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2011 Riano Notes in Remedial Law PDF
2011 Riano Notes in Remedial Law PDF
Victory goes to those with homicidal instinct to succeed... the
murderous mania to excel...
Dean W. Riano
REMEDIAL LAW
I. General Principles 5. Doctrine of primary jurisdiction
6. Doctrine of adherence of jurisdiction
A. Concept of Remedial Law 7. Objections to jurisdiction over the
B. Substantive Law as Distinguished from Remedial subject matter
Law 8. Effect of estoppel on objections to
C. Rule-‐‑making Power of the Supreme Court jurisdiction
1. Limitations on the rule-‐‑making power of
the Supreme Court C. Jurisdiction over the issues
2. Power of the Supreme Court to amend D. Jurisdiction over the res or property in litigation
and suspend procedural rules
E. Jurisdiction of Courts
D. Nature of Philippine Courts 1. Supreme Court
1. Meaning of a court 2. Court of Appeals
2. Court as distinguished from a judge 3. Court of Tax Appeals
3. Classification of Philippine courts 4. Sandiganbayan
4. Courts of original and appellate 5. Regional Trial Courts
jurisdiction 6. Family Courts
5. Courts of general and special jurisdiction 7. Metropolitan Trial Courts/Municipal
6. Constitutional and statutory courts Trial Courts
7. Courts of law and equity 8. Shariah Courts
8. Principle of judicial hierarchy F. Jurisdiction over small claims, cases covered by
9. Doctrine of non-‐‑interference or doctrine the rules on Summary Procedure and Barangay
of judicial stability Conciliation
G. Totality Rule
II. Jurisdiction
III. Civil Procedure
A. Jurisdiction over the parties
1. How jurisdiction over the plaintiff is A. Actions
acquired 1. Meaning of ordinary civil actions
2. How jurisdiction over the defendant is 2. Meaning of special civil actions
acquired 3. Meaning of criminal actions
4. Civil actions versus Special proceedings
B. Jurisdiction over the subject matter 5. Personal actions and real actions
1. Meaning of jurisdiction over the subject 6. Local and transitory actions
matter 7. Actions in rem, in personam and quasi
2. Jurisdiction versus the exercise of in rem
jurisdiction
3. Error of jurisdiction as distinguished B. Cause of Action
from error of judgment 1. Meaning of cause of action
4. How jurisdiction is conferred and 2. Right of Action versus Cause of action
determined 3. Failure to state a cause of action
2011 Bar Examinations 2
BERT – NOTES in REMEDIAL LAW
4. Test of the sufficiency of a cause of (1) Requirements of a
action corporation executing
5. Splitting a single cause of action and its the
effects verification/certification
6. Joinder and misjoinder of causes of of non-‐‑forum shopping
action d. Effect of the signature of
counsel in a pleading
C. Parties to Civil Actions 4. Allegations in a pleading
1. Real Parties in interest; Indispensable a. Manner of making allegations
parties; Representatives as parties; (1) Condition precedent
Necessary parties; Indigent Parties; (2) Fraud, mistake,
Alternative defendants malice, intent,
2. Compulsory and permissive joinder of knowledge and other
parties condition of the mind,
3. Misjoinder and non-‐‑joinder of parties judgments, official
4. Class Suit documents or acts
5. Suits against entities without juridical b. Pleading an actionable
personality document
6. Effect of death of party litigant c. Specific denials
(1) Effect of failure to
D. Venue make specific denials
1. Venue versus Jurisdiction (2) When a specific
2. Venue of real actions denial requires an oath
3. Venue of personal actions 5. Effect of failure to plead
4. Venue of actions against non-‐‑residents 1. Failure to plead defenses and
5. When the Rules on Venue Do not Apply objections
6. Effects of Stipulations on Venue 2. Failure to plead a compulsory
counterclaim and cross-‐‑claim
E. Pleadings 6. Default
1. Kinds of Pleadings a. When a declaration of default is
a. Complaint proper
b. Answer b. Effect of an order of default
(1) Negative defenses c. Relief from an order of default
(2) Negative pregnant d. Effect of a partial default
(3) Affirmative Defenses e. Extent of relief
c. Counterclaims f. Actions where default are not
(1) Compulsory allowed
counterclaim 7. Filing and Service of pleadings
(2) Permissive I. Payment of docket fees
counterclaim II. Filing versus service of
(3) Effect on the pleadings
Counterclaim when the III. Periods of filing of pleadings
complaint is dismissed IV. Manner of filing
d. Cross-‐‑claims V. Modes of service
e. Third (fourth, etc.) party (1) Personal service
complaints (2) Service by mail
f. Complaint-‐‑in-‐‑intervention (3) Substituted service
g. Reply (4) Service of judgments,
2. Pleadings allowed in small claim cases final orders or
and cases covered by the rules on resolutions
summary procedure (5) Priorities in modes of
3. Parts of a pleading service and filing
a. Caption (6) When service is
b. Signature and address deemed complete
c. Verification and certification (7) Proof of filing and
against forum shopping service
2011 Bar Examinations 3
BERT – NOTES in REMEDIAL LAW
8. Amendment e. Effect of dismissal of complaint
a. Amendment as a matter of on certain grounds
right f. When grounds pleaded as
b. Amendments by leave of court affirmative defenses
c. Formal amendment g. Bar by dismissal
d. Amendments to conform to or h. Distinguished from demurrer
authorize presentation of to evidence under Rule 33
evidence
e. Different from supplemental H. Dismissal of Actions
pleadings 1. Dismissal upon notice by plaintiff; Two-‐‑
f. Effect of amended pleading dismissal rule
2. Dismissal upon motion by plaintiff;
F. Summons effect on existing counterclaim
1. Nature and purpose of summons in 3. Dismissal due to the fault of plaintiff
relation to actions in personam, in rem and 4. Dismissal of counterclaim, cross-‐‑claim or
quasi in rem third-‐‑party complaint
2. Voluntary appearance
3. Personal service I. Pre-‐‑trial
4. Substituted service 1. Concept of pre-‐‑trial
5. Constructive service (by publication) 2. Nature and purpose
a. Service upon a defendant 3. Notice of pre-‐‑trial
where his identity is unknown or 4. Appearance of parties; effect of failure to
where his whereabouts are appear
unknown 5. Pre-‐‑trial brief; effect of failure to appear
b. Service upon residents 6. Distinction between pre-‐‑trial in civil case
temporarily outside the and pre-‐‑trial in criminal case
Philippines 7. Alternative Dispute Resolution (ADR)
6. Extra-‐‑territorial service, when allowed
7. Service upon prisoners and minors J. Intervention
8. Proof of service 1. Requisites for intervention
2. Time to intervene
G. Motions 3. Remedy for the denial of motion to
1. Motions in general intervene
a. Definition of a motion
b. Motions versus pleadings K. Subpoena
c. Contents and form of motions 1. Subpoena duces tecum
d. Notice of hearing and hearing 2. Subpoena ad testificandum
of motions 3. Service of subpoena
e. Omnibus motion rule 4. Compelling attendance of witnesses;
f. Litigated and ex parte motions Contempt
g. Pro-‐‑forma motions 5. Quashing of subpoena
2. Motions for Bill of Particulars
a. Purpose and when applied for L. Modes of Discovery
b. Actions of the court 1. Depositions pending action; Depositions
c. Compliance with the order and before action or pending appeal
effect of noncompliance a. Meaning of deposition
d. Effect on the period to file a b. Uses; Scope of examination
responsive pleading c. When may objections to
3. Motion to Dismiss admissibility be made
a. Grounds d. When may taking of deposition
b. Resolution of Motion be terminated or its scope limited
c. Remedies of plaintiff when the 2. Written interrogatories to adverse
complaint is dismissed parties
d. Remedies of the defendant a. Consequences of refusal to
when the motion is denied answer
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BERT – NOTES in REMEDIAL LAW
b. Effect of failure to serve written 6. Rendition of judgments and final orders
interrogatories 7. Entry of judgment and final order
3. Request for Admission
a. Implied admission by adverse P. Post Judgment Remedies
party
b. Consequences of failure to 1. Motion for New Trial or reconsideration
answer request for admission a. Grounds
c. Effect of admission b. When to file
d. Effect of failure to file and c. Denial of the motion; effect
serve request for admission d. Grant of the motion; effect
4. Production or inspection of documents e. Remedy when motion is
or things denied, Fresh 15-‐‑day period rule
5. Physical and mental examination of
persons 2. Appeals in General
6. Consequences of refusal to comply with a. Judgments and final orders
modes of discovery subject to appeal
b. Matters not appealable
M. Trial c. Remedy against judgments and
1. Adjournments and postponements orders which are not appealable
2. requisites of motion to postpone trial d. Modes of appeal
a. for absence of evidence (1) Ordinary appeal
b. for illness of party or counsel (2) Petition for review
3. Agreed statement of facts (3) Petition for review on
4. Order of trial; reversal of order certiorari
5. Consolidation or Severance of hearing or e. Issues to be raised on appeal
trial f. Period of appeal
6. Delegation of reception of evidence g. Perfection of appeal
7. Trial by commissioners h. Appeal from judgments or final
a. Reference by consent or orders of the MTC
ordered on motion i. Appeal from judgments or final
b. Powers of the commissioner orders of the RTC
c. Commissioner’s report; notice j. Appeal from judgments or final
to parties and hearing on the orders of the CA
report k. Appeal from judgments or final
orders of the CTA
N. Demurrer to Evidence l. Review of final judgments or
1. Ground final orders of the COA
2. Effect of denial m. Review of final judgments or
3. Effect of grant final orders of the COMELEC
4. Waiver of right to present evidence n. Review of final judgments or
5. Demurrer to evidence in a civil case final orders of the CSC
versus demurrer to evidence in a criminal o. Review of final judgments or
case final orders of the Ombudsman
p. Review of final judgments or
O. Judgments and Final Orders final orders of the NLRC
1. Judgment without trial q. Review of final judgments or
2. Contents of a judgment final orders of quasi-‐‑judicial
3. Judgment on the pleadings agencies
4. Summary judgments
a. for the claimant 3. Relief from judgments, orders and other
b. for the defendant proceedings
c. when the case not fully a. Grounds for availing of the
adjudicated remedy
d. affidavits and attachments b. Time to file petition
5. Judgment on the pleadings versus c. Contents of petition
summary judgments
2011 Bar Examinations 5
BERT – NOTES in REMEDIAL LAW
4. Annulment of Judgments or final orders attached is claimed by third
and resolutions person
a. Grounds for annulment f. Discharge of attachment and the
b. Period to file action counter-‐‑bond
c. Effects of judgment of g. Satisfaction of judgment out of
annulment property attached
5. Collateral attack of judgments 4. Preliminary Injunction
a. Definitions and Differences:
Q. Execution, Satisfaction and Effect of Judgments Preliminary Injunction and
1. Difference between finality of judgment Temporary Restraining Order
for purposes of appeal; for purposes of b. Requisites
execution c. Kinds of Injunction
2. When execution shall issue d. When writ may be issued
a. Execution as a matter of right e. Grounds for issuance of
b. Discretionary execution preliminary injunction
3. How a judgment is executed f. Grounds for objection to, or for
a. Execution by motion or by the dissolution of injunction or
independent action restraining order
b. Issuance and contents of a writ g. Duration of TRO
of execution h. In relation to RA 8975, Ban on
c. Execution of judgments for issuance of TRO or Writ of
money Injunction in cases involving
d. Execution of judgments for government infrastructure
specific acts projects
e. Execution of special judgments i. Rule on prior or
f. Effect of levy on third persons contemporaneous service of
4. Properties exempt from execution summons in relation to
5. Proceedings where property is claimed attachment
by third persons
a. in relation to third party claim 5. Receivership
in attachment and replevin a. Cases when receiver may be
6. Rules on Redemption appointed
7. Examination of Judgment Obligor When b. Requisites
Judgment is unsatisfied c. Requirements before issuance
8. Examination of Obligor of Judgment of an Order
Obligor d. General powers of a receiver
9. Effect of Judgment or Final Orders e. Two (2) kinds of bonds
10. Enforcement and Effect of Foreign f. Termination of receivership
Judgments or Final Orders
6. Replevin
R. Provisional Remedies a. When may writ be issued
1. Nature of provisional remedies b. Requisites
2. Jurisdiction over provisional remedies c. Affidavit and bond; Redelivery
Bond
3. Preliminary Attachment d. Sheriff’s duty in the
a. Grounds for issuance of writ of implementation of the writ; when
attachment property is claimed by third party
b. Requisites
c. Issuance and contents of order S. Special Civil Actions
of attachment; affidavit and bond 1. Nature of special civil actions
d. Rule on prior or 2. Ordinary civil actions versus special civil
contemporaneous service of actions
summons 3. Jurisdiction and venue
e. Manner of attaching real and
personal property; when property 4. Interpleader
2011 Bar Examinations 6
BERT – NOTES in REMEDIAL LAW
a. Requisites for interpleader b. When government commence
b. When to file an action against individuals
c. When individual may
5. Declaratory Reliefs and Similar commence an action
Remedies d. Judgment in Quo Warranto
a. Who may file the action action
b. Requisites of action for e. Rights of a person adjudged
declaratory relief entitled to public office
c. When court may refuse to make
judicial declaration 9. Expropriation
d. Conversion to ordinary action a. Matters to allege in complaint
e. Proceedings considered as for expropriation
similar remedies b. Two stages in every action for
A. Reformation of an expropriation
instrument c. When plaintiff can immediately
B. Consolidation of enter into possession of the real
ownership property, in relation to RA 8974
C. Quieting of title to d. New system of immediate
real property payment of initial just
compensation
6. Review of Judgments and Final Orders e. Defenses and objections
or Resolution of the COMELEC and COA f. Order of Expropriation
a. Application of Rule 65 under g. Ascertainment of just
Rule 64 compensation
b. Distinction in the application of h. Appointment of
Rule 65 to judgments of the Commissioners; Commissioner’s
COMELEC and COA and the report; Court action upon
application of Rule 65 to other commissioner’s report
tribunals, persons and officers i. Rights of plaintiff upon
judgment and payment
7. Certiorari, Prohibition and Mandamus j. Effect of recording of judgment
a. Definitions and distinctions
b. Requisites 10. Foreclosure of Real Estate Mortgage
c. When petition for certiorari, a. Judgment on foreclosure for
prohibition and mandamus is payment or sale
proper b. Sale of mortgaged property;
d. Injunctive relief effect
e. Certiorari distinguished from c. Disposition of proceeds of sale
Appeal by Certiorari; Prohibition d. Deficiency judgment
and Mandamus distinguished (1) Instances when court
from Injunction; when and where cannot render deficiency
to file petition judgment
f. Exceptions to filing of motion e. Judicial foreclosure versus
for reconsideration before filing extrajudicial foreclosure
petition f. Equity of redemption versus
g. Reliefs petitioner is entitled to right of redemption
h. Actions/Omissions of
MTC/RTC in election cases 11. Partition
i. Where to file petition a. Who may file complaint; who
j. Effects of filing of an should be made defendants
unmeritorious petition b. Matters to allege in the
complaint for partition
8. Quo Warranto c. Two (2) stages in every action
a. Distinguish from Quo for partition
Warranto in the Omnibus Election d. Order of partition and partition
Code by agreement
2011 Bar Examinations 7
BERT – NOTES in REMEDIAL LAW
e. Partition by commissioners; B. Summary Settlement of Estates
Appointment of commissioners, 1. Extrajudicial settlement by agreement
Commissioner’s report; Court between heirs, hen allowed
action upon commissioner’s 2. Two-‐‑year prescriptive period
report 3. Affidavit of Self-‐‑adjudication by sole
f. Judgment and its effects heir
g. Partition of personal property 4. Summary settlement of estates of small
h. Prescription of action value, when allowed
5. Remedies of aggrieved parties after
12. Forcible Entry and Unlawful Detainer extra-‐‑judicial settlement of estate
a. Definitions and Distinction
b. Distinguished from accion C. Production and Probate of Will
publiciana and accion 1. Nature of probate proceeding
reinvindicatoria 2. Who may petition for probate; persons
c. How to determine jurisdiction entitled to notice
in accion publiciana and accion
reinvindicatoria D. Allowance or Disallowance of Will
d. Who may institute the action 1. Contents of petition for allowance of will
and when; against whom the 2. Grounds for disallowing a will
action may be maintained 3. Reprobate; Requisites before will proved
e. Pleadings allowed outside allowed in the Philippines; effects
f. Action on the complaint of probate
g. When demand is necessary
h. Preliminary injunction and E. Letters Testamentary and of Administration
preliminary mandatory injunction 1. When and To whom letters of
i. Resolving defense of ownership administration granted
j. How to stay the immediate 2. Order of preference
execution of judgment 3. Opposition to issuance of letters
k. Summary procedure, testamentary; simultaneous filing of
prohibited pleadings petition for administration
4. Powers and duties of Executors and
13. Contempt Administrators; restrictions on the powers
a. Kinds of contempt 5. Appointment of Special Administrator
b. Purpose and nature of each 6. Grounds for removal of administrator
c. Remedy against direct
contempt; penalty F. Claims Against the Estate
d. Remedy against indirect 1. Time within which claims shall be filed;
contempt; penalty exceptions
e. How contempt proceedings are 2. Statute of Non-‐‑claims
commenced 3. Claim of Executor or administrator
f. Acts deemed punishable as against the Estate
indirect contempt 4. Payment of Debts
g. When imprisonment shall be
imposed G. Actions by and against Executors and
h. Contempt against quasi-‐‑judicial Administrators
bodies 1. Actions that may be brought against
executors and administrators
IV. Special Proceedings 2. Requisites before creditor may bring an
action for recovery of property
A. Settlement of Estate of Deceased Persons, Venue fraudulently conveyed by the deceased
and Process
1. Which court has jurisdiction H. Distribution and Partition
2. Venue in judicial settlement of estate 1. Liquidation
3. Extent of jurisdiction of Probate Court 2. Project of Partition
4. Powers and Duties of Probate Court 3. Remedy of an heir entitled to residue but
not given his share
2011 Bar Examinations 8
BERT – NOTES in REMEDIAL LAW
4. Instances when probate court may issue 3. Differences between Amparo and search
writ of execution warrant
4. Who may file
I. Trustees 5. Contents of return
1. Distinguished from 6. Effects of failure to file return
executor/administrator 7. Omnibus waiver rule
2. Conditions of the Bond 8. Procedure for hearing
3. Requisites for the removal and 9. Institution of separate action
resignation of a trustee 10. Effect of filing of a criminal action
4. Grounds for removal and resignation of 11. Consolidation
a trustee 12. Interim reliefs available to petitioner
5. Extent of authority of trustee and respondent
13. Quantum of proof in application for
J. Escheat issuance of writ of Amparo
1. When to file
2. Requisites for filing of petition O. Writ of Habeas Data (AM No. 08-‐‑1-‐‑16-‐‑SC)
3. Remedy of respondent against petition; 1. Scope of writ
period for filing a claim 2. Availability of writ
3. Distinguish from Habeas Corpus and
K. Guardianship Amparo
1. General powers and duties of guardians 4. Who may file
2. Conditions of the bond of the guardian 5. Contents of the petition
3. Rule on Guardianship over minor 6. Contents of return
7. Instances when petition be heard in
L. Adoption chambers
1. Distinguish domestic adoption from 8. Consolidation
inter-‐‑country adoption 9. Effect of filing of a criminal action
2. Domestic Adoption Act 10. Institution of separate action
a. effects of adoption 11. Quantum of proof in application for
b. instances when adoption may issuance of writ of Amparo
be rescinded
c. effects of rescission of adoption P. Change of Name
3. Inter-‐‑country Adoption 1. Differences under Rule 103, RA 9048 and
a. when allowed Rule 108
b. functions of the RTC 2. Grounds for change of name
c. "ʺbest interest of the minor"ʺ
standard Q. Absentees
1. Purpose of the Rule
M. Writ of Habeas Corpus 2. Who may file; when to file
1. Contents of the petition
2. Contents of the Return R. Cancellation or Correction of Entries in the Civil
3. Distinguish peremptory writ from Registry
preliminary citation 1. Entries subject to cancellation or
4. When not proper/applicable correction under Rule 108, in relation to RA 9048
5. When writ disallowed/discharged
6. Distinguish from writ of Amparo and S. Appeals in Special Proceeding
Habeas Data 1. Judgments and orders for which appeal
7. Rules on Custody of Minors and Writ of may be taken
Habeas Corpus in Relation to Custody of 2. When to appeal
Minors (AM No. 03-‐‑04-‐‑04-‐‑SC) 3. Modes of appeal
4. Rule on Advance Distribution
N. Writ of Amparo (AM No. 07-‐‑9-‐‑12-‐‑SC)
1. Coverage
2. Distinguish from habeas corpus and V. Criminal Procedure
habeas data
A. General Matters
2011 Bar Examinations 9
BERT – NOTES in REMEDIAL LAW
1. Distinguish Jurisdiction over subject c. by private person
matter from jurisdiction over person of the 4. Requisites of a valid warrant of arrest
accused 5. Determination of Probable Cause for
2. Requisites for exercise of criminal issuance of warrant of arrest
jurisdiction 6. Distinguish probable cause of fiscal from
3. Jurisdiction of Criminal courts that of a judge
4. When injunction may be issued to
restrain criminal prosecution F. Bail
1. Nature
B. Prosecution of Offenses 2. When a matter of right; exceptions
1. Criminal actions, how instituted 3. When a matter of discretion
2. Who may file them, crimes that cannot 4. Hearing of application for bail in capital
be prosecuted de officio offenses
3. Criminal actions, when enjoined 5. Guidelines in fixing amount of bail
4. Control of prosecution 6. Bail when not required
5. Sufficiency of Complaint or Information 7. Increase or Reduction of Bail
6. Designation of Offense 8. Forfeiture and Cancellation of bail
7. Cause of the Accusation 9. Application not a bar to objections in
8. Duplicity of the Offense; Exception illegal arrest, lack of or irregular
9. Amendment or Substitution of preliminary investigation
complaint or information 10. Hold Departure Order & Bureau of
10. Venue of criminal actions Immigration Watchlist
11. Intervention of offended party
G. Rights of the Accused
C. Prosecution of Civil Action 1. Rights of accused at the trial
1. Rule on implied institution of civil action 2. Rights of persons under Custodial
with criminal action Investigation
2. When civil action may proceed
independently H. Arraignment and Plea
3. When separate civil action is suspended 1. Arraignment and Plea, how made
4. Effect of the death of accused or convict 2. When should plea of NOT GUILTY be
on civil action entered
5. Prejudicial Question 3. When may accused enter a plea of guilty
6. Rule on Filing Fees in civil action to a lesser offense
deemed instituted with the criminal action 4. Accused plead guilty to capital offense,
what the court should do
D. Preliminary Investigation 5. Searching Inquiry
1. Nature of right 6. Improvident plea
2. Purposes of preliminary investigation 7. Grounds for suspension of arraignment
3. Who may conduct determination of
existence of probable cause I. Motion to Quash
4. Resolution of investigation prosecutor 1. Grounds
5. Review 2. Distinguish from demurrer to evidence
6. When warrant of arrest may issue 3. Effects of sustaining the motion to quash
7. Cases not requiring a preliminary 4. Exception to the rule that sustaining the
investigation motion is not a bar to another prosecution
8. Remedies of accused if there was no 5. Double Jeopardy
preliminary investigation 6. Provisional Dismissal
9. Inquest
J. Pre-‐‑trial
E. Arrest 1. Matters to be considered during pre-‐‑trial
1. Arrest, how made 2. What the court should do when
2. Arrest without warrant, when lawful prosecution and offended party agree to
3. Method of arrest the plea offered by the accused
a. by officer with warrant 3. Pre-‐‑trial agreement
b. by officer without warrant 4. Non-‐‑appearance during pre-‐‑trial
2011 Bar Examinations 10
BERT – NOTES in REMEDIAL LAW
5. Pre-‐‑trial order 7. Personal property to be seized
6. Referral of some cases for Court 8. Exceptions to search warrant
Annexed Mediation and Judicial Dispute requirement
Resolution a. Search incidental to lawful
arrest
K. Trial b. Consented Search
1. Instances when presence of accused is c. Search of moving vehicle
required by law d. Check points; body checks in
2. Requisite before trial can be suspended airport
on account of absence of witness e. Plain view situation
3. Trial in Absentia f. Stop and Frisk situation
4. Remedy when accused is not brought to g. Enforcement of Custom Laws
trial within the prescribed period 9. Remedies from unlawful search and
5. Requisites for discharge of accused to seizure
become a state witness
6. Effects of Discharge of accused as state P. Provisional Remedies
witness 1. Nature
7. Demurrer to Evidence 2. Kinds of provisional remedies
L. Judgment VI. Evidence
1. Requisites of a judgment
2. Contents of Judgment A. General Principles
3. Promulgation of judgment; instances of 1. Concept of Evidence
promulgation of judgment in absentia 2. Scope of the Rules of Evidence
4. When does judgment become final (four 3. Evidence in Civil Cases Versus Evidence
instances) in Criminal Cases1avvphi1
4. Proof Versus Evidence
M. New Trial or Reconsideration 5. Factum Probans Versus Factum
1. Grounds for New Trial Probandum
2. Grounds for Reconsideration 6. Admissibility of Evidence
3. Requisites before a new trial may be a. Requisites for admissibility of
granted on ground of newly discovered evidence
evidence b. Relevance of evidence and
4. Effects of granting a new trial or collateral matters
reconsideration c. Multiple admissibility
5. Application of Neypes Doctrine in d. Conditional admissibility
Criminal Cases e. Curative admissibility
f. Direct and circumstantial
N. Appeal evidence
1. Effect of an Appeal g. Positive and negative evidence
2. Where to appeal h. Competent and credible
3. How appeal taken evidence
4. Effect of appeal by any of several 7. Burden of Proof and Burden of Evidence
accused 8. Presumptions
5. Grounds for dismissal of appeal a. Conclusive presumptions
b. Disputable presumptions
O. Search and Seizure 9. Liberal Construction of the Rules of
1. Nature of search warrant Evidence
2. Distinguish from warrant of arrest 10. Quantum of Evidence (Weight And
3. Application for search warrant, where Sufficiency of Evidence)
filed a. Proof beyond reasonable doubt
4. Probable Cause b. Preponderance of evidence
5. Personal examination by judge of the c. Substantial evidence
applicant and witnesses d. Clear and convincing evidence
6. Particularity of place to be searched and
things to be seized B. Judicial Notice and Judicial Admissions
2011 Bar Examinations 11
BERT – NOTES in REMEDIAL LAW
1. What Need Not be Proved e. Audio, photographic, video
2. Matters of Judicial Notice and ephemeral evidence
a. Mandatory 5. Parol Evidence Rule
b. Discretionary a. Application of the parol
3. Judicial Admissions evidence rule
a. Effect of judicial admissions b. When parole evidence can be
b. How judicial admissions may introduced
be contradicted c. Distinctions between the best
4. Judicial Notice of Foreign Laws, Law of evidence rule and parol evidence
Nations and Municipal Ordinance rule
6. Authentication and Proof of Documents
C. Object (Real) Evidence a. Meaning of authentication
1. Nature of Object Evidence b. Public and private documents
2. Requisites for Admissibility c. When a private writing requires
3. Categories of Object Evidence authentication; proof of a private
4. Demonstrative Evidence writing
5. View of an Object or Scene d. When evidence of authenticity
6. Chain of Custody in Relation to Section of a private writing is not
21 of the Comprehensive Dangerous Drugs required (ancient documents)
Act of 2002 e. How to prove genuineness of a
7. Rule on DNA Evidence (A.M. No. 06-‐‑11-‐‑ handwriting
5-‐‑SC) f. Public documents as evidence;
a. Meaning of DNA proof of official record
b. Applicable for DNA testing g. Attestation of a copy
order h. Public record of a public
c. Post-‐‑conviction DNA testing; document
remedy i. Proof of lack of record
d. Assessment of probative value j. How a judicial record is
of DNA evidence and impeached
admissibility k. Proof of notarial documents
e. Rules on evaluation of l. How to explain alterations in a
reliability of the DNA testing document
Methodology m. Documentary evidence in an
unofficial language
D. Documentary Evidence
1. Meaning of Documentary Evidence E. Testimonial Evidence
2. Requisites for Admissibility 1. Qualifications of a Witness
3. Best Evidence Rule 2. Competency Versus Credibility of a
a. Meaning of the rule Witness
b. When applicable 3. Disqualifications of Witnesses
c. Meaning of original a. Disqualification by reason of
d. Requisites for introduction of mental capacity or immaturity
secondary evidence b. Disqualification by reason of
4. Rules on Electronic Evidence (A.M. No. marriage
01-‐‑7-‐‑01-‐‑SC) c. Disqualification by reason of
a. Meaning of electronic evidence; death or insanity of adverse party
electronic data massage d. Disqualification by reason of
b. Probative value of electronic privileged communications
documents or evidentiary weight; (1) Husband and wife
method of proof (2) Attorney and client
c. Authentication of electronic (3) Physician and patient
documents and electronic (3) and penitent
signatures (4) Public officers
d. Electronic documents and the Parental and filial privilege rule
hearsay rule 4. Examination of a Witness
2011 Bar Examinations 12
BERT – NOTES in REMEDIAL LAW
a. Rights and obligations of a b. Opinion of ordinary witness
witness 8. Character Evidence
b. Order in the examination of an a. Criminal cases
individual witness b. Civil cases
(1) Direct examination 9. Rule on Examination of a Child Witness
(2) Cross examination (A.M. No. 004-‐‑07-‐‑SC)
(3) Re-‐‑direct examination a. Applicability of the rule
(4) Re-‐‑cross examination b. Meaning of "ʺchild witness"ʺ
(5) Recalling the witness c. Competency of a child witness
c. Leading and misleading d. Examination of a child witness
questions e. Live-‐‑link TV testimony of a
d. Methods of impeachment of child witness
adverse party’s witness f. Videotaped deposition of a
e. How the witness is impeached child witness
by evidence of inconsistent g. Hearsay exception in child
statements (laying the predicate) abuse cases
f. Evidence of the good character h. Sexual abuse shield rule
of a witness i. Protective orders
5. Admissions and Confessions
a. Res inter alios acta rule F. Offer and Objection
b. Admission by a party 1. Offer of Evidence
c. Admission by a third party 2. When to Make an Offer
d. Admission by a co-‐‑partner or 3. Objection
agent 4. Repetition of an Objection
e. Admission by a conspirator 5. Ruling
f. Admission by privies 6. Striking Out of an Answer
g. Admission by silence 7. Tender of Excluded Evidence
h. Confessions
i. Similar acts as evidence G. Supreme Court Rulings as of December 2010
6. Hearsay Rule
a. Meaning of hearsay VII. Revised Rules on Summary Procedure
b. Reason for exclusion of hearsay A. Cases covered by the Rule
evidence B. Effect of failure to answer
c. Exceptions to the hearsay rule C. Preliminary conference and appearances of
(1) Dying declaration parties
(2) Declaration against
interest VIII. Katarungang Pambarangay
(3) Act or declaration A. Cases covered
about pedigree B. Subject matter for amicable settlement
(4) Family reputation or C. Venue
tradition regarding D. When parties may directly go to court
pedigree E. Execution
(5) Common reputation F. Repudiation
(6) Part of the res gestae
(7) Entries in the course IX. Rule of Procedure for Small Claims Cases (AM No. 08-‐‑
of business 8-‐‑7-‐‑SC)
(8) Entries in official A. Scope and applicability of the Rule
records B. Commencement of small claims action; Response
(9) Commercial lists and C. Prohibited pleadings and motions
the like D. Appearances
(10) Learned treaties E. Hearing; duty of the judge
(11) Testimony or F. Finality of judgment
deposition at a former
trial1avvphi1 X. Rules of Procedure for Environmental Cases (AM No. 09-‐‑
7. Opinion Rule 6-‐‑8-‐‑SC)
a. Opinion of expert witness A. Scope and Applicability of the Rule
2011 Bar Examinations 13
BERT – NOTES in REMEDIAL LAW
2. Institution of criminal and civil action
B. Civil Procedure 3. Arrest without warrant, when valid
1. Prohibition against Temporary 4. Procedure in the custody and
Restraining Order and Preliminary disposition of seized items
Injunction 5. Bail
2. Pre-‐‑trial Conference; Consent Decree 6. Arraignment and Plea
3. Prohibited Pleadings and Motions 7. Pre-‐‑trial
4. Temporary Environmental Protection 8. Subsidiary liabilities
Order (TEPO)
5. Judgment and Execution; Reliefs in a E. Evidence
citizen’s suit 1. Precautionary principle
6. Permanent Environmental Protection 2. Documentary evidence
Order; Writ of continuing mandamus
7. Strategic Lawsuit against Public IMPORTANT NOTE: This bar coverage description is not
Participation intended and should not be used by law schools as a syllabus
or course outline in the covered subjects. It has been drawn
C. Special Proceedings up for the limited purpose of ensuring that candidates
1. Writ of Kalikasan reviewing for the bar examinations are guided on what basic
2. Prohibited pleadings and motions and minimum amounts of laws, doctrines, and principles
3. Discovery measures they need to know and be able to use correctly before they
4. Writ of Continuing Mandamus can be licensed to practice law. More is required for excellent
and distinguished work as members of the Bar.
D. Criminal Procedure
1. Who may file
2011 Bar Examinations 14
BERT – NOTES in REMEDIAL LAW
CIVIL PROCEDURE
Rules 1 – 71
GENERAL PRINCIPLES
LIMITATIONS OF THE RULE-MAKING POWER
OF THE SUPREME COURT
JURISDICTION OVER THE PARTIES It is the power to deal with the general subject involved in
the action, and means not simply jurisdiction of the
a) The manner by which the court acquires jurisdiction particular case then occupying the attention of the court
over the parties depends on whether the party is the but jurisdiction of the class of cases to which the
plaintiff or the defendant particular case belongs. It is the power or authority to
b) Jurisdiction over the plaintiff is acquired by his filing hear and determine cases to which the proceeding is
of the complaint or petition. By doing so, he submits question belongs.
himself to the jurisdiction of the court.
c) Jurisdiction over the person of the defendant is When a complaint is filed in court, the basic questions
obtained either by a valid service of summons upon that ipso facto are to be immediately resolved by the court
him or by his voluntary submission to the court’s on its own:
authority. a) What is the subject matter of their complaint
d) The mode of acquisition of jurisdiction over the filed before the court?
plaintiff and the defendant applies to both ordinary b) Does the court have jurisdiction over the said
and special civil actions like mandamus or unlawful subject matter of the complaint before it?
detainer cases. Answering these questions inevitably requires
looking into the applicable laws conferring
HOW JURISDICTION OVER PLAINTIFF IS jurisdiction.
ACQUIRED
ð Acquired when the action is commenced by the JURISDICTION VERSUS EXERCISE OF
filing of the complaint. This presupposes JURISDICTION
payment of the docket fees.
Jurisdiction is the power or authority of the court. The
HOW JURISDICTION OVER DEFENDANT IS exercise of this power or authority is the exercise of
ACQUIRED jurisdiction.
Jurisdiction over the person of the defendant is required ERROR OF JURISDICTION VS. ERROR OF
only in an action in personam; it is not a prerequisite in JUDGMENT
an action in rem and quasi in rem. In an action in
personam, jurisdiction over the person is necessary for the An ERROR OF JURISDICTION is one where the act
court to validly try and decide the case, while in a complained of was issued by the court without or in
proceeding in rem or quasi in rem, jurisdiction over the excess of jurisdiction. It occurs when the court exercises a
person of the defendant is not a prerequisite to confer jurisdiction not conferred upon it by law, or when the
jurisdiction on the court, provided the latter has court or tribunal although with jurisdiction, acts in excess
jurisdiction over the res. of its jurisdiction or with grave abuse of discretion
amounting to lack or jurisdiction.
By voluntary appearance of the defendant, without
service of summons or despite a defective service of An ERROR OF JUDGMENT is one which the court
summons. The defendant’s voluntary appearance in the may commit in the exercise of its jurisdiction. As long as
action shall be equivalent to service of summons. the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to
Instances when appearance of defendant is not nothing more than mere errors of judgment. Errors of
tantamount to voluntary submission to the jurisdiction of judgment include errors of procedure or mistakes in the
the court: court‘s findings.
1) when defendant files the necessary pleading;
2011 Bar Examinations 18
BERT – NOTES in REMEDIAL LAW
Errors of judgment are correctible by appeal; errors of subsequent happenings or events and retains that
jurisdiction are correctible only by the extraordinary writ jurisdiction until it finally disposes of the case.
of certiorari. Any judgment rendered without jurisdiction
is a total nullity and may be struck down at any time, Even the finality of the judgment does not totally deprive
even on appeal; the only exception is when the party the court of jurisdiction over the case. What the court
raising the issue is barred by estoppel. loses is the power to amend, modify or alter the
judgment. Even after the judgment has become final, the
HOW JURISDICTION IS CONFERRED AND court retains jurisdiction to enforce and execute it.
DETERMINED
OBJECTION TO JURISDICTION OVER THE
Jurisdiction is a matter of substantive law because it is SUBJECT MATTER
conferred by law. This jurisdiction which is a matter of
substantive law should be construed to refer only to When it appears from the pleadings or evidence on record
jurisdiction over the subject matter. Jurisdiction over the that the court has no jurisdiction over the subject matter,
parties, the issues and the res are matters of procedure. the court shall dismiss the same. (Sec. 1, Rule 9). The
The test of jurisdiction is whether the court has the power court may on its OWN INITIATIVE object to an
to enter into the inquiry and not whether the decision is erroneous jurisdiction and may ex mero motu take
right or wrong. cognizance of lack of jurisdiction at any point in the case
and has a clearly recognized right to determine its own
It is the duty of the court to consider the question of jurisdiction.
jurisdiction before it looks at other matters involved in the
case. If the court finds that it has jurisdiction, it is the Jurisdiction over the subject matter may be raised at any
duty of the court to exercise the jurisdiction conferred stage of the proceedings, even for the first time on appeal.
upon it by law and to render a decision in a case properly When the court dismisses the complaint for lack of
submitted to it. It cannot decline to exercise its jurisdiction over the subject matter, it is common reason
jurisdiction. Failure to do so may be enforced by way of that the court cannot remand the case to another court
mandamus proceeding. with the proper jurisdiction. Its only power is to dismiss
and not to make any other order.
ð Note: Jurisdiction over the subject matter is
conferred by substantive law which may either be a EFFECT OF ESTOPPEL ON OBJECTION TO
Constitution or statute; while jurisdiction over JURISDICTION
the subject matter is determined by the allegations
of the complaint regardless of whether or not the The active participation of a party in a case is tantamount
plaintiff is entitled to the claims asserted therein. to recognition of that court’s jurisdiction and will bar a
party from impugning the court’s jurisdiction. The
DOCTRINE OF PRIMARY JURISDICTION general rule remains: a court’s lack of jurisdiction may be
raised at any stage of the proceedings even on appeal.
Courts will not resolve a controversy involving a question The Sibonghanoy applies only to exceptional
which is within the jurisdiction of an administrative circumstances.
tribunal, especially where the question demands the
exercise of sound administrative discretion requiring the Doctrine of estoppels by laches (in relation to objections to
special knowledge, experience and services of the jurisdiction) = the SC barred a belated objection to
administrative tribunal to determine technical and jurisdiction that was raised only after an adverse decision
intricate matters of fact. was rendered by the court against the party raising the
issue of jurisdiction and after seeking affirmative relief
The objective is to guide a court in determining whether it from the court and after participating in all stages of the
should refrain from exercising its jurisdiction until after proceedings.
an administrative agency has determined some question
or some aspect of some question arising in the proceeding The SC frowns upon the undesirable practice of
before the court. submitting one’s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of
DOCTRINE OF ADHERENCE OF JURISDICTION jurisdiction if it is not.
/ CONTINUITY OF JURISDICTION
JURISDICTION OVER THE ISSUES
Once a court has acquired jurisdiction, that jurisdiction
continues until the court has done all that it can do in the It is the power of the court to try and decide issues raised
exercise of that jurisdiction. This principle also means in the pleadings of the parties.
that once jurisdiction has attached, it cannot be ousted by
2011 Bar Examinations 19
BERT – NOTES in REMEDIAL LAW
An issue is a disputed point or question to which parties b) With the CA: petitions for certiorari,
to an action have narrowed down their several allegations prohibition and mandamus against the RTC
and upon which they are desirous of obtaining a decision. c) with Sandiganbayan: petitions for
Where there is no disputed point, there is no issue. mandamus, prohibition, certiorari, habeas
corpus, injunction and ancillary writs in aid
Generally, jurisdiction over the issues is conferred and of its appellate jurisdiction and over petitions
determined by the pleadings of the parties. The pleadings of similar nature, including quo warranto
present the issues to be tried and determine whether or arising or that may arise in cases filed or
not the issues are of fact or law. which may be filed.
a) may also be determined and conferred by
stipulation of the parties as when in the pre-trial, APPELLATE JURISDICTION
the parties enter into stipulations of facts and a) from the RTC in all criminal cases involving
documents or enter into agreement simplifying offenses for which the penalty is reclusion
the issues of the case. perpetua or life imprisonment, and those
b) may also be conferred by waiver or failure to involving other offenses which, although not
object to the presentation of evidence on a matter so punished, arose out of the same
not raised in the pleadings. Here the parties try occurrence or which may have been
with their express or implied consent or issues committed by the accused on the same
not raised by the pleadings. The issues tried shall occasion;
be treated in all respects as if they had been b) Automatic review where death penalty is
raised in the pleadings. imposed.
c) By petition for review on Certiorari from the
JURISDICTION OVER THE RES OR PROPERTY IN CA, Sandiganbayan and from the RTC
LITIGATION where only error or question of law is
involved
Jurisdiction over the res refers to the court’s jurisdiction
over the thing or the property which is the subject of the ð Note: In PP vs. Mateo (2004), the SC held that while
action. the Fundamental Law requires a mandatory review
by the SC of cases where the penalty imposed is
Jurisdiction over the res may be acquired by the court reclusion perpetua, life imprisonment or death,
1) by placing the property or thing under its custody nowhere however, has it proscribed an intermediate
(custodia legis) (the seizure of the thing under review. If only to ensure utmost circumspection
legal process whereby it is brought into actual before the penalty of reclusion perpetua, life
custody of law). Example: attachment of imprisonment or death is imposed, the Court now
property. deems it wise and compelling to provide in these
2) through statutory authority conferring upon it cases a review by the CA before the case is elevated
the power to deal with the property or thing to the SC. A prior determination by the CA on,
within the court’s territorial jurisdiction particularly, the factual issues, would minimize the
(institution of a legal proceeding wherein the possibility of an error of judgment. If the CA should
power of the court over the thing is recognized affirm the penalty of reclusion perpetua, life
and made effective). Example: suits involving the imprisonment or death, it could then render
status of the parties or suits involving the judgment imposing the corresponding penalty as the
property in the Philippines of non-resident circumstances so warrant, refrain from entering
defendants. judgment and elevate the entire records of the case to
the SC for final disposition.
JURISDICTION OF THE SUPREME COURT
CIVIL CASES
3) Offenses involving DAMAGE TO PROPERTY SPECIAL JURISDICTION over petition for writ of
through CRIMINAL NEGLIGENCE where the habeas corpus OR application for bail in criminal cases in
imposable fine is not exceeding P10,000 the absence of all RTC judges in the province or city
ð Note: In cases where the only penalty is fine, DELEGATED JURISDICTION to hear and decide
the amount thereof shall determine cadastral and land registration cases where there is no
jurisdiction. If the amount does not exceed controversy over the land or in case of contested lands, the
P4,000, the MTC has jurisdiction. value does not exceed P100, 000 = appealable to the CA
CIVIL ACTIONS
SHAR’IAH COURTS
EXCLUSIVE ORIGINAL JURISDICTION
1) If the amount involved does not exceed P300,000 EXCLUSIVE JURISDICTION
outside MM or does not exceed P400,000 in MM in 1) All cases involving custody, guardianship,
the following cases: legitimacy, paternity and filiation arising under
a) Actions involving personal property the Code of Muslim Personal Laws;
b) Probate Proceeding (testate and intestate) 2) All cases involving disposition, distribution and
based on gross value of the estate settlement of estate of deceased Muslims, probate
c) Admiralty and maritime cases of wills, issuance of letters of administration of
d) Demand for money appointment administrators or executors
ð Note: Do not include Interest, Damages of regardless of the nature or aggregate value of the
whatever kind, Attorney’s fees, Litigation property;
Expenses, and Costs (IDALEC). However, 3) Petitions for the declaration of absence and death
in cases where the claim or damages is the for the cancellation and correction of entries in
main cause of action, or one of the causes of the Muslim Registries;
action, the amount of such claim shall be 4) All actions arising from the customary contracts
considered in determining the jurisdiction of in which the parties are Muslims, if they have
the court. not specified which law shall govern their
relations; and
2) Actions involving title to, or possession of, real 5) All petitions for mandamus, prohibition,
property, or any interest therein where the assessed injunction, certiorari, habeas corpus and all other
value of the property or interest therein does not auxiliary writs and processes in aid of its
exceed P20,000 outside MM or does not exceed appellate jurisdiction
P50,000 in MM
3) Inclusion and exclusion of voters CONCURRENT JURISDICTION
4) Those governed by the Rules on Summary 1) Petitions of Muslim for the constitution of the
Procedure family home, change of name and commitment
a) Forcible entry and unlawful detainer (FEUD) of an insane person to an asylum
Ø With jurisdiction to resolve issue of 2) All other personal and legal actions not
ownership to determine ONLY issue of mentioned in par 1 (d) wherein the parties
possession (provisional only) involved are Muslims except those for forcible
Ø Irrespective of the amount of damages entry and unlawful detainer, which shall fall
or unpaid rentals sought to be recover under the exclusive jurisdiction of the MTC.
