A: These are ante mortem statements made by a person
A: Yes, if a witness is offered to testify to the statements of after the mortal wound has been inflicted under the belief
another person, spoken in a language not understood by that the death is certain, stating the fact concerning the
him, but translated for him by an interpreter, such witness cause of and the circumstances surrounding the attack.
is not qualified, because he does not speak from personal
knowledge. All that he can know as to the testimony is from Note: Where the elements of both a dying declaration and a
the interpretation thereof which is in fact given by another statement as part of the res gestae are present, the statement may
person. be admitted as a dying declaration and at the same time as part of
res gestae (People vs. Gado, 298 SCRA 466).
XPN: In cases where the interpreter had been selected:
Q: What are the reasons for its admissibility?
1. By common consent of the parties endeavoring to
converse;
A: Necessity and trustworthiness. Necessity, because the
2. By a party against whom the statements of the
declarants death renders it impossible his taking the
interpreter where offered in evidence (Principal-Agent
witness stand, and it often happens that there is no other
Rule).
equally satisfactory proof of the crime; allowing it prevents as companions, Kitchie was asked certain questions which
a failure of justice. she answered, pointing to Sam as her assailant. Her
answers were put down in writing, but since she was in a
Trustworthiness, because the declaration is made in critical condition, her brother and the policeman signed
extremity, when the party is at the point of death and when the statement. Is the statement admissible as a dying
every motive to falsehood is silenced and the mind is declaration? Explain. (1999 Bar Question)
induced by the most powerful considerations to speak the
truth. (Evidence, the bar lecture Series, Riano p. 363) A: Yes. The statement is admissible as a dying declaration if
(People v. Cerilla) the victim subsequently died and her answers were made
under the consciousness of an impending death. The fact
Q: What are the requisites for a dying declaration to be that she did not sign the statement pointing to the accused
considered as an exception to the hearsay rule? as her assailant because she was in a critical condition does
not affect its admissibility as a dying declaration. (People v.
A: Viovicente, G.R. No. 118707, Feb. 2, 1998).
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person under Note: A dying declaration may be oral or written. If oral, the
a consciousness of his impending death; witness who heard it may testify thereto without the necessity of
3. The declaration refers to the cause and circumstances reproducing the word of the decedent, if he is able to give the
substance thereof. An unsigned dying declaration may be used as a
surrounding the death of the declarant and not of
memorandum by the witness who took it down (People v. Boller,
anyone else; G.R. Nos. 144222-24, Apr. 3, 2002).
4. The declaration is offered in a case wherein the
declarants death is the subject of the inquiry; and Q: How do you assail a dying declaration?
5. The declarant is competent as a witness had he
survived. (Geraldo v. People, G.R. No. 173608, Nov. 20, A: The declaration may be attacked in the same manner as
2008) one would do a testimony in open court. The declarant
6. That the statement is complete in itself Doctrine of himself may be impeached through the normal methods
Completeness (People vs. De Joya, G.R. No. 75028, provided for under the rules.
Nov. 8, 1991)
7. The declarant should have died (if he survives, his DECLARATION AGAINST INTEREST
declaration may be admissible as part of the res
gestae). Q: What are the requisites for the admissibility of
declaration against interest?
Q: Is it necessary that the declarant immediately dies after
making the declaration? A:
1. The declarant is dead or unable to testify
A: No. The intervening time from the making of a dying
declaration up to the time of death is immaterial in its Note: The inability to testify must be serious.
admissibility, as long as it was made under the
consciousness of death. 2. Declaration relates to a fact against the interest of the
declarant
XPN: If there is retraction made by the declarant before he 3. At the time he made said declaration, he was aware
died or his declaration is ambiguous. However, the interval that the same was contrary to his interest and
of time between the declaration and the death of the 4. Declarant had no motive to falsify and believed such
declarant may be taken into account where the declaration declaration to be true
is ambiguous as to whether the declarant believed that his
death was imminent when he made such declaration. Q: What are the reasons for its admissibility?
Q: What factors should be considered in determining A: Necessity, as such declaration, act, or omission is
whether the declarant is conscious of his impending frequently the only mode of proof available and
death? trustworthiness, because of the first presumption that men
will neither falsify nor commit mistakes when such
A: falsehood or mistake would be prejudicial to their own
1. Utterances; pecuniary interest, and because of the fact that any
2. Actual character and seriousness of his wounds; and fraudulent motive for making the statement may be shown.
3. By the declarants conduct and the circumstances at
the time he made the declaration, whether he Q: Alejandro Cuenca was charged with the crime of
expected to survive his injury (Regalado, Remedial Law kidnapping Hector Ocampo. One of the testimonies
Compendium, Vol. II, p. 779, 2008 ed.). presented by the prosecution was that of Maribelle
Magdayao, who testified that Hector confided to her that
Q: Sam was charged with robbery and homicide. Kitchie, he and Alejandros wife Rubi were having an affair.
the vcictim, suffered several stab wounds. It appears that Undoubtedly, his wife's infidelity was ample reason for
11 hours after the crime, while Kitchie was being brought Alejandro to contemplate revenge. Consequently, the trial
to the hospital in a jeep, with his brother and a policeman court convicted Alejandro based on the testimonies of the
witnesses. Was the testimony of Maribelle admissible as Note: Such declarations are natural expressions of persons who
evidence? must know the truth. Although hearsay, it is best that the nature of
the case admits and because greater evil might arise from the
rejection of such proof than from its admission.
A: Yes. Hectors revelation to Maribelle regarding his illicit
relationship with Alejandros wife is admissible in evidence,
Q: What does pedigree include?
pursuant to Section 38, Rule 130 of the Revised Rules on
Evidence. With the deletion of the phrase "pecuniary or
A: It includes:
moral interest" from the present provision, it is safe to
1. Relationship;
assume that "declaration against interest" has been
2. Family genealogy;
expanded to include all kinds of interest, that is, pecuniary,
3. Birth;
proprietary, moral or even penal. Hector having been
4. Marriage;
missing since his abduction, cannot be called upon to
5. Death;
testify. His confession to Maribelle, definitely a declaration
6. Dates when and the place where these facts occurred;
against his own interest, since his affair with Rubi was a
7. Names of the relatives; and
crime, is admissible in evidence because no sane person will
8. Facts of family history intimately connected with
be presumed to tell a falsehood to his own detriment
pedigree (Sec. 39, Rule 130)
(People v. Bernal, G.R. No. 113685, June 19, 1997).
Note: The relationship between the declarant and the person
Q: Distinguish declaration against interest from admission subject of the inquiry must be legitimate unless the issue is the
against interest legitimacy itself.
Act or declaration Family reputation or a. The supposition that the public is conversant with
about pedigree tradition regarding the subject to be proved because of their
pedigree general interest therein; and
Act or declaration Family reputation or b. The fact that the falsity or error of such evidence
about pedigree tradition regarding could be exposed or corrected by other
pedigree testimony since the public are interested in the
Witness need not be a Witness is a member of same (Francisco, pp. 296-297, 1992 ed.).
member of the family the family
Relation of the The witness is the one Q: What can be established by Common reputation?
declarant and the to whom the fact
person subject of the relates, it is not A:
inquiry must be necessary for him to 1. Matters of public and general interest more than 30
established by establish by years old;
independent evidence independent evidence 2. Matters respecting marriage or moral character and
his relationship to the related facts; and
family (Francisco, p. 3. Individual moral character.
292, 1992 ed.)
Testimony is about Testimony is about Note: Marriage, if not proven through an act or declaration about
what the declarant has family reputation or pedigree may be proven through common reputation (Trinidad v.
CA, G.R. 118904).
said concerning the tradition covering
pedigree of the family matters of pedigree
Q: What is the difference between matters of public
interest and matters of general interest?
COMMON REPUTATION
A: Matters of public interest involve those which are
Q: What is common reputation?
common to all citizen of the state or to the entire people
while matters of general interest involve those which are
A: It is the definite opinion of the community in which the
common only to a single community or to a considerable
fact to be proved is known or exists. It means the general or
number of persons forming part of the community.
substantially undivided reputation, as distinguished from a
partial or qualified one, although it need not be unanimous.
PART OF RES GESTAE
(Regalado, Vol. II, p. 787, 2008 ed)
Q: What is the meaning of res gestae?
Note: As a general rule, the reputation of a person should
be that existing in the place of his residence; it may also be
A: It is a Latin phrase which literally means "things done."
that existing in the place where he is best known (Ibid.).
As an exception to the hearsay rule, it refers to those
Character is what a man is, and reputation is what he is
exclamations and statements by either the participants,
supposed to be in what people say he is (Lim vs. CA, 214
victims, or spectators to a crime immediately before, during
SCRA 273).
or immediately after the commission of the crime, when
the circumstances are such that the statements were made
Q: What are the requisites for the admissibility of
as spontaneous reactions or utterances inspired by the
common reputation?
excitement of the occasion, and there was no opportunity
for the declarant to deliberate and fabricate a false
A:
statement (Capila v. People, G.R. No. 146161, July 17,
1. The facts must be of public or general interest and
2006).
more than 30 years old;
2. The common reputation must have been ancient, i.e.
Q: What are the requisites for the admission of evidence
30 years old;
of part of res gestae?
3. The reputation must have been one formed among a
class of persons who were in a position to have some
A:
sources of information and to contribute intelligently
1. That the principal act, the res gestae, be a startling
to the formation of the opinion; and
occurrence;
4. The common reputation must have been existing
2. That the statements were made before the declarant
previous to the controversy.
had time to contrive or devise; and
3. That the statements must concern the occurrence in
Q: What are the reasons for the admissibility of common
question and its immediately attending circumstances
reputation?
(Sec. 42, Rule 130; People vs. Balbas, 122 SCRA 859).
