Civil and Criminal Procedure by Dean Rea PDF

2011 Bar Examinations 1
BERT – NOTES in REMEDIAL LAW

Victory goes to those with homicidal instinct to succeed... the
murderous mania to excel...
Dean W. Riano
SYLLABUS FOR 2011 BAR EXAMINATIONS
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

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

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

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

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

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

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

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

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

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

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

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

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

CIVIL PROCEDURE
Rules 1 – 71
GENERAL PRINCIPLES
LIMITATIONS OF THE RULE-MAKING POWER
OF THE SUPREME COURT
1) The rules shall provide a simplified and

CONCEPT OF REMEDIAL LAW inexpensive procedure for the speedy disposition
of cases
2) They shall be uniform for all courts of the same
Remedial Law is that branch of law which prescribes the grade
method of enforcing rights or obtaining redress for their 3) They shall not diminish, increase, or modify
invasion. substantive rights.
4) The power to admit attorneys to the Bar is not an
arbitrary and despotic one but is the duty of the
SUBSTANTIVE LAW AS DISTINGUISHED FROM court to exercise and regulate it by a sound and
REMEDIAL LAW judicial discretion.
Ø Rules of procedure of special courts and quasi-

Substantive law creates, defines and regulates rights and judicial bodies shall remain effective unless
duties regarding life, liberty or property which when disapproved by the Supreme Court.
violated gives rise to a cause of action.
POWER OF THE SUPREME COURT TO AMEND
Remedial law prescribes the methods of enforcing those AND SUSPEND PROCEDURAL RULES
rights and obligations created by substantive law by
providing a procedural system for obtaining redress for When compelling reasons so warrant or when the
the invasion of rights and violations of duties and by purpose of justice requires it = discretionary upon courts.
prescribing rules as to how suits are filed, tried and
decided by the courts. Reasons that would warrant the suspension:
1) the existence of special or compelling
As applied to criminal law, substantive law is that which circumstances;
declares what acts are crimes and prescribes the 2) merits of the case;
punishment for committing them, as distinguished from 3) cause not entirely attributable to the fault or
remedial law which provides or regulates the steps by negligence of the party favored by the
which one who commits a crime is to be punished. suspension of rules
4) a lack of showing that the review sought is
merely frivolous and dilatory;
RULE-MAKING POWER OF THE SUPREME 5) the other party will not be unjustly
COURT prejudiced thereby.
ð Where substantial and important issues await

Section 5 (5), Art. VIII of the Constitution provides that
resolution.
the Supreme Court shall have the power to:
a. promulgate rules concerning the protection and
ð When transcendental matters of life, liberty or state
enforcement of constitutional rights, pleading,
security are involved.
practice, and procedure in all courts;
b. admission to the practice of law;
ð The constitutional power of the Supreme Court to
c. the Integrated Bar;
promulgate rules of practice and procedure
d. and legal assistance to the underprivileged
necessarily carries with it the power to overturn
judicial precedents on points of remedial law through
the amendment of the Rules of Court.

NATURE OF PHILIPPINE COURTS ü among the civil actions assigned to them
by law are those in which the subject of
litigation is
Philippine courts are both courts of law and equity. a. actions incapable of pecuniary
Hence, both legal and equitable jurisdiction is dispensed estimation
with in the same tribunal. b. actions involving title to or
possession of real property where
WHAT IS A COURT the assessed value of the property
a. It is an organ of government belonging to the exceeds P20,000 outside MM or
judicial department the function of which is the exceeds P50,000 in MM.
application of the laws to the controversies c. where the demand exclusive of
brought before it as well as the public interest, damages of whatever kind,
administration of justice. attorney’s fees, litigation expenses,
b. It is a governmental body officially assembled and cost, or the value of the
under authority of law at the appropriate time personal property or controversy
and place for the administration of justice exceeds P300,000 outside MM or
through which the State enforces its sovereign exceeds P400,000 in MM.
rights and powers.
c. It is a board or tribunal which decides a litigation
ð exercise appellate jurisdiction
or contest.
ð Review cases appealed from courts of
the first level.
COURT DISTINGUISHED FROM JUDGE
(c) Third Level (Court of Appeals, Sandiganbayan)
a) A court is a tribunal officially assembled under
CA is an appellate court
authority of law; a judge is simply an officer of such
a. reviewing cases appealed to it from the RTC
tribunal;
on questions of fact or mixed questions of
b) A court is an organ of the government with a
fact and law
personality separate and distinct from the person or
b. decisions of the RTC in the exercise of
judge who sits on it;
original jurisdiction
c) A court is a being in imagination comparable to a
i. as a matter of right
corporation, whereas a judge is a physical person;
ii. as a matter of discretion.
d) A court may be considered an office; a judge is a
public officer; and
Occasionally, CA may act as a trial court, as in
e) The circumstances of the court are not affected by the
actions praying for the annulment of final and
circumstances that would affect the judge.
executory judgments of RTCs on the ground of
extrinsic fraud subsequently discovered, against
CLASSIFICATION OF PHILIPPINE COURTS
which no other remedies lies.
Regular courts engaged in the administration of justice Sandiganbayan has jurisdiction
are organized into four (4) levels: ð over all criminal and civil cases involving
• graft and corrupt practices act
(a) First Level (MTCs, MeTCs, MCTCs) – which try
• such other offenses committed by
and decide public officers and employees
(1) Criminal actions involving: including those in GOCCs in
a. violations of city or municipal ordinances relation to their office.
committed within their respective territorial ð It also has exclusive appellate jurisdiction
jurisdiction; and over final judgments, resolutions, or orders
b. offenses punishable with imprisonment not of RTCs whether in the exercise of their own
exceeding six (6) years irrespective of the original or appellate jurisdiction over
amount of fine and regardless of other criminal and civil cases committed by public
imposable accessory or other penalties, and officers or employees including those in
GOCCs in relation to their office.
(2) Civil actions including EJECTMENT CASES
(FEUD) and recovery of personal property with a (d) Fourth Level (Supreme Court)
value of not more than P300,000 outside MM or
does not exceed P400,000 in MM;
(b) Second Level (RTCs, Family Courts)