2011 Bar Examinations 25
BERT – NOTES in REMEDIAL LAW
3) All special civil actions for interpleader or 2) All other cases, except probate proceedings where the total
declaratory relief wherein the parties are amount of the plaintiff‘s claim does not exceed P100,000
Muslims or the property involved belongs (outside MM) or P200,000 (in MM), exclusive of interest
exclusively to Muslims and costs.
JURISDICTION OVER SMALL CLAIMS F RSP does not apply to a civil case where the
plaintiff‘s cause of action is pleaded in the same
complaint with another cause of action subject to
1) MTCs, MeTCs and MCTCs shall have jurisdiction the ordinary procedure; nor to a criminal case
over actions for payment of money where the value where the offense charged is necessarily related
of the claim does not exceed P100,000 exclusive of to another criminal case subject to the ordinary
interest and costs (Sec. 2, AM 08-8-7-SC, Oct. 27, procedure.
2009).
2) Actions covered are
a) purely civil in nature where the claim or relief CASES COVERED BY THE RULES ON
prayed for by the plaintiff is solely for payment BARANGAY CONCILIATION
or reimbursement of sum of money, and
b) the civil aspect of criminal actions, either filed The Lupon of each barangay shall have the authority to
before the institution of the criminal action, or bring together the parties actually residing in the same
reserved upon the filing of the criminal action in municipality or city for amicable settlement of all disputes
court, pursuant to Rule 111 (Sec. 4, AM 08-8-7- except:
SC). 1) Where one party is the government or any
subdivision or instrumentality thereof
These claims may be: 2) Where one party is a public officer or employee,
a) For money owed under the contracts of lease, and the dispute relates to the performance of his
loan, services, sale, or mortgage; official functions
b) For damages arising from fault or negligence, 3) Offenses punishable by imprisonment exceeding
quasi-contract, or contract; and one (1) year or a fine exceeding P5,000
c) The enforcement of a barangay amicable 4) Offenses where there is no private offended party
settlement or an arbitration award involving a 5) Where the dispute involves real properties
money claim pursuant to Sec. 417 of RA 7160 located in different cities or municipalities unless
(LGC). the parties thereto agree to submit their
differences to amicable settlement by an
CASES COVERED BY RULES ON SUMMARY appropriate lupon
PROCEDURE (SEC. 1 RSP) 6) Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
CIVIL CASES other and the parties thereto agree to submit their
differences to amicable settlement by an
1) All cases of forcible entry and unlawful detainer appropriate lupon
(FEUD), irrespective of the amount of damages or unpaid 7) Such other classes of disputes which the
rentals sought to be recovered. Where attorney‘s fees President may determine in the interest of justice
are awarded, the same shall not exceed P20,000; or upon the recommendation of the Secretary of
Justice
2011 Bar Examinations 26
BERT – NOTES in REMEDIAL LAW
8) Any complaint by or against corporations, Ordinary civil action is one by which one party sues
partnerships, or juridical entities. The reason is another, based on a cause of action, to enforce or protect
that only individuals shall be parties to barangay a right, or to prevent or redress a wrong, whereby the
conciliation proceedings either as complainants defendant has performed an act or omitted to do an act in
or respondents violation of the rights of the plaintiff. (Sec. 3a) The
9) Disputes where urgent legal action is necessary purpose is primarily compensatory.
to prevent injustice from being committed or
further continued, specifically: Special civil action – actions which while governed by
a) A criminal case where the accused is the rules for ordinary civil actions, are subject to special
under police custody or detention rules provided for Special Civil Actions
b) A petition for habeas corpus by a person
illegally detained or deprived of his Criminal action is one by which the State prosecutes a
liberty or one acting in his behalf person for an act or omission punishable by law (Sec.
c) Actions coupled with provisional 3[b], Rule 1). The purpose is primarily punishment.
remedies, such as preliminary
injunction, attachment, replevin and CIVIL ACTIONS VERSUS SPECIAL
support pendente lite PROCEEDINGS
d) Where the action may be barred by
statute of limitation The purpose of an action is either to protect a right or
10) Labor disputes or controversies arising from prevent or redress a wrong. The purpose of special
employer-employee relationship proceeding is to establish a status, a right or a particular
11) Where the dispute arises from the CARL fact.
12) Actions to annul judgment upon a compromise
which can be directly filed in court. PERSONAL ACTIONS AND REAL ACTIONS
F It is a condition precedent under Rule 16; can be
An action is REAL when it affects title to or possession of
dismissed but without prejudice
real property, or an interest therein. All other actions are
personal actions.
TOTALITY RULE
An action is real when it is founded upon the privity of
Where there are several claims or causes of actions real estate, which means that the realty or an interest
between the same or different parties, embodied in the therein is the subject matter of the action. The issues
same complaint, the amount of the demand shall be the involved in real actions are title to, ownership,
totality of the claims in all the claims of action, irrespective possession, partition, foreclosure of mortgage or
of whether the causes of action arose out of the same or condemnation of real property.
different transactions (Sec. 33[1], BP 129).
Not every action involving real property is a real action
because the realty may only be incidental to the subject
matter of the suit. Example is an action for damages to
real property, because although it involves real property,
CIVIL PROCEDURE it does not involve any of the issues mentioned.
Joinder of parties is compulsory if there are parties It shall not be dismissed or compromised without the
without whom no final determination can be had of an approval of the court.
action (Sec. 7, Rule 3).
SUITS AGAINST ENTITIES WITHOUT
Joinder of parties is permissive when there is a right or JURIDICAL PERSONALITY
relief in favor of or against the parties joined in respect to
or arising out of the same transaction or series of A corporation being an entity separate and distinct from
transactions, and there is a question of law or fact its members has no interest in the individual property of
common to the parties joined in the action (Sec. 6, Rule 3). its members unless transferred to the corporation. Absent
any showing of interests, a corporation has no personality
2011 Bar Examinations 31
BERT – NOTES in REMEDIAL LAW
to bring an action for the purpose of recovering the
property, which belongs to the members in their personal VENUE VERSUS JURISDICTION
capacities.
a) Jurisdiction is the authority to hear and determine a
An entity without juridical personality may be sued under case; venue is the place where the case is to be heard
a common name by which it is commonly known when it or tried;
represents to the plaintiff under a common name, and the b) Jurisdiction is a matter of substantive law; venue of
latter relies on such representation. procedural law;
c) Jurisdiction establishes a relation between the court
Persons associated in an entity without juridical and the subject matter; venue, a relation between
personality maybe sued under the name by which they plaintiff and defendant, or petitioner and respondent;
are generally or commonly known, but they cannot sue d) Jurisdiction is fixed by law and cannot be conferred
under such name. by the parties; venue may be conferred by the act or
agreement of the parties; and
EFFECT OF DEATH OF PARTY LITIGANT e) Lack of jurisdiction over the subject matter is a
ground for a motu propio dismissal; venue is not a
The death of the client extinguishes the attorney-client ground for a motu propio dismissal except in cases
relationship and divests a counsel of his authority to subject to summary procedure.
represent the client. Accordingly, a dead client has no
personality and cannot be represented by an attorney. VENUE OF REAL ACTIONS
Neither does he become the counsel of the heirs of the
deceased unless his services are engaged by said heirs. Actions affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the
Where the claim is not extinguished by the death of the proper court which has jurisdiction over the area wherein
litigant, upon the receipt of the notice of death, the court the real property involved or a portion thereof is situated.
shall order the legal representative or representatives of Forcible entry and detainer actions shall be commenced
the deceased to appear and be substituted for the and tried in the municipal trial court of the municipality
deceased within thirty (30) days from notice (Sec. 16, Rule or city wherein the real property involved, or a portion
3). thereof, is situated (Sec. 1, Rule 4).
The substitution of the deceased would not be ordered by VENUE OF PERSONAL ACTIONS
the court in cases where the death of the party would
extinguish the action because substitution is proper only All other actions may be commenced and tried:
when the action survives. a) where the plaintiff or any of the principal
plaintiffs resides, or
Where the deceased has no heirs, the court shall require b) where the defendant or any of the principal
the appointment of an executor or administrator. This defendants resides
appointment is not required where the deceased left an ð all at the option of the plaintiff (Sec. 2,
heir because the heir under the new rule, may be allowed Rule 4).
to be substituted for the deceased. If there is an heir but
the heir is a minor, the court may appoint a guardian ad VENUE OF ACTIONS AGAINST NON-RESIDENTS
litem for said minor heir (Sec. 13, Rule 3).
If any of the defendants does not reside and is not found
The court may appoint an executor or administrator in the Philippines, and the action affects the personal
when: status of the plaintiff, or any property of said defendant
a) the counsel for the deceased does not name a located in the Philippines, the action may be
legal representative; or 1) commenced and tried in the court of the place
b) there is a representative named but he failed to where the plaintiff resides, or
appear within the specified period (Sec. 16, Rule 2) where the property or any portion thereof is
3). situated or found (Sec. 3, Rule 4), or
3) at the place where the defendant may be found
VENUE (Rule 4) ü at the option of the plaintiff (Sec. 2).
The parties may stipulate on the venue as long as the The defendant may set up two kinds of defenses:
agreement is 1. NEGATIVE DEFENSES
a) in writing a) Negative defenses are the specific denials of the
b) made before the filing of the action, and material fact or facts alleged in the pleading of
c) exclusive as to the venue (Sec. 4[b], Rule 4). the claimant essential to his cause or causes of
action (Sec. 5[a], Rule 6).
In interpreting stipulations as to venue, there is a need to b) When the answer sets forth negative defenses,
inquire as to whether or not the agreement is restrictive or the burden of proof rests upon the plaintiff, and
not. If the stipulation is RESTRICTIVE, the suit may be when the answer alleges affirmative defenses, the
filed only in the place agreed upon by the parties. It must burden of proof devolves upon the defendant.
be reiterated and made clear that under Rule 4, the c) There are three types specific denials:
general rules on venue of actions shall not apply where
the parties, before the filing of the action, have validly 1. Absolute denial - when the defend ant
agreed in writing on an exclusive venue. The mere specify each material allegation of fact the
stipulation on the venue of an action, however, is not truth of which he does not admit and
enough to preclude parties from bringing a case in other whenever practicable sets forth the
venues. If the intention of the parties were to restrict substance of the matters upon which he
venue, there must be accompanying language clearly and relies to support such denial.
categorically expressing their purpose and design that
actions between them be litigated only at the place named 2. Partial denial – when the defendant does
by them. not make a total denial of the material
allegations in a specific paragraph,
The parties must be able to show that such stipulation is denying only a part of the averment. In
EXCLUSIVE. In the absence of qualifying or restrictive doing so he specifies that part of the truth
words, the stipulation should be deemed as merely an of which he admits and denies only the
agreement on an additional forum, not as limiting venue remainder.
to the specified place.
3. Denial by disavowal of knowledge – when
the defendant alleges having no knowledge
PLEADINGS (Rules 6 - 13)
or information sufficient to form a belief as
to the truth of a material averment made
Pleadings are written statements of the respective claims in the complaint. Such denial must be
and defenses of the parties submitted to the court for made in good faith.
appropriate judgment (Sec. 1, Rule 6). Pleadings aim to ðWhen the matter denied by a disavowal
define the issues and foundation of proof to be submitted of knowledge is plainly and
during the trial, and to apprise the court of the rival necessarily within the defendant’s
claims of the parties. knowledge, such claim shall not be
considered as a specific denial.
ðIf the denial does not fall within the
KINDS OF PLEADINGS (RULE 6) scope of the abovementioned kinds of
a specific denial, it shall be considered
a general denial which is considered as
A. COMPLAINT an admission of the averment not
specifically denied.
Complaint is the pleading alleging the plaintiff’s cause or
causes of action, stating therein the names and residences 2. NEGATIVE PREGNANT
of the plaintiff and defendant (Sec. 3, Rule 6) and should ð Negative pregnant is an admission in avoidance
contain a concise statement of the ultimate facts which does not qualify as a specific denial.
constituting the plaintiff’s cause of action. ð It is a form of negative expression which carries
with it an affirmation or at least an implication of
2011 Bar Examinations 33
BERT – NOTES in REMEDIAL LAW
some kind favorable to the adverse party. It is a
denial pregnant with an admission of the AFFIRMATIVE DEFENSES
substantial facts alleged in the pleading. Affirmative defenses are allegations of new matters
ð Where a fact is alleged with qualifying or which, while hypothetically admitting the material
modifying language and the words of the allegations in the pleading of the claimant, would
allegation as so qualified or modified are literally nevertheless prevent or bar recovery by him.
denied, the qualifying circumstances alone are
denied while the fact itself is admitted. Affirmative defenses include:
ð It is not a specific denial and is usually an
admission.
a) Fraud h) Former recovery
b) Statute of limitations i) Discharge in bankruptcy
c) Release j) Any other matter by way of
d) Payment confession and avoidance (Sec.
e) Illegality 5[b], Rule 6)
f) Statute of frauds
g) Estoppel
1. COMPULSORY COUNTERCLAIM
A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out of or The requirements of a permissive counterclaim are:
is connected with the transaction or occurrence 1) It does not require for its adjudication the
constituting the subject matter of the opposing party’s presence of third parties of whom the court
claim and does not require for its adjudication, the cannot acquire jurisdiction;
presence of third parties of whom the court cannot 2) It must be within the jurisdiction of the court
acquire jurisdiction. Such a counterclaim must be within wherein the case is pending and is cognizable by
the jurisdiction of the court, both as to the amount and the regular courts of justice; and
the nature thereof, except that in an original action before 3) It does not arise out of the same transaction or
the RTC, the counterclaim may be considered series of transactions subject of the complaint.
compulsory regardless of the amount (Sec. 7, Rule 6).
Points to consider:
The failure of the defendant to set up a compulsory a) even if not set up is not barred because it doesn’t
counterclaim shall bar its institution, subject to the arise out of the same transaction as that of the
following exceptions: complaint
a) If the counterclaim matured or was acquired b) it can be brought as a separate action in itself
after the defendant had served his answer. In c) docket fee must be paid
such case, it may be pleaded by filing a d) it must be answered by the adverse party to
supplemental answer or pleading before prevent default
judgment; and e) it needs a certificate against forum shopping.
b) When a pleader fails to set up a counterclaim
through oversight, inadvertence, excusable 3. EFFECT ON THE COUNTERCLAIM WHEN THE
negligence, or when justice requires, he may, by COMPLAINT IS DISMISSED
leave of court, set up the counterclaim by If a counterclaim has already been pleaded by the
amendment of the pleadings before judgment. defendant prior to the service upon him of the plaintiff‘s
motion to dismiss, and the court grants the said motion to
Points to consider: dismiss, the dismissal shall be limited to the complaint
a) A compulsory counterclaim if not set up is (Sec. 2, Rule 17).
barred
b) It requires no payment of the docket fee The dismissal upon motion of plaintiff shall be without
c) Need not be answered prejudice to the right of the defendant to prosecute the
d) Does not need a certificate against forum counterclaim.
shopping
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BERT – NOTES in REMEDIAL LAW
The defendant if he so desires may prosecute his thereby join or make issue as to such matters. Even if a
counterclaim either in a separate action or in the same party does not file such reply, all the new matters alleged
action. Should he choose to have his counterclaim in the answer are deemed controverted (Sec. 10, Rule 6).
resolved in the same action, he must notify the court of
his preference within 15 days from notice of the plaintiff‘s But you need to file a reply if there is an actionable
motion to dismiss. Should he opt to prosecute his document denying the due execution of such document
counterclaim in a separate action, the court should render under oath
the corresponding order granting and reserving his right
to prosecute his claim in a separate complaint. PLEADINGS ALLOWED IN SMALL CLAIM
CASES AND CASES COVERED BY THE RULES
The dismissal of the complaint under Sec. 3 (due to fault ON SUMMARY PROCEDURE
of plaintiff) is without prejudice to the right of the
defendant to prosecute his counterclaim in the same The only pleadings allowed under the Rules on Summary
action or in a separate action. This dismissal shall have Procedure are
the effect of adjudication upon the merits, unless a) Complaint
otherwise declared by the court. The dismissal of the b) COMPULSORY COUNTERCLAIM pleaded
main action does not carry with it the dismissal of the in the answer,
counterclaim (Sec. 6, Rule 16). c) cross-claim pleaded in the answer,
d) answers
D. CROSS-CLAIMS ð these pleadings must be verified.
A cross-claim is any claim by one party against a co-party The only pleadings allowed under small claim cases are:
arising out of the transaction or occurrence that is the a) Statement of claim
subject matter either of the original action or of a b) Response
counterclaim therein. Such cross-claim may include a c) Counterclaim in the response
claim that the party against whom it is asserted is or may
be liable to the cross-claimant for all of part of a claim
asserted in the action against the cross-claimant (Sec. 8, PARTS OF A PLEADING (RULE 7)
Rule 6).
The parts of a pleading under Rule 7 are: the caption
E. THIRD (FOURTH-ETC.) PARTY COMPLAINTS (Sec. 1), the text or the body (Sec. 2), the signature and
address (Sec. 3), the verification (Sec. 4), and the
It is a claim that a defending party may, with leave of certification against forum shopping (Sec. 5).
court, file against a person not a party to the action,
called the third (fourth, etc.)–party defendant, for CAPTION
contribution, indemnity, subrogation or any other relief,
in respect of his opponent‘s claim. The caption must set forth the name of the court, the title
of the action, and the docket number if assigned.
F. COMPLAINT-IN-INTERVENTION
The title of the action indicates the names of the parties.
Complaint-in-intervention is a pleading whereby a third They shall all be named in the original complaint or
party asserts a claim against either or all of the original petition; but in subsequent pleadings, it shall be sufficient
parties. If the pleading seeks to unite with the defending if the name of the first party on each side be stated with
party in resisting a claim against the latter, he shall file an an appropriate indication when there are other parties.
answer-in-intervention. Their respective participation in the case shall be
indicated.
If at any time before judgment, a person not a party to the
action believes that he has a legal interest in the matter in SIGNATURE AND ADDRESS
litigation in a case in which he is not a party, he may,
with leave of court, file a complaint-in-intervention in the Every pleading must be signed by the party or counsel
action if he asserts a claim against one or all of the representing him, stating in either case his address which
parties. should not be a post office box.
A verification of a pleading is an affirmation under oath by Failure to comply with the foregoing requirements shall
the party making the pleading that he is prepared to establish the not be curable by mere amendment of the complaint or
truthfulness of the facts which he has pleaded based on his own other initiatory pleading but shall be cause for the
personal knowledge. dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing.
The general rule under, Sec. 4. Rule 7 is that, pleading
need not be under oath. This means that a pleading need The submission of a false certification or non-compliance
not be verified. A pleading will be verified only when a with any of the undertakings therein shall constitute
verification is required by a law or by a rule. indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
A pleading is verified by an affidavit, which declares that: acts of the party or his counsel clearly constitute willful
a) the affiant has read the pleading, and and deliberate forum shopping, the same shall be ground
b) the allegations therein are true and correct to his for summary dismissal with prejudice and shall constitute
personal knowledge or based on authentic direct contempt, as well as a cause for administrative
records. sanctions (Sec. 5, Rule 7).
The verification requirement is significant, as it is Possible Violations (as per Dean Riano):
intended to secure an assurance that the allegations in a 1) Non-compliance with the undertaking –
pleading are true and correct and not the product of the dismissal without prejudice
imagination or a matter of speculation, and that the 2) False Certification - indirect contempt,
pleading is filed in good faith. The absence of proper administrative and criminal sanction
verification is cause to treat the pleading as unsigned and 3) Wilful and deliberate forum shopping – ground
dismissible. for summary dismissal with prejudice without
motion and hearing; it has administrative but
It is, however, been held that the absence of a verification without criminal sanctions
or the non-compliance with the verification requirement ð So, if the dismissal is without
does not necessarily render the pleading defective. It is prejudice, your remedy is certiorari; if
only a formal and not a jurisdictional requirement. The with prejudice, the remedy is appeal
requirement is a condition affecting only the form of the (Sec. 1(g), Rule 41)
pleading (Sarmeinto vs. Zaratan, 2007). The absence of ð The dismissal is not a subject of
verification may be corrected by requiring an oath. The appeal if the order of dismissal is
court may order the correction of the pleading or act on without prejudice.
an unverified pleading if the attending circumstances are ð The certification is mandatory under
such that strict compliance would not fully serve Sec. 5, Rule 7, but not jurisdictional.
substantial justice, which after all, is the basic aim for the
rules of procedure (Robert Development Corp. vs. Quitain, There is forum shopping when
315 SCRA 150). a) as a result of an adverse opinion in one forum, a
party seeks a favorable opinion, other than by
CERTIFICATION AGAINST FORUM-SHOPPING appeal or certiorari in another forum
b) a party institutes two or more suits in different
F Needed in initiatory pleadings courts, either simultaneously or successively, in
order to ask the courts to rule on the same or
2011 Bar Examinations 36
BERT – NOTES in REMEDIAL LAW
related causes and/or to grant the same or a) He has read the pleading;
substantially the same reliefs on the supposition b) That to the best of his knowledge,
that one or the other court would make a information and belief there is a good
favorable disposition or increase a party‘s ground to support it; and
chances of obtaining a favorable decision or c) That it is not interposed for delay.
action
c) the elements of litis pendentia are present or ALLEGATIONS IN A PLEADING
where a final judgment in one case will amount
to res judicata in another. Every pleading shall contain in a mathematical and
logical form, a plain, concise and direct statement of the
It is an act of malpractice, as the litigants trifle with the ultimate facts on which the party relies for his claim and
courts and abuse their processes. It is improper conduct defense, as the case may be, containing the statement of
and degrades the administration of justice. If the act of mere evidenciary facts (Sec. 1, Rule 8).
the party or its counsel clearly constitutes wilful and
deliberate forum-shopping, the same shall constitute
direct contempt, and a cause for administrative sanctions, MANNER OF MAKING ALLEGATIONS (RULE 8)
as well as a ground for the summary dismissal of the case
with prejudice (Montes vs. CAMay 4, 2006)
PLEADING CONDITION PRECEDENT
It is the plaintiff or principal party who executes the
certification under oath, and not the attorney. It must Conditions precedents are matters which must be
be signed by the party himself and cannot be signed by his complied with before a cause of action arises. When a
counsels. As a general and prevailing rule, a certification claim is subject to a condition precedent, the compliance
signed by counsel is a defective certification and is a valid of the same must be alleged in the pleading.
cause for dismissal. This is the general and prevailing
rule. A certification by counsel and not by the principal Failure to comply with a condition precedent is an
party himself is no certification at all. The reason for independent ground for a motion to dismiss: that a
requiring that it must be signed by the principal party condition precedent for filing the claim has not been
himself is that he has actual knowledge, or knows better complied (Sec. 1[j], Rule 16) (i.e. barangay conciliation,
than anyone else, whether he has initiated similar demand, etc)
action/s in other courts, agencies or tribunals.
PLEADING A JUDGMENT
This certification is not necessary when what is filed is a
mere motion for extension, or in criminal cases and In pleading a judgment or decision of a domestic or
distinct causes of action. foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment or
REQUIREMENTS OF A CORPORATION decision without need of alleging matters showing the
EXECUTING THE jurisdiction to render such decision.
VERIFICATION/CERTIFICATION ON NON-
FORUM SHOPPING PLEADING FRAUD, MISTAKE, MALICE,
INTENT, KNOWLEDGE AND OTHER
CONDITION OF THE MIND JUDGMENTS
A juridical entity, unlike a natural person, can only
OFFICIAL DOCUMENTS OR ACTS
perform physical acts through properly delegated
individuals. The certification against forum shopping
where the plaintiff or a principal party is a juridical entity When making averments of FRAUD OR MISTAKE,
like a corporation may be executed by properly THE CIRCUMSTANCES CONSTITUTING SUCH
authorized persons. This person may be the lawyer of a FRAUD OR MISTAKE must be stated with particularity
corporation. (Sec. 5, Rule 8). It is not enough therefore, for the
complaint to allege that he was defrauded by the
As long as he is duly authorized by the corporation and defendant. Under this provision, the complaint must state
has personal knowledge of the facts required to be with PARTICULARITY the fraudulent acts of the
disclosed in the certification against forum shopping, the adverse party. These particulars would necessarily
certification may be signed by the authorized lawyer. include the time, place and specific acts of fraud
committed against him.
EFFECT OF THE SIGNATURE OF COUNSEL IN A
MALICE, INTENT, KNOWLEDGE OR OTHER
PLEADING
CONDITIONS OF THE MIND of a person may be
averred GENERALLY (Sec. 5, Rule 8). Unlike in fraud or
Counsel’s signature signifies that: mistake, they need not be stated with particularity. The
2011 Bar Examinations 37
BERT – NOTES in REMEDIAL LAW
rule is borne out of human experience. It is difficult to If the allegations are deemed admitted, there is no more
state the particulars constituting these matters. Hence, a triable issue between the parties and if the admissions
general averment is sufficient. appear in the answer of the defendant, the plaintiff may
file a motion for judgment on the pleadings under Rule
34.
The purpose of requiring the defendant to make a specific FAILURE TO PLEAD DEFENSES AND
denial is to make him disclose the matters alleged in the OBJECTIONS
complaint which he succinctly intends to disprove at the
trial, together with the matter which he relied upon to Defenses or objections not pleaded either in a motion to
support the denial. The parties are compelled to lay their dismiss or in the answer are deemed waived.
cards on the table.
Exceptions:
EFFECT OF FAILURE TO MAKE SPECIFIC a) Lack of jurisdiction over the subject matter;
DENIALS b) That there is another action pending between the
same parties for the same cause (litis pendentia);
Material allegations, except unliquidated damages, not c) That the action is barred by the statute of
specifically denied are deemed admitted (Sec. 11, Rule 8). limitations (prescription);
d) Res judicata.
2011 Bar Examinations 38
BERT – NOTES in REMEDIAL LAW
ð In all these cases, the court shall dismiss the REMEDY FROM THE NOTICE OF ORDER AND
claim. BEFORE JUDGMENT:
F MOTION TO SET ASIDE ORDER OF
FAILURE TO PLEAD A COMPULSORY DEFAULT, showing that
COUNTERCLAIM AND CROSS-CLAIM a) the failure to answer was due to fraud,
accident, mistake, or excusable negligence,
A compulsory counterclaim or a cross-claim not set up and
shall be barred (Sec. 2, Rule 9). b) the defendant has a meritorious defense—
there must be an affidavit of merit (Sec. 3[b],
DEFAULT Rule 9).
Default is a procedural concept that occurs when the REMEDY AFTER JUDGMENT BUT BEFORE
defending party fails to file his answer within the FINALITY:
reglementary period. It does not occur from the failure of F MOTION FOR NEW TRIAL (Rule 37);
the defendant to attend either the pre-trial or the trial. F MOTION FOR RECONSIDERATION; or
F APPEAL from the judgment as being contrary to
WHEN A DECLARATION OF DEFAULT IS the evidence or the law (Rule 41).
PROPER
ð You can directly file an appeal without passing
If the defending party fails to answer within the time MR and MNT; or you can MR/MNT and if
allowed therefor, the court shall, upon motion of the denied, then you can still file an appeal and have
claiming party with notice to the defending party, and a new “fresh 15 day” period of appeal (Neypes
proof of such failure, declare the defending party in doctrine)
default (Sec. 3, Rule 9).
ð This Neypes doctrine on “fresh period of appeal”
applies to Rule 45 and Sec. 3 (e) of Rule 122.
In order for the court to declare the defendant in default
the following requisites must be present:
ð The purpose of the doctrine is to standardize the
1. The court must have validly ACQUIRED
period of appeal.
JURISDICTION over the person of the
defendant either by service of summons or
ð The appeal shall be taken within fifteen (15) days
voluntary appearance;
2. The defendant FAILS TO ANSWER within the from notice of the judgment or final order appealed
time allowed therefore; from. Where a record on appeal is required, the
3. There must be a MOTION to declare the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days from
defendant in default;
notice of the judgment or final order.
4. There must be NOTICE to the defendant by
serving upon him a copy of such motion;
ð So the period of appeal is 15 days from notice of
5. There must be PROOF of such failure to answer;
and judgment or 15 days from final order appealed
6. There must be a HEARING to declare the from.
defendant in default.
ð The SC ruled in one case that this “fresh period
It is not correct to declare a party in default of the of appeal” is applicable in criminal cases (Judith
defending party filed an answer Yu vs. Judge Samson, Feb. 9, 2011)
4) When the defendant is a non-resident on whom However, if personal service and serviced by mail cannot
extraterritorial service is made be made, service shall be done by substituted service.
ð within 60 days from such service.
PERSONAL SERVICE
5) Answer to an amended complaint
ð where the amendment is a matter of right, It is the preferred mode of service. If another mode of
within 15 days from the service of amended service is used other than personal service, the service
complaint. If the amendment is NOT a must be accompanied by a written explanation why the
matter of right, the answer must be filed service of filing was not done personally. Exempt from
within 10 days from notice of the order this explanation are papers emanating from the court. A
admitting the same. violation of this explanation requirement may be a cause
ð The same periods shall apply to answers for the paper to be considered as not having been filed
filed on an amended counterclaim , cross (Sec. 11, Rule 13).
claim and third party complaint.
Personal service is made by:
6) Answer to counterclaim or cross-claim a) delivering a copy of the papers served personally
ð within 10 days from service to the party or his counsel, or
b) by leaving the papers in his office with his clerk
7) Answer to third-party complaint or a person having charge thereof, or
ð the period to answer shall be the same as the c) If no person is found in the office, or his office is
periods given in answering a complaint not known or he has no office, then by leaving a
which shall either be 15, 30 or 60 days as the copy of the papers at the party’s or counsel‘s
case may be. residence, if known, with a person of sufficient
age and discretion residing therein between eight
8) Reply in the morning and six in the evening (Sec. 6, Rule
ð within 10 days from the service of the 13).
pleading responded to.
SERVICE BY MAIL
9) Answer to supplemental complaint
The preferred service by mail is by registered mail. It is
deemed complete upon actual receipt by the addressee or
2011 Bar Examinations 41
BERT – NOTES in REMEDIAL LAW
after 5 days from the date he received the first notice of registered mail is complete upon actual receipt by the
the postmaster whichever is earlier. Service by ordinary addressee, or after five (5) days from the date he received
mail may be done only if no registry service is available in the first notice of the postmaster, whichever is earlier (Sec.
the locality of either the sender or the addressee (Sec. 7, 8, Rule 13).
Rule 13).
Substituted service is complete at the time of delivery of
It shall be done by depositing the copy in the post office, the copy to the clerk of court.
in a sealed envelope, plainly addressed to the party or his
counsel at his office, if known, or otherwise at his PROOF OF FILING AND SERVICE
residence, if known, with postage fully prepaid, and with
instructions to the postmaster to return the mail to the PROOF OF FILING
sender after ten (10) days if not delivered. The filing of a pleading or paper is proved by its existence
in the record. If it is not in the record
SUBSTITUTED SERVICE (FILING) 1) If filed PERSONALLY:
ð Proved by the written or stamped
This mode is availed of only when there is failure to effect acknowledgement of its filing by the clerk of
service personally or by mail. This failure occurs when court on a copy of the same; or
the office and residence of the party or counsel is 2) If filed by REGISTERED MAIL:
unknown. ð Proved by the registry receipt AND the
affidavit of the person who did the mailing
It is effected by delivering the copy to the clerk of court, with a full statement of:
with proof of failure of both personal service and service a) The date and place of depositing the
by mail (Sec. 8, Rule 13). mail in the post office in a sealed
envelope assessed to the court;
Substituted service is complete at the time of delivery of b) With postage fully paid; and
the copy to the clerk of court. c) With the instructions to the
postmaster to return the mail to the
SERVICE OF JUDGMENTS, FINAL ORDERS OR sender after 10 days if undelivered.
RESOLUTIONS
PROOF OF SERVICE
Final orders or judgments shall be served either 1) Proof of personal service shall consist of:
personally or by registered mail. When a party ð the written admission of the party served; or
summoned by publication has failed to appear in the ð The official return of the server; or
action, final orders or judgments against him shall be ð The affidavit of the party serving (in case of
served upon him also by publication at the expense of the refusal to receive), containing full information of
prevailing party (Sec. 9). the date, place and manner of service (Sec. 13,
Rule 13).
PRIORITIES IN MODES OF SERVICE AND 2) Proof of service by registered mail
FILING ð Shall be shown by the affidavit of the mailer
showing compliance with Sec. 7, Rule 13 and the
ð Personal service is the preferred mode of service. registry receipt issued by the mailing office and
present the document returned or the card.
ð The preferred service by mail is by registered mail. 3) Proof of service of ordinary mail
ð Service shall be proved by affidavit of the mailer
ð The following papers are required to be filed in court showing compliance with Sec. 7, Rule 13
and served upon the parties affected: (a) Judgments;
(b) Resolutions; (c) Orders; (d) Pleadings subsequent
to the complaint; (e) Written motions; (f) Notices; (g) AMENDMENT (RULE 10)
Appearances; (h) Demands; (i) Offers of judgment; (j)
Similar papers (Sec. 4, Rule 13).
AMENDMENT AS A MATTER OF RIGHT
WHEN SERVICE IS DEEMED COMPLETE
A plaintiff has the right to amend his complaint once at
any time before a responsive pleading is served by the
Personal service is deemed complete upon the actual
delivery following the above procedure (Sec. 10, Rule 13). other party or in case of a reply to which there is no
responsive pleading, at any time within ten (10) days after
Service by ordinary mail is deemed complete upon the it is served (Sec. 2, Rule 10).
expiration of ten (10) days after mailing, unless the court
otherwise provides. On the other hand, service by
2011 Bar Examinations 42
BERT – NOTES in REMEDIAL LAW
Thus, before an answer is served on the plaintiff, the necessary to cause them to conform to the evidence and
latter may amend his complaint as a matter of right for to raise these issues may be made upon motion of any
whatever reasons as it may be, even to correct the error party at any time, even after judgment; but failure to
of judgment. The defendant may also amend his answer, amend does not affect the result of the trial of these
also as a matter of right, before a reply is served upon issues.
him. (Sec. 2 refers to an amendment made before the trial court,
not to amendments before the CA). If evidence is objected to at the trial on the ground that it
is not within the issues made by the pleadings, the court
The CA is vested with jurisdiction to admit or deny may allow the pleadings to be amended and shall do so
amended petitions filed before it. Hence, even if no with liberality if the presentation of the merits of the
responsive pleading has yet been served, if the action and the ends of substantial justice will be
amendment is subsequent to a previous amendment made subserved thereby. The court may grant a continuance to
as a matter of right, the subsequent amendment must be enable the amendment to be made (Sec. 5, Rule 10).
with leave of court.
DIFFERENT FROM SUPPLEMENTAL
So you can amend the complaint to correct the error of PLEADINGS
jurisdiction as a matter of right (without leave of court)
before a responsive pleading is served even though there A supplemental pleading is one which sets forth
is already a motion to dismiss filed for lack of transactions, occurrences, or events which have happened
jurisdiction. The court should deny the motion since such since the date of the pleading sought to be supplemented.
motion is not a responsive pleading. Note: The The filing of supplemental pleadings requires leave of
amendment as a matter of right should be filed before the court. The court may allow the pleading only upon such
order to dismiss becomes final. terms as are just. This leave is sought by the filing of a
motion with notice to all parties (Sec. 6, Rule 10).
AMENDMENTS BY LEAVE OF COURT
A supplemental pleading does not extinguish the
Leave of court is required for substantial amendment existence of the original pleading, while an amended
made after service of a responsive pleading (Sec. 3, Rule pleading takes the place of the original pleading. A
10). The plaintiff, for example, cannot amend his supplemental pleading exists side with the original; it
complaint by changing his cause of action or adding a does not replace that which it supplements it does not
new one without leave of court. supersede the original but assumes that the original
pleading remain as the issues to be tried in the action. A
After a responsive pleading is filed, an amendment to the supplemental pleading supplies the deficiencies in aid of
complaint may be substantial and will correspondingly an original pleading, not to entirely substitute the latter.
require a substantial alteration in the defenses of the
adverse party. The amendment of the complaint is not EFFECT OF AMENDED PLEADING
only unfair to the defendant but will cause unnecessary
delay in the proceedings. Leave of court is thus, required. ð An amended pleading supersedes the original one
which it amends (Sec. 8, Rule 10).
Where no responsive pleading has yet been served, no ð The original pleading loses its status as a pleading, is
defenses would be altered. The amendment of the deemed withdrawn and disappears from the record.
pleading will not then require leave of court. It has been held that the original complaint is deemed
superseded and abandoned by the amendatory
FORMAL AMENDMENT complaint only if the latter introduces a new or
different cause of action.
A defect in the designation of the parties and other clearly ð The defenses in the original pleadings not reproduced
clerical or typographical errors may be summarily in the amended pleadings are waived.
corrected by the court at any stage of the action, at its ð Admissions in the superseded pleading can still be
initiative or on motion, provided no prejudice is caused received in evidence against the pleader.
thereby to the adverse party (Sec. 4, Rule 10).
SUMMONS (Rule 14)
AMENDMENTS TO CONFORM TO OR
AUTHORIZE PRESENTATION OF EVIDENCE
ð Summons is a writ or process issued and served upon
When issues not raised by the pleadings are tried with the the defendant in a civil action for the purpose of
express or implied consent of the parties, they shall be securing his appearance therein.
treated in all respects as if they had been raised in the ð The purpose of summons is to comply with the
pleadings. Such amendment of the pleadings as may be constitutional rights on due process
2011 Bar Examinations 43
BERT – NOTES in REMEDIAL LAW
ð The service of summons enables the court to acquire alleging such ground. If no motion to dismiss is filed, it
jurisdiction over the person of the defendant. If there may be raised as an affirmative defense in the answer.
is no service of summons, any judgment rendered or
proceedings had in a case are null and void, except in The inclusion in a motion to dismiss of other grounds
case of voluntary appearance. The law requiring the aside from lack of jurisdiction over the person of the
manner of service of summons is jurisdictional. defendant shall not be deemed a voluntary appearance.
ð When the defendant is a corporation, partnership or
association organized under the laws of the PERSONAL SERVICE
Philippines with a juridical personality, service may
be made on the president, managing partner, general It shall be served by HANDLING a copy to the
manager, corporate secretary, treasurer, or in-house defendant in person, or if he refuses it, by TENDERING
counsel (Sec 11). it to him (Sec. 6, Rule 14).
ð If a party dies and there is substitute, there is no need
for summons but only an order for him tom appear. SUBSTITUTED SERVICE (SUMMONS)
NATURE AND PURPOSE OF SUMMONS IN If the defendant cannot be served within a reasonable
RELATION TO ACTIONS IN PERSONAM, time, service may be effected:
IN REM AND QUASI IN REM 1) By leaving copies of the summons at the
defendant’s dwelling house or residence with
In an action in personam, the purpose of summons is not some person of suitable age and discretion then
only to notify the defendant of the action against him but residing therein; or
also to acquire jurisdiction over his person. The filing of 2) By leaving copies at defendant’s office or regular
the complaint does not enable the courts to acquire place of business with some competent person in
jurisdiction over the person of the defendant. By the filing charge thereof (Sec. 7).
of the complaint and the payment of the required filing
and docket fees, the court acquires jurisdiction only over The following facts must first be shown for the service to
the person of the plaintiff, not over the person of the be valid:
defendant. Acquisition of jurisdiction over the latter is 1) The impossibility of the personal service within a
accomplished by a valid service of summons upon him. reasonable time
Service of summons logically follows the filing of the 2) The effort exerted to locate the person to be
complaint. Note further that the filing of the complaint served
tolls the running of the prescriptive period of the cause of 3) Service upon a person of sufficient age and
action in accordance with Article 1155 of the Civil Code. discretion residing in the same place or some
competent person in charge of his office or
In an action in rem or quasi in rem, jurisdiction over the regular place of business
defendant is not required and the court acquires 4) There should be at least 3 attempts in 2 days.
jurisdiction over an action as long as it acquires
jurisdiction over the res. The purpose of summons in It may be resorted to if there are justifiable causes, where
these actions is not the acquisition of jurisdiction over the the defendant cannot be served within a REASONABLE
defendant but mainly to satisfy the constitutional TIME (for plaintiff = 7 days; sheriff = 15 – 30 days). An
requirement of due process. example is when the defendant is in hiding and resorted
to it intentionally to avoid service of summons, or when
VOLUNTARY APPEARANCE the defendant refuses without justifiable reason to receive
the summons.
The defendant's voluntary appearance in the action shall
be equivalent to service of summons. The inclusion in a In substituted service of summons, actual receipt of the
motion to dismiss of other grounds aside from lack of summons by the defendant through the person served
jurisdiction over the person of the defendant shall not be must be shown. It further requires that where there is
deemed a voluntary appearance (Sec. 20, Rule 14). substituted service, there should be a report indicating
that the person who received the summons in defendant’s
Jurisdiction over the defendant is acquired by: behalf was one with whom petitioner had a relation of
a) Valid service of summons; or confidence ensuring that the latter would receive or
b) By his voluntary appearance or submission to the would be notified of the summons issued in his name.
jurisdiction of the court.
Substituted service is not allowed in service of summons
The defendant’s voluntary appearance in the action shall on domestic corporations.
be equivalent to service of summons. Lack of jurisdiction
over one’s person maybe invoked in a motion to dismiss CONSTRUCTIVE SERVICE (BY PUBLICATION)
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BERT – NOTES in REMEDIAL LAW
As a rule, summons by publication is available only in (b) Absent from the Philippines
actions in rem or quasi in rem. It is not available as a 1) Substituted service (Rule 14, Sec. 7)
means of acquiring jurisdiction over the person of the 2) Extraterritorial service (Rule 14, Sec. 16
defendant in an action in personam. and 15); action need not be in rem or
quasi in rem
Against a resident, the recognized mode of service is
service in person on the defendant under Sec. 6 Rule 14. In (2) Non-resident
a case where the defendant cannot be served within a 1. Present in the Philippines
reasonable time, substituted service will apply (Sec. 7, Rule a) Personal service (Sec. 6, Rule 14)
14), but no summons by publication which is permissible b) Substituted service (Sec. 7, Rule 14)
however, under the conditions set forth in Sec. 14, Rule 14. 2. Absent from the Philippines
a) Action in rem or quasi in rem – only
Against a non-resident, jurisdiction is acquired over the Extraterritorial service (Rule 14, Sec. 15)
defendant by service upon his person while said b) Action in personam, and judgment
defendant is within the Philippines. As once held, when cannot be secured by attachment (e.g.
the defendant is a nonresident, personal service of action for injunction)
summons in the state is essential to the acquisition of 1) Wait for the defendant to come
jurisdiction over him. This is in fact the only way of to the Philippines and to serve
acquiring jurisdiction over his person if he does not summons then
voluntarily appear in the action. Summons by publication 2) Wait the defendant to
against a nonresident in an action in personam is not a voluntarily appear in court
proper mode of service. (Rule 14, Sec. 20)
3) Plaintiff cannot resort to
Publication is notice to the whole world that the extraterritorial service of
proceeding has for its object to bar indefinitely all who summons
might be minded to make an objection of any sort against
the right sought to be established. It is the publication of SERVICE UPON RESIDENTS TEMPORARILY
such notice that brings the whole world as a party in the OUTSIDE THE PHILIPPINES
case and vests the court with jurisdiction to hear and
decide it. Service of summons upon a resident of the Philippines
who is temporarily out of the country, may, by leave of
SERVICE UPON A DEFENDANT WHERE HIS court be effected out of the Philippines as under the rules
IDENTITY IS UNKNOWN OR WHERE HIS on extraterritorial service in Sec. 15, Rule 14 by any of the
WHEREABOUTS ARE UNKNOWN following modes:
1) by personal service as in Sec. 6,
Where the defendant is designated as unknown, or 2) by publication in a news paper of general
whenever his whereabouts are unknown and cannot be circulation together with a registered mailing of a
ascertained despite a diligent inquiry, service may, with copy of the summons and the order of the court
prior leave of court, be effected upon the defendant, by to the last known address of the defendant, or
publication in a newspaper of general circulation. The 3) by any manner the court may deem sufficient
place and the frequency of the publication is a matter for under Sec. 16.
the court to determine (Sec. 14, Rule 14).