A: Note: The test for the admissibility of evidence as part of the res
1. Necessity arising from the inherent difficulty of gestae is whether the act, declaration, or exclamation is so
obtaining any other evidence than that in the nature intimately interwoven or connected with the principal fact or event
of common reputation; and that it characterizes as to be regarded a part of the principal fact or
2. Trustworthiness of the evidence arising from: event itself, and also whether it clearly negates any premeditation
or purpose to manufacture testimony (People vs. Villarico Sr., April Verbal act must be May be prior to,
4, 2011). contemporaneous with or simultaneous with, or
must accompany the subsequent to the startling
Q: Distinguish part of res gestae from dying declaration. equivocal act to be occurrence
admissible
A:
Part of Res Gestae Dying Declaration Q: What are the requisites of Spontaneous Statements?
It is the event itself A sense of impending
which speaks death takes the place of A:
an oath and the law 1. T
regards the declarant as here must be a startling occurrence;
testifying 2. T
May be made by the Can be made by the he statement must relate to the circumstances of the
killer after or during the victim only startling occurrence or that the statement must
killing or that of a third concern the occurrence in question and its immediate
person attending circumstances;
May precede, or Confined to matters 3. T
accompany or follow occurring after the he statement must be spontaneous and were made
the principal act homicidal act before the declarant had the time to contrive or devise
Justification is the Justification is the a falsehood. (Talidano v. Falcom Maritime & Allied
spontaneity of the trustworthiness, being Services, Inc., G.R. No. 172031, July 14, 2008)
statement given by the person who
was aware of his Note: The reason for the admissibility of spontaneous statements
impending death is trustworthiness and necessity, because statements are made
instinctively, and because said natural and spontaneous utterances
Q: What is the reason for the rule on part of res gestae? are more convincing than the testimony of the same person on the
stand.
A: The reason for the rule is human experience. It has been
Q: What are the requisites for the admissibility of verbal
shown that under certain external circumstances of
acts?
physical or mental shock, the state of nervous excitement
which occurs in a spectator may produce a spontaneous
A:
and sincere response to the actual sensations and
1. The principal act to be characterized must be
perceptions produced by the external shock.
equivocal;
2. The equivocal act must be material to the issue;
As the statements or utterances are made under the
3. The statement must accompany the equivocal act;
immediate and uncontrolled domination of the senses,
4. The statement gives a legal significance to the
rather than reason and reflection, such statements or
equivocal act. (Talidano v. Falcom Maritime & Allied
utterances may be taken as expressing the real belief of the
Services, Inc., G.R. No. 172031, July 14, 2008)
speaker as to the facts he just observed. The spontaneity of
the declaration is such that the declaration itself may be
Note: The reason for the admissibility of verbal acts is that the
regarded as the event speaking through the declarant motive, character and object of an act are frequently indicated by
rather than the declarant speaking for himself (Ibid.). what was said by the person engaged in the act.
Q: What are the two types of res gestae? Q: What are the factors that should be considered in
determining whether statements offered in evidence as
A: part of the res gestae have been made spontaneously or
Verbal Acts Spontaneous Statements not?
Utterances which Statements or exclamations
accompany some act or made immediately after A:
conduct to which it is some exciting occasion by a 1. The time that has elapsed between the occurrence of
desired to give legal effect; participant or spectator and the act and transaction and the making of the
When such act has asserting the circumstances statement;
intrinsically no definite legal of that occasion as it is 2. The place where the statement was made;
significance, or only an observed by him 3. The condition of the declarant when he made the
ambiguous one, its legal statement;
purport or tenor may be 4. The presence or absence of intervening occurrences
ascertained by considering between the occurrence and the statement relative
the words accompanying it, thereto; and
and these utterances thus 5. The nature and circumstances of the statement itself
enter merely as verbal part (Francisco, pp. 315-317, 1992 ed.).
of the act.
The res gestae is the The res gestae is the Q: Sam raped Reyna. After raping Reyna, Sam fled. Reyna
equivocal act startling occurrence then rushed to the police station and told Police Officer
Buloy what had happened. Sam was charged with rape. the book of the Church during the course of its business (Heirs of
During the trial, Reyna can no longer be located. If the Conti vs. Court of Appeals, G.R. No. 118464. December 21, 1998)
prosecution presents Buloy to testify on what Reyna had
told him, would such testimony of Buloy be hearsay? Q: Is there an instance where business entries may be
Explain. (2005 Bar Question) admitted in evidence even when the declarant is alive?
A: No. It is part of res gestae. It is also an independently A: The entries will not be admitted as an exception to the
relevant statement. Buloy testified based on his personal hearsay rule, but they may nevertheless be availed of by
knowledge; that is, he was testifying to the fact that Reyna said entrant as a memorandum to refresh his memory
told him that she was raped by Sam and not to the truth of while testifying on the transactions reflected therein.
Reynas statement (People v. Gaddi, G.R. No. 74065, Feb.
27, 1989). ENTRIES IN OFFICIAL RECORDS
Entrant need not be Entrant must be dead the same parties or those representing the same
dead or unable to or unable to testify. interests;
testify 3. Former case involved the same subject as that in the
Need not be Needs authentication present case, although on different causes of action;
authenticated 4. Issue testified to by the witness in the former trial is
Exception to the best Best evidence rule the same issue involved in the present case; and
evidence rule applies 5. Adverse party had an opportunity to cross-examine
(irremovability of the witness in the former case (Regalado, Remedial
public records) Law Compendium, Vol. II, p. 797, 2008 ed.).
COMMERCIAL LISTS AND THE LIKE Q: What are the grounds, aside from death, which make a
witness unable to testify in a subsequent case?
Q: What are the requisites for the admissibility of
commercial lists and the like? A:
1. Insanity or mental incapacity or the former witness
A: loss of memory through old age or disease;
1. Statements of matters of interest to persons engaged 2. Physical disability by reason of sickness or advanced
in an occupation; age;
2. Statements must be contained in a list, register, 3. The fact that the witness has been kept away by
periodical, or other published compilation; contrivance of the opposite party; or
3. Compilation is published for use by persons engaged in 4. The fact that after diligent search the former witness
that occupation; and cannot be found (Francisco, p. 342, 1992 ed.).
4. Such is generally relied upon by them.
Q: How may former testimony be proved in the
Q: What are the examples of commercial lists and the subsequent action?
like?
A:
A: 1. If reduced to writing, such writing is the primary
1. Trade journals reporting current prices and other evidence thereof and should be used;
market data; 2. The stenographic notes or a copy thereof.
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title examining Note: The judges notes are not evidence of what the witness said,
institutions or individuals; or and, as a rule, they can be used only to refresh the memory of a
witness.
4. Business directories, animal pedigree registers, and
the like (Francisco, p. 339, 1992 ed.).
OPINION RULE
LEARNED TREATIES
Q: What is an opinion?
Q: When are learned treatises admissible?
A: A person's thought, belief, or inference, especially a
witness's view about facts in dispute, as opposed to
A:
personal knowledge of the facts themselves (Blacks Law
1. When the court can take judicial notice of them; or th
Dictionary, 8 ed., 2004).
2. When an expert witness testifies that the author of
such is recognized as expert in that profession (Sec. 46,
Q: What is the rule on the admissibility of opinion as
Rule 130).
evidence?
Q: What are the examples of learned treatises?
A: GR: The opinion of a witness is not admissible. The
witness must testify to facts within their knowledge and
A:
may not state their opinion, even on their cross-
1. Historical works;
examination.
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.).
XPNs:
1. Opinion of expert witness
TESTIMONY OR DEPOSITION AT A FORMER TRIAL
2. Opinion of ordinary witnesses
Q: What are the requisites for the admissibility of
Note: Opinion testimony involving questions of law or the ultimate
testimony or deposition at a former proceeding? fact in issue is not admissible.
The probative force of the testimony of an expert does not lie in a A: Character is the aggregate of the moral qualities which
mere statement of his theory or opinion, but rather in the aid that belong to and distinguish an individual person; the general
he can render to the courts in showing the facts which serve as a result of ones distinguishing attributes (Blacks Law
basis for his criterion and the reasons upon which the logic of his nd
Dictionary, 2 ed.).
conclusion is founded. (Dizon v. Tuazon, G.R. No. 172167, July 9,
2008)
Q: What is the rule on the admissibility of character in
evidence?
Q: What is expert evidence?
A:
A: As a general rule, character evidence is not admissible in 1. Cross-examination
evidence, subject to certain exceptions in criminal cases, 2. Independent evidence of bad character
civil cases and in case the character of a witness has been Note: Personal opinion as to the moral character of the accused
previously impeached. and the specific conduct of the part exhibiting character is
excluded as evidence. However, reputation in the community is
Note: The reason for this is that the evidence of a persons admissible.
character does not prove that such person acted in conformity with
such character or trait in a particular occasion. Q: When can the proponent of a witness impeach his own
witness?
CRIMINAL CASES
A:
Q: In criminal cases, is there an exception to the rule that 1. When the witness is the adverse party himself
character evidence is not admissible in evidence?
2. When the witness turned hostile. (Proponent must ask
A: Yes. the court that he would treat the proponent as hostile)
As to the As to the As to the
Accused Prosecution Offended Party Q: What are the requirements provided by the rules with
He may prove his They may not His good or bad respect to the nature or substance of the character
good moral prove the bad moral character evidence which may be admissible?
character which moral character may be proved as
is pertinent to of the accused long as it tends to A:
the moral trait which is pertinent establish in any 1. With respect to the accused, such character evidence
involved in the to the moral trait reasonable must be pertinent to the moral trait involved in the
offense charged involved in the degree the offense charged.
offense charged, probability or 2. With respect to the offended person, it is sufficient
unless in rebuttal improbability of that such character evidence may establish in any
when the accused the offense reasonable degree the probability or improbability of
opens the issue charged the offense charged.
by introducing 3. With respect to the witness, such character evidence
evidence of his must refer to his general reputation for truth,
good moral honesty or integrity, that is affecting his credibility
character (Regalado, Remedial Law Compendium, Vol. II, p. 814,
2008 ed.)
Note: In criminal cases, character evidence is inadmissible under
the following situations: Q: Don was prosecuted for homicide for allegedly beating
up Vilma to death with an iron pipe. May the prosecution
1. In rebuttal, proof of the bad character of the victim is not introduce evidence that Vilma had a good reputation for
admissible if the crime was committed through treachery and peacefulness and non-violence? Why? (2002 Bar Question)
premeditation; and
2. In rape cases, the evidence of complainants past sexual A: The prosecution may introduce evidence of the good or
conduct, or reputation or opinion thereof shall not be
even bad moral character of the victim if it tends to
admitted unless and only to the extent that the court finds
that such evidence is material and relevant to the case (Rape establish in any reasonable degree the probability or
shield or Sexual Abuse Shield, Sec. 6, R.A. 8505). improbability of the offense charged. In this case, the
evidence is not relevant.