ð courts of general jurisdiction

which owes its creation from the Constitution itself. Only
COURTS OF ORIGINAL AND APPELLATE the SC is a Constitutional court.
JURISDICTION
A statutory court is one created by law other than the
A court is one with original jurisdiction when actions or Constitution. All courts except the SC are statutory
proceedings are originally filed with it. A court is one courts. SB was not directly created by the Constitution
with appellate jurisdiction when it has the power of but by law pursuant to a constitutional mandate.
review over the decisions or orders of a lower court.
COURTS OF LAW
MeTCs, MCTCs and MTCs are courts of original A court of law decides a case according to the existing
jurisdiction without appellate jurisdiction. RTC is laws.
likewise a court of original jurisdiction with respect to
cases originally filed with it; and appellate court with COURTS OF EQUITY
respect to cases decided by MTCs within its territorial A court of equity adjudicates a controversy according to
jurisdiction. (Sec. 22, BP 129). the common precepts of what is right and just without
inquiring into the terms of the statutes.
CA is primarily a court of appellate jurisdiction with
competence to review judgments of the RTCs and PRINCIPLE OF JUDICIAL HIERARCHY
specified quasi-judicial agencies (Sec. 9[3], BP 129). It is
also a court of original jurisdiction with respect to cases This is an ordained sequence of recourse to courts vested
filed before it involving issuance of writs of certiorari, with concurrent jurisdiction, beginning from the lowest,
mandamus, quo warranto, habeas corpus, and on to the next highest and ultimately to the highest. This
prohibition. CA is a court of original and exclusive hierarchy is determinative of the venue of appeals, and is
jurisdiction over actions for annulment of judgments of likewise determinative of the proper forum for petitions
RTCs (Sec. 9 [1],[2], BP 129). for extraordinary writs. This is an established policy
necessary to avoid inordinate demands upon the Court’s
The SC is fundamentally a court of appellate jurisdiction time and attention which are better devoted to those
but it may also be a court of original jurisdiction over matters within its exclusive jurisdiction, and to preclude
cases affecting ambassadors, public ministers and consuls, the further clogging of the Court’s docket (Sec. 9[1], BP
and in cases involving petitions for certiorari, prohibition 129; Sec. 5[1], Art. VIII, Constitution of the Philippines).
and mandamus (Sec. 5[1], Art. VIII, Constitution). The
Supreme Court en banc is not an appellate court to which A higher court will not entertain direct resort to it unless
decisions or resolutions of a division of the Supreme the redress cannot be obtained in the appropriate courts.
Court may be appealed. The SC is a court of last resort. It cannot and should not
be burdened with the task of deciding cases in the first
COURTS OF GENERAL AND SPECIAL instances. Its jurisdiction to issue extraordinary writs
JURISDICTION should be exercised only where absolutely necessary or
where serious and important reasons exist.
Courts of general jurisdiction are those with competence
to decide on their own jurisdiction and to take cognizance The doctrine of hierarchy of courts may be disregarded if
of all cases, civil and criminal, of a particular nature. warranted by the nature and importance of the issues
Courts of special (limited) jurisdiction are those which raised in the interest of speedy justice and to avoid future
have only a special jurisdiction for a particular purpose or litigations, or in cases of national interest and of serious
are clothed with special powers for the performance of implications. Under the principle of liberal
specified duties beyond which they have no authority of interpretations, for example, it may take cognizance of a
any kind. petition for certiorari directly filed before it.
A court may also be considered general if it has the DOCTRINE OF NON-INTERFERENCE OR

competence to exercise jurisdiction over cases not falling DOCTRINE OF JUDICIAL STABILITY
within the jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial functions. It is in Courts of equal and coordinate jurisdiction cannot
the context that the RTC is considered a court of general interfere with each other’s orders. Thus, the RTC has no
jurisdiction. power to nullify or enjoin the enforcement of a writ of
possession issued by another RTC. The principle also
CONSTITUTIONAL AND STATUTORY COURTS bars a court from reviewing or interfering with the
judgment of a co-equal court over which it has no
A constitutional court is one created by a direct appellate jurisdiction or power of review.
Constitutional provision. Example of this court is the SC,