Like in the case of an unknown defendant or one whose
The rule does not distinguish whether the action is in whereabouts are unknown, the rule affecting residents
personam, in rem or quasi in rem. The tenor of the rule who are temporarily out of the Philippines applies in any
authorizes summons by publication whatever the action action. Note also, that summons by publication may be
may be as long as the identity of the defendant is effected against the defendant.
unknown or his whereabouts are unknown.
The defendant may however, also be served by
RULES ON SUMMONS ON DEFENDANT substituted service. This is because even if he is abroad,
he has a residence in the Philippines or a place of
(1) Resident business and surely, because of his absence, he cannot be
(a) Present in the Philippines served in person within a reasonable time.
1) Personal service (Rule 14, Sec. 6)
2) Substituted service (Rule 14, Sec. 7) EXTRA-TERRITORIAL SERVICE, WHEN
3) Publication, but only if ALLOWED
a) his identity or whereabouts is
unknown (Rule 14, Sec. 14); and Under Sec. 15, Rule 14, extraterritorial service of summons
b) the action is in rem or quasi in rem is proper only in four (4) instances namely:
2011 Bar Examinations 45
BERT – NOTES in REMEDIAL LAW
1) When the action affects the personal status of the and shall return the summons to the clerk who issued it,
plaintiffs; accompanied by proof of service (Sec. 4, Rule 14).
2) When the action relates to, or the subject of
which is, property within the Philippines, in The proof of service of summons shall be made in writing
which the defendant has or claims a lien or by the server and shall set forth the manner, place and
interest, actual or contingent; date of service; shall specify any papers which have been
3) When the relief demanded in such action served with the process and the name of the person who
consists, wholly or in part, in excluding the received the same; and shall be sworn to when made by a
defendant from any interest in property located person other than a sheriff or his deputy (Sec. 18).
in the Philippines; and
4) When the defendant non-resident’s property has If the service has been made by publication, service may
been attached within the Philippines. be proved by the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or advertising
Extraterritorial service of summons applies when the manager, to which affidavit a copy of the publication
following requisites concur: shall be attached and by an affidavit showing the deposit
1) The defendant is nonresident; of a copy of the summons and order for publication in the
2) He is not found in the Philippines; and post office, postage prepaid, directed to the defendant by
3) The action against him is either in rem or quasi registered mail to his last known address (Sec. 19).
in rem.
If the action is in personam, this mode of service will not MOTIONS (Rule 15)
be available. There is no extraterritorial service of
summons in an action in personam. Hence,
extraterritorial service upon a nonresident in an action for MOTIONS IN GENERAL, DEFINITION OF
injunction which is in personam is not proper (Banco Do MOTION
Brasil vs. CA, 333 SCRA 545).
A motion is an application for relief other than by a
When the action is in personam, jurisdiction over the pleading (Sec. 1, Rule 15).
person of the defendant is necessary for the court to
validly try and decide the case. However, when the MOTIONS VERSUS PLEADINGS
defendant is a nonresident, personal service of summons
in the state is essential to the acquisition of jurisdiction A pleading is a written statement of the respective claims
over him. and defenses of the parties submitted to the court for
appropriate judgment (Sec. 1, Rule 6). It may be in the
SERVICE UPON PRISONERS AND MINORS form of a complaint, counterclaim, cross-claim, third-
party complaint, or complaint-in-intervention, answer or
On a minor. Service shall be made on him personally and reply (Sec. 2, Rule 6).
on his legal guardian if he has one, or if none, upon his
guardian ad litem whose appointment shall be applied for A motion on the other hand is an application for relief
by the plaintiff, or upon a person exercising parental other than a pleading (Sec. 1, Rule 15).
authority over him, but the court may order that service
made on a minor of 15 or more years of age shall be A motion is not a pleading, even when reduced to
sufficient (Sec. 10); writing; it relates generally to procedural matters, unlike
pleadings which generally states substantial questions.
On prisoners. It shall be made upon him (prisoner) by Moreover, a motion is not an independent remedy, and
serving on the officer (becomes the deputy sheriff) having the thus cannot replace an action to enforce a legal right.
management of the jail or institution who is deemed
deputized as a special sheriff for said purpose (Sec. 9). CONTENTS AND FORM OF MOTIONS
If served by the sheriff, his deputy, or other proper court A motion shall state the order sought to be obtained, and
officer, there is no need to be sworn but this is needed if the grounds which it is based, and if necessary shall be
served by other persons. accompanied by supporting affidavits and other papers
(Sec. 3).
PROOF OF SERVICE
All motions must be in writing except those made in open
When the service has been completed, the server shall, court or in the course of a hearing or trial (Sec. 2).
within five (5) days therefrom, serve a copy of the return,
personally or by registered mail, to the plaintiff‘s counsel, NOTICE OF HEARING AND HEARING OF
MOTIONS
2011 Bar Examinations 46
BERT – NOTES in REMEDIAL LAW
motion is deemed a litigated motion. A motion to dismiss
Except for motions which the court may act upon (Rule 16), a motion for judgment for the pleadings (Rule
without prejudicing the rights of the adverse party, every 34), and a summary judgment (Rule 35), are litigated
written motion shall be set for hearing by the applicant. motions.
The motion which contains the notice of hearing shall be An ex parte motion is one which does not require that
served as to ensure its receipt by the other party at least the parties be heard, and which the court may act upon
three (3) days before the date of hearing, unless the court without prejudicing the rights of the other party. This
for good cause sets the hearing on shorter notice. It shall kind of motion is not covered by the hearing requirement
be addressed to all parties concerned, and shall specify of the Rules (Sec. 2). An example of an ex parte motion is
the time and date of the hearing which must not be later that one filed by the plaintiff pursuant to Sec. 1, Rule 18, in
than ten (10) days after the filing of the motion (Sec. 4, which he moves promptly that the case be set for pre-trial.
Rule 15). A motion for extension of time is an ex parte motion made
to the court in behalf of one or the other of the parties to
OMNIBUS MOTION RULE the action, in the absence and usually without the
knowledge of the other party or parties. Ex parte motions
The rule is a procedural principle which requires that are frequently permissible in procedural matters, and also
every motion that attacks a pleading, judgment, order or in situations and under circumstances of emergency; and
proceeding shall include all grounds then available, and an exception to the rule requiring notice is sometimes
all objections not so included shall be deemed waived made where notice or the resulting delay might tend to
(Sec. 8). defeat the objective of the motion.
Since the rule is subject to the provisions of Sec. 1, Rule 9, Motion of course – a motion for a certain kind of relief or
the objections mentioned therein are not deemed waived remedy to which the movant is entitled as a matter of
even if not included in the motion. These objections are: right, and not as a matter of discretion on the part of the
a) that the court has no jurisdiction over the subject court. Moreover, the allegations contained in such a
matter, motion do not have to be investigated or verified. An
b) that there is another action pending between the example would be a motion filed out of time, because this
same parties for the same cause (litis pendencia), motion may be disposed of the court on its own initiative.
c) that the action is barred by a prior judgment (res Another example would be a motion to sell certain property
judicata), and after the period given by the court to the debtor to pay has
d) that the action is barred by the statute of elapsed, and such previous order had specified that the
limitations (prescription) (Sec. 1, par. 2, Rule 9). property be sold in case of default.
Even if a motion to dismiss was filed and the issue of Special motion – the opposite of a motion of course, here
jurisdiction was not raised therein, a party may, when he the discretion of the court is involved; usually an
files an answer, raise the lack of jurisdiction as an investigation of the facts alleged is required.
affirmative defense because this defense is not barred
under the omnibus motion rule. PRO-FORMA MOTIONS
A motion to dismiss is a typical example of a motion
The Court has consistently held that a motion which does
subject to omnibus motion rule, since a motion to dismiss
not meet the requirements of Sections 4 and 5 of Rule 15 on
attacks a complaint which is a pleading.
hearing and notice of the hearing is a mere scrap of paper,
which the clerk of court has no right to receive and the
Under the omnibus motion rule, a motion attacking a
trial court has no authority to act upon and one which
pleading like a motion to dismiss shall include all grounds
will be treated as a motion intended to delay the
then available and all objections not so included shall be
proceedings. Service of a copy of a motion containing a
deemed waived. It can no longer be invoked as
notice of the time and the place of hearing of that motion
affirmative defense in the answer which the movant may
is a mandatory requirement, and the failure of movants to
file following the denial of his motion to dismiss. The
comply with these requirements renders their motions
defense of lack of jurisdiction over the subject matter is
fatally defective.
however, a defense not barred by the failure to invoke the
same in a motion to dismiss already filed.
MOTIONS FOR BILL OF PARTICULARS
LITIGATED AND EX PARTE MOTIONS (RULE 12)
Upon receipt of the motion which the clerk of court must A seasonable motion for a bill of particulars interrupts the
immediately bring to the attention of the court, the latter period within which to answer. After service of the bill of
has three possible options, namely: particulars or of a more definite pleading, or after notice
1) to deny the motion outright, of denial of his motion, the moving party shall have the
2) to grant the motion outright or same time to serve his responsive pleading, if any is
3) to hold a hearing on the motion. permitted by the rules, as that to which he was entitled at
the time of serving his motion, but no less than five (5)
COMPLIANCE WITH THE ORDER AND EFFECT days in any event.
OF NON-COMPLIANCE
If a motion for bill of particulars is granted, the court shall MOTION TO DISMISS (RULE 16)
order the pleader to submit a bill of particulars to the
pleading to which the motion is directed. The compliance
ü A motion to dismiss is not a pleading. It is merely a
shall be effected within ten (10) days from notice of the
motion. It is an application for relief other than by a
order, or within the period fixed by the court (Sec. 3, Rule
pleading (Sec. 1, Rule 15).
12).
ü The pleadings allowed under the Rules are:
a) complaint, (b) answer, (c) counterclaim,
In complying with the order, the pleader may file the bill
(d) cross-claim, (e) third (fourth, etc.) –party
of particulars either in a separate pleading or in the form
complaint, (f) complaint in intervention (Sec.
or an amended pleading (Sec. 3, Rule 12). The bill of
2, Rule 6), and reply (Sec. 10, Rule 6). A
2011 Bar Examinations 48
BERT – NOTES in REMEDIAL LAW
motion is not one of those specifically depending upon the ground for the dismissal of the
designated as a pleading. action. For instance, if the ground for dismissal was
ü Failure to state a cause of action anchored on improper venue, the plaintiff may file the
action in the proper venue.
GROUNDS
Where the dismissal is final and it bars the re-filing of the
Under Sec. 1, Rule 16, a motion to dismiss may be filed on case, he may appeal from the order of dismissal where
any of the following grounds: the ground relied upon is one which bars the refiling of
a) Lack of jurisdiction over the person of the the complaint like res judicata, prescription,
defending party; extinguishment of the obligation or violation of the
b) Lack of jurisdiction over the subject matter of the statute of frauds (Sec. 5, Rule 16).
claim;
c) The venue is improperly laid; Since the complaint cannot be refiled, the dismissal is
d) The plaintiff has no legal capacity to sue; with prejudice. Under Sec. 1[h], Rule 41, it is an order
e) There is another action pending between the dismissing an action without prejudice which cannot be
same parties and for the same cause (lis pendens); appealed from. Conversely, where the dismissal is with
f) The cause of action is barred by a prior judgment prejudice, an appeal from the order of dismissal is not
(res judicata) or by the statute of limitations precluded.
(prescription);
g) The pleading asserting the claim states no cause Where the dismissal is without prejudice and the court
of action; gravely abused its discretion in doing so, the plaintiff may
h) The claim or demand has been paid, waived, resort to certiorari (Sec. 1, Rule 41).
abandoned, or otherwise extinguished;
i) The claim on which the action is founded is REMEDIES OF THE DEFENDANT WHEN THE
unenforceable under the provisions of the statute MOTION IS DENIED
of frauds; and
j) A condition precedent for filing the action has 1) File answer within the balance of the period
not been complied with. prescribed by Rule 11 to which he was entitled at the
time of serving his motion, but not less than five (5)
The language of the rule, particularly on the relation of days in any event (Sec. 4, Rule 16).
the words “abandoned” and “otherwise extinguished” to • As a rule, the filing of an answer, going
the phrase “claim or demand deemed set forth in the through the usual trial process, and the filing
plaintiff’s pleading” is broad enough to include within its of a timely appeal from an adverse judgment
ambit the defense of bar by laches. are the proper remedies against a denial of a
motion to dismiss.
However, when a party moves for the dismissal of the • The filing of an appeal from an order
complaint based on laches, the trial court must set a denying a motion to dismiss is not the
hearing on the motion where the parties shall submit not remedy prescribed by existing rules.
only their arguments on the questions of law but also • The order of denial, being interlocutory is
their evidence on the questions of fact involved. Thus, not appealable (Sec 1[c], Rule 4).
being factual in nature, the elements of laches must be
proved or disproved through the presentation of evidence 2) Civil action under Rule 65 (Certiorari)
by the parties.
• In order to justify the grant of the
extraordinary remedy of certiorari, the must
RESOLUTION OF MOTION
be a showing that the denial of the motion
was tainted with grave abuse of discretion
After the hearing, the court may dismiss the action or amounting to lack of jurisdiction. Without
claim, deny the motion, or order the amendment of the such showing, Rule 65 cannot be availed of
pleading. The court shall not defer the resolution of the as a remedy.
motion for the reason that the ground relied upon is not • The general rule is that the denial of a
indubitable. In every case, the resolution shall state motion to dismiss cannot be questioned in a
clearly and distinctly the reasons therefor (Sec. 3). special civil action for certiorari which is a
remedy designed to correct errors of
REMEDIES OF PLAINTIFF WHEN THE jurisdiction and not errors of judgment.
COMPLAINT IS DISMISSED Neither can a denial of a motion to dismiss
be the subject of an appeal unless and until a
Where the dismissal is final but is without prejudice final judgment or order is rendered.
(interlocutory), the plaintiff may simply re-file the action
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BERT – NOTES in REMEDIAL LAW
• A writ of certiorari is not intended to correct preliminary hearing may be had thereon as if a motion to
every controversial interlocutory ruling. It is dismiss has been filed (Sec. 6, Rule 16).
resorted to only to correct a grave abuse of
discretion or a whimsical exercise of Implied under Sec. 6, Rule 16 is that the grounds for a
judgment equivalent to lack of jurisdiction. motion to dismiss are not waived even if the defendant
Its function is limited to keeping an inferior fails to file a motion to dismiss because he may still avail
court within its jurisdiction and to relieve of the defenses under Rule 16 as affirmative defenses in
persons from arbitrary acts, acts which his answer.
courts or judges have no power or authority
in law to perform. It is not designed to As a rule, a preliminary hearing is not authorized when a
correct erroneous findings and conclusions motion to dismiss has been filed. An exception previously
made by the courts. carved out as if the trial court had not categorically
resolved the motion to dismiss. Another exception would
3) File an appeal be justified under the liberal construction rule as when it
• This remedy is appropriate in the instances is evident that the action is barred by res judicata. A strict
where the defendant is barred from refiling the application of Sec. 6 would accordingly lead to absurdity
same action of claim if the dismissal is based on when an obviously barred complaint continues to be
the following grounds: litigated. The denial of a motion to dismiss does not
a) The cause of action is barred by a prior preclude any future reliance on the grounds relied
judgment thereupon.
b) The cause of action is barred by the
statute of limitations BAR BY DISMISSAL
c) The claim or demand has been paid,
waived, abandoned or otherwise Res judicata as a ground for dismissal is based on two
extinguished grounds, namely:
d) The claim on which the action is 1) public policy and necessity, which makes it to the
founded is unenforceable under the interest of the State that there should be an end
provisions of the statute of frauds. to litigation (republicae ut sit litium); and
2) the hardship on the individual of being vexed
4) The denial of a motion to dismiss is interlocutory, twice for the same cause (nemo debet bis vexari et
hence, the remedy is to file an answer, proceed to eadem causa).
trial, and await judgment before interposing an
appeal. Accordingly, courts will simply refuse to reopen what has
• The denial should be raised as an error of the been decided. They will not allow the same parties or
trial court on appeal. their privies to litigate anew a question once it has been
considered and decided with finality. Litigations must
EFFECT OF DISMISSAL OF COMPLAINT ON end and terminate sometime and somewhere. The
CERTAIN GROUNDS effective and efficient administration of justice requires
that once a judgment has become final, the prevailing
When the complaint is dismissed on the grounds of: party should not be deprived of the fruits of the verdict by
a) prior judgment subsequent suits on the same issues filed by the same
b) by the statute of limitations parties.
c) payment, waiver, abandonment or
extinguishment of the claim Res judicata comprehends two distinct concepts:
d) unenforceability of the cause of action under the a) bar by a former judgment
statute of frauds ð bars the prosecution of a second action upon
ü the dismissal shall bar the refiling of the the same claim, demand or cause of action.
same action or claim, but this is without b) conclusiveness of judgment
prejudice to the right of the other party to ð a fact or question which was in issue in a
appeal from the order of dismissal because former suit and was there judicially passed
such dismissal is a final order, not merely upon and determined by a court of
interlocutory (Sec. 5). competent jurisdiction, is conclusively
settled by the judgment therein as far as the
WHEN GROUNDS PLEADED AS AFFIRMATIVE parties to that action and persons in privity
DEFENSES with them are concerned and cannot be
again litigated in any future action between
If no motion to dismiss has been filed, any of the grounds such parties or their privies, in the same
provided for dismissal may be pleaded as an affirmative court or any other court of concurrent
defense in the answer and, in the discretion of the court, a jurisdiction on either the same or different
2011 Bar Examinations 50
BERT – NOTES in REMEDIAL LAW
cause of action, while the judgment remains of the order implies, said order merely confirms a
unreversed by proper authority. dismissal already effected by the filing of the
notice of dismissal. The court does not have to
DISTINGUISHED FROM DEMURRER TO approve the dismissal because it has no
EVIDENCE (RULE 33) discretion on the matter. Before an answer or a
motion for summary judgment has been served
Demurrer to evidence is a motion to dismiss filed by the upon the plaintiff, the dismissal by the plaintiff
defendant after the plaintiff had rested his case on the by the filing of the notice is a matter of right. The
ground of insufficiency of evidence. It may be filed after dismissal occurs as of the date of the notice is
the plaintiff has completed the presentation of his filed by the plaintiff and not the date the court
evidence. It is an aid or instrument for the expeditious issues the order confirming the dismissal.
termination of an action similar to a motion to dismiss,
which the court or tribunal may either grant or deny. • The dismissal as a matter of right ceases when an
answer or a motion for summary judgment is
Distinctions: served on the plaintiff and not when the answer
a) A motion to dismiss should be filed within the or the motion is filed with the court. Thus, if a
time for but prior to the filing of the answer of notice of dismissal is filed by the plaintiff even
the defending party to the pleading asserting the after an answer has been filed in court but before
claim against him; a demurrer to evidence may the responsive pleading has been served on the
be filed only after the plaintiff has completed the plaintiff, the notice of dismissal is still a matter of
presentation of his evidence. right.
b) A motion to dismiss is anchored on preliminary
objections; a demurrer is anchored on one TWO-DISMISSAL RULE
ground—insufficiency of evidence; and
c) If a motion to dismiss is denied, the defendant The two-dismissal rule applies when the plaintiff has:
may file his responsive pleading (answer) or else a) twice dismissed actions;
he may declared in default and if granted, b) based on or including the same claim; and
plaintiff may appeal or if subsequent case is not c) in a court of competent jurisdiction.
barred, he may re-file the case. ð The second notice of dismissal will bar the
d) In a demurrer, if denied, the defendant may refiling of the action because it will operate
present his evidence and if granted, plaintiff as an adjudication of the claim upon the
appeals and the order of dismissal is reversed, the merits.
defendant loses his right to present evidence.
2) DISMISSAL UPON MOTION BY PLAINTIFF
Rule 17 is based on allegations; while Rule 33 is based on
evidence • Once either an answer or motion for summary
judgment has been served on the plaintiff, the
dismissal is no longer a matter of right and will
DISMISSAL OF ACTIONS (Rule 17)
require the filing of a motion to dismiss, not a
mere notice of dismissal.
1) DISMISSAL UPON NOTICE BY PLAINTIFF
• The motion to dismiss will now be subject to the
• At any time before the service of an answer or approval of the court which will decide on the
the service of a motion for summary judgment, a motion upon such terms and conditions as are
complaint may be dismissed by the plaintiff by just (Sec. 2, Rule 17) unless otherwise specified in
filing a notice of dismissal. Upon the filing of the the order, the dismissal shall be without
notice of dismissal, the court shall issue an order prejudice. . The dismissal under Sec. 2 is no
confirming the dismissal (Sec. 1, Rule 17). This longer a matter of right on the part of the plaintiff
dismissal shall be without prejudice to the re- but a matter of discretion upon the court.
filing of the complaint, except when:
1) The notice of dismissal provides that the EFFECT OF DISMISSAL UPON EXISTING
dismissal is with prejudice; or COUNTERCLAIM
2) The plaintiff has previously dismissed
the same case in a court of competent If a counterclaim has already been pleaded by the
jurisdiction. defendant prior to the service upon him of the plaintiff’s
motion to dismiss, and the court grants said motion to
• It is not the order confirming the dismissal which dismiss, the dismissal “shall be limited to the complaint”
operates to dismiss the complaint. As the name (Sec. 2, Rule 17).
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BERT – NOTES in REMEDIAL LAW
Pre-trial is a mandatory conference and personal
The dismissal of the complaint does not carry with it the confrontation before the judge between the parties and
dismissal of the counterclaim, whether it is a compulsory their respective counsel.
or a permissive counterclaim because the rule makes no
distinction. The defendant, if he so desires may prosecute It is conducted after the last pleading has been served and
his counterclaim either in a separate action or in the same filed, it shall be the duty of the plaintiff to promptly move
action. Should he choose to have his counterclaim ex parte that the case be set for pre-trial (within 5 days from
resolved in the same action, he must notify the court of the last pleading has been filed).
his preference within fifteen (15) days from the notice of
the plaintiff‘s motion to dismiss. Should he opt to NATURE AND PURPOSE
prosecute his counterclaim in a separate action, the court
should render the corresponding order granting and The conduct of a pre-trial is mandatory. Pre-trial is a
reserving his right to prosecute his claim in a separate procedural device intended to clarify and limit the basic
complaint. issues between the parties. It thus paves the way for a less
cluttered trial and resolution of the case. Its main
DISMISSAL DUE TO THE FAULT OF PLAINTIFF objective is to simplify, abbreviate and expedite trial, or
totally dispense with it.
A complaint may be dismissed by the court motu proprio
or upon a motion filed by the defendant. The dismissal is It is a basic precept that the parties are bound to honor
this case will be through reasons attributed to his fault. the stipulations made during the pre-trial.
Sec. 2, Rule 17 provides the following grounds for The court shall consider the following maters in the pre-
dismissal: trial:
a) Failure of the plaintiff, without justifiable 1) The possibility of an amicable settlement or a
reasons, to appear on the date on the date of the submission to alternative modes of dispute
presentation of his evidence in chief; resolution;
b) Failure of the plaintiff to prosecute his action for 2) Simplification of issues;
an unreasonable length of time; 3) Necessity or desirability of amendments to the
c) Failure of the plaintiff to comply with the Rules pleadings;
of Court; 4) Possibility of obtaining stipulations or
d) Failure of the plaintiff to obey any order of the admissions of facts and of documents to avoid
court; unnecessary proof;
e) Failure to appear at the trial; or 5) Limitation of the number of witnesses;
f) Lack of jurisdiction. 6) Advisability of a preliminary reference of issues
to a commissioner;
The dismissal shall have the effect of an adjudication 7) Propriety of rendering judgment on the
upon the merits and is thus with prejudice to the re-filing pleadings, or summary judgment, or of
of the action, unless the court declares otherwise. dismissing the action should a valid ground
therefor be found to exist;
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM 8) Advisability or necessity of suspending the
OR THIRD-PARTY COMPLAINT proceedings; and
9) Other matters as may aid in the prompt
The rule on the dismissal of a complaint applies to the disposition of the action (Sec. 2, Rule 18).
dismissal of any counterclaim, cross-claim, or third-party
claim. NOTICE OF PRE-TRIAL
A voluntary dismissal by the claimant alone by notice The notice of pre-trial shall be served on the counsel of
pursuant to Sec. 1, Rule 17 shall be made before a the party if the latter is represented by counsel.
responsive pleading or a motion for summary judgment is Otherwise, the notice shall be served on the party himself.
served or, if there is none, before the introduction of The counsel is charged with the duty of notifying his
evidence at the trial or hearing (Sec. 4). client of the date, time and place of the pre-trial (Sec. 3,
Rule 18).
It shall be the duty of both the parties and their counsels F Failure to file the pre-trial brief shall have the same
to appear at the pre-trial (Sec. 4, Rule 18). effect as failure to appear at the pre-trial.
a. If it is the plaintiff who fails to file a pre-trial
The failure of the plaintiff to appear shall be cause for brief, such failure shall be cause for dismissal
the dismissal of the action. This dismissal shall be with of the action.
prejudice except when the court orders otherwise (Sec. 5, b. If it is the defendant who fails to do so, such
Rule 18). Since the dismissal of the action shall be with failure shall be cause to allow the plaintiff to
prejudice, unless otherwise provided, the same shall have present his evidence ex parte.
the effect of an adjudication on the merits thus, final. The F A pre-trial brief is not required in a criminal case.
remedy of the plaintiff is to appeal from the order of
dismissal. An order dismissing an action with prejudice is DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
appealable. Under the Rules, it is only when the order of CASE AND PRE-TRIAL IN CRIMINAL CASE
dismissal is without prejudice, that appeal cannot be
availed of (Sec. 1[h], Rule 41). Since appeal is available, The pre-trial in a civil case is set when the plaintiff moves
certiorari is not the remedy because the application of a ex parte to set the case for pre-trial (Sec.1, Rule 18). The
petition for certiorari under Rule 65 is conditioned upon pre-trial in criminal case is ordered by the court and no
the absence of appeal or any plain, speedy and adequate motion to set the case for pre-trial is required from either
remedy (Sec. 1, Rule 65). the prosecution or the defense (Sec. 1, Rule 118).
The failure of the defendant to appear shall be cause to The motion to set the case for pre-trial in a civil case is
allow the plaintiff to present his evidence ex parte and made after the last pleading has been served and. In a
for the court to render judgment on the basis of the criminal case, the pre-trial is ordered by the court after
evidence presented by the plaintiff (Sec. 5, Rule 18). The arraignment and within thirty (30) days from the date the
order of the court allowing the plaintiff to present his court acquires jurisdiction over the person of the accused.
evidence ex parte does not dispose of the case with
finality. The order is therefore, merely interlocutory; The pre-trial in a civil case considers the possibility of an
hence, not appealable. Under Sec. 1(c) of Rule 41, no amicable settlement as an important objective. The pre-
appeal may be taken from an interlocutory order. The trial in a criminal case does not include the considering of
defendant who feels aggrieved by the order may move for the possibility of amicable settlement of criminal liability
the reconsideration of the order and if the denial is tainted as one of its purposes.
with grave abuse of discretion, he may file a petition for
certiorari. In a civil case, the agreements and admissions made in
the pre-trial are not required to be signed by the parties
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO and their counsels. They are to be contained in the record
FILE of pre-trial and the pre-trial order (Sec. 7, Rule 18). In a
criminal case, all agreements or admissions made or
entered during the pre-trial conference shall be reduced in
The parties shall file with the court their respective pre-
writing and signed by the accused and counsel; otherwise,
trial briefs which shall be received at least three (3) days
they cannot be used against the accuse (Sec. 2, Rule 118).
before the date of the pre-trial. This pre-trial brief shall be
served on the adverse party (Sec. 6, Rule 18).
The sanctions for non-appearance in a pre-trial are
imposed upon the plaintiff or the defendant in a civil
The pre-trial brief shall contain the following matters:
case. The sanctions in a criminal case are imposed upon
1) A statement of their willingness to enter into an
the counsel for the accused or the prosecutor.
amicable settlement or alternative modes of
dispute resolution, indicating the desired terms
CIVIL PRE-TRIAL CRIMINAL PRE-TRIAL
thereof;
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Mandatory Mandatory trial order need not be in must be written and signed
Presence of defendant and Accused need not be writing by the accused and counsel
counsel mandatory present, but his counsel to be admissible against
must be present, otherwise him.
he may be sanctioned
Amicable settlement is Amicable settlement is not
discussed discussed, unless the
criminal case is covered by
summary procedure
Agreement included in pre- Agreements or admissions
1) There must be a motion for intervention filed before
rendition of judgment by the trial court. A motion is
ALTERNATIVE DISPUTE RESOLUTION (ADR) necessary because leave of court is required before a
person may be allowed to intervene.
2) The movant must show in his motion that he has:
1) If the case has already filed a complaint with the a) A legal interest in the matter in litigation, the
trial court without prior recourse to arbitration, success of either of the parties in the action, or
the proper procedure to enable an arbitration against both parties;
panel to resolve the parties dispute pursuant to b) That the movant is so situated as to be adversely
the contract is for the trial court to stay the affected by a distribution or other disposition of
proceedings. After the arbitration proceeding has property in the custody of the court or of an
already been pursued and completed, then the officer thereof; and
trial court may confirm the award made by the c) That the intervention must not only unduly delay
arbitration panel.
or prejudice the adjudication of the rights of the
original parties and that the intervenor’s rights
A party has several judicial remedies available at its may not be fully protected in a separate
disposal after the Arbitration Committee denied its proceeding.
Motion for Reconsideration: d) The intervenor’s rights may not be fully protected
1) It may petition the proper RTC to issue an order in a separate proceeding.
vacating the award on the grounds provided for
under Sec. 24 of the Arbitration Law; TIME TO INTERVENE
2) File a petition for review under Rule 43 with the
Court of Appeals on questions of fact, of law, or
The motion to intervene may be filed at any time before
mixed questions of fact and law (Sec. 41, ADR);
the rendition of judgment by the trial court (Sec. 2, Rule
3) File a petition for certiorari under Rule 65 on the
18). Intervention after trial and decision can no longer be
ground that the Arbitration Committee acted
permitted.
without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or
REMEDY FOR THE DENIAL OF MOTION TO
excess of jurisdiction.
INTERVENTION
INTERVENTION (Rule 19) 1) The appellate court may exercise sound judicial
discretion
2) An indispensable party can intervene even after the
Intervention is a legal proceeding by which a person who rendition of judgment
is not a party to the action is permitted by the court to 3) The remedy of the aggrieved party is appeal.
become a party by intervening in a pending action after Mandamus will not lie except in case of grave abuse
meeting the conditions and requirements set by the Rules. of discretion and if there is no other plain, speedy and
This third person who intervenes is one who is not adequate remedy.
originally impleaded in the action.
This provision encourages the use of written Any admission made by a party pursuant to such request
interrogatories although a party is not compelled to use is for the purpose of the pending action only and shall not
this discovery procedure, the rule imposes sanctions for constitute an admission by him for any other purpose nor
his failure to serve written interrogatories by depriving may the same be used against him in any other
him of the privilege to call the adverse party as a witness proceeding (Sec. 3).
or to give a deposition pending appeal.
EFFECT OF FAILURE TO FILE AND SERVE
REQUEST FOR ADMISSION
REQUEST FOR ADMISSION (RULE 26)
A party who fails to file and serve a request for admission
A party, although not compelled by the Rules, is advised on the adverse party of material and relevant facts at issue
which are, or ought to be, within the personal knowledge
to file and serve a written request for admission on the
of the latter, shall not be permitted to present evidence on
adverse party of those material and relevant facts at issue
such facts (Sec. 5).
and actionable document (as a result, you need not
authenticate it) which are, or ought to be, within the
personal knowledge of said adverse party. PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS (RULE 27)
The party who fails to file and serve the request shall not
be permitted to present evidence on such facts (Sec. 5, Rule
26). ð This is prelude to the presentation of secondary
evidence.
IMPLIED ADMISSION BY ADVERSE PARTY
ð This Rule applies only to a pending action and the
Each of the matters of which an admission is requested documents or things subject of the motion should not
shall be deemed admitted unless, within a period be privileged and must be those within the
designated in the request, which shall not be less than possession, control or custody of a party. The petition
fifteen (15) days after service thereof, or within such must be sufficiently described and identified as well
further time as the court may allow on motion, the party as material to any matter involved in the pending
to whom the request is directed files and serves upon the action.
party requesting the admission a sworn statement either
denying specifically the matters of which an admission is
requested or setting forth in detail the reasons why he PHYSICAL AND MENTAL EXAMINATION OF
cannot truthfully either admit or deny those matters. PERSONS (RULE 28)
REFUSAL TO COMPLY
WITH MODES OF SANCTIONS
DISCOVERY
ð The court may, upon application, compel a refusing deponent an answer.
Refusal to answer any question ð If granted and refusal to answer is without substantial justification, the court
may require the refusing party to pay the proponent the amount of the
reasonable expenses incurred in obtaining the order, including attorney's fees.
ð If denied and filed without substantial justification, the court may require the
proponent to pay to the refusing party or deponent the amount of the reasonable
expenses incurred in opposing the application, including attorney's fees.
ð A refusal to answer after being directed by the court to do so may be considered
a contempt of that court.
Refusal to be Sworn Cite the disobedient deponent in Contempt of court
The court may make the following orders:
1) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or
the physical or mental condition of the party, or any other designated facts
shall be taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order;
Refusal to answer designated 2) An order refusing to allow the disobedient party to support or oppose
questions or refusal to produce designated claims or defenses or prohibiting him from introducing in
documents or to submit to evidence designated documents or things or items of testimony, or from
physical or mental introducing evidence of physical or mental condition;
examination 3) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding
or any part thereof, or rendering a judgment by default against the
disobedient party; and
4) In lieu of any of the foregoing orders or in addition thereto, an order
directing the arrest of any party or agent of a party for disobeying any of
such orders except an order to submit to a physical or mental examination
(Sec. 3, Rule 29).
Refusal to admit actionable The court may, upon application, issue an order to pay the proponent the amount of
document the reasonable expenses incurred in obtaining the order, including attorney's fees.
The rule, however, is not absolute. In one case, it was If the demurrer is granted but on appeal the order of
ruled that although the parties were not notified of the dismissal is reversed, the defendant is deemed to have
filing of the commissioner’s reports, and the court failed waived his right to present evidence.
to set said report for hearing, if the parties who appeared
before the commissioner were duly represented by DEMURRER TO EVIDENCE IN A CIVIL CASE
counsel and given an opportunity to be heard, the VERSUS DEMURRER TO EVIDENCE IN A
requirement of due process has been satisfied, and a CRIMINAL CASE
decision on the basis of such report, with the other
evidence of the case is a decision which meets the In a civil case, leave of court is not required before filing a
requirements of fair and open hearing. demurrer. In a criminal case, leave of court is filed with
or without leave of court (Sec. 23, Rule 119).
In the hearing to be conducted on the commissioner’s
report, the court will review only so much as may be In a civil case, if the demurrer is granted, the order of
drawn in question by proper objections. It is not expected dismissal is appealable—since the motion is interlocutory.
to rehear the case upon the entire record. In a criminal case, the order of dismissal is not appealable
because of the constitutional policy against double
jeopardy—denial is tantamount to acquittal, final and
DEMURRER TO EVIDENCE (Rule 33) executory.
In the event his motion is denied, the defendant does not The theory of summary judgment is that although an
waive his right to offer evidence. The defendant shll have answer may on its face appear to tender issues—requiring
the right to present his evidence. An order denying a trial—yet if it is demonstrated by affidavits, depositions,
demurrer to evidence is interlocutory and is therefore, not or admissions that those issues are not genuine, but sham
appealable. It can however be the subject of a petition for or fictitious, the Court is justified in dispensing with the
certiorari in case of grave abuse of discretion or an trial and rendering summary judgment for plaintiff.
oppressive exercise of judicial authority.
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The court is expected to act chiefly on the basis of the 2) annulment of marriage
affidavits, depositions, admissions submitted by the 3) legal separation
movants, and those of the other party in opposition
thereto. In cases of unliquidated damages, or admission of the
truth of allegation of adverse party, the material facts
The hearing contemplated (with 10-day notice) is for the alleged in the complaint shall always be proved.
purpose of determining whether the issues are genuine or
not, not to receive evidence on the issues set up in the
pleadings. A hearing is not thus de riguer. The matter may SUMMARY JUDGMENTS (RULE 35)
be resolved, and usually is, on the basis of affidavits,
depositions, admissions.
A summary judgment or accelerated judgment is a
In one case, the summary judgment here was justified, procedural technique to promptly dispose of cases where
considering the absence of opposing affidavits to the facts appear undisputed and certain from the
contradict the affidavits. pleadings, depositions, admissions and affidavits on
record, of for weeding out sham claims or defenses at an
CONTENTS OF A JUDGMENT early stage of the litigation to avoid the expense and loss
of time involved in a trial.
Judgment has two parts:
Moreover, said summary judgment must be premised on
1) the body of the judgment or the ratio decidendi,
the absence of any other triable genuine issues of fact.
and
Otherwise, the movants cannot be allowed to obtain
2) the dispositive portion of the judgment or fallo.
immediate relief. A genuine issue is such issue of fact
ü The body of the decision (ratio decidendi) is
which requires presentation of evidence as distinguished
not the part of the judgment that is subject to from a sham, fictitious, contrived or false claim.
execution but the fallo because it is the latter
which is the judgment of the court. The requisites are:
ü The importance of fallo or dispositive 1) there must be no genuine issue as to any material
portion of a decision should state whether fact, except for the amount of damages; and
the complaint or petition is granted or 2) the party presenting the motion for summary
denied, the specific relief granted, and the judgment must be entitled to a judgment as a
costs. matter of law.
ü It is the dispositive part of the judgment that
actually settles and declares the rights and
FOR THE CLAIMANT
obligations of the parties, finally,
definitively, and authoritatively.
A party seeking to recover upon a claim, counterclaim, or
The general rule is that where there is a conflict between cross-claim or to obtain a declaratory relief may, at any
the fallo and the ratio decidendi, the fallo controls. This time after the pleading in answer thereto has been served,
rule rests on the theory that the fallo is the final order move with supporting affidavits, depositions or
while the opinion in the body is merely a statement admissions for a summary judgment in his favor upon all
ordering nothing. Where the inevitable conclusion from or any part thereof (Sec. 1).
the body of the decision is so clear that there was a mere
mistake in the dispositive portion, the body of the FOR THE DEFENDANT
decision prevails.
A party against whom a claim, counterclaim, or cross-
A judgment must have the signature of the judge. claim is asserted or a declaratory relief is sought may, at
any time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all
JUDGMENT ON THE PLEADINGS (RULE 34) or any part thereof (Sec. 2).
Should it appear to its satisfaction at any time that any of The record shall contain the dispositive part of the
the affidavits presented pursuant to the Rules are judgment or final order and shall be signed by the clerk,
presented in bad faith, or solely for the purpose of delay, with a certificate that such judgment or final order has
the court shall forthwith order the offending party or become final and executory (Sec. 2).
counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits The entry of judgment refers to the physical act
caused him to incur, including attorney‘s fees. It may, performed by the clerk of court in entering the dispositive
after hearing, further adjudge the offending party or portion of the judgment in the book of entries of
counsel guilty of contempt (Sec. 6). judgment and after the same has become final and
executory.
JUDGMENTS ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS The date of finality of the judgment or final order shall be
deemed the date of its entry. Thus, while there has been no
a) In the judgment on the pleadings, the answer does physical entry of judgment in the book of entries, it is deemed
not tender an issue; in summary judgment, there is an to have been constructively made at the time of the finality of
issue tendered in the answer, but it is not genuine or the judgment or final order.
real issue as may be shown by affidavits and
depositions that there is no real issue and that the There are some proceedings the filing of which is
party is entitled to judgment as a matter of right; reckoned from the date of the entry of judgment:
b) In judgment on the pleadings, the movants must give 1) the execution of a judgment by motion is within
a 3-day notice of hearing; while in summary five (5) years from the entry of the judgment (Sec.
judgment, the opposing party is given 10 days notice; 6, Rule 39);
c) In judgment on the pleadings, the entire case may be 2) the filing of a petition for relief has, as one of its
terminated; while in summary judgment, it may only periods, not more than six (6) months from the
be partial; entry of the judgment or final order (Sec. 3, Rule
d) In judgment on the pleadings, only the plaintiff or the 38).
defendants as far as the counterclaim, cross-claim or
third-party complaint is concerned can file the same;
POST JUDGMENT REMEDIES
while in summary judgment, either the plaintiff or
(Rules 37, 38, 40–47, 52, 53)
the defendant may file it.
RENDITION OF JUDGMENTS AND FINAL Remedies before a judgment becomes final and
ORDERS executory
a) Motion for reconsideration (prohibited in a case
Rendition of judgment is the filing of the same with the that falls under summary procedure) (Rules 37,
clerk of court. It is NOT the pronouncement of the 52);
judgment in open court that constitutes the rendition. b) Motion for new trial (Rules 37, 53); and
Even if the judgment has already been put in writing and c) Appeal (Rules 40, 41, 42, 43, 45)
signed, it is still subject to amendment if it has not yet
been filed with the clerk of court and before its filing does Remedies after judgment becomes final and executory
not yet constitute the real judgment of the court. It is a) Petition for relief from judgment;
NOT the writing of the judgment or its signing which b) Action to annul a judgment;
constitutes rendition of the judgment. c) Certiorari; and
d) Collateral attack of a judgment.
A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared
by the judge, stating clearly and distinctly the facts and MOTION FOR NEW TRIAL OR
2011 Bar Examinations 63
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excusable negligence, the aggrieved party can no
RECONSIDERATION (RULE 37) longer avail of the remedy of petition for relief from
judgment
GROUNDS FOR A MOTION FOR NEW TRIAL GRANT OF THE MOTION; EFFECT
1) Fraud (extrinsic), accident, mistake (of fact and not ð If a new trial be granted, the original judgment shall
of law) or excusable negligence (FAMEN) which be vacated or set aside, and the action shall stand for
ordinary prudence could not have guarded against trial de novo; but the recorded evidence taken upon the
and by reason of which such aggrieved party has former trial so far as the same is material and
probably been impaired in his rights; competent to establish the issues, shall be used at the
2) Newly discovered evidence (Berry Rule), which he new trial without retaking the same (Sec. 6).
could not, with reasonable diligence, have discovered
ð The filing of the motion for new trial or
and produced at the trial, and which if presented
reconsideration interrupts the period to appeal (Sec. 2,
would probably alter the result; and
Rule 40; Sec. 3, Rule 41).
3) Award of excessive damages, or insufficiency of the
ð If the court grants the motion (e.g., it finds that
evidence to justify the decision, or that the decision is
excessive damages have been awarded or that the
against the law (Sec. 1, Rule 37).
judgment or final order is contrary to the evidence or
law), it may amend such judgment or final order
GROUNDS FOR A MOTION FOR accordingly (Sec. 3). The amended judgment is in the
RECONSIDERATION nature of a new judgment which supersedes the
original judgment. It is not a mere supplemental
1) The damages awarded are excessive; decision which does not supplant the original but
2) The evidence is insufficient to justify the decision or only serves to add something to it.
final order; ð If the court finds that a motion affects the issues of
3) The decision or final order is contrary to law. the case as to only a part, or less than all of the
matters in controversy, or only one, or less that all of
ü 2nd MR is not allowed except in SC the parties to it, the order may grant a
reconsideration as to such issues if severable without
WHEN TO FILE interfering with the judgment or final order upon the
rest (Sec. 7).
ð A motion for new trial should be filed within the
period for taking an appeal. Hence, it must be filed REMEDY WHEN MOTION IS DENIED
before the finality of the judgment.
ð No motion for extension of time to file a motion for ð The party aggrieved should appeal the judgment.
reconsideration shall be allowed. This is so because a second motion for
ð The period for appeal is within 15 days after notice to reconsideration is expressly prohibited.
the appellant of the judgment or final order appealed ð An order denying a motion for reconsideration or
from. new trial is not appealable, the remedy being an
ð Where a record on appeal is required, the appellant appeal from the judgment or final order under Rule 38.
shall file a notice of appeal and a record on appeal The remedy from an order denying a motion for new
within 30 days from notice of the judgment or final trial is not to appeal from the order of denial. Again,
order. A record on appeal shall be required only in the order is not appealable. The remedy is to appeal
special proceedings and other cases of multiple or from the judgment or final order itself subject of the
separate appeals (Sec. 3, Rule 40). motion for new trial (Sec. 9, rule 37).