A: The moral character of either party thereto cannot be Q: In what cases is the Rule on Examination of a Child
proved unless it is pertinent to the issue of character Witness applicable?
involved in the case (Sec. 51).
A: It shall apply in all criminal and non-criminal proceedings
Note: Evidence of good moral character of a witness whether in a involving child witnesses. This Rule shall govern the
civil or criminal case is not admissible, unless such character has examination of child witnesses who are victims of crime,
been impeached (Sec. 14, Rule 132). accused of a crime, and witnesses of a crime (Sec. 1).
Q: When are the provisions of the Rules of Court
Q: How can one prove bad character? applicable in the examination of a child witness?
A: Only the following are allowed at a competency A: He is a person appointed by the court to pose questions
examination: to a child. [Sec. 4(c)]
1. The judge and necessary court personnel;
2. The counsel for the parties; Q: Who is a support person?
3. The guardian ad litem, if any;
4. One or more support persons for the child; and A: He is a person chosen by the child to accompany him to
5. The defendant, unless the court determines that testify at or attend a judicial proceeding or deposition to
competence can be fully evaluated in his absence [Sec. provide emotional support for him [Sec. 4(f)]
6(c)].
Q: Does the testimony of child witness need
Note: Such competency examination shall be conducted only by corroboration?
the judge but the counsel for the parties can submit questions to
the judge that he may, in his discretion, ask the child [Sec. 6(d)]. A: Corroboration shall not be required for the testimony of
a child. His testimony, if credible by itself, shall be sufficient
Q: What are the appropriate questions to be asked to the to support a finding of fact, conclusion, or judgment subject
child during competency examination? to the standard of proof required in criminal and non-
criminal cases (Sec. 22).
A: The questions to be asked are:
1. Appropriate to the age and developmental level of the Q: Budoy was charged with rape of his 10 year old
child; stepdaughter, Angie, to which he pleaded not guilty. For
2. Not related to the issues at trial; and the prosecution, it presented as witnesses the victim and
3. Shall focus on the ability of the child to remember, a Medico Legal Certificate issued by Dr. Luna, the results
communicate, distinguish between truth and of which showed that the victim suffered hymenal
falsehood, and appreciate the duty to testify truthfully laceration. For the defense, he vehemently denied the
[Sec. 6(e)]. charges and presented an alibi. RTC, affirmed with
modification by the CA convicted the accused. Should the
Q: What is meant by developmental level? testimony of the child be given full weight and credit?
A: It refers to the specific growth phase in which most A: Testimonies of child victims are given full weight and
individuals are expected to behave and function in relation credit, for when a woman or a girl-child says that she has
to the advancement of their physical, socio-emotional, been raped; she says in effect all that is necessary to show
cognitive, and moral abilities [Sec. 4(h)]. that rape was indeed committed. Youth and immaturity are
generally badges of truth and sincerity (People v. Sobusa,
Q: What is the duty of the court regarding the competency G.R. No. 181083, Jan. 21, 2010).
of the child?
Q: When may the public be excluded from the courtroom
A: It has the duty of continuously assessing the competence wherein a child testifies?
of the child throughout his testimony [Sec. 6(f)].
A: When a child testifies, the court may order the exclusion
Q: In case of a child witness, what should the court from the courtroom of all persons, including members of
consider in determining his competency? the press, who do not have a direct interest in the case.
Such an order may be made to protect the right to privacy
A: The court must consider his capacity: of the child or if the court determines on the record that
1. At the time the fact to be testified to occurred such requiring the child to testify in open court would cause
that he could receive correct impressions thereof; psychological harm to him, hinder the ascertainment of
2. To comprehend the obligation of an oath; and truth, or result in his inability to effectively communicate
3. To relate those facts truly at the time he is offered as a due to embarrassment, fear, or timidity.
witness. The court should take into account his
capacity for observation, recollection and LIVE-LINK TV TESTIMONY OF A CHILD WITNESS
communication. (Regalado, Remedial Law
Compendium, Vol. II, pp. 739-740, 2008 ed.) Q: When may the court order that the testimony of the
child be taken by live-link television? Explain. (2005 Bar
EXAMINATION OF A CHILD WITNESS Question)
Q: How is an examination of a child witness conducted? A: The court may order that the testimony of the child be
taken by live-link television if there is a substantial
A: it shall be done in open court and unless the witness is likelihood that the child would suffer trauma from testifying
incapacitated to speak or the question calls for different in the presence of the accused, his counsel or the
mode of answer, the answers of the witness shall be given prosecutor as the case may be. The trauma must be of a
orally (Sec. 8). kind which would impair the completeness or truthfulness
of the testimony of the child (Sec. 25).
Q: Who is a facilitator?
Note: The rights of the accused during trial, especially the right to 2. In ruling on the admissibility of such hearsay
counsel and to confront and cross-examine the child, shall not be statement, the court shall consider the time, content
violated during the deposition (Sec. 27[d]). After the original and circumstances thereof, based on various factors
videotaping but before or during trial, any party may file any provided by the law, which provide sufficient indicia of
motion for additional videotaping on the ground of newly reliability (Sec. 28b).
discovered evidence. The court may order an additional
videotaped deposition to receive the newly discovered evidence.
SEXUAL ABUSE SHIELD RULE
(Sec. 27[j])
written affirmation that he has received and read be destroyed after 5 years have elapsed from the date
a copy of the protective order; that he submits to of entry of judgment [Sec. 31(f)].
the jurisdiction of the court with respect to the
protective order; and that in case of violation 7. Records of youthful offender: confidential
thereof, he will be subject to the contempt power a. Where he has been charged before any
of the court; prosecutor or before any municipal judge and the
d. Each of the tape cassettes and transcripts thereof charges have been ordered dropped, all the
made available to the parties, their counsel, and records of the case shall be considered as
respective agents shall bear the following privileged and may not be disclosed directly or
cautionary notice: indirectly to anyone for any purpose whatsoever.
b. Where he has been charged and the court acquits
"This object or document and the contents thereof him, or dismisses the case or commits him to an
are subject to a protective order issued by the institution and subsequently releases him, all the
court in (case title), (case number). They shall not records of his case shall also be considered as
be examined, inspected, read, viewed, or copied privileged and may not be disclosed except:
by any person, or disclosed to any person, except i. To determine if a defendant may have his
as provided in the protective order. No additional sentence suspended under Art. 192 of P.D.
copies of the tape or any of its portion shall be 603 or if he may be granted probation
made, given, sold, or shown to any person under the provisions of P.D. 968; or
without prior court order. Any person violating ii. To enforce his civil liability, if said liability
such protective order is subject to the contempt has been imposed in the criminal action
power of the court and other penalties prescribed
by law." 8. The youthful offender concerned shall not be held
under any provision of law to be guilty of perjury or of
e. No tape shall be given, loaned, sold, or shown to concealment or misrepresentation by reason of his
any person except as ordered by the court. failure to acknowledge the case or recite any fact
f. Within thirty (30) days from receipt, all copies of related thereto in response to any inquiry made to him
the tape and any transcripts thereof shall be for any purpose [Sec. 31(g)].
returned to the clerk of court for safekeeping
unless the period is extended by the court on OFFER AND OBJECTION
motion of a party.
g. This protective order shall remain in full force and Q: What evidence shall be considered by the court?
effect until further order of the court. [Sec. 31(b)].
A: GR: The court shall consider only the evidence which has
3. Additional protective orders The court may, motu been formally offered. The purpose for which the evidence
proprio or on motion of any party, the child, his is offered must be specified (Sec. 34).
parents, legal guardian, or the guardian ad litem, issue
additional orders to protect the privacy of the child XPNs:
[Sec. 31(c)]. 1. Marked exhibits not formally offered may be
admitted provided it complies with the following
4. Publication of identity contemptuous: requisites:
Whoever publishes or causes to be published in any format a. must be duly identified by testimony duly
the name, address, telephone number, school, or other recorded; and
identifying information of a child who is or is alleged to be a b. must have been incorporated in the records
victim or accused of a crime or a witness thereof, or an of the case (Ramos v. Dizon, G.R. No.
immediate family of the child shall be liable to the 137247, Aug. 6, 2006);
contempt power of the court (Sec. 31[d]). 2. Under the Rule on Summary Procedure, where no
full blown trial is held in the interest of speedy
5. Physical safety of child; exclusion of evidence A child administration of justice;
has a right at any court proceeding not to testify 3. In summary judgments under Rule 35 where the
regarding personal identifying information, including judge based his decisions on the pleadings,
his name, address, telephone number, school, and depositions, admissions, affidavits and
other information that could endanger his physical documents filed with the court;
safety or his family. 4. Documents whose contents are taken judicial
notice of by the court;
XPN: The court may, however, require the child to 5. Documents whose contents are judicially
testify regarding personal identifying information in admitted; or
the interest of justice [Sec. 31(e)]. 6. Object evidence which could not be formally
offered because they have disappeared or have
6. Destruction of videotapes and audiotapes Videotapes become lost after they have been marked,
and audiotapes produced under the provisions of this identified and testified on and described in the
Rule or otherwise made part of the court record shall record and became the subject of cross-
examination of the witness who testified on them
during the trial (Tabuena vs. CA, 196 SCRA 650; Note: It is basic in the law of evidence that the court shall consider
People vs. Napat-a, 179 SCRA 403) evidence solely for the purpose for which it was offered. (Ragudo
7. Documents and affidavits used in deciding quasi- vs. Fabella Estate Tenants Asso. Inc., 466 SCRA 136)
judicial or administrative cases (Bantolino vs.
Coca-Cola Bottlers Inc., 403 SCRA 699). Q: Gizel filed a complaint for recovery of possession and
damages against Fara. In the course of the trial, Gizel
Q: During the pre-trial of a civil case, the parties presented marked his evidence but his counsel failed to file a formal
their respective documentary evidence. Among the offer of evidence. Fara then presented in evidence tax
documents marked by the plaintiff Rina was the Deed of declarations in the name of his father to establish that his
Absolute Sale of the property in litigation (Exh. "C"). In the father is a co-owner of the property. The court ruled in
course of the trial on the merits, Exh. "C was identified by favor of Fara, saying that Gizel failed to prove sole
Rina, who was cross-examined thereon by Rey's counsel; ownership of the property in the face of Faras evidence.
furthermore, the contents of Exh. "C" were read into the Was the court correct? Explain briefly. (2007 Bar Question)
records by Rina. However, Exh. "C" was not among those
formally offered in evidence by her. May the trial court A: Yes. The court shall consider no evidence which has not
consider Exh. "C" in the determination of the action? been formally offered. The trial court rendered judgment
Why? (1993 Bar Question) considering only the evidence offered by Fara. The offer is
necessary because it is the duty of the judge to rest his
A: Yes, because not only was the Deed of Absolute Sale findings of fact and his judgment only and strictly upon the
marked, identified and Rina was cross-examined by Reys evidence offered by the parties at the trial. (People v.
counsel. Furthermore, the contents of Exh. "C" were read Pecardal, G.R. No. 71381, Nov. 24, 1986)
into the records. Hence, the trial court could properly
consider Exh. "C" in the determination of the action even Q: Eidene sued ABC, a shipping company, based on a
though it was not formally offered in evidence. This is an contract of carriage contained in a bill of lading. The bill of
exception to the rule that the court shall consider no lading, an actionable document, was pleaded and
evidence which has not been formally offered. (Sec. 35) attached to the complaint. ABC, without alleging anything
else, merely assailed the validity of the agreement in the
OFFER OF EVIDENCE bill of lading for being contrary to public policy. After
presenting evidence, Eidene did not formally offer for the
Q: What are the purposes of offer of evidence? bill of ladings admission. The court ruled for Eidene. On
motion for reconsideration, ABC alleged that Eidene failed
A: to prove his action as the bill of lading was not formally
1. To notify the party of possible objection, and for the offered. Decide. (1996 Bar Question)
offeror to make necessary correction at the trial level
to meet the objection; A: The motion for reconsideration should be denied. There
2. To allow the trial judge to rule properly; was no need to formally offer for admission the bill of
3. To lay basis for appeal so that the appellate court can lading, because the failure of ABC to deny under oath the
decide intelligently. genuineness and due execution of the bill of lading which
was an actionable document constituted an admission
Note: A formal offer is necessary, since judges are required to base thereof.
their findings of fact and their judgment solely and strictly upon the
evidence offered by the parties at the trial. Q: Aiza and Matet were charged with murder. Upon
application of the prosecution, Matet was discharged from
To allow parties to attach any documents to their pleadings and the Information to be utilized as a State witness. The
then expect the court to consider it as evidence, even without prosecutor presented Matet as witness but forgot to state
formal offer and admission, may draw unwarranted consequences.
the purpose of his testimony much less offer it in
Opposing parties will be deprived of their chance to examine the
document and to object to its admissibility. On the other hand, the evidence. Matet testified that she and Aiza conspired to
appellate court will have difficulty reviewing the documents not kill the victim but it was Aiza who actually shot the victim.
previously scrutinized by the court below. (Candido v. Court of The testimony of Matet was the only material evidence
Appeals, G.R. No. 107493, February 1, 1996) establishing the guilt of Aiza. Matet was thoroughly cross-
examined by the defense counsel. After the prosecution
Q: What are the rationales in stating the purpose for rested its case, the defense filed a motion for demurrer to
which the evidence is being offered? evidence based on the following grounds:
1. The testimony of Matet should be excluded because
A: its purpose was not initially stated and it was not
1. For the court to determine whether that piece of formally offered in evidence; and
evidence should be admitted or not; 2. Matet's testimony is not admissible against Aiza
2. Evidence submitted for one purpose may not be pursuant to the rule on "res inter alios acta".(2003
considered for any other purpose; and Bar Question)
3. For the adverse party to interpose the proper
objection. Rule on the motion for demurrer to evidence on the above
grounds.
A:
1. The demurrer to evidence should be denied because
the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its
purpose and offer it in evidence. Moreover, the
defense counsel thoroughly cross-examined Matet and
thus waived the objection.
2. The res inter alios acta rule does not apply because
Matet testified in open court and was subjected to
cross-examination.
A:
Testimonial Evidence Documentary and
Object Evidence
Q: What are the stages in the presentation of Offer must be made at Must be made after
documentary evidence? the time the witness is the presentation of
called to testify. partys testimonial
A: evidence, and before
resting his case.
Every time a new witness The evidence is only
is called to testify, there offered once, after all
must be an offer of the testimonial
evidence evidence are offered
and prior to the resting
of the case for a party.
evidence is again offered or the question is again f. When a witness has volunteered statements in
asked; such a way that the party has not been able to
2. Incompetency is shown later; object thereto;
3. Where objection refers to preliminary question, g. When a witness testifies without a question being
objection must be repeated when the same addressed to him; or
question is again asked during the introduction of h. When a witness testifies beyond the ruling of the
actual evidence; court prescribing the limits within which he may
4. Objection to evidence was sustained but answer.
reoffered at a later stage of the trial; i. Uncompleted testimonies where there is no
5. Evidence is admitted on condition that its opportunity for the other party to cross-
competency or relevance be shown by further examination.
evidence and the condition is not fulfilled, the
objection formerly interposed must be repeated Q: May a direct testimony given and allowed without a
or a motion to strike out the evidence must be prior formal offer be expunged from the record?
made; and
6. Where the court reserves the ruling on objection, A: No. When such testimony is allowed without any
the objecting party must request a ruling or objection from the adverse party, the latter is estopped
repeat the objection. from questioning the non-compliance with the
requirement.
RULING
TENDER OF EXCLUDED EVIDENCE
Q: When should the court make its ruling on the
objection? Q: What is tender of excluded evidence or offer of proof?
A: It must be given immediately after the objection is made, A: When an attorney is not allowed by the court to present
unless the court desires to take a reasonable time to inform testimony which he thinks is competent, material and
itself on the question presented; but the ruling shall always necessary to prove his case, he must make an offer of
be made during the trial and at such time as will give the proof. This is the method properly preserving the record to
party against whom it is made an opportunity to meet the the end that the question may be saved for purposes of
situation presented by the ruling (Sec. 38, Rule 132). review (Caraig, Revised Rules of Evidence 2004 ed., p. 337).
STRIKING OUT OF AN ANSWER Note: This rule is in preparation in the filing of an appeal.
Moreover, the rule is that the offeror must preserve such excluded
Q: What are the modes of excluding inadmissible evidence on his record and stating the purpose of such
preservation, i.e. knowing that it is relevant and must be admitted.
evidence?
Q: How is tender of excluded evidence made?
A:
1. Objection when the evidence is offered.
A:
Note: Objections may be waived because the right to object 1. As to documentary or object evidence: It may have the
is merely a privilege which the party may waive. (People v. same attached to or made part of the record.
Martin, G.R. No. 172069, Jan. 30, 2008) However, such waiver
only extends to the admissibility of the evidence. It does not Note: The party should ask that evidence ruled out at
involve an admission that the evidence possesses the weight the trial be attached to the record of case in order that
attributed to it by the offering party (Riano, Evidence: A same may be considered on appeal (Banez vs. CA, 59
Restatement for the Bar, p. 471, 2009 ed.). SCRA 15).
2. Motion to strike out or expunge: 2. As to oral evidence: It may state for the record the
a. When the witness answers prematurely before name and other personal circumstances of the witness
there is reasonable opportunity for the adverse and the substance of the proposed testimony.
party to object, and such objection is found to be
meritorious; Q: How is an offer of evidence made?
b. When the answers are incompetent, irrelevant, or
improper (Sec. 39, Rule 132); A:
c. When the witness becomes unavailable for cross- 1. Before the court has ruled on the objection, in which
examination through no fault of the cross- case its function is to persuade the court to overrule
examining party; the objection or deny the privilege invoked;
d. When the answer is unresponsive; 2. After the court has sustained the objection, in which
e. When the testimony was allowed conditionally case its function is to preserve for the appeal the
and the condition for its admissibility was not evidence excluded by the privilege invoked;
fulfilled (Riano, Evidence: A Restatement for the 3. Where the offer of proof includes the introduction of
Bar, p. 467, 2009 ed.); documents, or any of the physical evidence, the same
should be marked for identification so that they may
become part of the record (Herrera, Vol. VI, p. 344). Note: We follow the harmless error rule, for in dealing with
evidence improperly admitted in the trial, courts examine its
Q: When is offer or proof not required? damaging quality and its impact to the substantive rights of the
litigant. If the impact is slight and insignificant, appellate courts
disregard the error as it will not overcome the weight of the
A: properly admitted evidence against the prejudiced part (People v.
1. When the question to which an objection has been Teehankee Jr. G.R. Nos. 111206-08, October 6, 1995).
sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the
excluded evidence were made known to the court
either in the court proceedings and such parts appear
on record;
3. Where evidence is inadmissible when offered and
excluded, but thereafter becomes admissible, it must
be re-offered, unless the court indicates that a second
offer would be useless (Herrera, Vol. VI, p. 344-345).
A:
1. To allow the court to know the nature of the
testimony or the documentary evidence and convince
the trial judge to permit the evidence or testimony;
and
2. To create and preserve a record for appeal, should the
judge be not persuaded to reverse his earlier ruling
(Riano, Evidence: A Restatement for the Bar, p. 477,
2009 ed.).
A:
Offer of
Proof/Tender of Offer of Evidence
Excluded Evidence
Refers to testimonial,
documentary or object
Only resorted to if evidence that are
admission is refused presented or offered in
by the court for court by a party so that
purposes of review the court can consider his
on appeal evidence when it comes to
the preparation of the
decision
A:
English Exchequer
Harmless Error Rule
Rule
The apellate court will
It provides that a trial
disregard an error
court's error as to the
committed by the trial
admission of evidence
court in the admission of
was presumed to have
evidence unless in its
caused prejudice and
opinion, some
therefore, almost
substantial wrong or
automatically required
miscarriage of justice has
new trial.
been occasioned.