ð If the motion is denied, the movants has a “fresh ð If the motion is denied, the movants has a fresh
period" of fifteen days from receipt or notice of the period of 15 days from receipt or notice of the order
order denying or dismissing the motion for denying or dismissing the motion for reconsideration
reconsideration within which to file a notice of within which to file a notice to appeal.
appeal of the judgment or final order. ð This new period becomes significant if either a
ð Meaning, the defendant is given a “fresh period” of motion for reconsideration or a motion for new trial
15 days counted from the receipt of the order has been filed but was denied or dismissed.
dismissing the motion for new trial or ð This fresh period rule applies only to Rule 41 governing
reconsideration. appeals from the RTC but also to Rule 40 governing
ð When the motion for new trial is denied on the appeals from MTC to RTC, Rule 42 on petitions for review
ground of fraud, accident, mistake of fact or law, or from the RTC to the CA, Rule 43 on appeal from quasi-
2011 Bar Examinations 64
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judicial agencies to the CA, and Rule 45 governing appeals h) In ejectment cases, the RTC cannot award to the
by certiorari to the SC. appellant on his counterclaim more than the
ð Accordingly, this rule was adopted to standardize the amount of damages beyond the jurisdiction of
appeal periods provided in the Rules to afford fair the MTC.
opportunity to review the case and, in the process, i) The appellate court cannot dismiss the appealed
minimize errors of judgment. case for failure to prosecute because the case
ð Obviously, the new 15 day period may be availed of must be decided on the basis of the record.
only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the JUDGMENTS AND FINAL ORDERS SUBJECT TO
original appeal period provided in Rule 41 (Neypes vs. APPEAL
CA., Sept. 14, 2005).
ð The Neypes ruling shall not be applied where no An appeal may be taken only from judgments or final
motion for new trial or motion for reconsideration orders that completely dispose of the case (Sec. 1, Rule 41).
has been filed in which case the 15-day period shall An interlocutory order is not appealable until after the
run from notice of the judgment. rendition of the judgment on the merits.
ð The fresh period rule does not refer to the period
within which to appeal from the order denying the MATTERS NOT APPEALABLE
motion for new trial because the order is not
appealable under Sec. 9, Rule 37. The non- No appeal may be taken from:
appealability of the order of denial is also confirmed 1) An order denying a motion for new trial or a
by Sec. 1(a), Rule 41, which provides that no appeal motion for reconsideration;
may be taken from an order denying a motion for 2) An order denying a petition for relief or any
new trial or a motion for reconsideration. similar motion seeking relief from judgment;
ð The SC ruled in one case that this “fresh period of 3) An interlocutory order;
appeal” is also applicable in criminal cases (Judith Yu 4) An order disallowing or dismissing an appeal;
vs. Judge Samson, Feb. 9, 2011) 5) An order denying a motion to set aside a
judgment by consent, confession or compromise
APPEALS IN GENERAL on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
The right to appeal is not part of due process but a mere 6) An order of execution;
statutory privilege that has to be exercised only in the 7) A judgment or final order for or against one or
manner and in accordance with the provisions of law more of several parties or in separate claims,
counterclaims, cross-claims, and third-party
The general rule is that the remedy to obtain reversal or complaints, while the main case is pending,
modification of judgment on the merits is appeal. This is unless the court allows an appeal therefrom; and
true even if the error, or one of the errors, ascribed to the 8) An order dismissing and action without
court rendering the judgment is its lack of jurisdiction prejudice (Sec. 1, Rule 41).
over the subject matter, or the exercise of power in excess
thereof, or grave abuse of discretion in the findings of A question that was never raised in the courts below
facts or of law set out in the decision. cannot be allowed to be raised for the first time on appeal
without offending basic rules of fair play, justice and due
Certain rules on appeal: process. For an appellate court to consider a legal
a) No trial de novo anymore. The appellate courts question, it should have been raised in the court below. It
must decide the case on the basis of the record, would be unfair to the adverse party who would have no
except when the proceedings were not duly opportunity to present evidence in contra to the new
recorded as when there was absence of a theory, which it could have done had it been aware of it
qualified stenographer. at the time of the hearing before the trial court. It is true
b) There can be no new parties. that this rule admits of exceptions as in cases of lack of
c) There can be no change of theory (Naval vs. CA, jurisdiction, where the lower court committed plain error,
483 SCRA 102). where there are jurisprudential developments affecting the
d) There can be no new matters. issues, or when the issues raised present a matter of public
e) There can be amendments of pleadings to policy.
conform to the evidence submitted before the
trial court. The court may consider an error not raised on appeal
f) The liability of solidarity defendant who did not provided the same falls within any of the following
appeal is not affected by appeal of solidarity categories:
debtor. 1) It is an error that affects the jurisdiction over the
g) Appeal by guarantor does not inure to the subject matter;
principal.
2011 Bar Examinations 65
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2) It is an error that affects the validity of the Whether or not the appellant has filed a motion for new
judgment appealed from; trial in the court below, he may include in his assignment
3) It is an error which affects the proceedings; or errors any question of law or fact that has been raised
4) It is an error closely related to or dependent on in the court below and which is within the issues framed
an assigned error and properly argued in the by the parties (Sec. 15, Rule 44).
brief; or 1) In an Ordinary Appeal, the appeal raises the
5) It is a plain and clerical error. questions of fact or mixed questions of fact and
law.
REMEDY AGAINST JUDGMENTS AND ORDERS 2) In Petition for Review, the appeal raises questions
WHICH ARE NOT APPEALABLE of fact, of law or mixed questions of fact and law.
3) In a Petition for Review on Certiorari, the appeal
ü In those instances where the judgment or final order raises purely questions of law.
is not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65. PERIOD OF APPEAL
ü Rule 65 refers to the special civil actions of certiorari,
prohibition and mandamus (CPM). PERIOD OF ORDINARY APPEAL UNDER RULE
ü Practically, it would be the special civil action of 40
certiorari that would be availed of under most ð An appeal may be taken (from MTC to RTC)
circumstances. The most potent remedy against those within 15 days after notice to the appellant of the
judgments and orders from which appeal cannot be judgment or final order appealed from. Where a
taken is to allege and prove that the same were issued record on appeal is required, the appellant shall
without jurisdiction, with grave abuse of discretion or file a notice of appeal and a record on appeal
in excess of jurisdiction, all amounting to lack of within 30 days after notice of the judgment or
jurisdiction. final order.
ð The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
ð No motion for extension of time to file a motion
MODES OF APPEAL (SEC. 2, RULE 41) for new trial or reconsideration shall be allowed
(Sec. 2).
(a) ORDINARY APPEAL
PERIOD OF ORDINARY APPEAL UNDER RULE
The appeal to the CA in cases decided by the 41)
RTC in the exercise of its original jurisdiction
ð The appeal shall be taken within 15 days from
shall be taken by filing a notice of appeal with
notice of the judgment or final order appealed
the court which rendered the judgment or final from. Where a record on appeal is required, the
order appealed from and serving a copy thereof appellants shall file a notice of appeal and a
upon the adverse party. record on appeal within 30 days from notice of
ð No record on appeal shall be required except the judgment or final order.
in special proceedings and other cases of ð However, on appeal in habeas corpus cases shall
multiple or separate appeals where the law be taken within 48 hours from notice of the
or the Rules so require. In such cases, the judgment or final order appealed from (AM No.
record on appeal shall be filed and served in 01-1-03-SC, June 19, 2001).
like manner. ð The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
(b) PETITION FOR REVIEW ð No motion for extension of time to file a motion
ð The appeal to the CA in cases decided by the for new trial or reconsideration shall be allowed
RTC in the exercise of its appellate (Sec. 3).
jurisdiction shall be by petition for review in ð If the record on appeal is not transmitted to the
accordance with Rule 42. CA within 30 days after the perfection of appeal,
either party may file a motion with the trial
(c) PETITION FOR REVIEW ON CERTIORARI court, with notice to the other, for the transmittal
ð In all cases where only questions of law are of such record or record on appeal (Sec. 3, Rule
raised or involved, the appeal shall be to the SC 44).
by petition for review on certiorari in accordance
with Rule 45. PERIOD OF PETITION FOR REVIEW UNDER
RULE 42
ISSUES TO BE RAISED ON APPEAL ð The petition shall be filed and served within 15
days from notice of the decision sought to be
reviewed or of the denial of petitioner’s motion
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BERT – NOTES in REMEDIAL LAW
for new trial or reconsideration filed in due time may grant an additional period of 15 days only
after judgment. within which to file the petition for review.
ð The court may grant and additional period of 15 ð No further extension shall be granted except for
days only provided the extension is sought the most compelling reason and in no case to
a) upon proper motion, and exceed 15 days (Sec. 4).
b) there is payment of the full amount of
the docket and other lawful fees and the PERIOD OF APPEAL BY PETITION FOR REVIEW
deposit for costs before the expiration of ON CERTIORARI UNDER RULE 45
the reglementary period. ð The appeal which shall be in the form of a
ð No further extension shall be granted except for verified petition shall be filed within 15 days
the most compelling reason and in no case to from notice of the judgment, final order or
exceed 15 days. resolution appealed from, or within 15 days from
notice of the denial of the petitioner’s motion for
PERIOD OF APPEAL BY PETITION FOR REVIEW new trail or motion for reconsideration filed in
UNDER RULE 43 due time.
ð The appeal shall be taken within 15 days from ð The Supreme Court may, for justifiable reasons,
notice of the award, judgment, final order or grant an extension of 30 days only within which
resolution, or from the date of its last to file the petition provided:
publication, if publication is required by law for a) there is a motion for extension of time
its effectivity, or of the denial of petitioner’s duly filed and served;
motion for new trial or reconsideration duly filed b) there is full payment of the docket and
in accordance with the governing law of the other lawful fees and the deposit for
court or agency a quo. costs; and
ð Only one (1) motion for reconsideration shall be c) the motion is filed and served and the
allowed. Upon proper motion and the payment payment is made before the expiration
of the full amount of the docket fee before the of the reglementary period.
expiration of the reglementary period, the CA
MODE OF APPEAL PERIOD OF APPEAL Period of appeal if party files MFR or New Trial (Neypes
Doctrine)
Ordinary Appeal
(Rules 40, 41)
a) Notice of Appeal Within 15 days from receipt of Within 15 days from receipt of order denying motion for
(Rule 40) judgment or final order reconsideration or new trial
b) Record on Appeal Within 30 days from receipt of The 30-day to file the notice of appeal and record on appeal
(Rule 41) judgment or final order should reckoned from the receipt of the order denying the
motion for new trial or motion for reconsideration (Zayco vs.
Himlo, April 16, 2008)
Petition for Review Within 15 days from receipt of Within 15 days from receipt of the order denying motion
(Rule 42) judgment for reconsideration or new trial
Petition for Review Within 15 days from receipt of Within 15 days from receipt of the order denying motion
(Rule 43) judgment or final order or of last for reconsideration or new trial
publication
Appeal by Certiorari Within 15 days from receipt of Within 15 days from receipt of the order denying motion
(Rule 45) judgment or final order for reconsideration or new trial
A judgment, final order or resolution of the Civil Service REVIEW OF FINAL ORDERS OF THE QUASI-
Commission may be taken to the CA under Rule 43. Note JUDICIAL AGENCIES
the difference between the mode of appeal from a judgment of the
CSC and the mode of appeal from the judgments of other ð Appeals from judgments and final orders of quasi-
constitutional commissions. judicial bodies/agencies are now required to be
brought to the CA.
REVIEW OF FINAL ORDERS OF THE COA ð This rule was adopted precisely to provide a uniform
rule of appellate procedure from quasi-judicial
A judgment, resolution or final order of the Commission bodies.
on Audit may be brought by the aggrieved party to the SC ð The appeal under Rule 43 may be taken to the CA
on certiorari under Rule 65 in relation to Rule 64, by filing whether the appeal involves a question of fact, a
the petition within 30 days from notice. question of law, or mixed questions of fact and law
by filing a verified petition for review with the CA.
REVIEW OF FINAL ORDERS OF THE ð The appeal shall NOT stay the award, judgment,
OMBUDSMAN final order or resolution sought to be reviewed
UNLESS the CA shall direct otherwise upon such
terms as it may deem just.
Appeals from decisions of the Ombudsman in
administrative disciplinary actions should be brought to
RELIEFS FROM JUDGMENTS (or petition for relief
the CA under Rule 43.
from denial of appeal) ORDERS AND OTHER
The CA has jurisdiction over orders, directives and PROCEEDINGS (RULE 38)
decisions of the Office of the Ombudsman in
administrative cases only under Rule 43. A petition for relief from judgment is an equitable remedy
ð But in cases in which it is alleged that the that is allowed only in exceptional cases when there is no
Ombudsman has acted with grave abuse of other available or adequate remedy.
discretion amounting to lack or excess of
jurisdiction amounting to lack or excess of A remedy where a party seek to set aside a judgment
jurisdiction, a special civil action of certiorari rendered against him by a court whenever he was
under Rule 65 may be filed with the SC to set unjustly deprived of a hearing or was prevented from
aside the Ombudsman’s order or resolution. taking an appeal because of fraud, accident, mistake or
excusable negligence.
In criminal or non-administrative case, the ruling of
Under Sec. 5, Rule 38, the court may grant preliminary
the Ombudsman shall be elevated to the SC by way
of Rule 65. injunction to preserve the rights of the parties upon the
filing of a bond in favor of the adverse party. The bond is
The SC’s power to review over resolutions and orders of conditioned upon the payment to the adverse party of all
the Office of the Ombudsman is restricted on to damages and costs that may be awarded to such adverse
determining whether grave abuse of discretion has been party by reason of the issuance of the injunction (Sec. 5).
committed by it. The Court is not authorized to correct
every error or mistake of the Office of the Ombudsman GROUNDS FOR AVAILING OF THE REMEDY
other than grave abuse of discretion. The remedy is not a (PETITION FOR RELIEF)
petition for review on certiorari under Rule 45.
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When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court PERIOD TO FILE ACTION
through (a) fraud, (b) accident, (c) mistake, or (c)
excusable negligence (FAMEN), he may file a petition in If based on Extrinsic Fraud
such court and in the same case praying that the ð action must be filed within four (4) years from its
judgment, order or proceeding be set aside (Sec. 1, Rule discovery
38).
If based on Lack of Jurisdiction
When the petitioner has been prevented from taking an ð before it is barred by laches or estoppels
appeal by fraud, mistake, or excusable negligence (Sec. 2).
EFFECTS OF JUDGMENT OF ANNULMENT
TIME TO FILE PETITION
1) On Extrinsic Fraud
A petition for relief from judgment, order or other a) The court, upon motion may order the trial court
proceedings must be verified, filed: to try the case as if a motion for new trial had
1) within 60 days after the petitioner learns of the been granted.
judgment, final order, or other proceeding to be b) The prescriptive period shall not be suspended if
set aside, and the extrinsic fraud is attributable to the plaintiff
2) not more than six (6) months after such in the original action.
judgment or final order was entered, or such 2) On the ground of Lack of Jurisdiction
proceeding was taken. a) The questioned judgment, order or
ü These two periods must concur. Both resolution shall be set aside and rendered
periods are not extendible and are never null and void. The nullity shall be without
interrupted. prejudice to the refiling of the original action
in the proper court.
CONTENTS OF PETITION b) The prescriptive period to re-file shall be
deemed suspended from the filing of such
The petition must be verified and must be accompanied original action until the finality of the
with affidavits showing fraud, accident, mistake or judgment of annulment.
excusable negligence relied upon and it must have an
affidavit of merit showing the facts constituting the COLLATERAL ATTACK OF JUDGMENTS
petitioner’s good and substantial cause of action or
defense, as the case may be. A collateral attack is made when, in another action to
obtain a different relief, an attack on the judgment is
ANNULMENT OF JUDGMENTS OR FINAL made as an incident in said action.
ORDERS AND RESOLUTIONS (RULE 47)
This is proper only when the judgment, on its face, is null
The annulment of judgment if a remedy independent of and void, as where it is patent that the court which
the case where the judgment sought to be annulled was rendered said judgment has no jurisdiction.
rendered and may be availed of though the judgment may
have been executed. Examples:
ð A petition for certiorari under Rule 65 is a direct
Its purpose is to have the judgment set aside so that there attack. It is filed primarily to have an order
will be a renewal of litigation where the ordinary annulled.
remedies of new trial, appeal, relief from judgment are no ð An action for annulment of a judgment is
longer available without the petitioner’s fault. likewise a direct attack on a judgment.
ð A motion to dismiss a complaint for collection of
GROUNDS FOR ANNULMENT a sum of money filed by a corporation against
(you should be a party to the case) the defendant on the ground that the plaintiff has
no legal capacity to use is a collateral attack on
1) Extrinsic Fraud – exists when there is a fraudulent act the corporation. A motion to dismiss is
committed by the prevailing party outside the trial of incidental to the main action for sum of money.
the case, whereby the defeated party was prevented It is not filed as an action intended to attack the
from presenting fully his side of the case by deception legal existence of the plaintiff.
practiced on him by the prevailing party.
2) Lack of Jurisdiction – refers to either lack of
EXECUTION, SATISFACTION AND EFFECT OF
jurisdiction over the person of the defendant or over
JUDGMENTS (Rule 39)
the subject matter of the claim.
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disposes of the action or proceeding upon the execution
ü Issuance of the writ is ministerial of the period to appeal therefrom if no appeal has been
ü Granting of the writ is judicial duly perfected.
Judgments and orders become final and executor by On appeal, the appellate court in its discretion may make
operation of law and not by judicial declaration. The trial an order suspending, modifying, restoring or granting the
court need not even pronounce the finality of the order as injunction, receivership, accounting, or award of support.
the same becomes final by operation of law. Its finality The stay of execution shall be upon such terms as to bond
becomes a fact when the reglementary period for appeal or otherwise as may be considered proper for the security
lapses, and no appeal is perfected within such period. or protection of the rights of the adverse party.
Execution is a matter or right, except in the following Judgments that may be altered or modified after
cases: becoming final and executory:
a) Where judgment turns out to be incomplete or 1) Facts and circumstances transpire which render
conditional; its execution impossible or unjust;
b) Judgment is novated by the parties; 2) Support;
c) Equitable grounds (i.e., change in the situation of 3) Interlocutory judgment.
the parties—supervening fact doctrine)
d) Execution is enjoined (i.e., petition for relief EXECUTION BY MOTION OR BY INDEPENDENT
from judgment or annulment of judgment with ACTION (SEC. 6)
TRO or writ of preliminary injunction);
e) Judgment has become dormant; or a) Once revived, then you can file a motion for
f) Execution is unjust or impossible. execution
This is only upon motion and its lifetime is 5 years; as a b) Satisfaction by levy – If the judgment obligor cannot
rule, it is issued by the court of original jurisdiction pay all or part of the obligation in cash, certified
check or other mode of payment, the officer shall
The writ of execution shall: levy upon the properties of the judgment obligor.
1) issue in the name of the Republic of the ð The judgment obligor shall have the option to
Philippines from the court which granted the choose which property or part thereof may be
motion; levied upon. Should he fail to exercise the
2) state the name of the court, the case number and option, the officer shall first levy on the personal
title, the dispositive part of the subject judgment properties, if any, and then on the real properties
or order; and if the personal properties are insufficient to
3) require the SHERIFF (should make a report every answer for the personal judgment but the sheriff
30 days) or other proper officer to whom it is shall sell only so much of the property that is
directed to enforce the writ according to its term, sufficient to satisfy the judgment and lawful fees
in the manner hereinafter provided:
a) If the execution be against the property of c) Garnishment of debts and credits – The officer may
the judgment obligor, to satisfy the levy on the debts due the judgment obligor including
judgment, with interest, out of the real or bank deposits, financial interests, royalties,
personal property of such judgment obligor; commissions and other personal property not capable
b) If it be against real or personal property in of manual delivery in the possession or control of the
the hands of personal representatives, heirs, third persons.
devisees, legatees, tenants, or trustees of the
judgment obligor, to satisfy the judgment, EXECUTION OF JUDGMENT FOR SPECIFIC
with interest, out of such property; ACTS (SEC. 10)
c) If it be for the sale of real or personal
property, to sell such property, describing it, If the judgment requires a person to perform a specific
and apply the proceeds in conformity with act, said act must be performed but if the party fails to
the judgment, the material parts of which comply within the specified time, the court may direct the
shall be recited in the writ of execution; act to be done by someone at the cost of the disobedient
d) If it be for the delivery of the possession of party and the act when so done shall have the effect as if
real or personal property, to deliver the done by the party
possession of the same, describing it, to the
party entitled thereto, and to satisfy any If the judgment directs a conveyance of real or personal
costs, damages, rents, or profits covered by property, and said property is in the Philippines, the court
the judgment out of the personal property of in lieu of directing the conveyance thereof, may by an
the person against whom it was rendered, order divest the title of any party and vest it in others,
and if sufficient personal property cannot be which shall have the force and effect of a conveyance
found, then out of the real property; and executed in due form of law.
e) In all cases, the writ of execution shall
specifically state the amount of the interest, EXECUTION OF SPECIAL JUDGMENTS (SEC. 11)
costs, damages, rents, or profits due as of the
date of the issuance of the writ, aside from When a judgment requires the performance of any act
the principal obligation under the judgment. other, a certified copy of the judgment shall be attached
For this purpose, the motion for execution to the writ of execution and shall be served by the officer
shall specify the amounts of the foregoing upon the party against whom the same is rendered, or
reliefs sought by the movants. upon any other person required thereby, or by law, to
obey the same, and such party or person may be punished
EXECUTION OF JUDGMENT FOR MONEY for contempt if he disobeys such judgment.
(SEC. 9)
EFFECT OF LEVY ON THIRD PERSONS
a) Immediate payment on demand – The officer enforcing
the writ shall demand from the judgment obligor the The levy on execution shall create a lien in favor of the
immediate payment of the full amount stated in the judgment obligee over the right, title and interest of the
judgment including the lawful fees in cash, certified
2011 Bar Examinations 72
BERT – NOTES in REMEDIAL LAW
judgment obligor in such property at the time of the levy, obligee, on demand of the officer, files a bond approved
subject to liens and encumbrances then existing. by the court to indemnify the third-party claimant in a
sum not less than the value of the property levied on.
PROPERTIES EXEMPT FROM EXECUTION
(SEC. 13) The officer shall not be liable for damages for the taking
or keeping of the property, to any third-party claimant if
EXCEPT as otherwise expressly provided by law, the such bond is filed.
following property, and no other, shall be exempt from
execution: Requisites for a claim by a third person:
1) The judgment obligor‘s family home as provided by a) The property is levied;
law, or the homestead in which he resides, and the b) The claimant is a person other than the judgment
land necessarily used in connection therewith; obligor or his agent;
2) Ordinary tools and implements personally used by c) Makes an affidavit of his title thereto or right to
him in his trade, employment, or livelihood; the possession thereof stating the grounds of such
3) Three horses, or three cows, or three carabaos, or right or title; and
other beasts of burden, such as the judgment obligor d) Serves the same upon the officer making the levy
may select necessarily used by him in his ordinary and the judgment obligee.
occupation;
4) His necessary clothing and articles for ordinary IN RELATION TO THIRD PARTY CLAIM IN
personal use, excluding jewelry; ATTACHMENT AND REPLEVIN
5) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the Remedies available to a third person not party to the
judgment obligor and his family, such as the action but whose property is the subject of execution:
judgment obligor may select, of a value not
exceeding 100,000 pesos. a) TERCERIA
6) Provisions for individual or family use sufficient for ð By making an affidavit of his title thereto or his
four months; right to possession thereof, stating the grounds of
7) The professional libraries and equipment of judges, such right or title.
lawyers, physicians, pharmacists, dentists, engineers, ð The affidavit must be served upon the sheriff and
surveyors, clergymen, teachers, and other the attaching party (Sec. 14, Rule 57).
professionals, not exceeding 300,000 pesos; ð Upon service of the affidavit upon him, the
8) One fishing boat and accessories not exceeding the sheriff shall not be bound to keep the property
total value of 100,000 pesos owned by a fisherman under attachment except if the attaching party
and by the lawful use of which he earns his files a bond approved by the court.
livelihood; ð The sheriff shall not be liable for damages for the
9) So much of the salaries, wages, or earnings of the taking or keeping of the property, if such bond
judgment obligor for his personal services with 4 shall be filed.
months preceding the levy as are necessary for the
support of his family; b) EXCLUSION OR RELEASE OF PROPERTY
10) Lettered gravestones; ð Upon application of the third person through a
11) Monies, benefits, privileges, or annuities accruing or motion to set aside the levy on attachment, the
in any manner growing out of any life insurance; court shall order a summary hearing for the
12) The right to receive legal support, or money or purpose of determining whether the sheriff has
property obtained as such support, or any pension or acted rightly or wrongly in the performance of
gratuity from the government; and his duties in the execution of the writ of
13) Properties specially exempted by law (Sec. 13, Rule attachment.
39). ð The court may order the sheriff to release the
property from the erroneous levy and to return
If the property is the subject of execution because of a the same to the third person.
judgment for the recovery of the price or upon judgment ð In resolving the application, the court cannot
of foreclosure of a mortgage upon the property, the pass upon the question of title to the property
property is not exempt from execution. with any character of finality but only insofar as
may be necessary to decide if the sheriff has
PROCEEDINGS WHERE PROPERTY IS CLAIMED acted correctly or not.
BY THIRD PERSONS (SEC. 16)
c) INTERVENTION
If the property levied on is claimed by any person other ð This is possible because no judgment has yet
than the judgment obligor or his agent, the officer shall been rendered and under the rules, a motion for
not be bound to keep the property, unless such judgment intervention may be filed any time before the
2011 Bar Examinations 73
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rendition of the judgment by the trial court (Sec. judgment under which such purchase was made,
2, Rule 19). the amount of such other lien, with interest.
In case of a judgment or final order against a specific Provisional remedies are temporary, auxiliary, and
thing, or in respect to the probate of a will, or the ancillary remedies available to a litigant for the protection
administration of the estate of a deceased person, or in and preservation of his rights while the main action is
respect to the personal, political, or legal condition or pending. They are writs and processes which are not
status of a particular person or his relationship to another, main actions and they presuppose the existence of a
the judgment or final order is conclusive upon the title to principal action.
the thing, the will or administration, or the condition,
status or relationship of the person; however, the probate Provisional remedies are resorted to by litigants for any of
of a will or granting of letters of administration shall only the following reasons:
be prima facie evidence of the truth of the testator or 1) To preserve or protect their rights or interests
intestate; while the main action is pending;
2) To secure the judgment;
In other cases, the judgment or final order is, with respect 3) To preserve the status quo; or
to the matter directly adjudged or as to any other matter 4) To preserve the subject matter of the action.
that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title Provisional remedies specified under the rules are:
subsequent to the commencement of the action or special 1. Preliminary attachment (Rule 57);
proceeding, litigating for the same thing and under the 2. Preliminary injunction (Rule 58);
same title and in the same capacity; and 3. Receivership (Rule 59);
4. Replevin (Rule 60); and
In any other litigation between the same parties or their 5. Support pendent lite (Rule 61).
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which JURISDICTION OVER PROVISIONAL REMEDIES
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary The court which grants or issues a provisional remedy is
thereto. the court which has jurisdiction over the main action.
Even an inferior court may grant a provisional remedy in
ENFORCEMENT AND EFFECT OF FOREIGN an action pending with it and within its jurisdiction.
JUDGMENTS OR FINAL ORDERS (SEC. 48)
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person owes the defendant. Garnishment does not
PRELIMINARY ATTACHMENT (RULE 57) involve actual seizure of property which remains in the
hands of the garnishee. It simply impounds the property
in the garnishee’s possession and maintains the status quo
Preliminary attachment is a provisional remedy issued until the main action is finally decided. Garnishment
upon order of the court where an action is pending to be proceedings are usually directed against personal
levied upon the property of the defendant so the property property, tangible or intangible and whether capable of
may be held by the sheriff as security for the satisfaction manual delivery or not.
of whatever judgment may be rendered in the.
(c) LEVY ON EXECUTION – writ issued by the court
When availed of and is granted in an action purely in
after judgment by which the property of the judgment
personam, it converts the action to one that is quasi in
obligor is taken into custody of the court before the sale of
rem. In an action in rem or quasi in rem, jurisdiction over
the property on execution for the satisfaction of a final
the res is sufficient. Jurisdiction over the person of the
judgment. It is the preliminary step to the sale on
defendant is not required.
execution of the property of the judgment debtor.
There is no separate action called preliminary
ð The grant of the remedy is addressed to the
attachment. It is availed of in relation to a principal
discretion of the court whether or not the
action.
application shall be given full credit is
discretionary upon the court. In determining the
Preliminary attachment is designed to:
propriety of the grant, the court also considers
1) Seize the property of the debtor before final
the principal case upon which the provisional
judgment and put the same in custodial egis even
remedy depends.
while the action is pending for the satisfaction of
a later judgment.
GROUNDS FOR ISSUANCE OF WRIT OF
2) To enable the court to acquire jurisdiction over
ATTACHMENT
the res or the property subject of the action in
cases where service in person or any other service
to acquire jurisdiction over the defendant cannot At the commencement of the action or at any time before
be affected. entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as security
Three stages in the grant of the Preliminary Attachment for the satisfaction of any judgment that may be
1) The court issues the order granting the recovered in the following cases:
application 1) In an action for the recovery of a specified
2) The writ of attachment issues pursuant to the amount of money or damages, other than moral
order granting the writ and exemplary, on a cause of action arising from
3) The writ if implemented law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from
For the 2 initial stages, it is not necessary that jurisdiction the Philippines with intent to defraud his
over the person of the defendant be first obtained. creditors;
However, once the implementation of the writ 2) In an action for money or property embezzled or
commences, the court must have acquired jurisdiction fraudulently misapplied or converted to his own
over the defendant for without such jurisdiction, the court use by a public officer, or an officer of a
has no power or authority to act in any manner against corporation, or an attorney, factor, broker, agent
the defendant. or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or
PRELIMINARY ATTACHMENT HAS for a willful violation of duty;
THREE TYPES 3) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any party
(a) PRELIMINARY ATTACHMENT – one issued at
thereof, has been concealed, removed, or
the commencement of the action or at any time before disposed of to prevent its being found or taken by
entry of judgment as security for the satisfaction of any the applicant or an authorized person;
judgment that may be recovered. Here the court takes 4) In an action against a party who has been guilty
custody of the property of the party against whom of a fraud in contracting the debt or incurring the
attachment is directed. obligation upon which the action the action is
brought, or in the performance thereof;
(b) GARNISHMENT – plaintiff seeks to subject either 5) In an action against a party who has removed or
the property of defendant in the hands of a third person disposed of his property, or is about to do so,
(garnishee) to his claim or the money which said third with intent to defraud his creditors; or
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BERT – NOTES in REMEDIAL LAW
6) In an action against a party who does not reside accompanied by the service of summons, copy of the
and is not found in the Philippines, or on whom complaint, application and affidavit of the
summons may be served by publication (Sec. 1). attachment and the bond in favor of the adverse
party.
REQUISITES F The failure to acquire jurisdiction over the person of
the adverse party shall render the implementation of
The issuance of an order/writ of execution requires the the writ void.
following:
1) The case must be any of those where preliminary Exceptions to the requirement:
attachment is proper; 1) Where the summons could not be served
2) The applicant must file a motion whether ex parte personally or by substituted service despite
or with notice and hearing; diligent efforts;
3) The applicant must show by affidavit (under oath) 2) The defendant is a resident of the Philippines
that there is no sufficient security for the claim who is temporarily out of the country;
sought to be enforced; that the amount claimed 3) The defendant is a non-resident; or
in the action is as much as the sum of which the 4) The action is one in rem or quasi in rem (Sec. 5).
order is granted above all counterclaims; and
4) The applicant must post a bond executed to the MANNER OF ATTACHING REAL AND
adverse party. PERSONAL PROPERTY
ü This is called an ATTACHMENT
BOND, which answers for all damages The sheriff enforcing the writ shall without delay and
incurred by the party against whom the with all reasonable diligence attach, to await judgment
attachment was issued and sustained by and execution in the action, only so much of the property
him by reason of the attachment. in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient
ISSUANCE AND CONTENTS OF ORDER OF to satisfy the applicant's demand.
ATTACHMENT
In attaching REAL PROPERTY, or growing crops
An order of attachment may be issued either ex parte or thereon or any interest therein, a copy of the order shall
upon motion with notice and hearing by the court in be filed with the registry of deeds along with a description
which the action is pending, or by the CA or the SC. of the property attached and by leaving a copy of such
order with the occupant of the property, if any or such
It may issue ex parte and even before the summons is other person or his agent if found within the province.
served upon the defendant. However, the writ may not be
enforced and validly implemented unless preceded or In attaching PERSONAL PROPERTY capable of
simultaneously served with the summons, a copy of the manual delivery - by taking and safely keeping it in his
complaint, application for attachment, the order of custody after issuing the corresponding receipt therefor.
attachment and the attachment bond.
As to STOCKS OR SHARES, or an interest thereon, by
AFFIDAVIT AND BOND leaving with the president or managing agent of the
company, a copy of the writ, and a notice stating that the
The order of attachment shall be granted only when it stock or interest of the party against whom the
appears by the affidavit of the applicant that the requisites attachment is issued is attached in pursuance of such writ.
for a grant of attachment are present.
DEBTS AND CREDITS, including bank deposits,
The applicant must thereafter give a bond executed to the financial interest, royalties, commissions and other
adverse party in the amount fixed by the court in its order personal property not capable of manual delivery shall be
granting the issuance of the writ, conditioned that the attached by leaving with the person owing such debts, or
latter will pay all the costs which may be adjudged to the in possession or control of such credits or other personal
adverse party and all damages which he may sustain by property, or with his agent, a copy of the writ, and notice
reason of the attachment, if the court shall finally adjudge that such properties are attached.
that the applicant was not entitled thereto
As to interest of the party against whom attachment is
RULE ON PRIOR OR CONTEMPORANEOUS issued in property BELONGING TO THE ESTATE OF
SERVICE OF SUMMONS THE DECEDENT are attached by giving a copy of the
writ and notice to the executor or administrator and the
office of the clerk of court where is the estate is being
F Enforcement of the writ or preliminary attachment
settled.
must be preceded by contemporaneously
2011 Bar Examinations 77
BERT – NOTES in REMEDIAL LAW
If the property to be attached is IN CUSTODIA LEGIS, a 2) The bond of the attaching creditor is insufficient;
copy of the writ shall be filed with the proper court or or
quasi-judicial agency, and notice of the attachment served 3) The attachment is excessive and must be
upon the custodian of such property. discharged as to the excess; or
4) The property is exempt from execution, and as
WHEN PROPERTY ATTACHED IS CLAIMED BY such is also exempt from preliminary
THIRD PERSON attachment.
ð “Improperly” (e.g. writ of attachment was not based
The third party may resort to any of the following on the grounds in Sec. 1)
remedies which are cumulative and thus could be
resorted independently and separately from the others: ð “Irregularly” (e.g. writ of attachment was executed
a) He may avail of the remedy of terceria - by without previous or contemporaneous service of
making an affidavit of his title thereto or his right summons)
to possession thereof, stating the grounds of such
right or title. The affidavit must be served upon SATISFACTION OF JUDGMENT OUT OF
the sheriff and the attaching party. The sheriff PROPERTY ATTACHED
shall not be bound to keep the property under
attachment except if the attaching party files a If judgment is rendered in favor of the attaching party and
bond approved by the court. execution issued, the sheriff may cause the judgment to
b) The third person may invoke the court’s be satisfied out of the property attached, if it be sufficient
authority in the same case and move for a for that purpose.
summary hearing on his claim to decide if the
sheriff has acted correctly or not.
c) The third party may file a separate action to PRELIMINARY INJUNCTION (RULE 58)
nullify the levy with damages resulting from the
unlawful levy and seizure. This action may be
ð Can be provisional remedy and can also an
totally distinct from the case in which the
action
attachment was issued.
DISCHARGE OF ATTACHMENT AND THE Temporary restraining order (TRO) is issued is an order
COUNTER-BOND to maintain the status quo between and among the parties
until the determination of the prayer for a writ of
preliminary injunction. The status quo is the last, actual,
If the attachment has already been enforced, the party
peaceable and uncontested situation which precedes a
whose property has been attached may file a MOTION to
controversy.
discharge the attachment. This motion shall be with
notice and hearing. After due notice and hearing, the
The judge may issue a TRO with a limited life of 20 days
court shall discharge the attachment if the movants makes
from date of issue. If before the expiration of the 20 day
a CASH DEPOSIT or files a COUNTER-BOND
period, the application for preliminary injunction is
executed to the attaching party with the clerk of court
denied, the TRO would be deemed automatically
where the application is made.
vacated. If no action is taken by the judge within the 20
day period, the TRO would automatically expire on the
Attachment may likewise be discharged without the need
20th day by the sheer force of law, no judicial declaration
for filing of a counter-bond. This is possible when the
to that effect being necessary.
party whose property has been attached files a motion to
set aside or discharge the attachment and during the
A writ of preliminary injunction cannot be granted
hearing of the motion, he proves that:
without notice and hearing. A TRO may be granted ex
1) The attachment was improperly or irregularly
parte if it shall appear from facts shown by affidavits or
issued or enforced; or
by the verified application that great or irreparable injury
2011 Bar Examinations 78
BERT – NOTES in REMEDIAL LAW
would result to the applicant before the matter can be INJUNCTION
heard on notice, the court in which the application for
preliminary injunction was made my issue a TRO ex 1) The applicant is entitled to the relief demanded, and
parte for a period not exceeding 20 days from service to the whole or part of such relief consists in restraining
the party sought to be enjoined. the commission or continuance of the act or acts
complained of, or in requiring the performance of an
REQUISITES act or acts either for a limited period or perpetually;
or
1) There must be a verified petition, 2) The commission, continuance or non-performance of
2) The application must establish that he has a right of the act or acts complained of during the litigation
relief or a right to be protected and that the act would probably work injustice to the applicant; or
against which the injunction is sought violates such 3) A party, court, agency or a person is doing,
right, threatening or is attempting to do, or is procuring or
3) The applicant must establish that there is a need to suffering to be done, some act or acts probably in
restrain the commission of the continuance of the violation of the rights of the applicant respecting the
acts complained of and if not enjoined would work subject of the action or proceeding, and tending to
injustice to him, render the judgment ineffectual.
4) A bond must be posted, unless otherwise exempted
by the court. GROUNDS FOR OBJECTION TO OR FOR THE
5) The threatened injury must be incapable of pecuniary DISSOLUTION OF INJUNCTION OR
estimation. RESTRAINING ORDER
MANDATORY – its purpose is to require a person to If it is shown that the applicant would suffer great or
perform a particular positive act which has already been irreparable injury before the application for the writ of
performed and has violated the rights of another. injunction can be heard, the court may issue a temporary
a) Preliminary restraining order (TRP) ex parte which shall be effective
b) Final for a period not exceeding twenty (20) days from service
Requisites for the issuance of mandatory on the party sought to be enjoined. Within the said
preliminary injunction twenty-day period, the court must order said party to
(a) The invasion of the right is material and show cause why the injunction should not be granted,
substantial; determine within the same period whether or not the
(b) The right of a complainant is clear and preliminary injunction shall be granted, and accordingly
unmistakable; issue the corresponding order.
(c) There is an urgent and permanent necessity for
the writ to prevent serious damage. If the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury, the executive
WHEN WRIT MAY BE ISSUED judge of a multiple-sala court or the presiding judge of a
single sala court may issue ex parte a temporary
It may be issued at any stage prior to the judgment or restraining order effective for only seventy-two (72)
final order. hours. Within such period, the judge shall conduct a
summary hearing to determine whether the temporary
GROUNDS FOR ISSUANCE OF PRELIMINARY restraining order shall be extended to 20 days. The 72
hours shall be included in the maximum 20 day period.
2011 Bar Examinations 79
BERT – NOTES in REMEDIAL LAW
GENERAL POWERS OF A RECEIVER It is a proceeding by which the owner or one who has a
general or special property in the thing taken or detained
seeks to recover possession in specie, the recovery of
1) To bring and defend, in such capacity, actions in his
damages being only incidental.
own name
2) To take and keep possession of the property in
Replevin may be a main action or a provisional remedy.
controversy
As a principal action its ultimate goal is to recover
3) To receive rents
personal property capable of manual delivery wrongfully
4) To collect debts due to himself as receiver or to the
detained by a person. Used in this sense, it is a suit in
fund, property, estate, person, or corporation of
itself.
which he is the receiver
5) To compound for and compromise the same
It is a provisional remedy in the nature of possessory
6) To make transfer
action and the applicant who seeks immediate possession
7) To pay outstanding debts
of the property involved need not be the holder of the
8) To divide the money and other property that shall
legal title thereto. It is sufficient that he is entitled to
remain among the persons legally entitled to receive
possession thereof.
the same
9) To do such acts respecting the property as the court
WHEN MAY WRIT BE ISSUED
may authorize.
10) However, funds in the hands of a receiver may be
invested only by order of the court upon the written a) The provisional remedy of replevin can only be
consent of all the parties to the action. No action may applied for before answer.
be filed by or against a receiver without leave of the b) A party praying for the recovery of possession of
court which appointed him. personal property may, at the commencement of the
action or at any time before answer, apply for an
TWO (2) KINDS OF BONDS order for the delivery of such property to him.
REQUISITES
1) Applicant’s Bond (for appointment of receiver) – To
pay the damages the adverse party may sustain by
The applicant must show by his own affidavit or that of
reason of appointment of receiver; and
some other person who personally knows the facts:
2) Receiver’s Bond (of the appointed receiver, aside
1) A party praying for the provisional remedy must
from oath) – To answer for receiver’s faithful
file an application for a writ of replevin. His
discharge of his duties.
application must be filed at the commencement
3) Counter Bond
of the action or at any time before the defendant
answers, and must contain an affidavit
TERMINATION OF RECEIVERSHIP particularly describing the property to which he
entitled of possession.
Whenever the court, motu proprio or on motion of either 2) The affidavit must state that the property is
party, shall determine that the necessity for a receiver no wrongfully detained by the adverse party,
longer exists, it shall, after due notice to all interested alleging therein the cause of the detention. It
parties and hearing, settle the accounts of the receiver, must also state that the property has not been
direct the delivery of the funds and other property in his destrained or taken for tax assessment or a fine
possession to the person adjudged to be entitled to receive pursuant to law, or seized under a writ of
them, and order the discharge of the receiver from further execution or preliminary attachment, or
duty as such. otherwise placed in custodia legis. If it has been
seized, then the affidavit must state that it is
The court shall allow the receiver such reasonable exempt from such seizure or custody.
compensation as the circumstances of the case warrant, to 3) The affidavit must state the actual market value
be taxed as costs against the defeated party, or of the property; and
apportioned, as justice requires. 4) The applicant must give a bond, executed to the
adverse party and double the value of the
Receivership shall also be terminated when: property.
a) its continuance is not justified by the facts and
circumstances of the case; or AFFIDAVIT AND BOND; REDELIVERY BOND
b) court is convinced that the powers are abused.
2011 Bar Examinations 82
BERT – NOTES in REMEDIAL LAW
Affidavit, alleging: applicant UNLESS the applicant on demand of said
a) That the applicant is the owner of property sheriff, shall file a bond approved by the court to
claimed, describing it or entitled to its possession; indemnify the third-party claimant in the sum not less
b) That the property is wrongfully detained by the than the value of the property.
adverse party, alleging cause of its detention;
c) That the property has not been distrained or The sheriff shall not be liable for damages, for the taking
taken for tax assessment or fine or under writ of or keeping of such property, to any such third-party
execution/attachment or placed under custodia claimant if such bond shall be filed.
legis or if seized, that it is exempt or should be
released; and
d) The actual market value of the property.
Bond, which must be double the value of property, to SPECIAL CIVIL ACTIONS (Rules 62 – 71)
answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant.
It is required that the redelivery bond be filed within the NATURE OF SPECIAL CIVIL ACTIONS
period of 5 days after the taking of the property. The rule
is MANDATORY. Special civil actions are basically ordinary civil
proceedings; what makes them special are the distinct
SHERIFF’S DUTY IN THE IMPLEMENTATION OF peculiarities inherent in their very nature not found in
THE WRIT; WHEN PROPERTY IS CLAIMED BY ordinary civil actions.