REVISED RULES ON SUMMARY PROCEDURE Q: What are the prohibited pleadings and motions in both
civil and criminal cases?
CASES COVERED BY THE RULE
A: The following pleadings, motions or petitions shall not be
Q: In what cases do the Revised Rules on Summary allowed:
Procedure apply? 1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of lack
A: of jurisdiction over the subject matter, or failure to
1. Civil cases: refer the case to the Lupon Tagapamayapa in cases
1. All cases of forcible entry and unlawful detainer, covered by the Katarungang Pambarangay Law.
irrespective of amount of damages or unpaid 2. Motion for a bill of particulars;
rentals sought to be recovered provided when 3. Motion for new trial, or for reconsideration of a
attorneys fees are awarded, the same shall not judgment, or for opening of trial;
exceed P20,000.00; and 4. Petition for relief from judgment;
2. All other civil cases, except probate proceedings, 5. Motion for extension of time to file pleadings,
where the total amount of the plaintiffs claim affidavits or any other paper;
does not exceed P100,000 or P200,000 in 6. Memoranda;
Metropolitan Manila, exclusive of interest and 7. Petition for certiorari, mandamus, or prohibition
costs (As amended by A.M. No. 02-11-09-SC against any interlocutory order issued by the court;
effective Nov. 5, 2002). 8. Motion to declare the defendant in default;
2. Criminal cases: 9. Dilatory motions for postponement;
a. Violations of traffic laws, rules and regulations; 10. Reply;
b. Violations of rental law; 11. Third party complaints;
c. Violations of municipal or city ordinances; 12. interventions (Sec. 19, Ibid.).
d. All other criminal cases where the penalty
prescribed by law for the offense charged is EFFECT OF FAILURE TO ANSWER
imprisonment not exceeding 6 months or a fine
not exceeding P1,000.00, or both, irrespective of Q: What is the effect of failure of the defendant to
other imposable penalties, accessory or answer?
otherwise, or of the civil liability arising there
from. Provided however, that in offenses A: The court, motu proprio or on motion of the plaintiff,
involving damage to property through criminal shall render judgment as may be warranted by the facts
negligence, this Rule shall govern where the alleged in the complaint and limited to what is prayed for
imposable fine does not exceed P10,000.00; and (Sec 6, Ibid).
e. Violation of Bouncing checks law/BP 22 (Sec. 1,
Revised Rules on Summary Procedure). Note: This is without prejudice to the applicability of Sec. 4, Rule
18 of the Rules of Court, stating that the non-appearance of the
Q. What are the pleadings allowed in civil cases? party in a pre-trial may be excused if valid cause is shown or a
representative authorized in writing appears in his behalf.
A: The only pleadings allowed to be filed are the
PRELIMINARY CONFERENCE AND APPEARANCES OF THE
complaints, compulsory counterclaims and cross-claims
PARTIES
pleaded in the answer, and the answers thereto. (Sec. 3(a),
ibid.)
Q: Is preliminary conference in civil cases mandatory?
Q. How is a criminal case commenced?
A: Yes. Not later than 30 days after the last answer is filed,
a preliminary conference shall be held. The rules on pre-
A: The filing of criminal cases falling within the scope of this
trial in ordinary cases shall be applicable to the preliminary
Rule shall be either by complaint or by information:
conference unless inconsistent with the provisions of this
Provided, however, that in Metropolitan Manila and in
Rule (Riano, Civil Procedure: A Restatement for the Bar, pp.
Chartered Cities, such cases shall be commenced only by
778, 2005 ed.).
information, except when the offense cannot be
prosecuted de officio.
Q: What is the duty of the court after conducting the
preliminary conference?
The complaint or information shall be accompanied by the
affidavits of the complainant and of his witnesses in such
A: Within five (5) days after the termination of the
number of copies as there are accused plus two (2) copies
preliminary conference, the court shall issue an order
for the court's files. If this requirement is not complied with
stating the matters taken up therein, including but not
within five (5) days from date of filing, the case may be
limited to:
dismissed (Sec. 11, ibid.).
A: Yes. Before conducting the trial, the court shall call the
parties to a preliminary conference during which a
stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser
offense may be considered, or such other matters may be
taken up to clarify the issues and to ensure a speedy
disposition of the case.
A: The Katarungang Pambarangay Law provides for the 4. Any complaint by or against corporations, partnerships or
settlement of disputes between individual residents of the juridical entities, since only individuals shall be parties to
same city or municipality, thru mediation, arbitration, or Barangay conciliation proceedings either as complainants
conciliation, before the Katarungang Pambarangay. or respondents (Sec. 1, Rule VI, Katarungang Pambarangay
Compliance therewith is a condition precedent to the filing Rules);
of a complaint or information in court or before the Fiscals
Office, and its absence is a ground for dismissal of the 5. Disputes involving parties who actually reside in
complaint for prematurity or absence of a cause of action barangays of different cities or municipalities, except where
(Albano, Remedial Law Reviewer, 2010 ed). such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable
Q: What is the composition of Lupong Tagapamayapa? settlement by an appropriate Lupon;
A: It is composed of the punong barangay as chairman and 6. Offenses for which the law prescribes a maximum
10 to 20 members (Sec. 399, RA 7160). penalty of imprisonment exceeding one (1) year or a fine
over five thousand pesos (P5,000.00);
Q: What is the object of the Katarungang Pambarangay
Law? (1999 Bar Question) 7. Offenses where there is no private offended party;
A: Its object is to effect an amicable settlement of disputes
among family and barangay members at the barangay level 8. Disputes where urgent legal action is necessary to
without judicial recourse and consequently help relieve the prevent injustice from being committed or further
courts of docket congestion (Preamble of P.D. 1508, the continued, specifically the following:
former and the first Katarungang Pambarangay Law). a. Criminal cases where accused is under police
custody or detention (See Sec. 412 (b)(1), Revised
Q: What are the cases covered by the Katarungang Katarungang Pambarangay Law);
Pambarangay Law?
b. Petitions for habeas corpus by a person illegally
A: As a rule, cases involving the following should first be deprived of his rightful custody over another or a
filed before the Katarungang Pambarangay before person illegally deprived of his liberty or one acting in
resorting to courts or government offices: his behalf;
1. Disputes between persons actually residing in the
same barangay; c. Actions coupled with provisional remedies such as
2. Those involving actual residents of different barangays preliminary injunction, attachment, delivery of
within the same city or municipality; personal property and support during the pendency of
3. All disputes involving real property or any interest the action; and
therein where the real property or the larger portion
thereof is situated; d. Actions which may be barred by the Statute of
4. Those arising at the workplace where the contending Limitations.
parties are employed or at the institution where such
parties are enrolled for study, where such workplace 9. Any class of disputes which the President may determine
or institution is located. in the interest of justice or upon the recommendation of
the Secretary of Justice;
Note: The compulsory process of arbitration is a pre-condition for
the filing of the complaint in court. Where the complaint (a) did 10. Where the dispute arises from the Comprehensive
not state that it is one of excepted cases, or (b) it did not allege Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
prior availment of said conciliation process, or (c) did not have a
certification that no conciliation had been reached by the parties,
the case should be dismissed (Agbayani v. Court of Appeals, G.R. 11. Labor disputes or controversies arising from
No. 183623, June 25, 2012). employer-employee relations (Montoya vs. Escayo, et al.,
171 SCRA 442; Art. 226, Labor Code, as amended, which
Q: What are the exceptions to the above rule? grants original and exclusive jurisdiction over conciliation
and mediation of disputes, grievances or problems to
A: certain offices of the Department of Labor and
1. Where one party is the government, or any subdivision Employment);
or instrumentality thereof;
12. Actions to annul judgment upon a compromise,
2. Where one party is a public officer or employee, and the which may be filed directly in court (See Sanchez vs. Tupaz,
dispute relates to the performance of his official functions; 158 SCRA 459)
(Supreme Court Administrative circular no. 14-93)
A: No. Under Sec. 1, Rule VI of the Katarungang A: Yes. While the dispute is under mediation, conciliation,
Pambarangay Rules implementing the Katarungang or arbitration, the prescriptive periods for offenses and
Pambarangay Law, only individuals may be parties to the cause of action under existing laws shall be interrupted
proceedings under the Katarungang Pambarangay Law upon filing of the complaint with the Punong barangay. The
either as complainants or respondents. Further, no prescriptive periods shall resume upon receipt by the
complaint by or against corporations, partnerships or other complainant of the certificate of repudiation or of the
juridical entities may be filed, received or acted upon. Here, certification to file action issued by the lupon or pangkat
being a corporation, defendant cannot be impleaded as a secretary; provided however, that such interruption shall
party to a barangay conciliation proceeding (Universal not exceed 60 days from the filing of the complaint with the
Robina Sugar Milling Corporation v. Heirs of Angel Teves, punong barangay (Sec. 410, RA 7160).
G.R. No. 128574, Sept. 18, 2002).
Q: May summons be issued and hearing conducted in the
Q: Reynold and Franco, brothers and both residents of proceeding?
Marikina, Metro Manila, had opposing and exclusive
claims of ownership over a parcel of land located in A: Yes. The pangkat shall convene not later than 3 days
Morong, Rizal. They consulted with their uncle and from its constitution, on the day and hour set by the lupon
requested him to try to amicably settle their dispute. The chairman, to hear both parties and their witnesses, simplify
uncle failed, despite earnest efforts of all concerned to issues, and explore all possibilities for amicable settlement.
arrive at a compromise. Reynold thereupon filed suit for For this purpose, the pangkat may issue summons for the
title or ownership without, however, bringing the dispute personal appearance of parties and witnesses (Sec. 410, RA
to the Lupong Tagapamayapa, for settlement and without 7160).
alleging in the complaint that previous earnest efforts
towards a compromise had been exerted by him but had Q: Are all proceedings open to the public?
failed. Franco moved to dismiss on the ground of failure of
the complaint to state a cause of action in that: (1) it did A: GR: All proceedings for settlement shall be public and
not aver that Reynold had previously taken earnest but informal.
futile efforts towards a compromise and (2) it did not
allege that proceedings for settlement had been filed XPN: The lupon chairman or the pangkat chairman as
before the Lupon but no settlement reached, both of the case may be, may motu proprio or upon request of
which, according to Franco, are conditions precedent to a a party, exclude the public from the proceedings in the
cause of action in favor of Reynold. interest of privacy, decency or public morals (Sec. 414,
RA 7160).