THIRD PARTY
They are actions in themselves, but possessing special
Upon receiving such order, the sheriff must serve a copy matters that required special procedures. For this reason,
on the adverse party, together with a copy of the these proceedings are classified as special civil actions.
application, affidavit and bond, and must take the
property and retain it in his custody. Sec. 1, Rule 62 provides that rules provided for ordinary
civil actions are applicable in special civil proceedings,
If the property be concealed in a building or enclosure, which are not inconsistent with or may serve to
the sheriff must demand its delivery, and if it be not supplement the provisions of the rules relating to such
delivered, he must cause the building or enclosure to be special civil actions.
broken open and take the property into his possession.
ORDINARY CIVIL ACTIONS VERSUS SPECIAL
If within five (5) days after the taking of the property by CIVIL ACTIONS
the sheriff, the adverse party does not object to the
sufficiency of the bond or if the adverse party so objects Although both types of actions are governed by the rules
and the court affirms its approval of the applicant's bond for ordinary civil actions, there are certain rules that are
or approves a new bond, or if the adverse party requires applicable only to specific special civil actions. The fact
the return of the property but his bond is objected to and that an action is subject to special rules other than those
found insufficient and he does not file an approved bond, applicable to ordinary civil actions is what makes a civil
the property shall be delivered to the applicant. action special.
If for any reason the property is not delivered to the An ordinary civil action must be based on a CAUSE OF
applicant, the sheriff must return it to the adverse party. ACTION. This means that the defendant must have
performed an act or omitted to do an act in violation of
A 3rd party claimant may vindicate his claim to the the rights of another. These definitions do not fit the
property, and the applicant may claim damages against requirements of a cause of action in certain special civil
such 3rd party, in the same or separate action. actions.
A claim on the indemnity bond should be filed within 120 ü The cause of action as defined and required of an
days from posting of such bond. ordinary civil action finds no application to the
special civil action of declaratory relief. It finds no
If the property taken is claimed by a third person and application also in a complaint for interpleader. In
make an affidavit of his title or right to the possession this action, the plaintiff may file a complaint even if
thereof and serves such affidavit upon the sheriff while he has sustained no actual transgression of his rights.
the latter has possession of the property and a copy In fact, he actually has no interest in the subject
thereof upon the applicant, the sheriff shall not be bound matter of the action. This is not so in an ordinary
to keep the property under replevin or deliver it to the civil action.
2011 Bar Examinations 83
BERT – NOTES in REMEDIAL LAW
Ordinary civil actions may be filed initially in either the 1) There must be two or more claimants with adverse or
MTC or the RTC depending upon the conflicting interests to a property in the custody or
JURISDICTIONAL AMOUNT OR THE NATURE of possession of the plaintiff;
the action involved. On the other hand, there are special 2) The plaintiff in an action for interpleader has no
civil actions which can only be filed in an MTC like the claim upon the subject matter of the adverse claims
actions for forcible entry and unlawful detainer. There are or if he has an interest at all, such interest is not
also special civil actions which cannot be commenced in disputed by the claimants;
the MTC, foremost of which are the petitions for 3) The subject matter of the adverse claims must be one
certiorari, prohibition, and mandamus. and the same; and
4) The parties impleaded must make effective claims.
The VENUE in ordinary civil actions is determined by
either the residence of the parties where the action is WHEN TO FILE
personal or by the location of the property where the
action is real. This does not always apply to a special civil Whenever conflicting claims upon the same subject
action. matter are or may be made against a person who claims
no interest whatever in the subject matter, or an interest
While ordinary civil actions when filed are denominated which in whole or in part is not disputed by the
as ―complaints, some special civil actions are not claimants, he may bring an action against the conflicting
denominated as such but ―petitions. claimants to compel them to interplead and litigate their
several claims among themselves.
(a) Special civil actions initiated by filing of a Petition:
1) Declaratory relief other than similar remedies;
2) Review of adjudication of the COMELEC and DECLARATORY RELIEFS AND SIMILAR
COA; REMEDIES (RULE 63)
3) Certiorari, prohibition and mandamus;
4) Quo warranto; and
5) Contempt An action for declaratory relief is brought to secure an
authoritative statement of the rights and obligations of the
(b) Special civil actions initiated by filing of a parties under a contract or a statute for their guidance in
Complaint: the enforcement or compliance with the same. Thus, the
1) Interpleader; purpose is to seek for a judicial interpretation of an
2) Expropriation; instrument or for a judicial declaration of a person’s
3) Foreclosure of real estate mortgage; rights under a statute and not to ask for affirmative reliefs
4) Partition; and like injunction, damages or any other relief beyond the
5) Forcible entry and unlawful detainer. purpose of the petition as declared under the Rules.
JURISDICTION AND VENUE The subject matter in a petition for declaratory relief is
any of the following:
a) Deed;
The subject matter of a petition for declaratory relief
b) Will;
raises issues which are not capable of pecuniary
c) Contract or other written instrument;
estimation and must be filed with the Regional Trial
d) Statute;
Court. It would be error to file the petition with the
e) Executive order or regulation;
Supreme Court which has no original jurisdiction to
f) Ordinance; or
entertain a petition for declaratory relief.
g) Any other governmental regulation.
INTERPLEADER (RULE 62) The petition for declaratory relief is filed before the
occurrence of any breach or violation of the deed,
contract, statute, ordinance or executive order or
It is a special civil action filed by a person, who has regulation. It will not prosper when brought after a
property in his possession or an obligation to render, contract or a statute has already been breached or
wholly or partially, against whom two conflicting claims violated. If there has already been a breach, the
are made upon the same subject matter and over which appropriate ordinary civil action and not declaratory
he claims no interest, to compel the claimants to relief should be filed.
interplead and to litigate their conflicting claims among
themselves. WHO MAY FILE THE ACTION
1) The subject matter must be a deed, will, contract or Special civil action of declaratory relief – an impending
other written instrument, statute, executive order or violation is sufficient to file a declaratory relief; no
regulation or ordinance; execution may be issued; the court merely makes a
2) The terms of said document or the validity thereof declaration.
are doubtful and require judicial construction;
3) There must have been no breach of said document; PROCEEDINGS CONSIDERED AS SIMILAR
4) There must be actual justiciable controversy or the REMEDIES
ripening seeds of one (there is threatened litigation
the immediate future); Similar remedies are:
5) there must be allegation of any threatened, imminent (a) Action for reformation of an instrument;
and inevitable violation of petitioner’s right sought to (b) Action for quieting of title; and
be prevented by the declaratory relief sought; (c) Action to consolidate ownership (Art. 1607,
6) The controversy is between persons whose interests Civil Code).
are adverse;
7) The issue must be ripe for judicial determination e.g. A. REFORMATION OF AN INSTRUMENT
administrative remedies already exhausted;
8) The party seeking the relief has legal interest in the It is not an action brought to reform a contract but to
controversy; and reform the instrument evidencing the contract. It
9) Adequate relief is not available thru other means. presupposes that there is nothing wrong with the contract
itself because there is a meeting of minds between the
WHEN COURT MAY REFUSE TO MAKE parties.
JUDICIAL DECLARATION
The contract is to be reformed because despite the
Grounds for the court to refuse to exercise declaratory meeting of minds of the parties as to the object and cause
relief; of the contract, the instrument which is supposed to
a) A decision would not terminate the uncertainty embody the agreement of the parties does not reflect their
or controversy which gave rise to the action; or true agreement by reason of mistake, inequitable conduct
b) The declaration or construction is not necessary or accident. The action is brought so the true intention of
and proper under the circumstances as when the the parties may be expressed in the instrument (Art. 1359,
instrument or the statute has already been CC).
breached.
The instrument may be reformed if it does not express the
In declaratory relief, the court is given the discretion to true intention of the parties because of lack of skill of the
act or not to act on the petition. It may therefore choose person drafting the instrument (Art. 1363, CC).
not to construe the instrument sought to be construed or
2011 Bar Examinations 85
BERT – NOTES in REMEDIAL LAW
If the parties agree upon the mortgage or pledge of registration of the property. The lapse of the redemption
property, but the instrument states that the property is period without the seller a retro exercising his right of
sold absolutely or with a right of repurchase, reformation redemption consolidates ownership or title upon the
of the instrument is proper (Art. 1365, CC). person of the vendee by operation of law. Art. 1607
requires the filing of the petition to consolidate ownership
Where the consent of a party to a contract has been because the law precludes the registration of the
procured by fraud, inequitable conduct or accident, and consolidated title without judicial order.
an instrument was executed by the parties in accordance
with the contract, what is defective is the contract itself C. QUIETING OF TITLE TO REAL PROPERTY
because of vitiation of consent.
This action is brought to remove a cloud on title to real
The remedy is not to bring an action for reformation of property or any interest therein. The action contemplates
the instrument but to file an action for annulment of the a situation where the instrument or a record is apparently
contract (Art. 1359, CC). valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be
Reformation of the instrument cannot be brought to prejudicial to said title to real property.
reform any of the following:
1) Simple donation inter vivos wherein no condition It may also be brought as a preventive remedy to prevent
is imposed; a cloud from being cast upon title to real property or any
2) Wills; or interest therein (Art. 476).
3) When the agreement is void (Art. 1666, CC).
The plaintiff need not be in possession of the real
B. CONSOLIDATION OF OWNERSHIP property before he may bring the action as long as he can
show that he has a legal or an equitable title to the
The concept of consolidation of ownership under Art. property which is the subject matter of the action (Art.
1607, Civil Code, has its origin in the substantive 477).
provisions of the law on sales. Under the law, a contract
of sale may be extinguished either by legal redemption
(Art. 1619) or conventional redemption (Art. 1601). REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTION OF THE COMELEC AND COA
Legal redemption (retracto legal) is a statutory mandated (RULE 64)
redemption of a property previously sold. For instance, a
co-owner of a property may exercise the right of
redemption in case the shares of all the other co-owners A judgment or final order or resolution of the
or any of them are sold to a third person (Art. 1620). The Commission on Elections and the Commission on Audit
owners of adjoining lands shall have the right of may be brought by the aggrieved party to the Supreme
redemption when a piece of rural land with a size of one Court on certiorari. The filing of a petition for certiorari
hectare or less is alienated (Art. 1621). shall not stay the execution of the judgment or final order
or resolution sought to be reviewed, unless the SC directs
Conventional redemption (pacto de retro) sale is one that is otherwise upon such terms as it may deem just. To
prevent the execution of the judgment, the petitioner
not mandated by the statute but one which takes place
should obtain a temporary restraining order or a writ of
because of the stipulation of the parties to the sale. The
preliminary injunction because the mere filing of a
period of redemption may be fixed by the parties in which
petition does not interrupt the course of the principal
case the period cannot exceed ten (10) years from the date
case.
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the date of
Decisions of the Civil Service Commission shall be appealed to
the contract (Art. 1606).
the Court of Appeals which has exclusive appellate jurisdiction
over all judgments or final orders of such commission (RA 7902).
When the redemption is not made within the period
agreed upon, in case the subject matter of the sale is a real
The petition shall be filed within thirty (30) days from
property, Art. 1607 provides that the consolidation of
notice of the judgment or final order or resolution sought
ownership in the vendee shall not be recorded in the Registry of
to be reviewed. The filing of a motion for new trial or
Property without a judicial order, after the vendor has been duly
reconsideration of said judgment or final order or
heard.
resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein
The action brought to consolidate ownership is not for
fixed. If the motion is denied, the aggrieved party may file
the purpose of consolidating the ownership of the
the petition within the remaining period, but which shall
property in the person of the vendee or buyer but for the
2011 Bar Examinations 86
BERT – NOTES in REMEDIAL LAW
not be less than five (5) days in any event, reckoned from motion for new trial if motion for reconsideration
notice of denial. allowed interrupts the or new trial is denied is 60
period for the filing of the days from notice of the
Note that petition for review from decisions of quasi- petition for certiorari. If the denial of the motion.
judicial agencies to the CA should be within 15 days and motion is denied, the
does not stay the decision appealed. aggrieved party may file
the petition within the
Petition for review from decisions of the RTC decided in remaining period, but
its appellate jurisdiction filed to the CA should be filed which shall not be less than
within 15 days and stays execution, unless the case is 5 days reckoned from the
under the rules of Summary Procedure. Special civil notice of denial.
actions of certiorari, prohibition, and mandamus, from
Comelec and COA should be filed within 30 days, and ð 5-day Rule does not apply in filing of notice of
does not stay the decision appealed. appeal
There is no appeal or any plain, speedy There is no appeal or any plain, speedy The defendant unlawfully neglects the
and adequate remedy in the ordinary and adequate remedy in the ordinary performance of the duty enjoined by law;
course of law. course of law.
Object is to correct Object is to prevent Object is to compel
Purpose is to annul or modify the Purpose is to stop the proceedings Purpose is to compel performance of the
proceedings act required and to collect damages
Person or entity must have acted Person or entity must have acted Person must have neglected a
without or in excess of jurisdiction, or without or in excess of jurisdiction, or ministerial duty or excluded another
with grave abuse of discretion with grave abuse of discretion from a right or office
A person aggrieved thereby may file a A person aggrieved thereby may file a The person aggrieved thereby may file
verified petition in the proper court, verified petition in the proper court, a verified petition in the proper court,
alleging the facts with certainty and alleging the facts with certainty and alleging the facts with certainty and
praying that judgment be rendered praying that judgment be rendered praying that judgment be rendered
annulling or modifying the commanding the respondent to desist commanding the respondent,
proceedings of such tribunal, board or from further proceedings in the action immediately or at some other time to
officer, and granting such incidental or matter specified therein, or be specified by the court, to do the act
2011 Bar Examinations 88
BERT – NOTES in REMEDIAL LAW
reliefs as law and justice may require. otherwise granting such incidental required to be done to protect the
The petition shall be accompanied by reliefs as law and justice may require. rights of the petitioner, and to pay the
a certified true copy of the judgment, The petition shall likewise be damages sustained by the petitioner
order or resolution subject thereof, accompanied by a certified true copy by reason of the wrongful acts of the
copies of all pleadings and documents of the judgment, order or resolution respondent. The petition shall also
relevant and pertinent thereto, and a subject thereof, copies of all pleadings contain a sworn certification of non-
sworn certification of non-forum and documents relevant and pertinent forum shopping.
shopping. thereto, and a sworn certification of
non-forum shopping.
PROHIBITION INJUNCTION
Always the main action May be the main action or just a provisional remedy
Directed against a court, a tribunal exercising judicial or Directed against a party
quasi-judicial functions
Ground must be the court acted without or in excess of Does not involve a question of jurisdiction
jurisdiction
PROHIBITION MANDAMUS
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or franchise
Respondent, without claiming any right to the office, Respondent usurps the office
excludes the petitioner
ü Mandamus can be issued to perform an act but not to approve a certain request
INJUNCTIVE RELIEF been issued against the public respondent from further
proceeding in the case.
The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a The public respondent shall proceed with the principal
temporary restraining order or a writ of preliminary case within ten (10) days from the filing of a petition for
injunction for the preservation of the rights of the parties certiorari with a higher court or tribunal, absent a
pending such proceedings. The petition shall not interrupt Temporary Restraining Order (TRO) or a Writ of
the course of the principal case unless a temporary Preliminary Injunction, or upon its expiration. Failure of
restraining order or a writ of preliminary injunction has the public respondent to proceed with the principal case
may be a ground for an administrative charge (AM 07-7-
12-SC, Dec. 12, 2007).
ð The remedies of appeal and certiorari are appeal is satisfactorily shown to be an inadequate
mutually exclusive and not alternative or remedy. Thus, a petitioner must show valid
successive. The antithetic character of appeal and reasons why the issues raised in his petition for
certiorari has been generally recognized and certiorari could not have been raised on appeal.
observed save only on those rare instances when
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, commanding a tribunal, corporation, enjoin the defendant from the
corporation, board or person, board or person, to do an act required commission or continuance of a
whether exercising judicial, quasi- to be done: (a) When he unlawfully specific act, or to compel a particular
judicial or ministerial functions, to neglects the performance of an act act in violation of the rights of the
desist from further proceedings which the law specifically enjoins as a applicant. Preliminary injunction is a
when said proceedings are without duty, and there is no other plain, provisional remedy to preserve the
or in excess of its jurisdiction, or speedy and adequate remedy in the status quo and prevent future wrongs
with abuse of its discretion, there ordinary course of law; or (b) When in order to preserve and protect
being no appeal or any other plain, one unlawfully excludes another from certain interests or rights during the
speedy and adequate remedy in the the use and enjoyment of a right or pendency of an action.
ordinary course of law office to which the other is entitled
(Sec. 2, Rule 65). (Sec. 3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, To compel the performance of a For the defendant either to refrain
excess, 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, non-judicial entities
or ministerial functions
Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to
ministerial, discretionary or legal
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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 May be brought in the Supreme May be brought in the Regional Trial
Court, Court of Appeals, Court, Court of Appeals, Court which has jurisdiction over the
Sandiganbayan, or in the Regional Sandiganbayan, or in the Regional territorial area where respondent
Trial Court which has jurisdiction Trial Court which has jurisdiction resides.
over the territorial area where over the territorial area where
respondent resides. respondent resides.
EXCEPTIONS TO FILING OF MOTION FOR the trial courts. In the prosecution of election cases, the
RECONSIDERATION BEFORE FILING PETITION aggrieved party is the Comelec, who may file the petition
in its name through its legal officer or through the
1) When the issue is one purely of law; Solicitor General if he agrees with the action of the
2) When there is urgency to decide upon the question Comelec.
and any further delay would prejudice the interests of
the government or of the petitioner; WHERE TO FILE PETITION
3) Where the subject matter of the action is perishable; Supreme Court Subject to the doctrine of
4) When order is a patent nullity, as where the court a hierarchy of courts and
quo has no jurisdiction or there was no due process; only when compelling
5) When questions have been duly raised and passed reasons exist for not filing
upon by the lower court; the same with the lower
6) When is urgent necessity for the resolution of the courts
question; Regional Trial Court If the petition relates to
7) When Motion for Reconsideration would be useless, an act or an omission of
e.g. the court already indicated it would deny any an MTC, corporation,
Motion for Reconsideration; board, officer or person
8) In a criminal case, where relief from order of arrest is Court of Appeals only If the petition involves an
urgent and the granting of such relief by the trial act or an omission of a
court is improbable; quasi-judicial agency,
9) Where the proceedings was ex parte or in which the unless otherwise provided
petitioner had no opportunity to object; by law or rules
10) When petitioner is deprived of due process and there Court of Appeals or the Whether or not in aid of
is extreme urgency for urgent relief; and Sandiganbayan appellate jurisdiction
11) When issue raised is one purely of law or public Commission on In election cases
interest is involved. Elections involving an act or an
omission of an MTC or
RELIEFS PETITIONER IS ENTITLED TO RTC
As amended by AM No.
The primary relief will be annulment or modification of 07-7-12-SC, Dec. 12, 2007
the judgment, order or resolution or proceeding subject of
the petition. It may also include such other incidental A petition for certiorari must be based on jurisdictional
reliefs as law and justice may require. The court, in its grounds because as long as the respondent acted with
judgment may also award damages and the execution of jurisdiction, any error committed by him or it in the
the award for damages or costs. exercise thereof will amount to nothing more than an
error of judgment which may be reviewed or corrected by
ACTIONS/OMISSIONS OF MTC/RTC IN appeal.
ELECTION CASES
EFFECTS OF FILING OF AN UNMERITORIOUS
Under Rule 65, the proper party who can file a petition PETITION
for certiorari, prohibition or mandamus is the person
aggrieved by the action of a trial court or tribunal in a The Court may impose motu proprio, based on res ipsa
criminal case pending before it. loquitur, other disciplinary sanctions or measures on
erring lawyers for patently dilatory an unmeritorious
Ordinarily, the petition is filed in the name of the People petition for certiorari.
of the Philippines by the Solicitor General. However,
there are cases when such petition may be filed by other
parties who have been aggrieved by the order or ruling of
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The court may dismiss the petition if it finds the same the office;
patently without merit or prosecuted manifestly for delay, The court has to declare
When the tribunal declares
or if the questions raised therein are too unsubstantial to who the person entitled
the candidate-elect as
require consideration. to the office is if he is
ineligible, he will be
the petitioner. unseated but the person
In such event, the court may award in favor of the occupying the second place
respondent treble costs solidarily against the petitioner will not be declared as the
and counsel, in addition to subjecting counsel to one duly elected because
administrative sanctions. the law shall consider only
the person who, having
duly filed his certificate of
QUO WARRANTO (RULE 66) candidacy, received a
plurality of votes.
ð HRET has jurisdiction involving member of
Quo warranto is a demand made by the state upon some
Congress
individual or corporation to show by what right they
exercise some franchise or privilege appertaining to the
WHEN GOVERNMENT COMMENCE AN ACTION
state which, according to the Constitution and laws they
AGAINST INDIVIDUALS
cannot legally exercise by virtue of a grant and authority
from the State.
Quo warranto is commenced by a verified petition
It is a special civil action commenced by a verified brought in the name of the Government of the Republic
petition against: of the Philippines by the Solicitor General, or in some
a) a person who usurps a public office, position or instances, by a public prosecutor. When the action is
franchise; commenced by the Solicitor General, the petition may be
b) a public officer who performs an act constituting brought in the Regional Trial Court of the City of Manila,
forfeiture of a public office; or the Court of Appeals or the Supreme Court.
c) an association which acts as a corporation within
the Philippines without being legally An action for the usurpation of a public office, position or
incorporated or without lawful authority to do franchise may be commenced by a verified petition
so. brought in the name of the Republic of the Philippines
thru the Solicitor General against:
1) A person who usurps, intrudes into, or
QUO WARRANTO QUO WARRANTO unlawfully holds or exercises a public office,
(RULE 66) (ELECTION CODE) position or franchise;
2) A public officer who does or suffers an act
which, by the provision of law, constitutes a
Subject of the petition is Subject of the petition is in
ground for the forfeiture of his office;
in relation to an relation to an elective
3) An association which acts a corporation within
appointive office; office;
the Philippines without being legally
The issue is the legality Grounds relied upon are:
incorporated or without lawful authority so to
of the occupancy of the (a) ineligibility to the
act.
office by virtue of a position; or (b) disloyalty to
legal appointment; the Republic.
WHEN INDIVIDUAL MAY COMMENCE AN
Petition is brought May be instituted with the
ACTION
either to the Supreme COMELEC by any voter
Court, the Court of contesting the election of
Appeals or the Regional any member of Congress, • The petition may be commenced by a private person
Trial Court; regional, provincial or city in his own name where he claims to be entitled to the
officer; or to the MeTC, public office or position alleged to have been usurped
MTC or MCTC if against or unlawfully held or exercised by another.
any barangay official; • Accordingly, the private person may maintain the
Filed within one (1) Filed within ten (10) days action without the intervention of the Solicitor
year from the time the after the proclamation of General and without need for any leave of court.
cause of ouster, or the the results of the election; • In bringing a petition for quo warranto, he must
right of the petitioner to show that he has a clear right to the office allegedly
hold the office or being held by another. It is not enough that he merely
position arose; asserts the right to be appointed to the office.
Petitioner is the person Petitioner may be any voter
entitled to the office; even if he is not entitled to JUDGMENT IN QUO WARRANTO ACTION
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INTO POSSESSION OF THE REAL PROPERTY
Of office, position or franchise, judgment shall be IN RELATION TO RA 8974
rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner recover his Except for the acquisition of right-of-way, site or location
costs. Such further judgment may be rendered for any national government infrastructure project
determining the respective rights in and to the public through expropriation, the expropriator shall have the
office, position or franchise of the parties to the action as right to take or enter upon the possession of the real
justice requires. property involved if he deposits with the authorized
government depositary an amount equivalent to the
RIGHTS OF A PERSON ADJUDGED ENTITLED assessed value of the property for purposes of taxation to
TO PUBLIC OFFICE be held by such bank subject to the orders of the court.
such deposit shall be in money, unless in lieu thereof the
If the petitioner is adjudged to be entitled to the office, he court authorizes the deposit of a certificate of deposit of a
may sue for damages against the alleged usurper within government bank of the Philippines payable on demand
one (1) year from the entry of judgment establishing his to the authorized government depositary.
right to the office in question.
NEW SYSTEM OF IMMEDIATE PAYMENT OF
INITIAL JUST COMPENSATION
EXPROPRIATION (RULE 67)
For the acquisition of right-of-way, site or location for
any national government infrastructure project through
1) To be filed with the RTC; this is action incapable of
expropriation, upon the filing of the filing of the
pecuniary estimation
complaint, and after due notice to the defendant, the
2) Expropriation is an exercise of the State’s power of
implementing agency shall immediately pay the owner of
eminent domain wherein the government takes a
the property the amount equivalent to the sum of:
private property for public purpose upon payment of
1) 100 PERCENT of the value of the property
just compensation.
based on the current relevant zonal valuation of
the BIR; and
MATTERS TO ALLEGE IN COMPLAINT FOR
2) The value of the improvements and/or structures
EXPROPRIATION
as determined under Sec. 7 of RA 8974 (Sec. 4, RA
8974).
An expropriation proceeding is commenced by the filing
of a verified complaint which shall:
ð LGU – 15% market value
a) State with certainty the right of the plaintiff to
expropriation and the purpose thereof;
DEFENSES AND OBJECTIONS
b) Describe the real or personal property sought to
be expropriated; and
Omnibus Motion Rule — a motion attacking a pleading,
c) Join as defendants all persons owning or
order, judgment or proceeding shall include all objections
claiming to own, or occupying, any part of the
then available, and all objections not so included shall be
property or interest therein showing as far as
deemed waived.
practicable the interest of each defendant. If the
plaintiff cannot with accuracy identify the real
If a defendant has no objection or defense to the action or
owners, averment to that effect must be made in
the taking of his property, he may file and serve a notice
the complaint.
of appearance and a manifestation to that effect,
specifically designating or identifying the property in
TWO STAGES IN EVERY ACTION FOR
which he claims to be interested, within the time stated in
EXPROPRIATION
the summons. Thereafter, he shall be entitled to notice of
all proceedings affecting the same.
1) Determination of the authority of the plaintiff to
expropriate (appealable already at this stage) – this If a defendant has any objection to the filing of or the
includes an inquiry into the propriety of the allegations in the complaint, or any objection or defense
expropriation, its necessity and the public purpose. to the taking of his property, he shall serve his answer
This stage will end in the issuance of an order of within the time stated in the summons. The answer shall
expropriation if the court finds for the plaintiff or in specifically designate or identify the property in which he
the dismissal of the complaint if it finds otherwise. claims to have an interest, state the nature and extent of
2) Determination of just compensation through the the interest claimed, and adduce all his objections and
court-appointed commissioners. defenses to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged or
WHEN PLAINTIFF CAN IMMEDIATELY ENTER allowed in the answer or any subsequent pleading.
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may substitute its own estimate of the value, the latter
A defendant waives all defenses and objections not so may do so only for valid reasons, that is where the
alleged but the court, in the interest of justice, may permit commissioners have applied illegal principles to the
amendments to the answer to be made not later than ten evidence submitted to them, where they have disregarded
(10) days from the filing thereof. a clear preponderance of evidence, or where the amount
allowed is either grossly inadequate or excessive.
However, at the trial of the issue of just compensation,
whether or not a defendant has previously appeared or APPOINTMENT OF COMMISSIONERS;
answered, he may present evidence as to the amount of COMMISSIONER’S REPORT; COURT ACTION
the compensation to be paid for his property, and he may UPON COMMISSIONER’S REPORT
share in the distribution of the award.
Appointment. Upon the rendition of the order of
ORDER OF EXPROPRIATION expropriation, the court shall appoint not more than three
(3) competent and disinterested persons as commissioners
If the objections to and the defenses against the right of to ascertain and report to the court the just compensation
the plaintiff to expropriate the property are overruled, or for the property sought to be taken. The order of
when no party appears to defend as required by this Rule, appointment shall designate the time and place of the first
the court may issue an order of expropriation declaring session of the hearing to be held by the commissioners
that the plaintiff has a lawful right to take the property and specify the time within which their report shall be
sought to be expropriated, for the public use or purpose submitted to the court. Copies of the order shall be served
described in the complaint, upon the payment of just on the parties. Objections to the appointment of any of
compensation to be determined as of the date of the the commissioners shall be filed with the court within ten
taking of the property or the filing of the complaint, (10) days from service, and shall be resolved within thirty
whichever came first. (30) days after all the commissioners shall have received
copies of the objections.
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved thereby. Report. The court may order the commissioners to report
Such appeal, however, shall not prevent the court from when any particular portion of the real estate shall have
determining the just compensation to be paid. been passed upon by them, and may render judgment
upon such partial report, and direct the commissioners to
After the rendition of such an order, the plaintiff shall not proceed with their work as to subsequent portions of the
be permitted to dismiss or discontinue the proceeding property sought to be expropriated, and may from time to
except on such terms as the court deems just and time so deal with such property. The commissioners shall
equitable. make a full and accurate report to the court of all their
proceedings, and such proceedings shall not be effectual
ð Appealable with the CA until the court shall have accepted their report and
rendered judgment in accordance with their
ASCERTAINMENT OF JUST COMPENSATION recommendations. Except as otherwise expressly ordered
by the court, such report shall be filed within sixty (60)
The order of expropriation merely declares that the days from the date the commissioners were notified of
plaintiff has the lawful to expropriate the property but their appointment, which time may be extended in the
contains no ascertainment of the compensation to be paid discretion of the court. Upon the filing of such report, the
to the owner of the property. clerk of the court shall serve copies thereof on all
interested parties, with notice that they are allowed ten
So upon the rendition of the order of expropriation, the (10) days within which to file objections to the findings of
court shall appoint not more than three (3) the report, if they so desire.
commissioners to ascertain the just compensation for the
property. Objections to the appointment may be made Action upon the report. Upon the expiration of the
within 10 days from service of the order of appointment. period of ten (10) days referred to in the preceding
The commissioners are entitled to fees and their fees shall section, or even before the expiration of such period but
be taxed as part of the costs of the proceedings, and all after all the interested parties have filed their objections to
costs shall be paid by the plaintiff except those costs of the report or their statement of agreement therewith, the
rival claimants litigating their claims. court may, after hearing, accept the report and render
judgment in accordance therewith; or, for cause shown, it
Where the principal issue is the determination of just may recommit the same to the commissioners for further
compensation, a hearing before the commissioners is report of facts; or it may set aside the report and appoint
indispensable to allow the parties to present evidence on new commissioners; or it may accept the report in part
the issue of just compensation. Although the findings of and reject it in part; and it may make such order or render
the commissioners may be disregarded and the trial court such judgment as shall secure to the plaintiff the property
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essential to the exercise of his right of expropriation, and be to vest in the plaintiff the title to the real estate so
to the defendant just compensation for the property so described for such public use or purpose.
taken.
Proceedings for indirect contempt may be initiated motu CONTEMPT AGAINST QUASI-JUDICIAL BODIES
proprio by the court against which the contempt was • The rules on contempt apply to contempt
committed by an order or any other formal charge committed against persons or entities exercising
requiring the respondent to show cause why he should quasi-judicial functions or in case there are rules
not be punished for contempt. for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily.
In all other cases, charges for indirect contempt shall be • Quasi-judicial bodies that have the power to cite
commenced by a verified petition with supporting persons for indirect contempt can only do so by
particulars and certified true copies of documents or initiating them in the proper RTC. It is not
papers involved therein, and upon full compliance with within their jurisdiction and competence to
the requirements for filing initiatory pleadings for civil decide the indirect contempt cases. The RTC of
actions in the court concerned. If the contempt charges the place where contempt has been committed
arose out of or are related to a principal action pending in shall have jurisdiction over the charges for
the court, the petition for contempt shall allege that fact indirect contempt that may be filed.
but said petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the
SETTLEMENT OF ESTATE OF DECEASED The main function of a probate court is to settle and
PERSONS (Rules 73 – 91) liquidate the estates of deceased person either summarily
or through the process of administration.
The will shall be disallowed in any of the following cases; The general rule universally recognized is that
1) If not executed and attested as required by law; administration extends only to the assets of the decedent
2) If the testator was insane, or otherwise mentally found within the state or country where it was granted, so
incapable to make a will, at the time of its that an administrator appointed in one state or country
execution; has no power over the property in another state or
3) If it was executed under duress, or the influence country.
of fear, or threats;
4) If it was procured by undue and improper When a person dies intestate owning property in the
pressure and influence, on the part of the country of his domicile as well as in foreign country,
beneficiary, or of some other person for his administration shall be had in both countries. That which
benefit; is granted in the jurisdiction of the decedent’s domicile is
5) If the signature of the testator was procured by termed the principal administration, while any other
fraud or trick administration is termed ancillary administration. The
6) If the testator acted by mistake or did not intend ancillary administration is proper whenever a person dies
that the instrument he signed should be his will leaving in a country other than that of his domicile,
at the time of affixing his signature thereto. property to be administered in the nature of assets of the
decedent, liable for his individual debts or to be
REPROBATE; REQUISITES BEFORE WILL distributed among his heirs.
PROVED OUTSIDE ALLOWED IN THE
PHILIPPINES; EFFECTS OF PROBATE
LETTERS TESTAMENTARY AND OF
ADMINISTRATION (RULE 78)
Will proved outside Philippines may be allowed here.
Wills proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed, and Letters testamentary is the appointment issued by a
recorded by the proper Court of First Instance in the probate court, after the will has been admitted to probate,
Philippines. to the executor named in the will to administer the estate
of the deceased testator, provided the executor named in
If it appears at the hearing that the will should be allowed the will is competent, accepts the trust and gives a bond.
in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the judge, and WHEN AND TO WHOM LETTERS OF
attested by the seal of the court, to which shall be ADMINISTRATION GRANTED
attached a copy of the will, shall be filed and recorded by
the clerk, and the will shall have the same effect as if
No person is competent to serve as executor or
originally proved and allowed in such court.
administrator who:
a) Is a minor;
When a will is thus allowed, the court shall grant letters
b) Is not a resident of the Philippines; and
testamentary or letters of administration with the will
c) Is in the opinion of the court unfit to execute the
annexed, and such letters testamentary or of
duties of the trust by reason of drunkenness,
administration, shall extend to all the estate of the testator
improvidence, or want of understanding or
in the Philippines. Such estate, after the payment of just
integrity, or by reason of conviction of an offense
debts and expenses of administration, shall be disposed of
involving moral turpitude.
according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is
The executor of an executor shall not, as such, administer
provided by law in cases of estates in the Philippines
the estate of the first testator.
belonging to persons who are inhabitants of another state
or country.
A married woman may serve as executrix or
administratrix, and the marriage of a single woman shall
If the court is satisfied, upon proof taken and filed, that
not affect her authority so to serve under a previous
the will was duly executed, and that the testator at the
appointment.
time of its execution was of sound and disposing mind,
and not acting under duress, menace, and undue
When a will has been proved and allowed, the court shall
influence, or fraud, a certificate of its allowance, signed
issue letters testamentary thereon to the person named as
by the judge, and attested by the seal of the court shall be
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executor therein, if he is competent, accepts the trust, and ADMINISTRATORS; RESTRICTIONS ON THE
gives bond as required by these rules. POWERS (RULE 84)
When all of the executors named in a will cannot act An EXECUTOR is the person nominated by a testator to
because of incompetency, refusal to accept the trust, or carry out the directions and requests in his will and to
failure to give bond, on the part of one or more of them, dispose of his property according to his testamentary
letters testamentary may issue to such of them as are provisions after his death.
competent, accept and give bond, and they may perform
the duties and discharge the trust required by the will. An ADMINISTRATOR is person appointed by the
court, in accordance with the governing statute, to
If no executor is named in the will, or the executor or administer and settle intestate estate and such testate
executors are incompetent, refuse the trust, or fail to give estate as no competent executor was designated by the
bond, or a person dies intestate, administration shall be testator.
granted:
a) To the surviving husband or wife, as the case The executor or administrator of the estate of a deceased
may be, or next of kin, or both, in the discretion partner shall at all times have access to, and may examine
of the court, or to such person as such surviving and take copies of, books and papers relating to the
husband or wife, or next of kin, requests to have partnership business, and may examine and make
appointed, if competent and willing to serve; invoices of the property belonging to such partnership;
b) If such surviving husband or wife, as the case and the surviving partner or partners, on request, shall
may be, or next of kin, or the person selected by exhibit to him all such books, papers, and property in
them, be incompetent or unwilling, or if the their hands or control. On the written application of such
husband or widow, or next of kin, neglects for executor or administrator, the court having jurisdiction of
thirty (30) days after the death of the person to the estate may order any such surviving partner or
apply for administration or to request that partners to freely permit the exercise of the rights, and to
administration be granted to some other person, exhibit the books, papers, and property, as in this section
it may be granted to one or more of the principal provided, and may punish any partner failing to do so for
creditors, if competent and willing to serve; contempt.
c) If there is no such creditor competent and willing
to serve, it may be granted to such other person An executor or administrator shall maintain in tenantable
as the court may select. repair the houses and other structures and fences
belonging to the estate, and deliver the same in such
ORDER OF PREFERENCE; PRIORITY IN repair to the heirs or devisees when directed so to do by
SELECTING AN ADMINISTRATOR the court.
1) Surviving spouse, or next of kin, or both, or person as An executor or administrator shall have the right to the
such surviving spouse, or next of kin, requests; possession and management of the real as well as the
2) One or more of the principal creditors – if such personal estate of the deceased so long as it is necessary
surviving spouse, or next of kin, or the person for the payment of the debts and the expenses of
selected, be incompetent or unwilling, or if they administration.
neglect for 30 days after the death of the decedent to
apply for administration or to request that An administrator of an intestate cannot exercise the right
administration be granted to some other person, it of legal redemption over a portion of the property owned
may be granted to, if competent and willing to serve; in common sold by one of the other co-owners since this
3) Such other person as the court may select. is not within the powers of administration.
OPPOSITION TO ISSUANCE OF LETTERS Where the estate of a deceased person is already the
TESTAMENTARY; SIMULTANEOUS FILING OF subject of a testate or intestate proceeding, the
PETITION FOR ADMINISTRATION administrator cannot enter into any transaction involving
it without any prior approval of the Court.
Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the The right of an executor or administrator to the
persons named therein executors, or any of them, and the possession and management of the real and personal
court, after hearing upon notice, shall pass upon the properties of the deceased is not absolute and can only be
sufficiency of such grounds. A petition may, at the same exercised so long as it is necessary for the payment of the
time, be filed for letters of administration with the will debts and expenses of administration.
annexed.
APPOINTMENT OF SPECIAL ADMINISTRATOR
POWERS AND DUTIES OF EXECUTORS AND
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When there is delay in granting letters testamentary or of priority; all of them shall share pro rata in the liquidation
administration by any cause including an appeal from the of the estate of the deceased.
allowance or disallowance of a will, the court may
appoint a special administrator to take possession and TIME WITHIN WHICH CLAIMS SHALL BE
charge of the estate of the deceased until the questions FILED; EXCEPTIONS
causing the delay are decided and executors or
administrators appointed. The court shall state the time for the filing of claims
against the estate, which shall not be more than twelve
GROUNDS FOR REMOVAL OF ADMINISTRATOR (12) nor less than six (6) months after the date of the first
publication of the notice. However, at any time before an
Administration revoked if will discovered - If after letters order of distribution is entered, on application of a
of administration have been granted on the estate of a creditor who has failed to file his claim within the time
decedent as if he had died intestate, his will is proved and previously limited, the court may, for cause shown and
allowed by the court, the letters of administration shall be on such terms as are equitable, allow such claim to be
revoked and all powers thereunder cease, and the filed within a time not exceeding one (1) month.
administrator shall forthwith surrender the letters to the
court, and render his account within such time as the STATUTE OF NON-CLAIMS
court directs. Proceedings for the issuance of letters
testamentary or of administration under the will shall be A claim by a person against the estate of deceased should
as hereinbefore provided. be made in not less than 6 months nor more than 12
months since the first publication of allowance of the will.
If an executor or administrator neglects to render his If the said claims are not filed within the time limited in
account and settle the estate according to law, or to the notice, they are forever be barred.
perform an order or judgment of the court, or a duty
expressly provided by these rules, or absconds, or CLAIM OF EXECUTOR OR ADMINISTRATOR
becomes insane, or otherwise incapable or unsuitable to AGAINST THE ESTATE
discharge the trust, the court may remove him, or, in its
discretion, may permit him to resign. When an executor If the executor or administrator has a claim against the
or administrator dies, resigns, or is removed the estate he represents, he shall give notice thereof, in
remaining executor or administrator may administer the writing, to the court, and the court shall appoint a special
trust alone, unless the court grants letters to someone to administrator, who shall, in the adjustment of such claim,
act with him. If there is no remaining executor or have the same power and be subject to the same liability
administrator, administration may be granted to any as the general administrator or executor in the settlement
suitable person (Sec. 2, Rule 82). of other claims.
A trustee whose acts or omissions are such as to show a Such new trustee shall have and exercise the same
want of reasonable fidelity will be removed by the court powers, rights, and duties as if he had been originally
and where trust funds are to be invested by the trustee, appointed, and the trust estate shall vest in him in like
neglect to invest constitutes of itself a breach of trust, and manner as it had vested or would have vested, in the
is a ground for removal. trustee in whose place he is substituted; and the court
may order such conveyance to be made by the former
GROUNDS FOR REMOVAL AND RESIGNATION trustee or his representatives, or by the other remaining
OF A TRUSTEE trustees, as may be necessary or proper to vest the trust
estate in the new trustee, either alone or jointly with the
The proper Regional Trial Court may, upon petition of others.
the parties beneficially interested and after due notice to
the trustee and hearing; remove a trustee if such removal
appears essential in the interests of the petitioners. The ESCHEAT (RULE 91)
court may also, after due notice to all persons interested,
remove a trustee who is insane or otherwise incapable of
Escheat is a proceeding whereby the real and personal
discharging his trust or evidently unsuitable therefor. A
property of a deceased person in the Philippines, become
trustee, whether appointed by the court or under a written
the property of the state upon his death, without leaving
instrument, may resign his trust if it appears to the court
any will or legal heirs.
proper to allow such resignation.
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WHEN TO FILE c) General guardians – those appointed by the court
to have the care and custody of the person and of
When a person dies intestate, seized of real or personal all the property of the ward.
property in the Philippines, leaving no heir or person by
law entitled to the same, the Solicitor General or his 2) According to constitution
representative in behalf of the Republic of the Philippines, a) Legal – those deemed as guardians without need
may file a petition in the Court of First Instance of the of a court appointment (Art. 225, Family Court);
province where the deceased last resided or in which he b) Guardian ad litem – those appointed by courts of
had estate, if he resided out of the Philippines, setting justice to prosecute or defend a minor, insane or
forth the facts, and praying that the estate of the deceased person declared to be incompetent, in an action
be declared escheated. in court; and
c) Judicial – those who are appointed by the court
REQUISITES FOR FILING OF PETITION in pursuance to law, as guardian for insane
persons, prodigals, minor heirs or deceased was
a) That a person died intestate; veterans and other incompetent persons.
b) That he left no heirs or person by law entitled to the
same; and
GENERAL POWERS AND DUTIES OF
c) That the deceased left properties.
GUARDIANS (RULE 96)
REMEDY OF RESPONDENT AGAINST PETITION;
PERIOD FOR FILING A CLAIM a) To have care and custody over the person of his
ward, and/or the management of his estate (Sec. 1);
If a devisee, legatee, heir, widow, widower or other b) To pay the just debts of his ward out of the latter‘s
person entitled to such estate appears and files a claim estate (Sec. 2);
thereto with the court within 5 years from the date of c) To bring or defend suits in behalf of the ward, and,
such judgment, such person shall have possession of and with the approval of the court, compound for debts
title to the same, or if sold, the municipality or city shall due the ward and give discharges to the debtor (Sec.
be accountable to him for the proceeds, after deducting 3);
reasonable charges for the care of the estate; hence, claim d) To manage the estate frugally and without waste, and
not made within such time limit shall forever be barred. apply the income and profits to the comfortable and
suitable maintenance of the ward and his family (Sec.