If you were counsel for Reynold, what steps would you
take and what arguments will you advance to meet the SUBJECT MATTER OF AMICABLE SETTLEMENT
motion to dismiss based on the asserted: (1) failure to
exert efforts at a compromise; and (2) failure to observe Q: What is the subject matter for amicable settlement?
the Katarungang Pambarangay Law? Explain.
A: The lupon of each barangay shall have authority to bring
A: Franco's motion to dismiss is well founded because together the parties actually residing in the same
Reynold and Franco are both residents of Marikina and municipality or city for amicable settlement of all
prior recourse to barangay conciliation is a pre condition to disputes, except in cases enumerated in Supreme Court
the filing of a complaint (Tavora v. Veloso, G.R. No. L-60367, Administrative circular no. 14-93 supra.
Sept. 30, 1982)
Note: The court in which non-criminal cases not falling within the
As counsel of Reynold, I would file an opposition to Francos authority of the lupon under the Code are filed may, at any time
motion to dismiss by submitting an affidavit of their uncle, before trial, motu propio refer the case to the lupon concerned for
amicable settlement. (Sec. 408, LGC).
or presenting him as a witness, to show that earnest efforts
were made by all concerned to arrive at a compromise, but
Q: May a lawyer appear before the Lupon as counsel or
without success. I would also argue that prior recourse to
representative?
barangay conciliation would have been futile in view of the
failure of the uncle to amicably settle the dispute.
A: No. In all katarungang pambarangay proceedings, the
parties must appear in person without the assistance of
A: It is a special rule of procedure adopted by the Supreme COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE
Court pursuant to its rule-making power to govern small
claims. This rule allows a plaintiff to sue a defendant Q: How does one start a small claims case?
without the need of a lawyer.
A: The plaintiff must first accomplish a verified Statement
Q: Does the new rule on small claims cases create new of Claim and certify the information provided, stating that
courts? he has not filed any action involving the very same issue in
any other court, tribunal or agency through a verification
A: No. It simply provides a procedure for prosecuting, and certification of non-forum shopping.
defending, and adjudicating small claims cases, which by
law are already within the jurisdiction of first level courts. The Statement of Claim must be accompanied by certified
duplicate photocopies of all supporting documents.
SCOPE AND APPLICABILITY OF THE RULE
The plaintiff then files the Statement of Claim with its
Q: What is the scope of this Rule? accompanying documents with the office of the clerk of
court of the small claims court, personally or through mail,
A: The Rule governs the procedure in actions for money and pays the correct docket and filing fees prescribed under
claims before the Metropolitan Trial Courts, Municipal Trial Rule 141 of the Revised Rules of Court
Courts in Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts where the value of the claim does not exceed No evidence shall be allowed during the hearing which was
One Hundred Thousand Pesos (P100,000.00), exclusive of not attached to the claim unless good cause is shown for
interest and costs. the admission of the evidence (Sec. 5, A.M. No. 08-8-7-SC).
Q: In what actions does the rule on small claims apply? If one is an indigent, he may apply to the small claims court
to qualify as an indigent, and once qualified, he is exempt
A: from payment of such fees (Sec. 8, A.M. No. 08-8-7-SC).
1. Those which are purely civil in nature where the claim
or relief prayed for by the plaintiff is solely for Note: In no case shall a party, even if declared an indigent, be
payment or reimbursement of sum of money; exempt from the payment of P1,000.00 fee for service of summons
A: No, lawyers are not allowed to appear at the hearing A: The rule does not preclude a party from filing a petition
unless they are the plaintiff or the defendant. However, for certiorari under Rule 65 when there is grave abuse of
since the process is still a legal process, the parties and discretion amounting to lack or excess of jurisdiction in
their authorized representatives can still consult with a relation to a judgment in a small claims action (such a
lawyer to assist them to prepare for the hearing or for petition is prohibited with regard to interlocutory orders).
other matters outside the hearing (Sec. 17, A.M. No. 08-8-7-
SC). Further, the aggrieved party can also file an action for
annulment of judgment when the requirements under the
Note: The court, in its discretion, may allow another individual who Rules of Civil Procedure are complied with.
is not a lawyer to assist the party (Sec. 17, A.M. No. 08-8-7-SC).
Note: There is no trial under the Rules on Small Claims. Under Sec.
22, if efforts at settlement fail, the hearing shall proceed in an
informal and expeditious manner and be terminated within one (1)
day. Either party may move in writing to have another judge hear
and decide the case. The reassignment of the case shall be done in
accordance with existing issuances.
The referral by the original judge to the Executive Judge shall be
made within the same day the motion is filed and granted, and by
the Executive Judge to the designated judge within the same day of
the referral. The new judge shall hear and decide the case within
five (5) working days from receipt of the order of reassignment.
FINALITY OF JUDGMENT
Q: When is a motion for postponement, motion for new Note: It is intended to encourage the protection of the
trial and petition for relief from judgment allowed? environment. The provision liberalizes standing for all cases filed
enforcing environmental laws on the principle that humans are
stewards of nature (Annotation to the Rules of Procedure for
A: It shall only be allowed in highly meritorious cases or to
Environmental Cases).
prevent miscarriage of justice (Annotation to the Rule of
Procedure for Environmental Cases).
Q: Is there a need for publication?
TEMPORARY ENVIRONMENTAL PROTECTION ORDER
A: No. Upon the filing of a citizen suit, the court shall issue
(TEPO)
an order which shall contain a brief description of the cause
of action and the reliefs prayed for, requiring all interested
Q: When should a Temporary Environmental Protection
parties to manifest their interest to intervene in the case
order be issued?
within fifteen (15) days from notice thereof. The plaintiff
may publish the order once in a newspaper of a general
A: If it appears from the verified complaint with a prayer for
circulation in the Philippines or furnish all affected
the issuance of an Environmental Protection Order (EPO)
barangays copies of said order. This adopts the features of
that the matter is of extreme urgency and the applicant will
the general rule on publication found in cases in rem, and is
suffer grave injustice and irreparable injury (Sec. 8, Rule 2,
meant to reflect the distinct nature of environmental cases.
AM No. 09-6-8-SC).
In this Rule, however, publication is permissive and non-
jurisdictional and is meant only to encourage public
Note: It is effective for only seventy-two (72) hours from date of
the receipt of the TEPO by the party or person enjoined. Within participation.
said period, the court where the case is assigned, shall conduct a
summary hearing to determine whether the TEPO may be Q: What are the reliefs in a citizen suit?
extended until the termination of the case. The court where the
case is assigned shall periodically monitor the existence of acts that A: If warranted, the court may grant to plaintiff proper
are the subject matter of the TEPO even if issued by the executive reliefs which shall include:
judge, and may lift the same at any time as circumstances may 1. Protection, preservation or rehabilitation of
warrant (Sec. 8, Rule 2, AM No. 09-6-8-SC).
the environment and the payment of
attorneys fees, costs of suit and other
Q: May a TEPO be issued ex parte?
litigation expenses;
A: Yes. While it may be issued ex parte, this is an exception.
2. It may also require the violator to submit a
The general rule of due process of conducting a hearing
program of rehabilitation or restoration of
remains (Sec. 2, Rule 8, AM No. 09-6-8-SC).
the environment, the costs of which shall be
borne by the violator; or
Q: Is the applicant required to post a bond?
3. Require the violator to contribute to a
special trust fund for that purpose subject to
A: No. The applicant shall be exempted from the posting of
the control of the court (Sec. 1, Rule 5, AM
a bond for the issuance of a TEPO (Sec. 8, Rule 2, AM No.
No. 09-6-8-SC).
09-6-8-SC).
Note: In a citizen suit, the court shall defer the payment of filing
Q: May the TEPO be dissolved? and other legal fees that shall serve as first lien on the judgment
award (Sec. 12, Rule 2, AM No. 09-6-8-SC).
A: The TEPO may be dissolved if it appears after hearing
that its issuance or continuance would cause irreparable Q: May damages be awarded in a citizen suit?
damage to the party or person enjoined while the applicant
may be fully compensated for such damages as he may A: No. A party or person who suffers damage or injury
suffer and subject to the posting of a sufficient bond by the arising from an environment prejudice, which is also the
party or person enjoined (Sec. 9, Rule 2, AM No. 09-6-8-SC). same subject of citizen suit, cannot claim for damages in a
citizen suit since it is the environment that is vindicated in
XPN: If the appellate court acted with great abuse of STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
discretion refusing to act on the application for a TRO,
a petition for certiorari under Rule 65 can be brought Q: What is a Strategic Lawsuit Against Public Participation
before the Supreme Court. (SLAPP)?
Q: When is there a need to refer to a commissioner? A: It is a legal action filed to harass, vex, exert undue
pressure or stifle any legal recourse that any person,
A: The court may motu proprio, or upon motion of the institution or the government has taken or may take in the
prevailing party, order that the enforcement of the enforcement of environmental laws, protection of the
judgment or order be referred to a commissioner to be environment or assertion of environmental rights (Sec. 1,
appointed by the court. The commissioner shall file with Rule 6, AM No. 09-6-8-SC).
the court written progress reports on a quarterly basis or
more frequently when necessary (Sec. 4, Rule 5, AM No. 09- Note: The nature of the hearing on the defense of a SLAPP shall be
6-8-SC). summary in nature. The parties must submit all available evidence
in support of their respective positions (Sec. 3, Rule 6, AM No. 09-6-
8-SC).
Q: When shall the judgment be deemed executed?
Q: Can the defendant raise SLAPP as a legal defense?