4);
GUARDIANSHIP (RULES 92 – 97)
e) To sell or encumber the real estate of the ward upon
being authorized to do so (Sec. 4);
Guardianship is the power of protective authority given f) To join in an assent to a partition of real or personal
by law and imposed on an individual who is free and in estate held by the ward jointly or in common with
the enjoyment of his rights, over one whose weakness on others (Sec. 5).
account of his age or other infirmity renders him unable
to protect himself. Guardianship may also describe the CONDITIONS OF THE BOND OF THE
relation subsisting between the guardian and the ward. It GUARDIAN
involves the taking of possession of an management of,
the estate of another unable to act for himself. a) To file with the court complete inventory of the estate
of the ward within 3 months;
A guardian is a person lawfully invested with power and b) To faithfully execute the duties of his trust to manage
charged with the duty of taking care of a person who for and dispose of the estate according to the Rules for
some peculiarity or status or defect of age, understanding the best interests of the ward, and to provide for the
or self-control is considered incapable of administering proper use, custody, and education of the ward;
his own affairs. c) To render a true account of all the estate, and of the
management and disposition of the same;
Kinds of guardians: d) To settle his accounts with the court and deliver over
1) According to scope or extent all the estate remaining in his hands to the person
a) Guardian of the person – one who has been entitled thereto;
lawfully invested with the care of the person of e) To perform all orders of the court by him to be
minor whose father is dead. His authority is performed (Sec. 1; Sec. 14, AM 03-02-05-SC).
derived out of that of the parent;
b) Guardian of the property – that appointed by the RULE ON GUARDIANSHIP OVER MINORS
court to have the management of the estate of a (AM 03-02-05-SC)
minor or incompetent person;
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direct contact with the non-custodial parent on a
The father and mother shall jointly exercise legal regular basis, except when there is an existing
guardianship over the person and property of their threat or danger of physical, mental, sexual or
unemancipated common child without the necessity of a emotional violence which endangers the safety
court appointment. The Rule shall be suppletory to the and best interests of the minor;
provisions of the Family Code on guardianship. b) The desire and ability of one parent to foster an
open and loving relationship between the minor
On grounds authorized by law, any relative or other and the other parent;
person on behalf of a minor, or the minor himself if 14 c) The health, safety and welfare of the minor;
years of age or over, may petition the Family Court for d) Any history of child or spousal abuse by the
the appointment of a general guardian over the person or person seeking custody or who has had any filial
property, or both, of such minor. The petition may also relationship with the minor, including anyone
be filed by the Secretary of DSWD and of the DOH in courting the parent;
the case of an insane minor who needs to be hospitalized. e) The nature and frequency of contact with both
parents;
Grounds of petition: f) Habitual use of alcohol, dangerous drugs or
a) Death, continued absence, or incapacity of his regulated substances;
parents; g) Marital misconduct;
b) Suspension, deprivation or termination of h) The most suitable physical, emotional, spiritual,
parental authority; psychological and educational environment for
c) Remarriage of his surviving parent, if the latter is the holistic development and growth of the
found unsuitable to exercise parental authority; minor; and
or i) The preference of the minor over 7 years of age
d) When the best interest of the minor so require. and of sufficient discernment, unless the parent
chosen is unfit (Sec. 14, AM No. 03-04-04-SC).
Qualifications of guardians: Ø The court shall order a social worker to conduct
a) Moral character; a case study of the minor and all the prospective
b) Physical, mental and psychological condition; guardians and submit his report and
c) Financial status; recommendation to the court for its guidance
d) Relationship of trust with the minor; before the scheduled hearing.
e) Availability to exercise the powers and duties of
a guardian for the full period of the guardianship;
ADOPTION (RULES 99
f) Lack of conflict of interest with the minor; and
100, SUPERSEDED BY AM 02-6-02-SC)
g) Ability to manage the property of the minor.
Order of preference in the appointment of guardian or the ð Adoption is a juridical act which creates between two
person and/or property of minor: persons a relationship similar to that which results
a) The SURVIVING GRANDPARENT and in from legitimate paternity.
case several grandparents survive, the court shall ð Adoption is a juridical act, a proceeding in rem,
select any of them taking into account all which creates between the two persons a relationship
relevant considerations; similar to that which results from legitimate paternity
b) The OLDEST BROTHER OR SISTER of the and filiation.
minor over 21 years of age, unless unfit or ð Adoption is not an adversarial proceeding. An
disqualified; adversarial proceeding is one having opposing
c) The ACTUAL CUSTODIAN of the minor over parties, contested, as distinguished from an ex parte
21 years of age, unless unfit or disqualified; and application, one of which the party seeking relief has
d) Any OTHER PERSON, who in the sound given legal warning to the other party and afforded
discretion of the court, would serve the best the latter an opportunity to contest it excludes an
interests of the minor. adoption proceeding. In adoption, there is no
particular defendant to speak of since the proceeding
Factors to consider in determining custody: involves the status of a person it being an action in
a) Any extrajudicial agreement which the parties rem.
may have bound themselves to comply with
respecting the rights of the minor to maintain
Decree of Adoption: Issued by Philippine Family Decree of Adoption: Issued by a foreign court.
Court. Consent Required:
Consent Required: Written consent of the 1) Written consent of biological or adopted children
following to the adoption is required, in the form of above 10 years of age, in the form of sworn statement
affidavit: is required to be attached to the application to be filed
with the FC or ICAB;
1) adoptee, if 10 years of age or over; 2) If a satisfactory pre-adoptive relationship is formed
2) biological parent/s of the child, if known, or between the applicant and the child, the written
the legal guardian, or the proper government consent to the adoption executed by the DSWD is
instrumentality which has legal custody of the required.
child;
3) legitimate and adopted sons or daughters, 10
years of age or over, of the adopter/s and
adoptee, if any;
4) illegitimate sons/daughters, 10 years of age of
over, of the adopter if living with said adopter
and the latter‘s spouse, if any;
5) spouse, if any, of the person adopting or to be
adopted.
1) Parental authority of the adoptee‘s biological WRIT OF HABEAS CORPUS (RULE 102)
parent(s), if known, or the legal custody of the
DSWD shall be restored if the adoptee is still a minor
or incapacitated; Writ of habeas corpus is a writ which has been esteemed
2) Reciprocal rights and obligations of the adopter(s) to the best and only sufficient defense of personal
and the adoptee to each other shall be extinguished; freedom having for its object the speedy release by
3) Cancellation of the amended certificate of birth of the judicial decree of persons who are illegally restrained of
adoptee and restoration of his/her original birth their liberty, or illegally detained from the control of
certificate; and those who are entitled to their custody.
4) Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of The writ of habeas corpus shall extend to all cases of
judicial rescission. Vested rights acquired prior to illegal confinement or detention by which any person is
judicial rescission shall be respected. deprived of his liberty, or by which the rightful custody of
any person is withheld from the person entitled thereto.
INTER-COUNTRY ADOPTION (RA 8043) The function of the special proceeding of habeas corpus is
to inquire into the legality of one’s detention.
Inter-Country Adoption refers to the socio-legal process
In all petitions for habeas corpus, the court must inquire
of adopting a Filipino child by a foreigner or a Filipino
into every phase and aspect of the petitioner’s detention
citizen permanently residing abroad where the petition is
from the moment petitioner was taken into custody up to
filed, the supervised trial custody is undertaken, and the
the moment the court passes upon the merits of the
decree of adoption is issued in the Philippines.
petition and only after such scrutiny can the court satisfy
itself that the due process clause of the Constitution has
WHEN ALLOWED been satisfied.
ð Inter-country adoptions are allowed when the same However, once the person detained is duly charged in
shall prove beneficial to the child‘s best interests, and court, he may no longer question his detention by a
shall serve and protect his/her fundamental rights. petition for the issuance of a writ of habeas corpus. His
ð It is allowed when all the requirements and standards remedy then is the quashal of the information and/or the
set forth under RA 8043 are complied with. warrant of arrest duly issued. The reason for the issuance
of the writ even becomes more unavailing when the
FUNCTIONS OF THE RTC person detained files a bond for his temporary release.
An application to adopt a Filipino child shall be filed Habeas corpus may not be used as a means of obtaining
either with the Philippine Regional Trial Court having evidence on the whereabouts of a person, or as a means
jurisdiction over the child, or with the Board, through an of finding out who has specifically abducted or caused the
intermediate agency, whether governmental or an disappearance of a certain person.
authorized and accredited agency, in the country of the
prospective adoptive parents, which application shall be The writs of habeas corpus and certiorari may be
in accordance with the requirements as set forth in the ancillary to each other where necessary to give effect to
implementing rules and regulations. the supervisory powers of the higher courts. A writ of
habeas corpus reaches the body and the jurisdictional
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BERT – NOTES in REMEDIAL LAW
matters, but not the record. A writ of certiorari reaches
the record but not the body. Hence, a writ of habeas PEREMPTORY WRIT PRELIMINARY
corpus may be used with the writ of certiorari for the CITATION
purpose of review. Unconditionally Requires the respondent to
commands the respondent appear and show cause
The general rule is that the release, whether permanent or to have the body of the why the peremptory writ
temporary, of a detained person renders the petition for detained person before the should not be granted
habeas corpus moot and academic, unless there are court at a time and place
restraints attached to his release which precludes freedom therein specified;
of action, in which case the Court can still inquire into
the nature of his involuntary restraint. Petitioner’s
temporary release does not render the petition for writ WHEN NOT PROPER/APPLICABLE
moot and academic.
Instances when the writ of habeas corpus is not proper
Some instances when the writ may issue: are:
1) To inquire into the legality of an order of a) For asserting or vindicating denial of right to
confinement by a court martial. bail;
2) To test the legality of an alien’s confinement and b) For correcting errors in appreciation of facts or
proposed expulsion from the Philippines. appreciation of law – where the trial court had
3) To enable parents to regain custody of a minor no jurisdiction over the cause, over the person of
child, even if the latter be in the custody of a the accused, and to impose the penalty provided
third person of her own free will. for by law, the mistake committed by the trial
4) To obtain freedom for an accused confined for court, in the appreciation of the facts and/or in
failure to post bail where the prosecuting officer the appreciation of the law cannot be corrected
unreasonably delays trial by continued by habeas corpus;
postponement. c) Once a person detained is duly charged in court,
5) To give retroactive effect to a penal provision he may no longer file a petition for habeas
favorable to the accused when the trial judge has corpus. His remedy would be to quash the
lost jurisdiction by virtue of the finality of the information or warrant.
judgment of conviction.
6) To determine the constitutionality of a statute. WHEN WRIT DISALLOWED/DISCHARGED
7) To permit an alien to land in the Philippines.
8) To put an end to an immoral situation, as when
If it appears that the person alleged to be restrained of his
a minor girl, although preferring to stay with her
liberty is in the custody of an officer under process issued
employer, maintains illicit relationship with him.
by a court or judge or by virtue of a judgment or order of
9) When a bond given by an accused entitled
a court of record, and that the court or judge had
thereto is not admitted or excessive bail is
jurisdiction to issue the process, render the judgment, or
required of him.
make the order, the writ shall not be allowed; or if the
10) To determine the legality of an extradition.
jurisdiction appears after the writ is allowed, the person
11) To determine the legality of the action of a
shall not be discharged by reason of any informality or
legislative body in punishing a citizen for
defect in the process, judgment, or order. Nor shall
contempt.
anything in this rule be held to authorize the discharge of
12) To obtain freedom after serving minimum
a person charged with or convicted of an offense in the
sentence when the penalty under an old law has
Philippines, or of a person suffering imprisonment under
been reduced by an amendatory law.
lawful judgment.
(Note: for CONTENTS OF THE PETITION and
CONTENTS OF THE RETURN of Habeas Corpus, please
see the table below)
WRIT OF AMPARO (AM NO. 07-9-12-SC) (See table CHANGE OF NAME (RULE 103)
above)
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ð A change of name is a special proceeding to establish ð A mere change of name would not cause in one’s
the status of a person involving his relation with existing family relations, nor create new family rights
others, that is, his legal position in, or with regard to, and duties where none exists before. Neither would it
the rest of the community. It is proceeding in rem affect a person’s legal capacity, civil status or
and as such, strict compliance with jurisdictional citizenship.
requirements, particularly on publication, is essential
in order to vest the court with jurisdiction therefor. ð A change of name granted by the court affects only
For this purpose, the only name that may be changed the petitioner. A separate petition for change of name
is the true or official name as recorded in the civil must be filed by his wife and children.
register.
RULE 103 (Change of Name) RA 9048 (Clerical Error Act) RULE 108 (Cancellation or
correction of entries in the civil
registry)
Petition should be filed in the RTC where Petitions filed with the city or Verified petition filed in the RTC
the petitioner resides municipal civil registrar, or with where the corresponding Civil
consul general for citizens living Registry is located
abroad
Civil Registrar is not a party. Solicitor Civil Registrar is an indispensable
General to be notified by service of a copy party. If not made a party,
of petition. proceedings are null and void.
Reason: he is interested party in
protecting the integrity of public
documents. Solicitor General
must also be notified by service of
a copy of the petition.
Petition is filed by the person desiring to Verified petition in the form of By a person interested in any acts,
change his name affidavit is filed by any person event, order or decree
having direct and personal interest
in the correction
Involves change of name only Involves first name and nickname All cancellation or correction of
entries of: (see below grounds or
instances)
Involves substantial changes Involves clerical or typographical Substantial and adversary if
errors change affects the civil status,
citizenship or nationality of a
party; Summary if involves mere
clerical errors.
Grounds: Grounds: Grounds:
a) Name is ridiculous, dishonorable or a) First name or nickname is Cancellation or correction of
extremely difficult to write or found to be ridiculous, tainted entries of: (a) births; (b) marriages;
pronounce; with dishonor or extremely (c) deaths; (d) legal separation; (e)
b) Change is a legal consequence of difficult to write or pronounce; judgments or annulments of
legitimation or adoption; b) The first name or nickname marriage; (f) judgments declaring
c) Change will avoid confusion; has been habitually and marriages void from the
d) One has continuously used and been continuous used by petitioner beginning; (g) legitimations; (h)
known since childhood by a Filipino publicly known by that first adoptions; (i) acknowledgments of
name and was unaware of alien name or nickname in the natural children; (j)
parentage; community; naturalizations; (k) election, loss
e) Change is based on a sincere desire to c) Change will avoid confusion. or recovery of citizenship; (l) civil
adopt a Filipino name to erase signs of interdiction; (m) judicial
former alienage, all in good faith and determination of filiation; (n)
without prejudice to anybody; and voluntary emancipation of a
f) Surname causes embarrassment and minor; and (o) changes of name.
there is no showing that the desired
change of name was for a fraudulent
purpose, or that the change of name
would prejudice public interest.
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Order for hearing to be published once a Petition shall be published at least Order shall also be published once
week for three consecutive weeks in a once a week for two consecutive a week for three consecutive
newspaper of general circulation in the weeks in a newspaper of general weeks in a newspaper of general
province. circulation. Also to be posted in a circulation in the province, and
conspicuous place for ten court shall cause reasonable notice
consecutive days. to persons named in the petition.
Entry is correct but petitioner desires to Entry is incorrect. Cancellation or correction of
change the entry correct or incorrect entries
An appropriate adversary proceeding An appropriate administrative An appropriate summary or
proceeding. adversary proceeding depending
on effects
Requires judicial order Does not require judicial order. Directed or changed by the city or
municipal civil registrar or consul
general without judicial order
Service of judgment shall be upon the civil Transmittal of decision to civil Service of judgment shall be upon
register concerned registrar general the civil register concerned
Appeal may be availed of if judgment or In case denied by the city or Appeal may be availed of if
final order rendered affects substantial municipal civil registrar or the judgment or final order rendered
rights of person appealing. consul general, petitioner may affects substantial rights of person
either appeal the decision to the appealing, to the RTC or to the
civil register general or file CA.
appropriate petition with proper
court by petition for review under
Rule 43.
GROUNDS FOR CHANGE OF NAME d) Those who have over the property of the
(please see table above) absentee some right subordinated to the
condition of his death.
e) Those who have over the property of the
ABSENTEES (RULE 107) absentee some right subordinated to the
condition of his death.
• After the lapse of two (2) years from his
Stages of absence: disappearance and without any news about the
1) provisional absence absentee or since the receipt of the last news, or
2) declaration of absence of five (5) years in case the absentee has left a
3) presumption of death person in charge of the administration of his
property, the declaration of his absence and
PURPOSE OF THE RULE appointment of a trustee or administrator may be
applied for.
The purpose of the Rule is to allow the court to appoint • When a person disappears from his domicile, his
an administrator or representative to take care of the whereabouts being unknown, and without
property of the person who is sought to be judicially having left an agent to administer his property, or
declared absent. It also aims to have the court appoint the the power conferred upon the agent has expired,
present spouse as administrator or administratrix of the any interested party, relative or friend, may
absent spouse‘s properties, or for the separation of petition the Court of First Instance of the place
properties of the spouses. where the absentee resided before his
disappearance for the appointment of a person to
WHO MAY FILE; WHEN TO FILE represent him provisionally in all that may be
necessary.
The following may file an application for the declaration
of absence of a person: CANCELLATION OR CORRECTION OF ENTRIES
a) Spouse present; IN THE CIVIL REGISTRY (RULE 108)
b) Heirs instituted in a will, who may present an
authentic copy of the same; Entries subject to cancellation or correction under Rule
c) Relatives who would succeed by the law of 108, in relation to RA 9048
intestacy; and
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Ø Upon good and valid grounds, the following corrected:
entries in the civil register may be cancelled or
1) births; 9) acknowledgments of natural children;
2) marriages; 10) naturalization
3) deaths; 11) election, loss or recovery of citizenship
4) legal separations; 12) civil interdiction;
5) judgments of annulments of marriage; 13) judicial determination of filiation;
6) judgments declaring marriages void from the 14) voluntary emancipation of a minor; and
beginning; 15) changes of name.
7) legitimations;
8) adoptions;
or denying a motion for a new trial or for
Correction may be effected in two ways. One is without reconsideration.
judicial authority or by administrative proceeding, which
is governed by RA 9048 on matters relating to correction
of mere clerical or typographical errors. The other is WHEN TO APPEAL
through judicial or court proceedings, which is governed
by Rule 108. Appeals in special proceedings necessitate a record on
appeal as the original record should remain with the trial
The petition for change of first names or nicknames may court; hence the reglementary period of thirty (30) days is
be allowed when such names or nicknames are provided for the perfection of appeals in special
ridiculous, tainted with dishonor or extremely difficult to proceedings.
write or pronounce; or the new name or nickname has
been used habitually and continuously petitioner and has MODES OF APPEAL
been publicly known by that first name or nickname in
the community; or the change will avoid confusion. ð While under the concept in ordinary civil actions
some of the orders stated in Sec. 1 may be considered
interlocutory, the nature of special proceedings
APPEALS IN SPECIAL PROCEEDING (RULE 109)
declares them as appealable orders, as exceptions to
the provisions of Sec., Rule 41. Thus:
JUDGMENTS AND ORDERS FOR WHICH
APPEAL MAY BE TAKEN 1) Ordinary appeal. The appeal to the CA in cases
decided by the RTC in the exercise of its original
An interested person may appeal in special proceedings jurisdiction shall be taken by filing a notice of appeal
from an order or judgment rendered by a Court of First with the court which rendered the judgment or final
Instance or a Juvenile and Domestic Relations Court, order appealed from and serving a copy thereof upon
where such order or judgment: the adverse party. No record on appeal shall be
a) Allows or disallows a will; required except in special proceedings and other
b) Determines who are the lawful heirs of a cases of multiple or separate appeals where the law or
deceased person, or the distributive share of the the Rules so require. In such cases, the record on
estate to which such person is entitled; appeal shall be filed and served in like manner.
c) Allows or disallows, in whole or in part, any
claim against the estate of a deceased person, or 2) Petition for review. The appeal to the CA in cases
any claim presented on behalf of the estate in decided by the RTC in the exercise of its appellate
offset to a claim against it; jurisdiction shall be by petition for review in
d) Settles the account of an executor, administrator, accordance with Rule 42.
trustee or guardian;
e) Constitutes, in proceedings relating to the 3) Petition for review on certiorari. In all cases where
settlement of the estate of a deceased person, or only questions of law are raised or involved, the
the administration of a trustee or guardian, a appeal shall be to the SC by petition for review on
final determination in the lower court of the certiorari in accordance with Rule 45.
rights of the party appealing, except that no
appeal shall be allowed from the appointment of
a special administrator; and
f) Is the final order or judgment rendered in the RULE ON ADVANCE DISTRIBUTION
case, and affects the substantial rights of the
person appealing, unless it be an order granting Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the court
2011 Bar Examinations 127
BERT – NOTES in REMEDIAL LAW
may, in its discretion and upon such terms as it may distributed among the heirs or legatees, upon compliance
deem proper and just, permit that such part of the estate with the conditions set forth in Rule 90 of these rules.
as may not be affected by the controversy or appeal be
GENERAL MATTERS
GENERAL RULE: Criminal prosecution may not be
JURISDICTION OVER JURISDICTION OVER restrained or stayed by injunction.
SUBJECT MATTER PERSON OF THE
ACCUSED EXCEPTIONS:
Derived from the law. May be conferred by 1) To afford adequate protection to the
Does not depend upon consent expressly or constitutional rights of the accused;
the consent or omission impliedly given, or it 2) Then necessary for the orderly administration of
of the parties to the action may, by objection, be justice or to avoid oppression or multiplicity of
or any of them; prevented from attaching actions;
or being removed after it 3) When there is a pre-judicial question which is sub
is attached. judice;
Objection that the court If he fails to make his 4) When the acts of the officer are without or in
has no jurisdiction over objections in time, he will excess of authority;
the subject matter may be be deemed to have 5) Where the prosecution is under an invalid law,
made at any stage of the waived it. ordinance or regulation;
proceeding, and the right 6) When double jeopardy is clearly apparent;
to make such objection is 7) Where the court has no jurisdiction over the
never waived. offense;
Jurisdiction over the Jurisdiction over the 8) Where it is a case of persecution rather than
subject matter is person of the accused by prosecution;
determined upon the voluntary appearance or 9) Where the charges are manifestly false and
allegations made in the surrender of the accused motivated by the lust for vengeance;
complaint, irrespective of or by his arrest. 10) When there is clearly no prima facie case against
whether the plaintiff is the accused and a motion to quash on that
entitled or not, to recover ground has been denied; and
upon the claim asserted 11) To prevent the threatened unlawful arrest of
therein, a matter resolved petitioners.
only after and as a result
of the trial. PROSECUTION OF OFFENSES RULE 110)
All criminal actions commenced by complaint or The prosecution determines the charges to be filed and
information shall be prosecuted under the direction and how the legal and factual elements in the case shall be
control of the prosecutor. utilized as components of the information. Whenever a
criminal case is prosecuted and the State is the offended
In the Municipal Trial Courts or Municipal Circuit Trial party, the case must always be prosecuted under control
Courts when the prosecutor assigned thereto or to the and guidance of the State through the government
case is not available, the offended party, any peace prosecutors.
officer, or public officer charged with the enforcement of
the law violated may prosecute the case. This authority The prosecution may however be allowed to a private
shall cease upon actual intervention of the prosecutor or prosecutor upon compliance with the following
upon elevation of the case to the Regional Trial Court. conditions:
1) The public prosecutor has a heavy work schedule
RIMES THAT CANNOT BE PROSECUTED DE or there is no public prosecutor assigned in the
OFICIO city or province;
2) The private prosecutor is authorized in writing
1) Adultery and concubinage – to be prosecuted upon a by the Chief of the Prosecutor Office or the
complaint filed by the offended spouse, impleading Regional State Prosecutor
both guilty parties, if both alive, unless he shall have 3) The authority of the private prosecutor must be
consented or pardoned the offenders; approved by the court;
2) Seduction, abduction, or acts or lasciviousness – to 4) The private prosecutor shall continue to
be prosecuted upon a complaint filed by the offended prosecute the case until the end of the trial unless
party or her parents, grandparents, or guardian, the authority is withdrawn or otherwise revoked;
unless expressly pardoned by the above named 5) In case of the withdrawal or revocation of the
persons (in such stated order); authority of the private prosecutor, the same
3) Defamation imputing a person any of the following must be approved by court.
crimes of concubinage, adultery, seduction,
SUFFICIENCY OF COMPLAINT OR
abduction or lasciviousness – can be prosecuted only
INFORMATION
by the party defamed.
A complaint or information is sufficient if it states:
The offended party, even if a minor, has the right to
1) The name of the accused;
initiate the prosecution of the offenses of seduction,
2) The designation of the offense given by the
abduction and acts of lasciviousness independently of her
statute;
parents, grandparents or guardian, unless she is
3) The acts or omissions complained of as
incompetent or incapable of doing so. Where the
constituting the offense;
offended party, who is a minor, fails to file the complaint,
4) The name of the offended party;
her parents, grandparents, or guardian may file the same.
5) The approximate date of the commission of the
The right to file the action granted to parents,
offense; and
grandparents or guardian shall be exclusive of all other
6) The place wherein the offense was committed.
persons and shall be exercised successively in the order
herein provided, except as stated in the preceding
When an offense is committed by more than one person,
paragraph.
all of them shall be included in the complaint or
information. If the prosecutor refuses to include one
CONTROL OF PROSECUTION
accused, the remedy is mandamus.
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DESIGNATION OF OFFENSE
ð Exception: When a fact supervenes which changes
The complaint or information shall state the designation the nature of the crime charged in the
of the offense given by the statute, aver the acts or information or upgrades it to a higher crime, a
omissions constituting the offense, and specify its substantial amendment may be made with a
qualifying and aggravating circumstances. need for a re-arraignment of the accused under
the amended information.
If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing AMENDMENT AND SUBSTITUTION
it. DISTINGUISHED:
1) Amendment may involve either formal or
CAUSE OF THE ACCUSATION substantial changes; substitution necessarily
involves a substantial change from the original
The acts or omissions complained of as constituting the charge;
offense and the qualifying and aggravating circumstances 2) Amendment before plea has been entered can be
must be stated in ordinary and concise language and not effected without leave of court; substitution of
necessarily in the language used in the statute but in information must be with leave of court, as the
terms sufficient to enable a person of common original information has to be dismissed;
understanding to know what offense is being charged as 3) Where the amendment is only as to form, there
well as its qualifying and aggravating circumstances and is no need for another preliminary investigation
for the court to pronounce judgment. and the retaking of the plea of the accused; in
substitution of information, another preliminary
DUPLICITY OF THE OFFENSE; EXCEPTION investigation is entailed and the accused has to
plead anew to the new information; and
ð A complaint or information must charge only one 4) An amended information refers to the same
offense, EXCEPT when the law prescribes a single offense charged in the original information or to
punishment for various offenses (Sec. 13). an offense which necessarily includes or is
ð Exception: The law prescribes a single punishment necessarily included in the original charge; hence
for various offenses, such as in continuing and substantial amendments to the information after
complex crimes. the plea has been taken cannot be made over the
objection of the accused, for if the original
AMENDMENT OR SUBSTITUTION OF information would be withdrawn, the accused
COMPLAINT OR INFORMATION could invoke double jeopardy. Substitution
requires or presupposes that the new information
involves different offense which does not include
A complaint or information may be amended, in form or
or is not necessarily included in the original
in substance, without leave of court, at any time before
charge; hence the accused cannot claim double
the accused enters his plea.
jeopardy.
ð After the plea and during the trial, a formal
amendment may only be made with leave of
court and when it can be done without causing VENUE OF CRIMINAL ACTIONS
prejudice to the rights of the accused.
GENERAL RULE: The criminal action shall be
However, any amendment before plea, which instituted and tried in the court of the municipality or
downgrades the nature of the offense charged in or territory where the offense was committed or where any
excludes any accused from the complaint or information, of its essential ingredients occurred.
can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The EXCEPTIONS:
court shall state its reasons in resolving the motion and 1) Where an offense is committed in a railroad train,
copies of its order shall be furnished all parties, especially aircraft, or other public or private vehicle in the
the offended party. course of its trip - the criminal action shall be
instituted and tried in the court of any
If it appears at any time before judgment that a mistake municipality or territory where said train, aircraft
has been made in charging the proper offense, the court or other vehicle passed during its trip, including
shall dismiss the original complaint or information upon the place of its departure and arrival.
the filing of a new one charging the proper offense in 2) Where an offense is committed on board a vessel in
accordance with Section 19, Rule 119, provided the accused the course of its voyage - the criminal action shall
would not be placed in double jeopardy. The court may be instituted and tried in the court of the first port
require the witnesses to give bail for their appearance at of entry or of any municipality or territory where
the trial (Sec. 14). the vessel passed during such voyage, subject to
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the generally accepted principles of international civil action has been filed before the institution of the
law. criminal action, no such civil action can be instituted after
3) Felonies under Article 2 of the Revised Penal Code - the criminal action has been filed as the same has been
shall be cognizable by the court where the included therein.
criminal action is first filed.
4) Piracy – the venue of piracy, unlike all other Another instance where no reservation shall be allowed
crimes, has no territorial limits. It may be tried and where a civil action filed prior to the criminal action
anywhere. has to be transferred to the subsequently filed criminal
5) Libel – the action may be instituted at the action for joint hearing is a claim arising from an offense
election of the offended or suing party in the which is cognizable by the Sandiganbayan.
province or city:
a) Where the libellous article is printed and WHEN SEPARATE CIVIL ACTION IS SUSPENDED
first published;
b) If one of the offended parties is a private a) If criminal action has been commenced earlier –
individual, where said individual separate civil action cannot be instituted until final
actually resides at the time of the judgment has been entered in the criminal action.
commission of the offense; b) If the criminal action is filed after the separate civil
c) If the offended party is a public official, action has already been instituted –
where the latter holds office at the time a. Civil action suspended, in whatever stage it
of the commission of the offense; may be found before judgment on the merits,
6) In exceptional cases – to ensure a fair and until final judgment is rendered in the
impartial inquiry. The SC shall have the power criminal action.
to order a change of venue or place of trial to b. Civil action may, upon motion of the
avoid the miscarriage of justice. offended party, be consolidated with the
7) In cases filed under BP 22 – the criminal action criminal action in the court trying the
shall be filed in the place where the check was criminal action
issued and bounced. In case of crossed-check, in c. Evidence already adduced in the civil action
the place of depository. shall be deemed automatically reproduced in
the criminal action
INTERVENTION OF OFFENDED PARTY d. Without prejudice to the right of the
prosecution to cross-examine the witnesses
Where the civil action for recovery of civil liability is presented by the offended party in the
instituted in the criminal action pursuant to Rule 111, the criminal case and the parties to present
offended party may intervene by counsel in the additional evidence.
prosecution of the offense. c) The consolidated criminal and civil actions shall be
tried and decided jointly.
d) During the pendency of the criminal action, the
PROSECUTION OF CIVIL ACTION (RULE 111) running of prescription of the civil action which
cannot be instituted separately or whose proceeding
has been suspended shall be tolled.
RULE ON IMPLIED INSTITUTION OF CIVIL
ACTION WITH CRIMINAL ACTION The bar on the institution or suspension of the separate
civil actions has the following exception:
The GENERAL RULE is that the institution or filing of ð In the cases provided for in Articles 32, 33, 34 and
the criminal action includes the institution therein of the 2176 of the Civil Code, the independent civil action
civil action for recovery of civil liability arising from the may be brought by the offended party. It shall
offense charged, EXCEPT in the following cases: proceed independently of the criminal action and
1) The offended party waives the civil action; shall require only a preponderance of evidence.
2) He reserves his right to institute the civil action In no case, however, may the offended party
separately; or recover damages twice for the same act or
3) He institutes the civil action prior to the criminal omission charged in the criminal action.
action.
EFFECT OF THE DEATH OF ACCUSED OR
The exception to the reservation requirement is a claim CONVICT ON CIVIL ACTION
arising out of a dishonored check under BP 22, where no
reservation to file such civil action separately shall be The death of the accused after arraignment and during
allowed, which means that the filing of the criminal the pendency of the criminal action shall extinguish the
action for violation of BP 22 shall be deemed to include civil liability arising from the delict. However, the
the corresponding civil action and that unless a separate independent civil action instituted under section 3 of this
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Rule (Rule 111) or which thereafter is instituted to enforce A prejudicial question can be interposed at the Office of
liability arising from other sources of obligation may be the Prosecutor, but;
continued against the estate or legal representative of the 1) The question can also be raised in court;
accused after proper substitution or against said estate, as 2) If raised, the court should merely suspend the
the case may be. The heirs of the accused may be criminal case;
substituted for the deceased without requiring the 3) The court must wait for a motion, otherwise, that
appointment of an executor or administrator and the is a waiver;
court may appoint a guardian ad litem for the minor 4) The court cannot motu propio suspend the
heirs. criminal case.
The court shall forthwith order said legal representative RULE ON FILING FEES IN CIVIL ACTION
or representatives to appear and be substituted within a DEEMED INSTITUTED WITH THE CRIMINAL
period of thirty (30) days from notice. ACTION
A final judgment entered in favor of the offended party When the offended party seeks to enforce civil liability
shall be enforced against the estate of the deceased. against the accused by way of moral, nominal, temperate
or exemplary damages without specifying the amount
If the accused dies before arraignment, the case shall be thereof in the complaint or information, the filing fees
dismissed without prejudice to any civil action the therefor shall constitute a first lien on the judgment
offended party may file against the estate of the deceased. awarding such damages.
1) When the offense charged is a violation of an When increased, the accused may be committed to
ordinance, light felony or a criminal offense the custody if he does not give bail in the increased amount
imposable penalty does not exceed 6 months of within a reasonable period.
imprisonment and/or fine of P2,000.00 under RA
6036. An accused held to answer a criminal charge, who is
2) Where the accused has applied for probation and released without bail upon filing of the complaint or
before the same has been resolved but no bail was information, may, at any subsequent stage of the
filed or the accused is incapable of filing one, in proceedings whenever a strong showing of guilt appears
which case he may be released on recognizance. to the court, be required to give bail in the amount fixed,
3) In case of youthful offender held for physical or or in lieu thereof, committed to custody.
mental examination, trial or appeal, if unable to
furnish bail and under the circumstances under PD FORFEITURE AND CANCELLATION OF BAIL
603, as amended.
4) When the law or these Rules so provide. When the presence of the accused is required, his
5) When a person has been in custody for a period equal bondsmen shall be notified to produce him on a given
to or more than the possible maximum imprisonment date and time. If the accused fails to appear, his bail shall
prescribed for the offense charged, he shall be be declared forfeited and the bondsmen given thirty (30)
released immediately, without prejudice to the days within which to produce their principal and to show
continuation of the trial or the proceedings on cause why no judgment should be rendered against them
appeal. for the amount of their bail. Within the said period, the
6) A person accused of an offense with a maximum bondsmen must:
penalty of destierro, he shall be released after 30 days a) produce the body of their principal or give the
of preventive imprisonment. reason for his non-production; and
b) explain why the accused did not appear before
INCREASE OR REDUCTION OF BAIL the court when first required to do so.
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1) Against the accused, irrespective of nationality,
Failing in these two requisites, a judgment shall be in criminal cases pending trial before the RTC;
rendered against the bondsmen, jointly and severally, for 2) Against the respondent, irrespective of
the amount of the bail. The court shall not reduce or nationality, in criminal cases pending
otherwise mitigate the liability of the bondsmen, unless preliminary investigation, petition for review, or
the accused has been surrendered or is acquitted. motion for reconsideration before DOJ or any of
its provincial or city offices.
Upon application of the bondsmen, with due notice to the 3) Against any person, either motu proprio, or upon
prosecutor, the bail may be cancelled upon surrender of request of any government agency, including
the accused or proof of his death. commissions, task forces or similar entities
created by the office of the President, pursuant to
The bail shall be deemed automatically cancelled upon Anti
acquittal of the accused, dismissal of the case, or –Trafficking in Persons Acts of 2003, and/or in
execution of the judgment of conviction. In all instances, connection with any investigation being
the cancellation shall be without prejudice to any liability conducted by it, or in the interest of national
on the bail. security, public safety of public health.
It has been held that the accused can still plead guilty to a Upon motion by the proper party, the arraignment shall
lesser offense after the prosecution has rested. be suspended in the following cases:
1) The accused appears to be suffering from an
If accused entered a plea to a lesser offense without the unsound mental condition which effectively
consent of the offended party and the prosecutor and he renders him unable to fully understand the
was convicted, his subsequent conviction in the crime charge against him and to plead intelligently
charged would not place him in double jeopardy. thereto. In such case, the court shall order his
mental examination and, if necessary, his
ACCUSED PLEAD GUILTY TO CAPITAL confinement for such purpose.
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2) There exists a prejudicial question; and 4) That the officer who filed the information had no
3) A petition for review of the resolution of the authority to do so;
prosecutor is pending at either the DOJ or the 5) That it does not conform substantially to the
Office of the President; provided that the period prescribed form;
of suspension shall not exceed sixty (60) days 6) That more than one offense is charged except when a
counted from the filing of the petition with the single punishment for various offenses is prescribed
reviewing office. by law;
7) That the criminal action or liability has been
extinguished -
MOTION TO QUASH (RULE 117) a. By the death of the convict, as to the
personal penalties; as to pecuniary penalties,
liability therefor is extinguished only when
A motion to quash is a hypothetical admission of the the death of the offender occurs before final
facts alleged in the information, hence the court in judgment.
resolving the motion cannot consider facts contrary to b. By service of the sentence;
those alleged in the information or which do not appear c. By amnesty, which completely extinguishes
on the face of the information, except those admitted by the penalty and all its effects;
the prosecution.
d. By absolute pardon;
e. By prescription of the crime;
The motion to quash must be filed before the f. By prescription of the penalty;
arraignment. Thereafter, no motion to quash can be g. By the marriage of the offended woman in
entertained by the court, the only exceptions being those i. Seduction
in Sec. 9 which adopts the omnibus motion rule, subject to ii. abduction or
said exceptions. Sec. 3 has been amended to separately iii. acts of lasciviousness (Art. 344 RPC)
refer to lack to jurisdiction over the offense, not over the 8) That it contains averments which, if true, would
person of the accused since, by filing a motion to quash constitute a legal excuse or justification; and
on other grounds, the accused has submitted himself to 9) That the accused has been previously convicted or
the jurisdiction of the court. acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
GROUNDS his express consent.
1) That the facts charged do not constitute an offense; Grounds that are not waived even if not alleged:
2) That the court trying the case has no jurisdiction over a) Failure to charge an offense;
the offense charged; b) Lack of jurisdiction;
3) That the court trying the case has no jurisdiction over c) Extinction of criminal action or liability;
the person of the accused; d) Double jeopardy.
CONCEPT OF COURT DIVERSION OF PENDING However, in cases covered under 1, 4 and 5 where the
CASES parties inform the court that they have agreed to undergo
mediation on some aspects thereof, e.g., custody of minor
The diversion of pending court cases both to Court- children, separation of property, or support pendente lite,
Annexed Mediation (CAM) and to Judicial Dispute the court shall refer them to mediation.
Resolution (JDR) is plainly intended to put an end to
pending litigation through a compromise agreement of PROCEDURE
the parties and thereby help solve the ever-pressing
problem of court docket congestion. Judicial proceedings shall be divided into two stages:
1) From the filing of a complaint to the conduct of
Cases that may be referred: CAM and JDR during the pre-trial stage, and
1) All civil cases and the civil liability of criminal 2) pre-trial proper to trial and judgment. The judge
cases covered by the Rule on Summary to whom the case has been originally raffled,
Procedure, including the civil liability for who shall be called the JDR Judge, shall preside
violation of B.P. 22, except those which by law over the first stage. The judge, who shall be
may not be compromised; called the trial judge, shall preside over the
2) Special proceedings for the settlement of estates; second stage.
3) All civil and criminal cases filed with a certificate
to file action issued by the Punong Barangay or At the initial stage of the pre-trial conference, the JDR
the Pangkat ng Tagapagkasundo under the judge briefs the parties and counsels of the CAM and
Revised Katarungang Pambarangay Law; JDR processes. Thereafter, he issues an Order of Referral
4) The civil aspect of Quasi-Offenses under Title 14 of the case to CAM and directs the parties and their
of the Revised Penal Code; counsels to proceed to the PMCU bringing with them a
5) The civil aspect of less grave felonies punishable copy of the Order of Referral. The JDR judge shall
by correctional penalties not exceeding 6 years include in said Order, or in another Order, the pre-setting
imprisonment, where the offended party is a of the case for JDR not earlier than forty-five (45) days
private person; from the time the parties first personally appear at the
6) The civil aspect of estafa, theft and libel; PMCU so that JDR will be conducted immediately if the
7) All civil cases and probate proceedings, testate parties do not settle at CAM.
and intestate, brought on appeal from the
exclusive and original jurisdiction granted to the All incidents or motions filed during the first stage shall
first level courts; be dealt with by the JDR judge. If JDR is not conducted
8) All cases of forcible entry and unlawful detainer because of the failure of the parties to appear, the JDR
brought on appeal from the exclusive and judge may impose the appropriate sanctions and shall
original jurisdiction granted to the first level continue with the proceedings of the case.
courts;
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If the parties do not settle their dispute at CAM, the delay and for each party to complete the presentation of
parties and their counsels shall appear at the preset date evidence with the trial dates assigned to him.
before the JDR judge, who will then conduct the JDR
process as mediator, neutral evaluator and/or conciliator INSTANCES WHEN PRESENCE OF ACCUSED IS
in order to actively assist and facilitate negotiations REQUIRED BY LAW
among the parties for them to settle their dispute. As
mediator and conciliator, the judge facilitates the The only instances when the presence of the accused is
settlement discussions between the parties and tries to required by law and when the law may forfeit the bond if
reconcile their differences. As a neutral evaluator, the he fails to appear are:
judge assesses the relative strengths and weaknesses of 1) On arraignment;
each party's case and makes a non-binding and impartial 2) On promulgation of judgment except for light
evaluation of the chances of each party's success in the offenses;
case. On the basis of such neutral evaluation, the judge 3) For identification purposes;
persuades the parties to a fair and mutually acceptable 4) When the court with due notice requires so.
settlement of their dispute.
REQUISITE BEFORE TRIAL CAN BE SUSPENDED
The JDR judge shall not preside over the trial of the case ON ACCOUNT OF ABSENCE OF WITNESS
when the parties did not settle their dispute at JDR.
ð To warrant postponement due to absence of a
CRIMINAL CASES witness, it must appear:
a) That the witness is really material and
If settlement is reached on the civil aspect of the criminal appears to the court to be so;
case, the parties, assisted by their respective counsels, b) That the party who applies for postponement
shall draft the compromise agreement which shall be has not been guilty of neglect;
submitted to the court for appropriate action. c) That the witness can be had at the time to
which the trial has been deferred; and
Action on the criminal aspect of the case will be d) That no similar evidence could be obtained.
determined by the Public Prosecutor, subject to the ð The non-appearance of the prosecution at the trial,
appropriate action of the court. despite due notice, justifies a provisional dismissal or
an absolute dismissal, depending on the
If settlement is not reached by the parties on the civil circumstances.
aspect of the criminal case, the JDR judge shall proceed ð Any period of delay resulting from the absence or
to conduct the trial on the merits of the case should the unavailability of an essential witness shall be
parties file a joint written motion for him to do so, despite excluded in computing the time within which trial
confidential information that may have been divulged must commence.
during the JDR proceedings. Otherwise, the JDR Judge
shall turn over the case to a new judge by re-raffle in TRIAL IN ABSENTIA
multiple sala courts or to the originating court in single
sala courts, for the conduct of pretrial proper and trial. The Constitution permits trial in absentia of an accused
after his arraignment who unjustifiably fails to appear
PRE-TRIAL PROPER during the trial notwithstanding due notice. The purpose
of trial in absentia is to speed up the disposition of
Where no settlement or only a partial settlement was criminal cases.
reached, and there being no joint written motion
submitted by the parties, as stated in the last preceding The REQUISITES OF TRIAL IN ABSENTIA are:
paragraphs, the JDR judge shall turn over the case to the a) The accused has been arraigned;
trial judge, determined by re-raffle in multiple sala courts b) He has been duly notified of the trial; and
or to the originating court in single sala courts, as the case c) His failure to appear is justified.
may be, to conduct pre-trial proper, as mandated by Rules
18 and 118 of the Rules of Court. The waiver of the accused of appearance or trial in
absentia does not mean that the prosecution is thereby
deprived of its right to require the presence of the accused
TRIAL (RULE119) for purposes of identification by the witnesses which is
vital for conviction of the accused, except where he
unqualifiedly admits in open court after his arraignment
Continuous trial is one where the courts are called upon that he is the person named as defendant in the case on
to conduct the trial with utmost dispatch, with judicial trial. Such waiver does not mean a release of the accused
exercise of the court’s power to control the trial to avoid from his obligation under the bond to appear in court
whenever required.
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BERT – NOTES in REMEDIAL LAW
b) If he was granted immunity and fails to keep his
He can still be subpoenaed to appear for identification part of the agreement, his confession of his
purposes, without violating his right against self- participation in the commission of the offense is
incrimination as he will not take the stand to testify but admissible in evidence against him.
merely to be present in court, where the prosecution
witness may, while in the witness stand, point to him as The court shall order the discharge and exclusion of the
the accused. said accused from the information. Admission into such
Program shall entitle such State Witness to immunity
REMEDY WHEN ACCUSED IS NOT BROUGHT from criminal prosecution for the offense or offenses in
TO TRIAL WITHIN THE PRESCRIBED PERIOD which his testimony will be given or used.
If the accused is not brought to trial within the time limit, DEMURRER TO EVIDENCE
the information may be dismissed on motion of the
accused on the ground of denial of his right to speedy ð After the prosecution rests its case, the court may
trial. The dismissal shall be subject to the rules on double dismiss the action on the ground of insufficiency of
jeopardy. evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon
Failure of the accused to move for dismissal prior to trial demurrer to evidence filed by the accused with or
shall constitute a waiver of the right to dismiss under this without leave of court.
section. ð If the court denies the demurrer to evidence filed with
leave of court, the accused may adduce evidence in
REQUISITES FOR DISCHARGE OF ACCUSED TO his defense.
BECOME A STATE WITNESS ð When the demurrer to evidence is filed without leave
of court, the accused waives the right to present
When two or more persons are jointly charged with the evidence and submits the case for judgment on the
commission of any offense, upon motion of the basis of the evidence for the prosecution.
prosecution before resting its case, the court may direct ð The motion for leave of court to file demurrer to
one or more of the accused to be discharged with their evidence shall specifically state its grounds and shall
consent so that they may be witnesses for the state when, be filed within a non-extendible period of five (5)
after requiring the prosecution to present evidence and days after the prosecution rests its case. The
the sworn statement of each proposed state witness at a prosecution may oppose the motion within a non-
hearing in support of the discharge, the court is satisfied extendible period of five (5) days from its receipt.
that: ð If leave of court is granted, the accused shall file the
1) There is absolute necessity for the testimony of demurrer to evidence within a non-extendible period
the accused whose discharge is requested; of ten (10) days from notice. The prosecution may
2) There is no other direct evidence available for the oppose the demurrer to evidence within a similar
proper prosecution of the offense committed, period from its receipt.
except the testimony of said accused; ð The order denying the motion for leave of court to
3) The testimony of said accused can be file demurrer to evidence or the demurrer itself shall
substantially corroborated in its material points; not be reviewable by appeal or by certiorari before
4) Said accused does not appear to be the most judgment.
guilty; and
5) Said accused has not at any time been convicted
of any offense involving moral turpitude. JUDGMENT (RULE 120)
The fresh period rule does not refer to the period within
a) The evidence was discovered after trial;
which to appeal from the order denying the motion for
b) The evidence could not have been discovered and
new trial because the order is not appealable.
produced at the trial even with exercise of reasonable
diligence;
In the case of Judith Yu vs. Judge Samson, Feb. 9, 2011, the
c) The evidence is material, not merely cumulative,
SC held that the Neypes doctrine is applicable in criminal
corroborative or impeaching;
cases.
d) It must go to the merits as it would produce a
different result if admitted.
APPEAL (RULE 122)
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
An appeal opens the whole case for review and this
a) When a new trial is granted on the ground of errors includes the review of the penalty, indemnity and the
of law or irregularities committed during the trial, all damages involved.
the proceedings and evidence affected thereby shall
be set aside and taken anew. The court may, in the EFFECT OF AN APPEAL
interest of justice, allow the introduction of
additional evidence. Upon perfection of the appeal, the execution of the
b) When a new trial is granted on the ground of newly- judgment or order appealed from is stayed as to the
discovered evidence, the evidence already adduced appealing party. The civil appeal of the offended party
shall stand and the newly-discovered and such other does not affect the criminal aspect of the judgment or
evidence as the court may, in the interest of justice, order appealed from.
allow to be introduced shall be taken and considered
together with the evidence already in the record. The trial court loses jurisdiction over the, except:
c) IN ALL CASES, when the court grants new trial or 1) To issue orders for the protection and
reconsideration, the original judgment shall be set preservation of the rights of the parties which do
aside or vacated and a new judgment rendered not involve any matter litigated by the appeal;
accordingly. 2) To approve compromises offered by the parties
prior to the transmission of the records on appeal
APPLICATION OF NEYPES DOCTRINE IN to the appellate court.
CRIMINAL CASES
WHERE TO APPEAL
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a) To the Regional Trial Court, in cases decided by the b) The appeal of the offended party from the civil aspect
MTCs; shall not affect the criminal aspect of the judgment or
b) To the Court of Appeals or to the Supreme Court in order appealed from.
the proper cases provided by law, in cases decided by
the RTC; and GROUNDS FOR DISMISSAL OF APPEAL
c) To the Supreme Court, in cases decided by the Court
of Appeals. a) Failure on the part of the appellant to file brief within
the reglementary period, except when he is repsented
HOW APPEAL TAKEN by counsel de officio;
b) Escape f the appellant from prison or confinement;
a) The appeal to the RTC, or to the CA in cases c) When the appellant jumps bail;
decided by the RTC in the exercise of its original d) Flight of the appellant for a foreign country during
jurisdiction, shall be taken by filing a NOTICE OF the pendency of the appeal;
APPEAL with the court which rendered the e) Patently without merit;
judgment or final order appealed from and by serving f) Prosecuted manifestly for delay; or
a copy thereof upon the adverse party. g) The questions raised therein are too unsubstantial to
b) The appeal to the CA in cases decided by the RTC in require consideration.
the exercise of its appellate jurisdiction shall be by
PETITION FOR REVIEW under Rule 42.
c) The appeal to the SC in cases where the penalty SEARCH AND SEIZURE (RULE 126)
imposed by the RTC is reclusion perpetua, or life
imprisonment, or where a lesser penalty is imposed
but for offenses committed on the same occasion or NATURE OF SEARCH WARRANT
which arose out of the same occurrence that gave rise
to the more serious offense for which the penalty of The constitutional right against unreasonable search and
death, reclusion perpetua, or life imprisonment is seizure refers to the immunity of one’s person, whether a
imposed, shall be by filing a NOTICE OF APPEAL. citizen or alien, from interference by government,
d) No notice of appeal is necessary in cases where the included in whish is his residence, his papers and other
death penalty is imposed by the RTC. The same shall possession.
be automatically reviewed by the SC.
F Except as provided in the last paragraph of section The overriding function of the constitutional guarantee is
13, Rule 124, all other appeals to the Supreme to protect personal privacy and human dignity against
Court shall be by PETITION FOR REVIEW unwarranted intrusion by the State.
ON CERTIORARI under Rule 45.
The right of the people to be secure in their persons,
EFFECT OF APPEAL BY ANY OF SEVERAL houses, papers, and effects against unreasonable searches
ACCUSED and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
a) An appeal taken by one or more of several accused
personally by the judge after examination under oath or
shall not affect those who did not appeal, except
affirmation of the complainant and the witnesses he may
insofar as the judgment of the appellate court is
produce, and particularly describing the place to be
favorable and applicable to the latter.
searched and the persons or things to be seized (Sec. 2,
Art. III, Constitution).
APPLICATION FOR SEARCH WARRANT, must be substantially in the form prescribed by these
WHERE FILED Rules.
An application for search warrant shall be filed with the PERSONAL EXAMINATION BY JUDGE OF THE
following: APPLICANT AND WITNESSES
a) Any court within whose territorial jurisdiction a
crime was committed. The judge must, before issuing the warrant, personally
b) For compelling reasons stated in the application, examine in the form of searching questions and answers,
any court within the judicial region where the in writing and under oath, the complainant and the
crime was committed if the place of the witnesses he may produce on facts personally known to
commission of the crime is known, or any court them and attach to the record their sworn statements,
within the judicial region where the warrant shall together with the affidavits submitted.
be enforced.
However, if the criminal action has already been filed, the PARTICULARITY OF PLACE TO BE SEARCHED
application shall only be made in the court where the AND THINGS TO BE SEIZED
criminal action is pending.
The warrant must particularly describe the place to be
PROBABLE CAUSE searched and the persons or things to be seized.
Probable cause is defined as such facts and circumstances The rule is that a description of the place to be searched is
which could lead a reasonably discreet and prudent man sufficient if the officer with the warrant can, with
to believe that an offense has been committed and that reasonable effort, ascertain and identify the place
the objects sought in connection with the offense are in intended to be searched. Where there are several
the place sought to be searched. apartments in the place to be searched, a description of
the specific place can be determined by reference to the
Requisites for issuing search warrant – A search warrant affidavits supporting the warrant that the apartment to be
shall not issue except upon probable cause in connection searched is the one occupied by the accused. The
with one specific offense to be determined personally by searching party cannot go from one apartment to the
the judge after examination under oath or affirmation of other as the warrant will then become a general warrant.
the complainant and the witness he may produce, and
particularly describing the place to be searched and the PERSONAL PROPERTY TO BE SEIZED
things to be seized which may be anywhere in the
Philippines. A search warrant may be issued for the search and seizure
of personal property:
Issuance and form of search warrant – If the judge is a) Subject of the offense;
satisfied of the existence of facts upon which the b) Stolen or embezzled and other proceeds, or fruits
application is based or that there is probable cause to of the offense; or
believe that they exist, he shall issue the warrant, which c) Used or intended to be used as the means of
committing an offense.
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ü It is not necessary that the property to be vehicles are neither really searched nor their occupants
searched or seized should be owned by the subjected to physical or body searches, the examination
person against whom the search is issued; it of the vehicles being limited to visual inspection.
is sufficient that the property is under his
control or possession. Warrantless search for moving vehicle is justified on the
ground that it is not practicable to secure a warrant
EXCEPTIONS TO SEARCH WARRANT because the vehicle can be quickly moved out of the
REQUIREMENT locality or jurisdiction in which the warrant must be
sought.
1. SEARCH INCIDENTAL TO LAWFUL ARREST
4. CHECK POINTS; BODY CHECKS IN AIRPORT
A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or A warrantless search conducted at police or military
constitute proof in the commission of an offense without checkpoints has been upheld for as long as the vehicle is
a search warrant. neither searched nor its occupants subjected to body
search, and the inspection of the vehicle is merely limited
The law requires that there first be a lawful arrest before a to visual search.
search can be made. The process cannot be reversed.
Thus, in a buy-bust operation conducted to entrap a drug Routine inspections are not regarded as violative of an
pusher, the law enforcement agents may seize the marked individual’s right against unreasonable search.
money found on the person of the pusher immediately
after the arrest even without arrest and search warrants. The search is limited to the following instances:
1) where the officer merely draws aside the curtain
This is absolutely limit a warrantless search of a person of a vacant vehicle which is parked on the public
who is lawfully arrested to his or her person at the time of fair grounds;
and incident to his or her arrest and to dangerous 2) simply looks into a vehicle;
weapons or anything which may be used as proof of the 3) flashes a light therein without opening the car’s
commission of the offense. Such warrantless search doors;
obviously cannot be made in any other than the place of 4) where the occupants are not subjected to a
arrest. physical or body search;
5) where the inspection of the vehicles is limited to
2. CONSENTED SEARCH a visual search or visual inspection; and
6) where the routine check is conducted in a fixed
area.
Rights may be waived, unless the waiver is contrary to
law, public order, morals, or good customs, or prejudicial
to a third person with a right recognized by law. 5. PLAIN VIEW SITUATION
To constitute a valid waiver of a constitutional right, it It recognizes that objects inadvertently falling in plain
must appear: view of an officer who has the right to be in the position
a) that the right exists, to have that view, are subject to seizure without warrant.
b) the person involved had knowledge either actual
or constructive, of the existence of such right, It is usually applied where a police officer is not searching
and for evidence against the accused, but nonetheless
c) said person has an actual intention to relinquish inadvertently comes across an incriminating object.
the right.
As the constitutional guarantee is not dependent upon It is also been suggested that even if an object is observed
any affirmative act of the citizen, the courts do not place in plain view, the seizure of the subject will not be
the citizen in the position of either contesting an officer’s justified where the incriminating nature of the object is
authority by force, or waiving his constitutional rights, not apparent; it must be immediately apparent to the
but instead they hold that a peaceful submission and police that the items that they observe may be evidence of
silence of the accused in a search or seizure is not a a crime, contraband or otherwise subject to seizure.
consent or an invitation thereto, but is merely a
demonstration of regard to the supremacy of the law. The elements of “plain view”seizure are:
1) prior valid intrusion based on the valid
3. SEARCH OF MOVING VEHICLE warrantless arrest in which the police are legally
present in the pursuit of their official duties;
2) the evidence was inadvertently discovered by the
In carrying out warrantless searches of moving vehicles, police who had the right to be where they are;
peace officers are limited to routine checks, that is, the
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3) the evidence must be immediately apparent; and
4) “plain view” justified mere seizure of evidence 10. EXIGENT AND EMERGENCY
without further search. CIRCUMSTANCES
The intention is to prevent smuggling and to secure the PROVISIONAL REMEDIES (RULE 127)
collection of the legal duties, taxes and other charges.
Under the Tariff and Customs Code, Customs officers are NATURE
authorized to make arrest, search and seizure of any
vessel, aircraft, cargo, articles, animals or other movable The provisional remedies in civil actions, insofar as they
property when the same is subject to forfeiture or liable are applicable, may be availed of in connection with the
for any fine under the customs and tariff laws, rules and civil action deemed instituted with the criminal action.
regulations and may at any time enter, pass through or
search any land or inclosure or any warehouse, store or An application for recovery of damages on the bond
other building without being a dwelling house. posted for purposes of said provisional remedies shall be
made in the same action and, generally, cannot be the
A dwelling house may be entered or searched only upon subject of a separate action.
warrants issued by judge upon sworn application showing
probable cause and particularly describing the placed to The provisional remedies are proper only where the civil
be searched and person or things to be searched. action for the recovery of civil liability ex delicto has not
been expressly waived or the right to institute such civil
8. SEARCHES OF AUTOMOBILES AT BORDERS action separately is not reserved, in those cases where
OR CONSTRUCTIVE BORDERS such reservation may be made.
MULTIPLE ADMISSIBILITY
EVIDENCE PROOF
Medium of proof / Means Effect and result of There are times when proffered evidence is admissible for
to the end evidence / End result. two or more purposes. Sometimes it is admissible for one
FACTUM PROBANDUM FACTUM PROBANS purpose but inadmissible for another or vice versa. It may
Proposition to be Material evidencing the also be admissible against one party but not against
established proposition another. This kind of evidence is to b received provided it
meets the relevancy and competency tests for which it is
offered.
ADMISSIBILITY OF EVIDENCE
CONDITIONAL ADMISSIBILITY
Two axioms of admissibility:
Evidence which appears to be immaterial is admitted by
a) None but facts having rational probative value
the court and the proponent may ask that the evidence be
are admissible (relevance).
conditionally admitted in the meantime subject to the
b) All facts having rational probative value are
condition that he is going to establish its relevancy and
admissible unless some specific rules forbid
competency at a later time. If a promise thus made is not
(competence).
fulfilled, the court may strike out the evidence thus
conditionally admitted, if a motion is made by the
ADMISSIBILITY OF WEIGHT OF
opposite party.
EVIDENCE EVIDENCE
Pertains to the ability of the Pertains to the effect of CURATIVE ADMISSIBILITY
evidence to be allowed and evidence admitted
accepted subject to its
It refers to a situation where incompetent evidence was
relevancy and competence
erroneously received by the court despite objection from
the other party. It will not apply where the evidence was
admitted without objection because of a waiver of the
REQUISITES FOR ADMISSIBILITY OF EVIDENCE
admissibility of the evidence. So, where the objection was
incorrectly overruled, the court must allow the other
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party to introduce evidence to contradict the evidence BURDEN OF PROOF BURDEN OF
improperly admitted. This is reasons of fairness. EVIDENCE
Denotes the duty of Means the necessity of
DIRECT AND CIRCUMSTANTIAL EVIDENCE establishing the truth of a going forward with the
given proposition or issue by evidence to meet the
DIRECT EVIDENCE is that which proves the fact in such quantum of evidence as prima facie case created
dispute without the aid of any inference or presumption. the law demands in the case against him
Evidence which if believed proves the existence of a fact in which the issue arises.
in issue without interference or presumption. It remains with the party It shifts from side to side
alleging facts and never shifts as the trial of the case
CIRCUMSTANTIAL EVIDENCE is the proof of facts to the other party. He who progresses
from which, taken collectively, the existence of the alleges the affirmative of the
particular fact in dispute may be inferred as a necessary or issue has the burden of proof,
probable consequence. and the same never parts.
COMPETENT AND CREDIBLE EVIDENCE Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led another to
Competent evidence is one that is not excluded by law or believe a particular thing true, and to act upon such
the rules. If the test of relevance is logic and common belief, he cannot, in any litigation arising out of such
sense, the test of competence is the law or the rules. declaration, act or omission, be permitted to falsify it:
Competence, in relation to evidence in general, refers to
eligibility of an evidence to be received as such. The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the relation
A witness may be competent, and yet give incredible of landlord and tenant between them.
testimony; he may be incompetent, and yet his evidence,
if received, be perfectly credible.
The rules of evidence must be liberally construed. Rules of ð required in administrative proceedings or quasi-
procedure are mere tools intended to facilitate rather than judicial bodies
to frustrate the attainment of justice. A strict and rigid ð such relevant evidence as a reasonable mind might
application of the rules must always be eschewed if it accept as adequate to support a conclusion
would subvert their primary objective of enhancing ð more than a scintilla but may be somewhat less than
substantial justice. It means that the words should receive preponderance, even if other reasonable minds might
a fair and reasonable interpretation, so as to secure a just, conceivably opine otherwise. (SC said that in
speedy and inexpensive disposition of every action or administrative cases against judges/sherrifs are highly
proceeding. penal in nature and requires proof beyond reasonable
doubt).
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE [RULE 133]) JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
CATEGORIES OF OBJECT EVIDENCE The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs,
For purposes of authentication of an object or for laying controlled precursors and essential chemicals, as well as
the foundation for the exhibit, object evidence may be instruments/paraphernalia and/or laboratory equipment
classified into the following: so confiscated, seized and/or surrendered, for proper
a) Unique Objects - Object that have readily disposition in the following manner:
identifiable marks (like serial number of a calibre 45 1) The apprehending team having initial custody
pistol); and control of the drugs shall, immediately after
b) Objects Made Unique - Objects that are made seizure and confiscation, physically inventory
readily identifiable (like a typical knife, witness may and photograph the same in the presence of the
identify by placing marks on it); and accused and any elected public official who shall
c) Non-Unique Objects - Objects with no identifying be required to sign the copies of the inventory
marks and cannot be marked (like drop of blood, and be given a copy thereof;
oil, and drugs, the proponent must establish a chain of 2) Within 24 hours upon confiscation/seizure, the
custody). same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative
DEMONSTRATIVE EVIDENCE examination;
3) A certification of the forensic laboratory
Demonstrative evidence is tangible evidence that merely examination results, which shall be done under
illustrates a matter of importance in the litigation. oath by the forensic laboratory examiner, shall be
Common types of demonstrative evidence include issued within 24 hours after the receipt of the
photographs, motion pictures and recordings, x-ray subject item/s;
pictures, scientific tests, demonstrations and experiments, 4) After the filing of the criminal case, the Court
maps, diagrams, models, summaries, and other materials shall, within 72 hours, conduct an ocular
created especially for the litigation. inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of
In contrast to demonstrative evidence, object evidence is dangerous drugs, and controlled precursors and
a tangible object that played some actual role in the essential chemicals, including the instruments/
matter that gave rise to the litigation. For instance, the paraphernalia and/or laboratory equipment, and
knife used in the altercation that forms the basis for the through the PDEA shall within 24 hours
lawsuit. thereafter proceed with the destruction or
burning of the same, in the presence of the
The foundation for demonstrative evidence does not accused or the person/s from whom such items
involve showing that the object was the one used in the were confiscated and/or seized, or his/her
underlying event. Rather, the foundation generally representative or counsel, a representative from
involves showing that the demonstrative object fairly the media and the DOJ, civil society groups and
represents or illustrates what it is alleged to illustrate. any elected public official.
5) The Board shall then issue a sworn certification
VIEW OF AN OBJECT OR SCENE as to the fact of destruction or burning of the
subject item/s which, together with the
representative sample/s in the custody of the
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PDEA, shall be submitted to the court having determining, with reasonable certainty, whether or not
jurisdiction over the case; and the DNA obtained from two or more distinct biological
6) The alleged offender or his/her representative or samples originates from the same person (direct
counsel shall be allowed to personally observe all identification) of if the biological samples originate from
of the above proceedings and his/her presence related persons (kinship analysis).
shall not constitute an admission of guilt. In case
the said offender or accused refuses or fails to APPLICATION FOR DNA TESTING ORDER
appoint a representative after due notice in
writing to the accused or his/her counsel within The appropriate court may, at any time, either motu
71 hours before the actual burning or destruction propio or on application of any person who has a legal
or the evidence in question, the SOJ shall interest in the matter in litigation, order a DNA testing.
appoint a member of the PAO to represent the Such order shall issue after due hearing and notice to the
former; parties upon a showing of the following:
7) After the promulgation and judgment in the a) A biological sample exists that is relevant to the
criminal case wherein the representative case;
sample/s was presented as evidence in court, the b) The biological sample:
trial prosecutor shall inform the Board of the 1) Was not previously subjected to the type
final termination of the case and, in turn, shall of DNA testing now requested; or
request the court for leave to turn over the said 2) Was previously subjected to DNA
representative sample/s to the PDEA for proper testing but the results may require
disposition and destruction within 24 hours from confirmation for good reasons;
receipt of the same. c) The DNA testing uses a scientifically valid
technique;
d) The DNA testing has the scientific potential to
RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC) produce new information that is relevant to the
proper resolution of the case; and
e) The existence of other factors, if any, which the
Notes: court may consider as potentially affecting the
ð DNA report is a documentary evidence accuracy of integrity of the DNA testing.
ð DNA testing order is executory, unless there is
an injunction This rule shall not preclude a DNA testing, without need
ð The Rule on DNA Evidence is the primary rule of prior court order, at the behest of any party, including
to be applied whenever DNA evidence is offered, law enforcement agencies, before a suit or proceeding is
used or proposed to be offered or used as commenced.
evidence in criminal and civil actions and special
proceedings. POST-CONVICTION DNA TESTING; REMEDY
The presumption may be overcome by evidence of the The rule is based on the presumption that the parties have
untrustworthiness of the source of information of the made the written instrument the only repository and
method or circumstances of the preparation, transmission memorial of the truth and whatever is not found in the
or storage thereof. instrument must have been waived and abandoned by the
parties. Hence, parol evidence cannot serve the purpose
AUDIO, PHOTOGRAPHIC, VIDEO AND of incorporation into the contract additional
EPHEMERAL EVIDENCE contemporaneous conditions which are not mentioned at
all in the writing, unless the case falls under any of the
Audio, photographic and video evidence of events, acts exceptions to the rule.
or transactions shall be admissible provided it shall be
shown, presented or displayed to the court and shall be WHEN PAROLE EVIDENCE CAN BE
identified, explained or authenticated by the person who INTRODUCED
made the recording or by some other person competent to
testify on the accuracy thereof. Introducing parol evidence means offering extrinsic or
extraneous evidence that would modify, explain or add to
Ephemeral electronic communications shall be proven by the terms of the written agreement. Parol evidence can be
the testimony of a person who was a party to the same or introduced as long as the pleader puts in issue in the
has personal knowledge thereof. In the absence or pleading any of the matters set forth in the rule such as:
unavailability of such witnesses, other competent a) An intrinsic ambiguity, mistake or imperfection
evidence may be admitted. in the written agreement;
b) The failure of the written agreement to express
If the foregoing communications are recorded or the true intent and agreement of the parties
embodied in an electronic document, then the provisions thereto;
of Rule 5 (authentication of electronic documents) shall c) The validity of the written agreement; or
apply.
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d) The existence of other terms agreed to by the b) Documents acknowledge before a notary public
parties or their successors in interest after the except last wills and testaments; and
execution of the written agreement. c) Public records, kept in the Philippines, of private
ð The terms "agreement" includes wills. documents required by law to the entered
therein.
BEST EVIDENCE PAROL EVIDENCE All other writings are private. (20a)
RULE RULE
The issue is contents of There is no issue as to WHEN A PRIVATE WRITING REQUIRES
a writing. contents of a writing. AUTHENTICATION; PROOF OF A PRIVATE
Secondary evidence is The purpose for the offer of WRITING
offered to prove the parol evidence is to change,
contents of a writing, vary, modify, qualify, or A private writing is not self-authenticating. It requires
which is not allowed contradict the terms of a proof of their due execution and authentication before
unless the case falls complete written they can be received in evidence. The due execution and
under any of the agreement, which is not authenticity must be proved either:
exceptions. allowed unless the case falls a) By anyone who saw the document executed or
under any of the exceptions. written; or
Establishes preference Not concerned with the b) By evidence of the genuineness of the signature
for the original primacy of evidence but or handwriting of the maker
document over a presupposes that the
secondary evidence original is available. Any other private document need only be identified as
thereof. that which it is claimed to be.
Precludes the admission Precludes the admission of
of secondary evidence if other evidence to prove the WHEN EVIDENCE OF AUTHENTICITY OF A
the original document is terms of a document other PRIVATE WRITING IS NOT REQUIRED
available. than the contents of the (ANCIENT DOCUMENTS)
document itself.
Can be invoked by any Can be invoked only be the 1) When the genuineness and due execution of the
litigant to an action parties to the document and document is admitted by the adverse party;
whether or not said their successors in interest. 2) When such genuineness and due execution are
litigant is a party to the immaterial to the issue;
document involved. 3) When the document is an ancient document.
Applies to all forms of Applies to written
writing. agreements (contracts) and REQUISITE OF AN ANCIENT DOCUMENT
wills.
1) More than thirty (30) years old;
2) Found in the proper custody;
AUTHENTICATION AND PROOF OF 3) Unblemished by any alteration or by any
DOCUMENTS (RULE 132) circumstance of suspicion; and
4) It must on its face appear to be genuine.
ð A blind man can testify to what he saw prior to his (a) DEAD MAN’S STATUTE – Parties or
blindness or a deaf man, to what he heard prior to his assignors of parties to a case, or persons in whose
deafness. But a person incapable of perception is pro behalf a case is prosecuted, against an executor
tanto incapable of testifying. or administrator or other representative of a
deceased person, or against a person of unsound
ð A witness may have been capable of perceiving, yet mind, upon a claim or demand against the estate
incapable of narration. He may have no powers of of such deceased person or against such person
speech, and have no means of expressing himself by of unsound mind, cannot testify as to any matter
signs. He may have become insane since the of fact occurring before the death of such
occurrence he is called upon to relate. A person deceased person or before such person became of
incapable of narration is pro tanto incapable of unsound mind.
testifying.
(b) DISQUALIFICATION BY REASON OF
COMPETENCY VERSUS CREDIBILITY PRIVILEGED COMMUNICATION
OF A WITNESS 1. The husband or the wife, during or after
the marriage, cannot be examined
Competency of a witness refers to the basic qualifications without the consent of the other as to
of a witness as his capacity to perceive and to any communication received in
communicate the same to others. It also includes the confidence by one from the other during
absence of any of the disqualifications imposed upon a the marriage except in a civil case by
witness. one against the other, or in a criminal
case for a crime committed by one
Credibility of the witness refers to the believability of the against the other or the latter's direct
witness and has nothing to do with the law or the rules. It descendants or ascendants;
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2. An attorney cannot, without the consent upon written permission of the depositor, or in
of his client, be examined as to any cases of impeachment, or upon order of a
communication made by the client to competent court in cases of bribery or dereliction
him, or his advice given thereon in the of duty of public officials, or in cases where the
course of, or with a view to, professional money deposited or invested is the subject matter
employment, nor can an attorney's of the litigation (RA 1405).
secretary, stenographer, or clerk be
examined, without the consent of the (e) SANCTITY OF THE BALLOT – voters
client and his employer, concerning any may not be compelled to disclose for whom they
fact the knowledge of which has been voted.
acquired in such capacity;
3. A person authorized to practice (f) TRADE SECRETS
medicine, surgery or obstetrics cannot in (g) INFORMATION CONTAINED IN TAX
a civil case, without the consent of the RETURNS (RA 2070, as amended by RA 2212).
patient, be examined as to any advice or
treatment given by him or any DISQUALIFICATION BY REASON OF MENTAL
information which he may have CAPACITY OR IMMATURITY
acquired in attending such patient in a
professional capacity, which information The following persons cannot be witnesses:
was necessary to enable him to act in a) Those whose mental condition, at the time of
that capacity, and which would blacken their production for examination, is such that
the reputation of the patient; they are incapable of intelligently making known
4. A minister or priest cannot, without the their perception to others;
consent of the person making the b) Children whose mental maturity is such as to
confession, be examined as to any render them incapable of perceiving the facts
confession made to or any advice given respecting which they are examined and of
by him in his professional character in relating them truthfully.
the course of discipline enjoined by the
church to which the minister or priest Regardless of the nature or cause of mental disability, the
belongs; test of competency to testify is as to whether the
5. A public officer cannot be examined individual has sufficient understanding to appreciate the
during his term of office or afterwards, nature and obligation of an oath and sufficient capacity to
as to communications made to him in observe and describe correctly the facts in regard to which
official confidence, when the court finds he is called to testify.
that the public interest would suffer by
the disclosure. Basic requirements of a child’s competency as a witness:
a) Capacity of observation;
(c) NEWSMAN’S PRIVILEGE -- Without b) Capacity of recollection;
prejudice to his liability under the civil and c) Capacity of communication.
criminal laws, the publisher, editor, columnist or
duly accredited reporter of any newspaper, In ascertaining whether a child is of sufficient
magazine or periodical of general circulation intelligence according to the foregoing requirements,
cannot be compelled to reveal the source of any it is settled rule that the trial court is called upon to
news-report or information appearing in said make such determination.
publication which was related in confidence to
such publisher, editor or reporter unless the court DISQUALIFICATION BY REASON OF
or a House or committee of Congress finds that MARRIAGE (SPOUSAL IMMUNITY)
such revelation is demanded by the security of
the State (RA 1477); As a general rule, during their marriage, neither the
husband nor the wife may testify for or against the other
(d) BANK DEPOSITS -- All deposits of without the consent of the affected spouse. The requisites
whatever nature with banks or banking of this rule are the following:
institutions in the Philippines including 1) That the spouse for or against whom the
investments in bonds issued by the Government testimony is offered is a party to the case;
of the Philippines, its political subdivisions and 2) That the spouses are legally married (valid until
its instrumentalities, are hereby considered as of annulled);
an absolutely confidential nature and may not be 3) Testimony is offered during the existence of
examined, inquired or looked into by any person, marriage;
government official, bureau or office, except
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4) The case is not one of the exceptions provided in Applies only if the marriage is Can be claimed even
the rule. existing at the time the after the marriage has
testimony is offered; been dissolved;
The exceptions are the following: Ceases upon the death or Continues even after the
1) Where the testimony was made outside the either spouse; termination of the
marriage; marriage;
2) In a civil case by one spouse against the other; or Constitutes a total prohibition Applies only to
3) In a criminal case for a crime committed by one against any testimony for or confidential
spouse against the other or the latter’s direct against the spouse of the communications
descendant or ascendants. witness; between the spouses.
The prohibition is a testimony The prohibition is the
DISQUALIFICATION BY REASON OF DEATH OR for or against the other. examination of a spouse
INSANITY OF ADVERSE PARTY (SURVIVORSHIP as to matters related in
OR DEAD MAN‘S STATUTE) confidence to the other
spouse.
This rule applies only to a civil case or a special
proceeding. The following are the elements for the BETWEEN ATTORNEY AND CLIENT
application of the rule:
a) The plaintiff is the person who has a claim
against the estate of the decedent or person of For the rule to apply, it is required that:
unsound mind; 1) There is an attorney and client relation;
b) The defendant in the case is the executor or 2) The privilege is invoked with respect to a
administrator or a representative of the deceased confidential communication between them in the
or the person of unsound mind; course of or with a view to professional
c) The suit is upon a claim by the plaintiff against employment; and
the estate of said deceased or person of unsound 3) The client has not given his consent to the
mind; attorney‘s testimony thereon; or
d) The witness is the plaintiff, or an assignor of that If the attorney’s secretary, stenographer or clerk
party, or a person in whose behalf the case is is sought to be examined, that both the client and
prosecuted; and the attorney have not given their consent thereto.
e) The subject of the testimony is as to any matter
of fact occurring before the death (ante litem The rule applies when the attorney has been consulted in
motam) of such deceased person or before such his professional capacity, even if no fee has been paid
person became of unsound mind. therefor. Preliminary communications made for the
purpose of creating the attorney-client relationship are
within the privilege. However, if the communications
were not made for the purpose of creating that
DISQUALIFICATION BY REASON OF
relationship, they will not be covered by the privilege
PRIVILEGED COMMUNICATIONS
even if thereafter the lawyer becomes the counsel of the
party in a case involving said statements.
BETWEEN HUSBAND AND WIFE
BETWEEN PHYSICIAN AND PATIENT
The application of the rule requires the presence of the
following elements: For the disqualification to apply, it is necessary that:
1) There must be a valid marriage between the a) The physician is authorized to practice medicine,
husband and the wife; surgery or obstetrics;
2) The privilege is invoked with respect to a b) The information was acquired or the advice or
confidential communication between the spouses treatment was given by him in his professional
during said marriage; and capacity for the purpose of treating and curing
3) The spouse against whom such evidence is being the patient;
offered has not given his or her consent to such c) The information, advice or treatment, if revealed,
testimony. would blacken the reputation of the patient; and
d) The privilege is invoked in a civil case, whether
MARITAL MARITAL the patient is a party thereto or not.
DISQUALIFICATION PRIVILEGE (SEC. 24)
(SEC. 22) The privilege does not apply where:
Can be invoked only if one of Can be claimed whether a) The communication was not given in confidence;
the spouses is a party to the or not the spouse is a b) The communication is irrelevant to the
action; party to the action; professional employment;
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c) The communication was made for an unlawful if such testimony is indispensable in prosecuting a crime
purpose, as when it is intended for the against the descendant or by one parent against the other.
commission or concealment of a crime;
d) The information was intended to be made public;
or
e) There was a waiver of the privilege either by the EXAMINATION OF A WITNESS (RULE 132)
provisions of contract or law.
ð The privilege survives the death of the patient.
The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
BETWEEN PRIEST AND PENITENT affirmation. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer, the
F A minister or priest cannot, without the consent of answers of the witness shall be given orally.
the person making the confession, be examined as to
any confession made to or any advice given by him The entire proceedings shall be recorded by means of
in his professional character in the course of shorthand or stenotype or by other means of recording
discipline enjoined by the church to which the found suitable by the court. A transcript of the record of
minister or priest belongs. the proceedings made by the official stenographer,
F The communication must be made pursuant to stenotypist or recorder and certified as correct by him
confessions of sin. Where the penitent discussed shall be deemed prima facie a correct statement of such
business arrangements with the priest, the privilege proceedings.
does not apply.
RIGHTS AND OBLIGATIONS OF A WITNESS
INVOLVING PUBLIC OFFICERS
A witness must answer questions, although his answer
The disqualification because of privileged may tend to establish a claim against him. However, it is
communications to public officers requires that: the right of a witness:
a) It was made to the public officer in official 1) To be protected from irrelevant, improper, or
confidence; and insulting questions, and from harsh or insulting
b) Public interest would suffer by the disclosure of demeanor;
such communications, as in the case of State 2) Not to be detained longer than the interests of
secrets. Where no public interest would be justice require;
prejudiced, this rule does not apply. 3) Not to be examined except only as to matters
pertinent to the issue;
Exceptions to the rule: 4) Not to give an answer which will tend to subject
a) What is asked is useful evidence to vindicate the him to a penalty for an offense unless otherwise
innocence of an accused person; provided by law; or
b) Disclosure would lessen the risk of false 5) Not to give an answer which will tend to degrade
testimony; his reputation, unless it be to the very fact at
c) Disclosure is essential to the proper disposition issue or to a fact from which the fact in issue
of the case; would be presumed. But a witness must answer
d) The benefit to be gained by a correct disposition to the fact of his previous final conviction for an
of the litigation was greater than any injury offense.
which could inure to the relation by a disclosure
of the information. ORDER IN THE EXAMINATION OF AN
INDIVIDUAL WITNESS
PARENTAL AND FILIAL TESTIMONIAL
The order in which an individual witness may be
PRIVILEGE RULE
examined is as follows:
1) Direct examination by the proponent;
No person may be compelled to testify against his 2) Cross-examination by the opponent;
parents, other direct ascendants, children or other direct 3) Re-direct examination by the proponent;
descendants. 4) Re-cross-examination by the opponent.
5) Recalling the witness
Under Art. 215 of the Family Code, the descendant may be
compelled to testify against his parents and grandparents
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DIRECT Direct examination is the examination-in- Purpose is to build up the theory of the case by
EXAMINATION chief of a witness by the party presenting him eliciting facts about the client‘s cause of action
on the facts relevant to the issue. or defense.
CROSS Upon the termination of the direct Cross-examination aims to:
EXAMINATION examination, the witness may be cross- a) Test the accuracy and truthfulness of the
examined by the adverse party as to any witness and his freedom from interest or
matters stated in the direct examination, or bias or the reverse; and
connected therewith, with sufficient fullness b) Elicit all important facts bearing upon the
and freedom to test his accuracy and issue, not only of those covered in the
truthfulness and freedom from interest or bias, direct examination but also on all other
or the reverse, and to elicit all important facts matters relevant to the issue/s pleaded.
bearing upon the issue.
RE-DIRECT After the cross-examination of the witness has Principal objects are:
EXAMINATION been concluded, he may be re-examined by a) to prevent injustice to the witness and the
the party calling him, to explain or party who has called him by affording an
supplement his answers given during the opportunity to the witness to explain the
cross-examination. On re-direct examination, testimony given on cross-examination,
questions on matters not dealt with during the b) to explain any apparent contradiction or
cross-examination, may be allowed by the inconsistency in his statements, and
court in its discretion. c) complete the answer of a witness, or add a
new matter which has been omitted, or
correct a possible misinterpretation of
testimony.
RE-CROSS Upon the conclusion of the re-direct A witness cannot be recalled without leave of
EXAMINATION examination, the adverse party may re-cross- court, which may be granted only upon
examine the witness on matters stated in his showing of concrete, substantial grounds.
re-direct examination, and also on such other
matters as may be allowed by the court in its
discretion.
RECALLING THE After the examination of a witness by both Aims to correct or explain his prior testimony;
WITNESS sides has been concluded, the witness cannot or lay the proper foundation for his
be recalled without leave of the court. The impeachment, but this is permitted only with
court will grant or withhold leave in its the discretion of the court.
discretion, as the interests of justice may
require.
A witness may be considered as unwilling or hostile only Character evidence not generally admissible;
if so declared by the court upon adequate showing of his exceptions. –
adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness a) In Criminal Cases:
stand. The unwilling or hostile witness so declared, or the 1) The accused may prove his good moral
witness who is an adverse party, may be impeached by character which is pertinent to the moral
the party presenting him in all respects as if he had been trait involved in the offense charged.
called by the adverse party, except by evidence of his bad 2) Unless in rebuttal, the prosecution may not
character. He may also be impeached and cross-examined prove his bad moral character which is
by the adverse party, but such cross examination must pertinent it to the moral trait involved in the
only be on the subject matter of his examination-in-chief. offense charged.
HOW THE WITNESS IS IMPEACHED BY ð Note that in criminal cases, the prosecution
EVIDENCE OF INCONSISTENT STATEMENTS goes first. Hence, it cannot present evidence
(LAYING THE PREDICATE) on the bad moral character of the accused on
its evidence in chief.
Before a witness can be impeached by evidence that he ð The good or bad moral character of the
has made at other times statements inconsistent with his offended party may be proved if it tends to
present testimony: establish in any reasonable degree the
a) the statements must be related to him, with the probability or improbability of the offense
circumstances of the times and places and the charged.
persons present, and
b) he must be asked whether he made such b) In Civil Cases:
statements, and if so, allowed to explain them. If ð Evidence of the moral character of a party in
the statements be in writing they must be shown a civil case is admissible only when pertinent
to the witness before any question is put to him to the issue of character involved in the case.
concerning them.
ADMISSION CONFESSION
An act, declaration or The declaration of an
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omission of a party as to accused acknowledging his The rights of a party cannot be prejudiced by an act,
a relevant fact. guilt of the offense declaration, or omission of another, except as hereinafter
charged, or of any offense provided.
necessarily included
therein. ADMISSION BY A CO-PARTNER OR AGENT
It is a voluntary It is a statement by the The act or declaration of a partner or agent of the party
acknowledgment made accused that he engaged in within the scope of his authority and during the existence
by a party of the conduct which constitutes of the partnership or agency, may be given in evidence
existence of the truth of a crime. against such party after the partnership or agency is
certain facts which are shown by evidence other than such act or declaration.
inconsistent with his The same rule applies to the act or declaration of a joint
claims in an action. owner, joint debtor, or other person jointly interested
Broader than Specific type of admission with the party.
confession. which refers only to an
acknowledgment of guilt For the admission of a co-partner or agent to be
May be implied like Cannot be implied, but admissible, the following requisites must concur:
admission by silence. should be a direct and a) The declaration or act of the partner and agent
positive acknowledgment must have been made or done within the scope
of guilt. of his authority;
May be judicial or May be judicial or b) The declaration or act of the partner and agent
extrajudicial. extrajudicial. must have been made or done during the
May be adoptive, which existence of the partnership or agency, and the
occurs when a person person making the declaration still a partner or
manifests his assent to an agent; and
the statements of c) The existence of the partnership or agency is
another person. proven by evidence other than the declaration or
act of the partner and agent.
Exceptions to the first branch of the rule: Privity means mutual succession of relationship to the
a) Admission by a co-partner or agent (Sec. 29, Rule same rights of property. Privies are those who have
130); mutual or successive relationship to the same right of
b) Admission by a co-conspirator (Sec. 30, Rule 130); property or subject matter, such as personal
and representatives, heirs, devisees, legatees, assigns,
c) Admission by privies (Sec. 31, Rule 130). voluntary grantees or judgment creditors or purchasers
from them with notice of the facts.
ADMISSION BY A PARTY
The act, declaration or omission of a party as to a Three exceptions are recognized to the rule that
relevant fact may be given in evidence against him. declarations of the transferor, made subsequent to the
transfer, are inadmissible:
ADMISSION BY A THIRD PARTY
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1) Where the declarations are made in the presence b) When one of the defendants is discharged from
of the transferee, and he acquiesces in the the information and testifies as a witness for the
statements, or asserts no rights where he ought to prosecution, the confession made in the course of
speak; his testimony is admissible against his co-
2) Where there has been a prima facie case of fraud defendants, if corroborated by indisputable
established, as where the thing after the sale or proof.
transfer, remains with the seller or transferor; c) If a defendant after having been apprised of the
3) Where the evidence establishes a continuing confession of his co-defendant ratifies or
conspiracy to defraud, which conspiracy exists confirms said confession, the same is admissible
between the vendor and the vendee. against him.
d) Interlocking confessions -- Where several extra-
ADMISSION BY SILENCE judicial confession had been made by several
An act or declaration made in the presence and within persons charged with an offense and there could
the hearing or observation of a party who does or says have been no collusion with reference to said
nothing when the act or declaration is such as naturally to several confessions, the facts that the statements
call for action or comment if not true, and when proper therein are in all material respects identical, is
and possible for him to do so, may be given in evidence confirmatory of the confession of the co-
against him. defendant, and is admissible against his other co-
defendants.
The common sense of mankind is expressed in the e) A statement made by one defendant after his
popular phrase, silence gives consent which is but another arrest, in the presence of this co-defendant,
form of expressing the maxim of the law, qui tacet cosentire confessing his guilt and implicating his co-
videtur. defendant who failed to contradict or deny it, is
admissible against his co-defendant.
Before the silence of a party can be taken as an admission f) When the confession is of a conspirator and
of what is said, the following requisites must concur: made after conspiracy in furtherance of its object,
a) Hearing and understanding of the statement by the same is admissible against his co-conspirator;
the party; and
b) Opportunity and necessity of denying the g) The confession of one conspirator made after the
statements; termination of a conspiracy is admissible against
c) Statement must refer to a matter affecting his his co-conspirator if made in his presence and
right; assented to by him, or admitted its truth or failed
d) Facts were within the knowledge of the party; to contradict or deny it.
and
e) Facts admitted or the inference to be drawn from SIMILAR ACTS AS EVIDENCE
his silence would be material to the issue.
Evidence that one did or did not do a certain thing at one
CONFESSIONS time is not admissible to prove that he did or did not do
the same or a similar thing at another time; but it may be
The declaration of an accused acknowledging his guilt of received to prove a specific intent or knowledge, identity,
the offense charged, or of any offense necessarily plan, system, scheme, habit, custom or usage, and the
included therein, may be given in evidence against him. like. Evidence of collateral offenses must not be received as
substantive evidence of the offenses on trial.
Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence HEARSAY RULE
against him (Sec. 12, Art. III, Constitution).
A witness can testify only to those facts which he knows
Confession is an acknowledgment in express words, by of his personal knowledge; that is, which are derived from
the accused in a criminal case, of the truth of the offense his own perception, except as otherwise provided in these
charged, or of some essential parts thereof. To be valid, rules.
confessions must be voluntarily and freely made.
Generally, hearsay evidence is inadmissible because the
Exceptions to the rule that confessions of an accused may person who testifies does so based on matters not of his
be given in evidence against him and incompetent against personal knowledge but based on the knowledge of
his co-accused: another who is not in court and cannot therefore, b cross-
a) When several accused are tried together, examined. The one in courts is the person who merely
confession made by one of them during the trial repeats matters witnessed personally by another. This
implicating the others is evidence against the type o evidence is inadmissible because of its inherent
latter. unreliability.
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Hearsay evidence may be in writing. For instance, an It also means the evidence not of what the witness
affidavit is hearsay unless the affiant affirms the same in himself knows but of what he has heard from others.
court and is subject to cross-examination.
REASON FOR EXCLUSION OF HEARSAY
A hearsay testimony involves an outside-declarant and an EVIDENCE
in-court witness. It is the outside declarant who says
something based on what he has perceived. His statement Hearsay evidence is inadmissible according to the general
is heard by someone who is the one testifies in court as to rule. The real basis for the exclusion is the fact that
what he heard. hearsay testimony is not subject to the tests which can
ordinarily be applied for the ascertainment of the truth of
If the witness offers the statement of the outside declarant testimony, since the declarant is not present and available
to prove the truth of such statement (the one which he for cross-examination.
heard) the testimony of the witness is hearsay. If it’s
offered merely to prove that he heard the statement In criminal cases the admission of hearsay evidence
without reference to its truth or falsity, his testimony is would be a violation of the constitutional provision that
not hearsay. the accused shall enjoy the right of being confronted with
the witnesses testifying against him and to cross-examine
If what he heard is relevant to an issue in the case, it will them. Moreover, the court is without the opportunity to
fall under the category of independent relevant statements test the credibility of hearsay statements by observing the
which means statements which are relevant as to their demeanor of the person who made them.
tenor or to the fact that they were uttered and not as to
whether they are true or false. EXCEPTIONS TO THE HEARSAY RULE
(DEVFLECT‘D WI-CAP)
MEANING OF HEARSAY
1) Dying declaration; 9) Declaration against interest;
2) Entries in the course of business; 10) Waiver;
3) Verbal acts; 11) Independently relevant evidence;
4) Family reputation or tradition regarding 12) Commercial lists and the like;
pedigree; 13) Act or declaration about pedigree; and
5) Learned treatises; 14) Part of res gestae.
6) Entries in official records;
7) Common reputation;
8) Testimony or deposition at a former
proceeding;
any case wherein his death is the subject of inquiry, as
The statements from which the facts in issue may be evidence of the cause and surrounding circumstances of
inferred may be testified to by witnesses without violating such death.
the hearsay rule. Of this kind are:
REQUISITES:
Statements of a person: 1) That death is imminent and the declarant is
a) showing his state of mind, that is his mental conscious of that fact;
condition, knowledge, belief, intention, ill-will 2) That the declaration refers to the cause and
and other emotion; surrounding circumstances of such death;
b) showing his physical condition, as illness and the 3) That the declaration relates to facts which the
like; victim is competent to testify to; and
c) from which an inference may be made as to the 4) That the declaration is offered in a case wherein
state of mind of another, that is, knowledge, the declarant’s death is the subject of the inquiry.
belief, motive, good or bad faith, etc. of the
latter; The most significant element is that the declaration must
d) which may identify the date, place, and person in have been conscious of his impending death. It is this
question; and consciousness which is assumed to be the compelling
e) showing the lack of credibility of a witness. motive to tell the truth. Any statement he makes not
related to the circumstances of his death is inadmissible
as a dying declaration.
DYING DECLARATION
The dying declaration is admissible in ANY CASE
The declaration of a dying person, made under the provided the subject of inquiry in that case is the death of
consciousness of an impending death, may be received in the declarant.
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It is required that the declarant should die. If he lives, he Requisites for applicability:
may testify personally based on his personal knowledge. a) Declarant is dead or unable to testify;
If he is unable to testify, his declaration could be admitted b) Necessity that pedigree be in issue;
as a statement made by a person immediately subsequent c) Declarant must be a relative of the person whose
to a startling occurrence (could be considered part of res pedigree is in question;
gestae). d) Declaration must be made before the controversy
occurred; and
e) The relationship between the declarant and the
DECLARATION AGAINST INTEREST
person whose pedigree is in question must be
shown by evidence other than such act or
The declaration made by a person deceased, or unable to declaration.
testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so FAMILY REPUTATION OR TRADITION
far contrary to declarant's own interest, that a reasonable
REGARDING PEDIGREE
man in his position would not have made the declaration
unless he believed it to be true, may be received in
evidence against himself or his successors in interest and
Entries in family bibles or other family books or charts,
against third persons.
engravings on rings, family portraits and the like, may be
received as evidence of pedigree.
Requisites for the exception to apply:
a) That the declarant is dead or unable to testify;
Requisites for the exception to apply:
b) That it relates to a fact against the interest of the
a) There is a controversy in respect to the pedigree
declarant;
of any members of a family;
c) That at the time he made said declaration the
b) The reputation or tradition of the pedigree of the
declarant was aware that the same was contrary
person concerned existed ante litem motam or
to his aforesaid interest; and
pervious to the controversy; and
d) That the declarant had no motive to falsify and
c) The witness testifying to the reputation or
believed such declaration to be true.
tradition regarding the pedigree of the person
concerned must be a member of the family of
ADMISSION BY DECLARATION
said person, either by consanguinity or affinity.
PRIVIES AGAINST INTEREST
One of 3 exceptions to Exception to hearsay
res inter alios acta COMMON REPUTATION
Evidence against the Evidence against even the
successor in interest of declarant, his successor in Requisites for the admissibility of the exception:
the admitter interest, or 3rd persons a) The facts must be of public or general interest
Admitter need not be Declarant is dead or unable and more than thirty years old;
dead or unable to testify to testify b) The common reputation must have been ancient
Relates to title to Relates to any interest (more than 30 years old or one generation old);
property c) The reputation must have been one formed
Admission need not be Declaration must be among the class of persons who were in a
against the admitter‘s against the interest of the position to have some sources of information and
interest declarant to contribute intelligently to the formation of the
opinion; and
The word "pedigree" includes relationship, family Requisites for the admissibility of common reputation
genealogy, birth, marriage, death, the dates when and the respecting marriage:
places where these facts occurred, and the names of the a) The common reputation must have been formed
relatives. It embraces also facts of family history previous to the controversy; and
intimately connected with pedigree. b) The common reputation must have been formed
in the community or among the class of persons
Pedigree is the history of family descent which is who are in a position to have sources of
transmitted from one generation to another by both oral information and to contribute intelligently to the
and written declarations and by traditions. formation of the opinion.
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Requisites for the admissibility of common reputation occurrence. admissible.
respecting moral character: Reason for admissibility: Reason for admissibility:
a) That it is the reputation in the place where the Trustworthiness and The motive, character
person in question is best known; necessity—because and object of an act are
b) That it was formed ante litem motam. statements are made frequently indicated by
instinctively, and because what was said by the
Character refers to the inherent qualities of the person, said natural and person engaged in the
rather than to any opinion that may be formed or spontaneous utterances act.
expressed of him by others. Reputation applies to the are more convincing than
opinion which others may have formed and expressed of the testimony of the same
his character. person on the stand.
Requisites for admissibility: Requisites for admissibility:
Monuments and inscriptions in public places may be a) There must be a a) Act or occurrence
received as evidence of common reputation. startling occurrence; characterized must
b) The statement must be equivocal;
PART OF THE RES GESTAE relate to the b) Verbal acts must
circumstances of the characterize or
startling occurrence; explain the
Statements made by a person while a startling occurrence c) The statement must equivocal act;
is taking place or immediately prior or subsequent thereto be spontaneous. c) Equivocal act must
with respect to the circumstances thereof, may be given in be relevant to the
evidence as part of the res gestae. So, also, statements issue;
accompanying an equivocal act material to the issue, and d) Verbal acts must be
giving it a legal significance, may be received as part of contemporaneous
the res gestae. with equivocal act.
A published treatise, periodical or pamphlet on a subject Before one may be allowed to testify as an expert witness,
of history, law, science or art is admissible as tending to his qualification must first be established by the party
prove the truth of a matter stated therein if the court takes presenting him, i.e., he must be shown to possess the
judicial notice, or a witness expert in the subject testifies special skill or knowledge relevant to the question to
that the writer of the statement in the treatise, periodical which he is to express an opinion. Common subjects of
or pamphlet is recognized in his profession or calling as expert testimony: handwriting, typewritten documents,
expert in the subject. fingerprints, ballistics, medicine, value of properties and
services.
TESTIMONY OR DEPOSITION AT A FORMER
TRIAL CHARACTER EVIDENCE
The testimony or deposition of a witness deceased or Character evidence, as a general rule, is not admissible in
unable to testify, given in a former case or proceeding, evidence because the evidence of a person’s character
judicial or administrative, involving the same parties and does not prove that such person acted conformity with
subject matter, may be given in evidence against the such character or trait in a particular occasion.
adverse party who had the opportunity to cross-examine Exceptions:
him. a) In criminal cases, the prosecution may not at the
outset prove the bad moral character of the
If the witness has been subjected to cross-examination in accused which is pertinent to the moral trait
a former trial, the rule is satisfied, and the former involved in the offense charged. If the accused,
testimony may now be used. however, in his defense attempts to prove his
good moral character then the prosecution can
OPINION RULE introduce evidence of such bad moral character
at the rebuttal stage.
GENERAL RULE: the opinion of a witness is not b) Also in criminal case, the good or bad moral
admissible. The witness must testify to facts within their character of the offended party may always be
knowledge and may not state their opinion, even on their proved by either party as long as such evidence
cross-examination. tends to establish the probability or improbability
of the offense charged.
EXCEPTIONS: c) In civil cases, the moral character of either party
1) OPINION OF EXPERT WITNESS - On a thereto cannot be proved unless it is pertinent to
matter requiring special knowledge, skill, the issue of character involved in the case.
experience or training which he possesses, that d) In both civil and criminal cases, the bad moral
is, when he is an expert thereon may be received character of a witness may always be proved by
in evidence. Expert testimony is not admissible as to either party but not evidence of his good
a matter not in issue. character, unless it has been impeached.
2) OPINION OF ORDINARY WITNESSES:
a) The identity of a person about whom he With respect to the nature or substance of the character
has adequate knowledge; evidence which may be admissible, the rules require that:
b) A handwriting of a person with which a) With respect to the accused, such character
he has sufficient familiarity; evidence must be pertinent to the moral trait
c) The mental sanity or a person with involved in the offense charged;
whom he is sufficiently acquainted; and b) With respect to the offended person, it is
d) The witness’ impression of the emotion, sufficient that such character evidence may
behavior, condition or appearance of a establish in any reasonable degree the probability
person. or improbability of the offense charged, as in
ð Reason: it is for the court to form an opinion concerning the prosecutions for rape or consented abduction
facts in proof of which evidence is offered. wherein the victim‘s chastity may be questioned,
and in prosecution for homicide wherein the
OPINION OF EXPERT WITNESS pugnacious, quarrelsome or trouble-seeking
character of the victim is a proper subject of
inquiry; and
It is sufficient that the following factors are present:
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c) With respect to witnesses, such character The court may order that the testimony of the child be
evidence must refer to his general reputation for taken by live-link television if there is a substantial
truth, honesty or integrity, that is, as affecting his likelihood that the child would suffer trauma from
credibility. testifying in the presence of the accused, his counsel or
the prosecutor as the case may be. The trauma must be of
a kind which would impair the completeness or
RULE ON EXAMINATION OF A CHILD WITNESS truthfulness of the testimony of the child. The child shall
(A.M. NO. 004-07-SC) therefore testify in a room separate from the courtroom.
Unless otherwise provided, this Rule shall govern the The prosecutor, counsel, or guardian ad litem may apply
examination of child witnesses who are victims of crime, for an order that a deposition be taken of the testimony of
accused of a crime, and witnesses to crime. It shall apply the child and that it be recorded and preserved on
in all criminal proceedings and non-criminal proceedings videotape. The judge shall preside at the videotaped
involving child witnesses. deposition of a child. Objections to deposition testimony
or evidence and the grounds for the objection shall be
MEANING OF “CHILD WITNESS” stated and shall rule upon at the time of the taking of the
deposition.
Any person who at the time of giving testimony is below
the age of 18 years. In child abuse cases, a child includes The videotaped deposition shall be preserved and
one over 18 years but is found by the court as unable to stenographically recorded. The videotape and the
fully take care of himself or protect himself from abuse, stenographic notes shall be transmitted to the clerk of the
neglect, cruelty, exploitation, or discrimination because court where the case is pending for safekeeping and shall
of a physical or mental disability or condition. be made a part of the record. The videotaped deposition
and stenographic notes shall be subject to a protective
COMPETENCY OF A CHILD WITNESS order.
Every child is presumed qualified to be a witness. If, at the time of trial, the court finds that the child is
However, the court shall conduct a competency unable to testify, the court may admit into evidence the
examination of a child (only by the judge, or court) , motu videotaped deposition of the child in lieu of his testimony
propio or on motion of a party, when it finds that at the trial.
substantial doubt exists regarding the stability of the child
to perceive, remember, communicate, distinguish truth After the original videotaping but before or during trial,
from falsehood, or appreciate the duty to tell the truth in any party may file any motion for additional videotaping
court. The court has the duty of continuously assessing on the ground of newly discovered evidence.
the competence of the child throughout his testimony.
HEARSAY EXCEPTION IN CHILD ABUSE CASES
EXAMINATION OF A CHILD WITNESS
A statement made by a child describing any act or
The examination of a child witness presented in a hearing attempted act of child abuse, not otherwise admissible
or any proceeding shall be done in open court. Unless the under the hearsay rule, may be admitted in evidence in
witness is incapacitated to speak, or the question calls for any criminal or non-criminal proceeding subject to the
a different mode of answer, the answers of the witness following rules:
shall be given orally. The party who presents a child a) Before such hearsay statement may be admitted,
witness or the guardian ad litem of such child witness its proponent shall make known to the adverse
may, however, move the court to allow him to testify in party the intention to offer such statement and its
the manner provided in this Rule. particulars to provide him a fair opportunity to
object. If the child is available, the court shall,
LIVE-LINK TV TESTIMONY OF A CHILD upon motion of the adverse party, require the
WITNESS (SEC. 25) child to be present at the presentation of the
hearsay statement for cross-examination by the
The prosecutor, counsel or the guardian ad litem may adverse party. When the child is unavailable, the
apply for an order that the testimony of the child be taken fact of such circumstance must be proved by the
in a room outside the courtroom and be televised to the proponent.
courtroom by live-link television. b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
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content and circumstances thereof which provide evidence. Such offer shall be done orally unless
sufficient indicia of reliability. allowed by the court to be done in writing.
(MeTC, MTC and MCTC) ð a preliminary conference shall be held not later
than 30 days after the last answer is filed. The
CASES COVERED BY THE RULE rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
1) CIVIL CASES inconsistent with the provisions of the Rule.
a. All cases of forcible entry and unlawful ð The failure of the plaintiff to appear in the
detainer irrespective of the amount of preliminary conference shall be cause for the
damages or unpaid rentals sought to be dismissal of his complaint. The defendant who
recovered. appears in the absence of the plaintiff shall be
b. All other cases, except probate proceedings entitled to judgment on his counterclaim. All
where the total amount of the plaintiff‘s cross-claims shall be dismissed.
claim does not exceed P100,000 outside, or ð If a sole defendant shall fail to appear, the
P200,000 in Metro Manila, exclusive of plaintiff shall be entitled to judgment as
interest and costs. warranted by the allegations in the complaint
and limited to the reliefs prayed for therein. The
2) CRIMINAL CASES Rule shall not apply where one of two or more
a. Violation of Bouncing Checks Law (BP 22); defendants sued under a common cause of action
b. Violation of traffic laws, rules and who had pleaded a common defenses shall
regulations; appear at the preliminary conference.
c. Violations of rental laws;
d. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a KATARUNGANG PAMBARANGAY (Secs. 399
fine not exceeding P1,000 or both, 422, LGC)
irrespective of other imposable penalties,
accessory or otherwise, or of the civil
liability arising therefrom; and in offenses
involving damages to property through SUBJECT MATTER FOR AMICABLE
criminal negligence, where the imposable SETTLEMENT
fine does not exceed P1,000.
e. In offenses involving damage to property The lupon of each barangay shall have authority to bring
through criminal negligence, where the together the parties actually residing in the same
imposable fine does not exceed P10,000.00 municipality or city for amicable settlement of all disputes
ð Note: The Rule shall not apply in a civil case where EXCEPT:
the cause of action is pleaded with another cause of 1) Where one party is the government or any
action subject to the ordinary procedure, nor to subdivision or instrumentality thereof;
criminal case where the offense charged is necessary 2) Where one party is a public officer or employee,
related to another criminal case subject to the and the dispute relates to the performance of his
ordinary procedure. official functions;
3) Offenses punishable by imprisonment exceeding
EFFECT OF FAILURE TO ANSWER one (1) year or a fine exceeding P5,000;
ð Should the defendant fail to answer the 4) Offenses where there is no private offended
complaint within 10 days from service of party;
summons, the court shall MOTU PROPIO or 5) Where the dispute involves real properties
ON MOTION of the plaintiff, shall render located in different cities or municipalities unless
judgment as may be warranted by the facts the parties thereto agree to submit their
alleged in the complaint and limited to what is differences to amicable settlement by an
prayed for therein. appropriate lupon;
6) Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
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other and the parties thereto agree to submit their WHEN PARTIES MAY DIRECTLY GO TO COURT
differences to amicable settlement by an
appropriate lupon; 1) Where the accused is under detention;
7) Such other classes of disputes which the 2) Where a person has otherwise been deprived or
President may determine in the interest of justice personal liberty calling for habeas corpus
or upon the recommendation of the Secretary of proceedings;
Justice; 3) Where actions are coupled with provisional
8) Any complaint by or against corporations, remedies such as preliminary injunction,
partnerships, or juridical entities. The reason is attachment, delivery of personal property, and
that only individuals shall be parties to barangay support pendente lite; and
conciliation proceedings either as complainants 4) Where the action may otherwise be barred by the
or respondents; statute of limitations.
9) Disputes where urgent legal action is necessary
to prevent injustice from being committed or EXECUTION
further continued, specially the following:
a) A criminal case where the accused is The amicable settlement or arbitration award may be
under police custody or detention; enforced by execution by the lupon within six (6) months
b) A petition for habeas corpus by a person from the date of the settlement. After the lapse of such
illegally detained or deprived of his time, the settlement may be enforced by action in the
liberty or one acting in his behalf; appropriate city or municipal court.
c) Actions coupled with provisional
remedies, such as preliminary REPUDIATION
injunction, attachment, replevin and
support pendente litem; Any party to the dispute may, within ten (10) days from
d) Where the action may be barred by the the date of the settlement, repudiate the same by filing
statute of limitations; with the lupon chairman a statement to that effect sworn
10) Labor disputes or controversies arising from to before him, where the consent is vitiated by fraud,
employer-employee relationship. violence, or intimidation. Such repudiation shall be
11) Where the dispute arises from the sufficient basis for the issuance of the certification for
Comprehensive Agrarian Reform Law; filing a complaint before the court.
12) Actions to annul judgment upon a compromise
which can be filed directly in court.
VENUE
SCOPE AND APPLICABILITY OF THE RULE
1) Disputes between persons actually residing in the
This Rule shall govern the procedure in actions before
same barangay;
the:
2) Those involving actual residents of different
a) Metropolitan Trial Courts;
barangays within the same city or municipality;
b) Municipal Trial Courts in Cities;
3) All disputes involving real property or any interest
c) Municipal Trial Courts; and
therein where the real property or the larger portion
d) Municipal Circuit Trial Courts
thereof is situated;
4) Those arising at the workplace where the contending
ð for payment of money where the value of the claim
parties are employed or at the institution where such
DOES NOT EXCEED P100,000.00 exclusive of
parties are enrolled for study, where such workplace
interest and costs.
or institution is located.
§ Objections to venue shall be raised in the mediation
The MTCs shall apply this Rule in all actions which are:
proceedings before the punong barangay; otherwise, the
a) purely civil in nature where the claim or relief
same shall be deemed waived. Any legal question
prayed for by the plaintiff is solely for payment
which may confront the punong barangay in resolving
or reimbursement of sum of money; and
objections to venue herein referred to may be submitted
b) the civil aspect of criminal actions, either filed
to the Secretary of Justice, or his duly designated
before the institution of the criminal action, or
representative, whose ruling thereon shall be binding.
reserved upon the filing of the criminal action in
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court, pursuant to Rule 111 of the Revised Rules good cause is shown for the admission of additional
of Criminal Procedure. evidence. No formal pleading, other than the Statement of
Claim is necessary to initiate a small claims action.
These claims or demands may be:
RESPONSE
a) For money owed under any of the following:
1. Contract of Lease; The defendant shall file with the court and serve on the
2. Contract of Loan; plaintiff a duly accomplished and verified Response
3. Contract of Services; within a non-extendible period of ten (10) days from
4. Contract of Sale; or receipt of summons. The response shall be accompanied
5. Contract of Mortgage; by certified photocopies of documents, as well as
b) For damages arising from any of the affidavits of witnesses and other evidence in support
following: thereof. No evidence shall be allowed during the hearing
1. Fault or negligence; which was not attached to or submitted together with the
2. Quasi-contract; or Response, unless good cause is shown for the admission
3. Contract; of additional evidence. The grounds for the dismissal of the
c) The enforcement of a barangay amicable claim, under Rule 16 of the Rules of Court, should be pleaded.
settlement or an arbitration award involving
a money claim covered by this Rule pursuant EFFECT OF FAILURE TO FILE RESPONSE
to Sec. 417 of RA 7160.
Should the defendant fail to file his Response within the
COMMENCEMENT OF SMALL CLAIMS ACTION required period, and likewise fail to appear at the date set
for hearing, the court shall render judgment on the same
A small claims action is commenced by filing with the day, as may be warranted by the facts.
court an:
1) accomplished and verified Statement of Claim in Should the defendant fail to file his Response within the
duplicate; required period but appears at the date set for hearing, the
2) a Certification of Non-forum Shopping; court shall ascertain what defense he has to offer and
3) two (2) duly certified photocopies of the proceed to hear, mediate or adjudicate the case on the
actionable document/s subject of the claim; same day as if a Response has been filed.
4) the affidavits of witnesses and other evidence to
support the claim. PROHIBITED PLEADINGS AND MOTIONS
The parties shall appear at the designated date of hearing EFFECT OF FAILURE TO APPEAR
PERSONALLY. Appearance through a representative
must be for a valid cause. The representative of an Failure of the plaintiff to appear shall be cause for the
individual-party must: dismissal of the claim without prejudice. The defendant
1) not be a lawyer; and who appears shall be entitled to judgment on a permissive
2) must be related to or next-of-kin of the counterclaim.
individual-party.
ð Juridical entities shall not be represented by a lawyer in any Failure of the defendant to appear shall have the same
capacity. effect as failure to file a Response. This rule shall not
The representative must be authorized under a Special apply where one of two or more defendants sued on a
Power of Attorney to enter into an amicable settlement of common cause of action appear.
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involving enforcement or violations of environmental and
Failure of both parties to appear shall cause the dismissal other related laws, rules and regulations.
with prejudice of both the claim and counterclaim.
CIVIL PROCEDURE
HEARING; DUTY OF THE JUDGE
At the beginning, the judge shall read aloud a short PROHIBITION AGAINST TEMPORARY
statement explaining the nature, purpose and the rule of RESTRAINING ORDER AND PRELIMINARY
procedure of small claims cases and shall exert efforts to INJUNCTION
bring the parties to an amicable settlement of their
dispute. Except the Supreme Court, no court can issue a TRO or
writ of preliminary injunction against lawful actions of
Any settlement or resolution of the dispute shall be government agencies that enforce environmental laws or
reduced into writing, signed by the parties and submitted prevent violations thereof except the Supreme Court.
to the court for approval.
PRE-TRIAL CONFERENCE; CONSENT DECREE
Settlement discussions shall be strictly confidential and (SEC. 5, RULE 3)
any reference to any settlement made in the course of
such discussions shall be punishable by contempt. ð The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all
FINALITY OF JUDGMENT pre-trial conferences.
ð The judge shall exert best efforts to persuade the
After the hearing, the court shall render its decision on parties to arrive at a settlement of the dispute. The
the same day and the same shall be final and judge may issue a consent decree approving the
unappealable and if it is in favor of the plaintiff, the agreement between the parties in accordance with
judgment shall be executed upon his motion. law, morals, public order and public policy to protect
the right of the people to a balanced and healthful
ecology.
ð Evidence not presented during the pre-trial, except
newly discovered evidence, shall be deemed waived.
RULES OF PROCEDURE FOR ENVIRONMENTAL ð CONSENT DECREE refers to a judicially-approved
CASES (AM No. 09-6-8-SC) settlement between concerned parties based on public
interest aspect in environmental cases and
encourages the parties to expedite the resolution of
litigation.
SCOPE AND APPLICABILITY OF THE RULE
PROHIBITED PLEADINGS AND MOTIONS (SEC.
These Rules shall govern the procedure in civil, criminal 2, RULE 2)
and special civil actions before the RTCs and MTCs
d) Motion to declare the defendant in default;
a) Motion to dismiss the complaint; e) Reply and rejoinder; and
b) Motion for a bill of particulars; f) Third party complaint.
c) Motion for extension of time to file pleadings,
except to file answer, the extension not to exceed
fifteen (15) days;
Petitions for certiorari are likewise permitted since these
Motion for postponement, motion for new trial and raise fundamentally questions of jurisdiction.
petition for relief from judgment shall only be allowed in
certain conditions of highly meritorious cases or to TEMPORARY ENVIRONMENTAL PROTECTION
prevent a manifest miscarriage of justice. The satisfaction ORDER (TEPO)
of these conditions is required since these motions are
prone abuse during litigation. Temporary Environmental Protection Order (TEPO) - refers to
an order issued by the court directing or enjoining any
Motion for intervention is permitted in order to allow the person or government agency to perform or desist from
public to participate in the filing and prosecution of performing an act in order to protect, preserve or
environmental cases, which are imbued with public rehabilitate the environment.
interest.
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The TEPO shall be issued it appears from the verified ORDER
complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is The court may convert the TEPO to a permanent EPO or
of extreme urgency and the applicant will suffer grave issue a writ of continuing mandamus directing the
injustice and irreparable injury. The applicant shall be performance of acts which shall be effective until the
exempted from the posting of a bond for the issuance of a judgment is fully satisfied.
TEPO.
The court may, by itself or through the appropriate
The executive judge of the multiple sala court before government agency, monitor the execution of the
raffle or the presiding judge of a single-sala court as the judgment and require the party concerned to submit
case may be, may issue ex parte a TEPO effective for written reports on a quarterly basis or sooner as may be
only seventy-two (72) hours from date of the receipt of necessary, detailing the progress of the execution and
the TEPO by the party or person enjoined. Within said satisfaction of the judgment. The other party may, at its
period, the court where the case is assigned, shall conduct option, submit its comments or observations on the
a summary hearing to determine whether the TEPO may execution of the judgment.
be extended until the termination of the case.
WRIT OF CONTINUING MANDAMUS
The court handling the case shall periodically monitor the
existence of acts that are the subject matter of the TEPO
and may lift the same at any time as circumstances may CONTINUING MANDAMUS is a writ issued by a
warrant. court in an environmental case directing any agency or
instrumentality of the government or officer thereof to
An applicant is exempt from the posting of a bond. While the perform an act or series of acts decreed by final judgment
TEPO may be issued ex parte, this is more of the exception. The which shall remain effective until judgment is fully
general rule on the conduct of a hearing pursuant to due process satisfied.
remains.
The concept of continuing mandamus was originally
JUDGMENT AND EXECUTION (RULE 5) enunciated in the case of Concerned Residents of Manila Bay
vs. MMDA, GR 171947-98, Dec. 18, 2008. The Rules now
Any judgment directing the performance of acts for the codify the Writ of Continuing Mandamus as one of the
protection, preservation or rehabilitation of the principal remedies which may be availed of in
environment shall be executory pending appeal UNLESS environmental cases.
restrained by the appellate court.
STRATEGIC LAWSUIT AGAINST PUBLIC
It may not be stayed by the posting of a bond and the sole PARTICIPATION
remedy lies with the appellate court. The appellate court
can issue a TRO to restrain the execution of the judgment STRATEGIC LAWSUIT AGAINST PUBLIC
and should the appellate court act with grave abuse of PARTICIPATION (SLAPP) refers to an action whether
discretion in refusing to act on the application for a TRO, civil, criminal or administrative, brought against any
a petition for certiorari under Rule 65 can be brought person, institution or any government agency or local
before the Supreme Court. government unit or its officials and employees, with the
intent to harass, vex, exert undue pressure or stifle any
RELIEFS IN A CITIZEN’S SUIT legal recourse that such person, institution or government
agency has taken or may take in the enforcement of
Any Filipino citizen in representation of others, including environmental laws, protection of the environment or
minors or generations yet unborn, may file an action to assertion of environmental rights.
enforce rights or obligations under environmental laws.
A legal action filed to harass, vex, exert undue pressure or
If warranted, the court may grant to the plaintiff proper stifle any legal recourse that any person, institution or the
reliefs which shall include the protection, preservation or government has taken or may take in the enforcement of
rehabilitation of the environment and the payment of environmental laws, protection of the environment or
attorney‘s fees, costs of suit and other litigation expenses. assertion of environmental rights shall be treated as a
It may also require the violator to submit a program of SLAPP.
rehabilitation or restoration of the environment, the costs
of which shall be borne by the violator, or to contribute to In a case is a SLAPP the defendant may file an answer
a special trust fund for that purpose subject to the control interposing as a defense that the case is a SLAPP. The
of the court. hearing on the defense of a SLAPP shall be summary in
nature. The party filing the action assailed as a SLAPP
PERMANENT ENVIRONMENTAL PROTECTION
2011 Bar Examinations 184
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shall prove by preponderance of evidence that the action The writ is a extraordinary remedy available to a natural
is not a SLAPP and is a valid claim. or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any
The defense of a SLAPP shall be resolved within thirty public interest group accredited by or registered with any
(30) days after the summary hearing. If the court government agency, on behalf of persons whose
dismisses the action, the court may award damages, constitutional right to a balanced and healthful ecology is
attorney‘s fees and costs of suit under a counterclaim if violated, or threatened with violation by an unlawful act
such has been filed. The dismissal shall be with prejudice. or omission of a public official or employee, or private
If the court rejects the defense of a SLAPP, the evidence individual or entity, involving environmental damage of
adduced during the summary hearing shall be treated as such magnitude as to prejudice the life, health or property
evidence of the parties on the merits of the case. Since a of inhabitants in two or more cities or provinces.
motion to dismiss is a prohibited pleading, SLAPP as an
affirmative defense should be raised in an answer along Those who may file for this remedy must represent the
with other defenses that may be raised in the case alleged inhabitants prejudiced by the environmental damage
to be a SLAPP. subject of the writ to be filed with the SC or CA. The
applicant is exempted from payment of docket fees.
SPECIAL PROCEDURE / PROCEEDING
PROHIBITED PLEADINGS AND MOTIONS
f) Third-party complaint;
a) Motion to dismiss; g) Reply; and
b) Motion for extension of time to file return; h) Motion to declare respondent in default.
c) Motion for postponement;
d) Motion for a bill of particulars;
e) Counterclaim or cross-claim;
1) GROUNDS FOR CONTINUING MANDAMUS
DISCOVERY MEASURES a) When any agency or instrumentality of the
government or officer thereof unlawfully
A party may file a verified motion for the following neglects the performance of an act which the
reliefs: law specifically enjoins as a duty resulting
a) Ocular Inspection - the court may order any from an office, trust or station in connection
person in possession or control of a with the enforcement or violation of an
designated land or other property to permit environmental law rule or regulation or a
entry for the purpose of inspecting or right therein;
photographing the property or any relevant b) When any agency or instrumentality of the
object or operation thereon. government or officer thereof unlawfully
b) Production or inspection of documents or excludes another from the use or enjoyment
things - the court may order any person in of such right.
possession, custody or control of any
designated documents, papers, books, 2) REQUISITES CONTINUING MANDAMUS
accounts, letters, photographs, objects or a) There must be a clear legal right or duty;
tangible things, or objects in digitized or b) The act to be performed must be practical;
electronic form, which constitute or contain c) Respondent must be exercising a ministerial
evidence relevant to the petition or the duty;
return, to produce and permit their d) The duty or act to be performed must be in
inspection, copying or photographing by or connection with the enforcement or
on behalf of the movant. violation of an environmental law, rule or
regulation or a right; and
WRIT OF CONTINUING MANDAMUS e) There is no other plain, speedy, and
adequate remedy in the ordinary course of
A writ issued by a court in an environmental case law.
directing any agency or instrumentality of the
government or officer thereof to perform an act or series
of acts decreed by final judgment which shall remain The petition shall be filed with the Regional Trial Court
effective until judgment is fully satisfied. The petition shall exercising jurisdiction over the territory where the
contain a sworn certification of non-forum shopping. actionable neglect or omission occurred or with the Court
2011 Bar Examinations 185
BERT – NOTES in REMEDIAL LAW
of Appeals or the Supreme Court. The petitioner shall be Exemption from docket fees. The application for either
exempt from the payment of docket fees. petition is exempted from the payment of docket fees.
If warranted, the court shall grant the privilege of the writ Venue. A petition for the issuance of a writ of continuing
of continuing mandamus requiring respondent to perform mandamus may be filed in the following: (a) the RTC
an act or series of acts until the judgment is fully satisfied exercising jurisdiction over the territory where the
and to grant such other reliefs as may be warranted actionable neglect or omission occurred; (b) the CA; or
resulting from the wrongful or illegal acts of the (c) the SC. Given the magnitude of the damage, the
respondent. Upon full satisfaction of the judgment, a final application for the issuance of a writ of kalikasan can
return of the writ shall be made to the court by the only be filed with the SC or any station of the CA.
respondent. If the court finds that the judgment has been
fully implemented, the satisfaction of judgment shall be Discovery measures. The Rule on the WCM does not
entered in the court docket. contain any provision for discovery measures, unlike the
Rule on WOK which incorporates the procedural
The issuance of a TEPO is made available as an auxillary environmental right of access to information through the
remedy prior to the issuance of the writ itself. As a special use of discovery measures such as ocular inspection order
civil action, the WoCMa may be availed of to compel the and production order.
performance of an act specifically enjoined by law. Its
availability as a special civil action likewise complements Damages for personal injury. The WCM allows damages
its role as a final relief in environmental civil cases and in for the malicious neglect of the performance of the legal
the WOK, where continuing mandamus may likewise be duty of the respondent, identical Rule 65. In contrast, no
issued should the facts merit such relief. damages may be awarded in a petition for the issuance of
a WOK consistent with the public interest character of
the petition. A party who avails of this petition but who
WRIT OF CONTINUING MANDAMUS VS. WRIT also wishes to be indemnified for injuries suffered may
OF KALIKASAN file another suit for the recovery of damages since the
Rule on WOK allows for the institution of separate
Subject matter. WoCMa is directed against the unlawful actions.
neglect in the performance of an act which the law
specifically enjoins as a duty resulting from an office, CRIMINAL PROCEDURE
trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a
right therein; or (a) the unlawful exclusion of another WHO MAY FILE
from the use or enjoyment of such right and in both
instances, there is no other plain, speedy and adequate Any offended party, peace officer or any public officer
remedy in the ordinary course of law. A writ of kalikasan charged with the enforcement of an environmental law.
is available against unlawful act or omission of a public
official or employee, or private individual or entity, INSTITUTION OF CRIMINAL AND CIVIL
involving environmental damage of such magnitude as to ACTION
prejudice the life, health or property of inhabitants in two
or more cities or provinces. In addition, magnitude of When a criminal action is instituted, the civil action for
environmental damage is a condition sine qua non in a the recovery of civil liability arising from the offense
petition for the issuance of a writ of kalikasan and must charged, shall be deemed instituted with the criminal
be contained in the verified petition. action UNLESS the complainant
a) waives the civil action
Who may file. A writ of continuing mandamus is b) reserves the right to institute it separately
available to a broad range of persons such as natural or c) institutes the civil action prior to the criminal
juridical person, entity authorized by law, people‘s action.
organization, NGO, or any public interest group
accredited by or registered with any government agency, ð Unless the civil action has been instituted prior to the
on behalf of persons whose right to a balanced and criminal action, the reservation of the right to
healthful ecology is violated or threatened to be violated. institute separately the civil action shall be made
during arraignment.
Respondent. The respondent in a petition for continuing
mandamus is only the government or its officers, unlike ARREST WITHOUT WARRANT; WHEN VALID
in a petition for writ of kalikasan, where the respondent (SEC. 1, RULE 11)
may be a private individual or entity.
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BERT – NOTES in REMEDIAL LAW
A peace officer or an individual deputized by the proper f) The proceeds shall be held in trust and deposited
government agency may, without a warrant, arrest a with the government depository bank for
person: disposition according to the judgment.
a) When, in his presence, the person to be arrested
has committed, is actually committing or is BAIL
attempting to commit an offense; or
b) When an offense has just been committed, and WHERE TO FILE
he has probable cause to believe based on ð Bail may be filed with the court where the case is
personal knowledge of facts or circumstances pending, or in the absence or unavailability of
that the person to be arrested has committed it. the judge thereof, with any regional trial judge,
c) Individuals deputized by the proper government metropolitan trial judge, municipal trial judge or
agency who are enforcing environmental laws municipal circuit trial judge in the province, city
shall enjoy the PRESUMPTION OF or municipality.
REGULARITY under Section 3(m), Rule 131 of ð If the accused is arrested in a province, city or
the Rules of Court when effecting arrests for municipality other than where the case is
violations of environmental laws. pending, bail may also be filed with any Regional
Trial Court of said place, or if no judge thereof is
PROCEDURE IN THE CUSTODY AND available, with any metropolitan trial judge,
DISPOSITION OF SEIZED ITEMS municipal trial judge or municipal circuit trial
judge therein.
Custody and disposition of seized items shall be in ð If the court grants bail, the court may issue a
accordance with the applicable laws or rules promulgated hold-departure order in appropriate cases.
by the concerned government agency.
DUTIES OF THE COURT
In the absence of applicable laws or rules promulgated by Before granting the application for bail, the judge must
the concerned government agency, the following read the information in a language known to and
procedure shall be observed: understood by the accused and require the accused to sign
a) The apprehending officer having initial custody a written undertaking, as follows:
and control of the seized items, equipment, a) To appear before the court that issued the
paraphernalia, conveyances and instruments warrant of arrest for arraignment purposes on the
shall physically inventory and whenever date scheduled, and if the accused fails to appear
practicable, photograph the same in the presence without justification on the date of arraignment,
of the person from whom such items were seized. accused waives the reading of the information
b) Thereafter, the apprehending officer shall submit and authorizes the court to enter a plea of not
to the issuing court the return of the search guilty on behalf of the accused and to set the case
warrant within five (5) days from date of seizure for trial;
or in case of warrantless arrest, submit within b) To appear whenever required by the court where
five (5) days from date of seizure, the inventory the case is pending; and
report, compliance report, photographs, c) To waive the right of the accused to be present at
representative samples and other pertinent the trial, and upon failure of the accused to
documents to the public prosecutor for appear without justification and despite due
appropriate action. notice, the trial may proceed in absentia.
c) Upon motion by any interested party, the court
may direct the auction sale of seized items, ARRAIGNMENT
equipment, paraphernalia, tools or instruments
of the crime. The court shall, after hearing, fix The court shall set the arraignment of the accused within
the minimum bid price based on the fifteen (15) days from the time it acquires jurisdiction
recommendation of the concerned government over the accused, with notice to the public prosecutor and
agency. The sheriff shall conduct the auction. offended party or concerned government agency that it
d) The auction sale shall be with notice to the will entertain plea-bargaining on the date of the
accused, the person from whom the items were arraignment.
seized, or the owner thereof and the concerned
government agency. PLEA-BARGAINING
e) The notice of auction shall be posted in three
conspicuous places in the city or municipality On the scheduled date of arraignment, the court shall
where the items, equipment, paraphernalia, tools consider plea-bargaining arrangements. Where the
or instruments of the crime were seized. prosecution and offended party or concerned government
agency agree to the plea offered by the accused, the court
shall:
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1) Issue an order which contains the plea-
bargaining arrived at; Record of proceedings. All proceedings during the pre-
2) Proceed to receive evidence on the civil trial shall be recorded, the transcripts prepared and the
aspect of the case, if any; and minutes signed by the parties or their counsels.
3) Render and promulgate judgment of
conviction, including the civil liability for PRE-TRIAL ORDER - The court shall issue a pre-trial
damages. order within ten (10) days after the termination of the pre-
trial, setting forth the actions taken during the pre-trial
ð Plea-bargaining is considered at arraignment in order to conference, the facts stipulated, the admissions made,
avoid the situation where an initial plea is changed in the evidence marked, the number of witnesses to be presented
course of the trial in view of a successful plea bargain. and the schedule of trial. The order shall bind the parties
and control the course of action during the trial.
PRE-TRIAL
SUBSIDIARY LIABILITY
After the arraignment, the court shall set the PRE-TRIAL In case of conviction of the accused and subsidiary
CONFERENCE within thirty (30) days. It may refer the liability is allowed by law, the court may, by motion of
case to the branch clerk of court, if warranted, for a the person entitled to recover under judgment, enforce
preliminary conference to be set at least three (3) days such subsidiary liability against a person or corporation
prior to the pre-trial. subsidiarily liable under Article 102 and Article 103 of the
Revised Penal Code.
DUTY OF THE JUDGE
1) Place the parties and their counsels under oath; SLAPP IN CRIMINAL CASES
2) Adopt the minutes of the preliminary conference
as part of the pre-trial proceedings, confirm Upon the filing of an information in court and before
markings of exhibits or substituted photocopies arraignment, the accused may file a motion to dismiss on
and admissions on the genuineness and due the ground that the criminal action is a SLAPP.
execution of documents, and list object and
testimonial evidence; The hearing on the defense of a SLAPP shall be summary
3) Scrutinize the information and the statements in in nature. The party seeking the dismissal of the case
the affidavits and other documents which form must prove by substantial evidence that his acts for the
part of the record of the preliminary investigation enforcement of environmental law are a legitimate action
together with other documents identified and for the protection, preservation and rehabilitation of the
marked as exhibits to determine further environment. The party filing the action assailed as a
admissions of facts as to: SLAPP shall prove by preponderance of evidence that the
a. The court‘s territorial jurisdiction action is not a SLAPP.
relative to the offense(s) charged;
b. Qualification of expert witnesses; and The court shall grant the motion if the accused establishes
c. Amount of damages; in the summary hearing that the criminal case has been
4) Define factual and legal issues; filed with intent to harass, vex, exert undue pressure or
5) Ask parties to agree on the specific trial dates and stifle any legal recourse that any person, institution or the
adhere to the flow chart determined by the court government has taken or may take in the enforcement of
which shall contain the time frames for the environmental laws, protection of the environment or
different stages of the proceeding up to assertion of environmental rights. If the court denies the
promulgation of decision; motion, the court shall immediately proceed with the
6) Require the parties to submit to the branch clerk arraignment of the accused.
of court the names, addresses and contact
numbers of witnesses that need to be summoned EVIDENCE
by subpoena; and
7) Consider modification of order of trial if the PRECAUTIONARY PRINCIPLE
accused admits the charge but interposes a lawful
defense.
Precautionary principle states that when human
AGREEMENTS OR ADMISSIONS - All agreements or activities may lead to threats of serious and irreversible
admissions made or entered during the pre-trial damage to the environment that is scientifically plausible
conference shall be reduced in writing and signed by the but uncertain, actions shall be taken to avoid or diminish
accused and counsel; otherwise, they cannot be used that threat.
against the accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of Court When there is a lack of full scientific certainty in
shall be approved by the court. establishing a casual link between human activity and
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environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and
healthful ecology shall be given the benefit of the doubt.
DOCUMENTARY EVIDENCE