A: The process of execution shall terminate upon a
sufficient showing that the decision or order has been
A: Yes, the defendant may file an answer interposing as a
implemented to the satisfaction of the court in accordance
defense that the case is a SLAPP and shall be supported by
with Section 14, Rule 39 of the Rules of Court (Sec. 5, Rule
documents, affidavits, papers and other evidence; and, by
5, AM No. 09-6-8-SC).
way of counterclaim, pray for damages, attorneys fees and
costs of suit (Sec. 1, Rule 6, AM No. 09-6-8-SC).
PERMANENT ENVIRONMENTAL PROTECTION ORDER;
WRIT OF CONTINUING MANDAMUS
Note: The plaintiff or adverse party has non-extendible period of
five (5) days from receipt of notice that an answer has been filed,
Q: What is a writ of Continuing Mandamus? to file an opposition. The defense of a SLAPP shall be set for
hearing by the court after issuance of the order to file an
A: It is a writ issued by a court in an environmental case opposition within fifteen (15) days from filing of the comment or
directing any agency or instrumentality of the government the lapse of the period (Sec. 2, Rule 6, AM No. 09-6-8-SC).
or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until This provision applies not only to suits that have been filed in the
form of a countersuit, but also to suits that are about to be filed
judgment is fully satisfied [Sec. 4 (c), Rule 1, AM No. 09-6-8-
with the intention of discouraging the aggrieved person from
SC]. bringing a valid environmental complaint before the court.
A: It is an order issued by the court directing or enjoining A: The party seeking the dismissal of the case must prove
any person or government agency to perform or desist by substantial evidence that his act for the enforcement of
from performing an act in order to protect, preserve or environmental law is a legitimate action for the protection,
rehabilitate the environment [Sec. 4(d), Rule 1, AM No. 09- preservation and rehabilitation of the environment.
6-8-SC].
The party filing the action assailed as a SLAPP shall prove by
Q: When may the court convert a TEPO to a permanent preponderance of evidence that the action is not a SLAPP
EPO? When may the court issue a writ of continuing and is a valid claim (Sec. 3, Rule 6, AM No. 09-6-8-SC).
mandamus?
Q: What is the effect of the dismissal of the action? Q: What is the magnitude of environmental damage in a
writ of kalikasan?
A: If the court dismisses the action, the court may award
damages, attorneys fees and costs of suit under a A: It must be of environmental damage of such magnitude
counterclaim if such has been filed. The dismissal shall be as to prejudice the life, health or property of inhabitants in
with prejudice (Sec. 4, Rule 6, AM No. 09-6-8-SC). The two or more cities or provinces (Sec. 1, Rule 7, AM No. 09-6-
dismissal of the SLAPP suit constitutes res judicata and is a 8-SC).
bar to the refiling of a similar case.
Q: Is the petitioner required to pay docket fees?
Q: What happens to the evidence adduced in case the
court rejects the defense of a SLAPP? A: No, the petitioner is exempt from payment of docket
fees (Sec. 4, Rule , AM No. 09-6-8-SC 7). The exemption
A: It shall be treated as evidence of the parties on the encourages public participation of availing the remedy.
merits of the case. And the action shall proceed in
accordance with the Rules of Court (Sec. 4, Rule 6, AM No. Q: Within what time should the issuance of the writ is
09-6-8-SC). made?
Q: Can SLAPP be raised as a defense in criminal cases? A: Within three (3) days from the date of filing of the
petition, if the petition is sufficient in form and substance,
A: Yes. The accused may file a motion to dismiss on the the court shall give an order: (a) issuing the writ; and (b)
ground that the action is a SLAPP upon the filing of an requiring the respondent to file a verified return as
information in court and before arraignment (Sec. 1, Rule provided in Section 8 of Rule 8 (Sec. 5, Rule 7, AM No. 09-6-
19, AM No. 09-6-8-SC). 8-SC).
Note: The court shall grant the motion if the accused establishes in Q: On what grounds may a respondent be cited for
the summary hearing that the criminal case has been filed with contempt?
intent to harass, vex, exert undue pressure or stifle any legal
recourse that any person, institution or the government has taken
A: The court may after hearing punish the respondent who
or may take in the enforcement of environmental laws, protection
of the environment or assertion of environmental rights (Sec. 3, refuses or unduly delays the filing of a return, or who
Rule 19, AM No. 09-6-8-SC). makes a false return, or any person who disobeys or resists
a lawful process or order of the court for indirect contempt
If the court denies the motion, it shall immediately proceed with under Rule 71 of the Rules of Court (Sec. 13, Rule 7, AM No.
the arraignment of the accused (Sec. 3, Rule 19, AM No. 09-6-8-SC). 09-6-8-SC).
SPECIAL CIVIL ACTION Note: This section is similar to Sec. 16 of the Rule on the Writ of
Amparo.
WRIT OF KALIKASAN
PROHIBITED PLEADINGS AND MOTIONS
Q: What is the Writ of Kalikasan?
Q: What are the prohibited pleadings and motions?
A: It is a special remedy available to a natural or juridical
person, entity authorized by law, peoples organization, A:
non-governmental organization, or any public interest 1. Motion to dismiss;
group accredited by or registered with any government 2. Motion for extension of time to file return;
agency, on behalf of persons whose constitutional right to a 3. Motion for postponement;
balanced and healthful ecology is violated, or threatened 4. Motion for a bill of particulars;
with violation by an unlawful act or omission of a public 5. Counterclaim or cross-claim;
official or employee, or private individual or entity, 6. Third-party complaint;
involving environmental damage of such magnitude as to 7. Reply; and
prejudice the life, health or property of inhabitants in two 8. Motion to declare respondent in default (Sec. 9,
or more cities or provinces (Sec. 1, Rule 7). Rule 7, AM No. 09-6-8-SC).
Q: What are the interim reliefs available to the petitioner Q: What is a writ of continuing mandamus?
upon filing a verified motion?
A: It is a writ issued by a court in an environmental case
A: directing any agency or instrumentality of the government
1. Ocular inspection; or or officer thereof to perform an act or series of acts
2. Production or inspection of documents or things (Sec. decreed by final judgment which shall remain effective until
12, Rule 7, AM No. 09-6-8-SC). judgment is fully satisfied [Sec. 4(c), Rule 1, AM No. 09-6-8-
SC].
Q: What are the requisites for granting an ocular
inspection? Q: When may an aggrieved party file a verified petition for
the issuance of a writ of continuing mandamus?
A: The motion must show:
1. that an ocular inspection order is necessary to A:
establish the magnitude of the violation or the threat 1. When any agency or instrumentality of the
as to prejudice the life, health or property of government or officer thereof to perform such acts
inhabitants in two or more cities or provinces; who unlawfully neglects the performance of an act
2. it shall state in detail the place or places to be which the law specifically enjoins as a duty resulting
inspected; and from an office, trust or station in connection with the
3. It shall be supported by affidavits of witnesses having enforcement or violation of an environmental law rule
personal knowledge of the violation or threatened or regulation or a right therein, or unlawfully excludes
violation of environmental law [Sec. 12(a), Rule 7, AM another from the use or enjoyment of such right; and
No. 09-6-8-SC]. 2. When there is no other plain, speedy and adequate
remedy in the ordinary course of law (Sec. 1, Rule 8,
Q: What does the ocular inspection order contain? AM No. 09-6-8-SC).
A: The order shall specify the person or persons authorized Q: What should the verified petition contain?
to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other A: It must contain the following:
conditions to protect the constitutional rights of all parties 1. Allegation of facts;
[Sec. 12(a), Rule 7, AM No. 09-6-8-SC]. 2. Specific allegation that the petition concerns an
environmental law, rule or regulation;
Q: What must the motion asking for the issuance of a 3. Prayer that judgment be rendered commanding the
production order or inspection of documents? respondent to do an act or series of acts until the
judgment is fully satisfied;
A: The motion must show that a production order is 4. Prayer for payment of damages sustained by the
necessary to establish the magnitude of the violation or the plaintiff due to malicious neglect to perform legal
threat as to prejudice the life, health or property of duties; and
inhabitants in two or more cities or provinces [Sec. 12(b), 5. Sworn certification of non-forum shopping (Sec. 1,
Rule 7, AM No. 09-6-8-SC]. Rule 8, AM No. 09-6-8-SC).
Q: What must the production order state? Q: Where should the petition be filed?
A: The production order shall specify the person or persons A: The petition shall be filed with the Regional Trial Court
authorized to make the production and the date, time, exercising jurisdiction over the territory where the
place and manner of making the inspection or production actionable neglect or omission occurred or with the Court
and may prescribe other conditions to protect the of Appeals or the Supreme Court (Sec. 2, Rule 8, AM No. 09-
constitutional rights of all parties (Sec. 12(b), Rule 7, AM 6-8-SC).
No. 09-6-8-SC).
Q: Are docket fees required to be paid?
Note: After hearing, the court may order any person in possession,
custody or control of any designated documents, papers, books, A: No. The petitioner is exempt from payment of docket
accounts, letters, photographs, objects or tangible things, or fees (Sec. 3, Rule 8, AM No. 09-6-8-SC).
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf Q: What does the court do if the petition is sufficient in
of the movant [Sec. 12(b), Rule 7, AM No. 09-6-8-SC]. form and substance?
The court may after hearing punish the respondent who refuses or A: The court shall issue the writ and require the respondent
unduly delays the filing of a return, or who makes a false return, or to comment on the petition within 10 days from receipt of
any person who disobeys or resists a lawful process or order of the a copy thereof (Sec. 4, Rule 8, AM No. 09-6-78-SC).
court for indirect contempt under Rule 71 of the Rules of Court
(Sec. 13, Rule 7, AM No. 09-6-8-SC).
A:
1. Issue such orders to expedite the proceedings; and
2. Grant a TEPO for the preservation of the rights of the
parties pending such proceedings (Sec. 5, Rule 8, AM
No. 09-6-8-SC).
Note: If the court finds that judgment has been fully implemented,
the satisfaction of judgment shall be entered in the court docket
(Sec. 8, Rule 8, AM No. 09-6-8-SC).
A:
Writ of Continuing Mandamus Writ of Kalikasan
Subject matter Directed against (a) the unlawful A Writ of Kalikasan is available against an
neglect in the performance of an act unlawful act or omission of a public
which the law specifically enjoins as a official or employee, or private individual
duty resulting from an office, trust or or entity, involving environmental
station in connection with the damage of such magnitude as to
enforcement or violation of an prejudice the life, health or property of
environmental law rule or regulation or inhabitants in two or more cities or
a right therein; or (b) the unlawfully provinces. In addition, magnitude of
exclusion of another from the use or environmental damage is a condition sine
enjoyment of such right and in both qua non in a petition for the issuance of a
instances, there is no other plain, Writ of Kalikasan and must be contained
speedy and adequate remedy in the in the verified petition.
ordinary course of law.
Who May File Available only to one who is personally Available to a broad range of persons
aggrieved by the unlawful act or such as natural or juridical person, entity
omission. authorized by law, peoples organization,
non-governmental organization, or any
public interest group accredited by or
registered with any government agency,
on behalf of persons whose right to a
balanced and healthful ecology is
violated or threatened to be violated.
Respondent Only the government or its officers May be a private individual or entity
Exemption from Exempted Exempted
docket fees.
Venue May be filed in the following: (a) the Can only be filed the in Supreme Court or
Regional Trial Court exercising any of the stations of the Court of
jurisdiction over the territory where Appeals
the actionable neglect or omission
occurred; (b) the Court
of Appeals; or (c) the Supreme Court
Discovery measures Does not contain any provision for Uses discovery measures such as ocular
discovery measures inspection order and production order
Damages for Allows damages for the malicious No damages may be awarded in a
personal injury neglect of the performance of the legal petition for the issuance of a Writ of
duty of the respondent, identical to Kalikasan consistent with the public-
Rule 65, Rules of Court interest character of the petition. A party
who avails of this petition but who also
wishes to be indemnified for injuries
suffered may file another suit for the
recovery of damages since the Rule on
the Writ of Kalikasan allows for the
institution of separate actions
(Annotation to the Rules of Procedure for Environmental Cases)
A: The judge must read the information to the accused in a Q: What are the purposes of the preliminary conference?
language known to and understood by the accused (Sec. 2,
Rule 14, AM No. 09-6-8-SC). A:
1. To assist the parties in reaching a settlement of the
Q: What are the contents of the written undertaking civil aspect of the case;
which the accused must sign? 2. To mark the documents to be presented as exhibits;
3. To attach copies thereof to the records after
A: comparison with the originals;
1. To appear before the court that issued the 4. To ascertain from the parties the undisputed facts and
warrant of arrest for arraignment purposes on the admissions on the genuineness and due execution of
date scheduled, and if the accused fails to appear documents marked as exhibits;
without justification on the date of arraignment, 5. To consider such other matters as may aid in the
accused waives the reading of the information and prompt disposition of the case;
authorizes the court to enter a plea of not guilty on 6. To record the proceedings during the preliminary
behalf of the accused and to set the case for trial; conference in the Minutes of Preliminary Conference
2. To appear whenever required by the court where to be signed by the parties and counsel;
the case is pending; and 7. To mark the affidavits of witnesses which shall be in
3. To waive the right of the accused to be present at question and answer form and shall constitute the
the trial, and upon failure of the accused to appear direct examination of the witnesses; and
without justification and despite due notice, the trial 8. To attach the Minutes and marked exhibits to the case
may proceed in absentia (Sec. 2, Rule 14, AM No. 09-6- record before the pre-trial proper.
8-SC).
Q: What is the duty of the court during pre-trial?
Note: A key innovation in this section is the execution of an
undertaking by the accused and counsel, empowering the judge to A:
enter a plea of not guilty, in the event the accused fails to appear 1. Place the parties and their counsels under oath;
at the arraignment (Annotation to the Rules of Procedure for
2. Adopt the minutes of the preliminary conference as
Environmental Cases).
part of the pre-trial proceedings, confirm markings of
exhibits or substituted photocopies and admissions on
ARRAIGNMENT AND PLEA
the genuineness and due execution of documents, and
list object and testimonial evidence;
Q: When shall the court set the arraignment of the
3. Scrutinize the information and the statements in the
accused?
affidavits and other documents which form part of the
record of the preliminary investigation together with
A: Within 15 days from the time it acquires jurisdiction over
other documents identified and marked as exhibits to
the accused (Sec. 1, Rule 15, AM No. 09-6-8-SC).
determine further admissions of facts as to:
Note: Notice that plea bargaining will be entertained on the date a. The courts territorial jurisdiction relative to the
of arraignment must be sent to the public prosecutor, the offended offense(s) charged;
party and the government agency concerned. b. Qualification of expert witnesses; and
c. Amount of damages;
Q: What is the duty of the court when the prosecution and 4. Define factual and legal issues;
offended party or concerned government agency agree to 5. Ask parties to agree on the specific trial dates and
the plea offered by the accused? adhere to the flow chart determined by the court
which shall contain the time frames for the different
A: stages of the proceeding up to promulgation of
1. Issue an order which contains the plea-bargaining decision;
arrived at; 6. Require the parties to submit to the branch clerk of
2. Proceed to receive evidence on the civil aspect of court the names, addresses and contact numbers of
the case, if any; and witnesses that need to be summoned by subpoena;
3. Render and promulgate judgment of conviction, and
including the civil liability for damages (Sec. 2, Rule 15, 7. Consider modification of order of trial if the accused
AM No. 09-6-8-SC). admits the charge but interposes a lawful defense
(Sec. 13, Rule 16, AM No. 09-6-8-SC).
PRE-TRIAL
Q: To whom should the questions be directed?
Q: When should the pre-trial conference take place?
A: The court (Sec 14, Rule 16, AM No. 09-6-8-SC).
A: It shall take place within 30 days from arraignment. The
court may also refer the case to the branch clerk of court
EVIDENCE
PRECAUTIONARY PRINCIPLE
(2) Neither he nor any other person then present or (1) Where the maximum of the imposable penalty does not
assisting him coached the witness regarding the latter's exceed six years;
answers (Sec. 4).
(2) Where the accused agrees to the use of judicial
Q: How is trial conducted under the judicial affidavit rule? affidavits, irrespective of the penalty involved; or
A: After submitting to the court and serving the adverse (3) With respect to the civil aspect of the actions, whatever
party a copy of the judicial affidavits of the witnesses of a the penalties involved are (Sec. 9).
party and attaching therein documentary or object
evidence not later than five days before pre-trial or Q: Can a party filing a criminal action cognizable by the
preliminary conference or the scheduled hearing with Regional Trial Court be mandated to follow the JAR?
respect to motions and incidents trial shall commence as
follows: A: No. The jurisdiction of the Regional Trial Court in criminal
cases includes offenses where the imposable penalty
a. The party presenting the judicial affidavit of his witness in exceeds 6 years, thus, as a rule the JAR has no application
place of direct testimony shall state the purpose of such except when the accused agrees to its use.
testimony at the start of the presentation of the witness
(Sec.6). Q: When must the judicial affidavit be submitted by the
prosecution?
b. The adverse party may move to disqualify the witness or
to strike out his affidavit or any of the answers found in it A: The prosecution shall submit the judicial affidavits of its
on ground of inadmissibility. witnesses not later than five days before the pre-trial,
serving copies of the same upon the accused. The
Note: The court shall promptly rule on the motion and, if complainant or public prosecutor shall attach to the
granted, shall cause the marking of any excluded answer by affidavits such documentary or object evidence as he may
placing it in brackets under the initials of an authorized court have, marking them as Exhibits A, B, C, and so on. No
personnel, without prejudice to the tender of excluded
further judicial affidavit, documentary, or object evidence
evidence under Sec. 40, Rule 132.
shall be admitted at the trial (Sec. 9).
Q: The JAR took effect last January 1, 2013, but with some As to Rules of Court and rules of procedure governing
modification as to its applicability to criminal cases. What investigating officers and bodies authorized by the
are these modifications? Supreme Court to receive evidence
A: The JAR is modified until December 31, 2013 only with They are repealed or modified insofar as they are
respect to actions filed by public prosecutors, subject to the inconsistent with the provisions of the judicial affidavit rule
following conditions: (Sec. 11).
1. For the purpose of complying with the Judicial Affidavit As to Rules of procedure governing quasi judicial bodies
Rule, public prosecutors in the first and second level courts which are inconsistent with it
shall use the sworn statements that the complainant and
his or her witnesses submit during the initiation of the They are thereby disapproved (Sec. 11)
criminal action before the office of the public prosecutor or
directly before the trial court.
a. Single space with a one and- a-half space between d. In other courts, one original (properly marked) with the
paragraphs, stated annexes attached to it (Sec. 5).
b. Easily readable font style of the party's choice, Note: In preparation for the eventual establishment of an e-filing
paperless system in the Judiciary, the Supreme Court, through its
c. 14-size font, and Management Information System Office, has set up the e-mail
address efile@sc.judiciary.gov.ph.E-filing, under the Rule, requires
parties before the Supreme Court to submit, simultaneously with
d. on a 13-inch by 8.5-inch white bond paper (Sec. 3) their court-bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by e-mail to the Courts e-
e. Every page must be consecutively numbered with the mail address or by compact disc (CD).
parties observing the following margins:
Q: What is the rule on service of annexes on the adverse
i. a left hand margin of 1.5 inches from the edge; party?
ii. an upper margin of 1.2 inches from the edge;
iii. a right hand margin of 1.0 inch from the edge; A: A party required by the rules to serve a copy of his court-
iv. a lower margin of 1.0 inch from the edge. (Sec. 4) bound paper on the adverse party need not enclose copies
of those annexes that based on the record of the court such
Q: What other papers are covered by the Rule aside from party already has in his possession. In the event a party
pleadings filed by a party? requests a set of the annexes actually filed with the court,
the party who filed the paper shall comply with the request
A: All decisions, resolutions, and orders issued by courts within five days from receipt (Sec. 6).
and by quasi-judicial bodies under the administrative
supervision of the Supreme Court shall comply with these
requirements. Similarly covered are the reports submitted
to the courts and transcripts of stenographic notes (Sec. 3).