This doctrine applies with equal force to administrative 2) when defendant files motion for reconsideration
bodies. When the law provides for an appeal from the of the judgment by default;
decision of an administrative body to the SC or CA, it 3) when defendant files a petition to set aside the
means that such body is co-equal with the RTC and judgment of default;
logically beyond the control of the latter. 4) when the parties jointly submit a compromise
agreement for approval of the court;
5) when defendant files an answer to the contempt
charge;
JURISDICTION
6) when defendant files a petition for certiorari
without questioning the court’s jurisdiction over
his person.
Jurisdiction – the power and authority of the court to
hear, try and decide a case. JURISDICTION OVER THE SUBJECT MATTER
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;

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

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
CRIMINAL CASES EXCLUSIVE ORIGINAL JURISDICTION in petitions

for certiorari, prohibition and mandamus against the CA,
EXCLUSIVE ORIGINAL JURISDICTION COMELEC, COA, CTA, Sandiganbayan
Petitions for certiorari, prohibition and mandamus
against CA and Sandiganbayan CONCURRENT JURISDICTION
CONCURRENT JURISDICTION 1) With Court of Appeals in petitions for certiorari,

a) With the CA and RTC: petitions for prohibition and mandamus against the RTC, CSC,
certiorari, prohibition and mandamus against Central Board of Assessment Appeals, NLRC,
the MTC

Quasi-judicial agencies, and writ of kalikasan, all
JURISDICTION OF THE COURT OF APPEALS
subject to the doctrine of hierarchy of courts.
(69 Justices)
2) With the CA and RTC in petitions for certiorari,
prohibition and mandamus against lower courts and
bodies and in petitions for quo warranto, and writs of CRIMINAL CASES
habeas corpus, all subject to the doctrine of hierarchy
of courts. EXCLUSIVE ORIGINAL JURISDICTION
3) With CA, RTC and Sandiganbayan for petitions for a) Actions for annulment of judgment of the RTCs
writs of amparo and habeas data b) Crimes of Terrorism under Human Security Act
4) Concurrent original jurisdiction with the RTC in of 2007
cases affecting ambassadors, public ministers and consuls.
CONCURRENT ORIGINAL JURISDICTION
APPELLATE JURISDICTION a) With the SC: petitions for certiorari, prohibition and
1) by way of petition for review on certiorari mandamus against the RTC
(appeal by certiorari under Rule 45) against b) With the SC and RTC: petitions for certiorari,
CA, Sandiganbayan, RTC on pure questions prohibition and mandamus against the MTC
of law and CTA in its decisions rendered en
banc. APPELLATE JURISDICTION
2) in cases involving the constitutionality or
validity of a law or treaty, international or ð Notice of Appeal:
executive agreement, law, presidential a) From the RTC in the exercise of its original
decree, proclamation, order, instruction, jurisdiction, except those appealable to the
ordinance or regulation, legality of a tax, Sandiganbayan
impost, assessment, toll or penalty,
b) From the RTC where penalty imposed is
jurisdiction of a lower court; and
reclusion perpetua or life imprisonment or
3) all cases in which the jurisdiction of any
where a lesser penalty is imposed but for
court is in issue;
offenses committed on the same occasion or
4) all cases in which an error or question of law
which arose out of the same occurrence that
is involved
gave rise to the more serious offense for
which the penalty of death, reclusion
Exceptions in which factual issues may be resolved by
perpetua or life imprisonment is imposed
the Supreme Court: (Sec. 3, Rule 122 as amended by AM No. 00-5-
a) When the findings are grounded entirely on 03-SC).
speculation, surmises or conjectures;
b) When the inference made is manifestly mistaken, ð Automatic Review (i.e. no notice of appeal is
absurd or impossible;
necessary) from the RTC in cases wherein the death
c) When there is grave abuse of discretion;
penalty is imposed.
d) When the judgment is based on misapprehension
of facts;
ð Petition for Review from the RTC in cases appealed
e) When the findings of facts are conflicting;
thereto from the lower courts and not appealable to
f) When in making its findings the CA went
the Sandiganbayan.
beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant
and the appellee; CIVIL CASES
g) When the findings are contrary to the trial court;
h) When the findings are conclusions without EXCLUSIVE ORIGINAL JURISDICTION
citation of specific evidence on which they are ð in actions for the annulment of the judgments of the
based; RTC.
i) When the facts set forth in the petition as well as
in the petitioner‘s main and reply briefs are not CONCURRENT ORIGINAL JURISDICTION
disputed by the respondent; 1) With SC to issue writs of certiorari, prohibition
j) When the findings of fact are premised on the and mandamus against the RTC, CSC, CBAA,
supposed absence of evidence and contradicted other quasi-judicial agencies mentioned in Rule
by the evidence on record; and 43, and the NLRC (however, this should be filed
k) When the Court of Appeals manifestly first with the CA as per St. Martin Funeral Home
overlooked certain relevant facts not disputed by case), and writ of kalikasan.
the parties, which, if properly considered, could 2) With the SC and RTC to issue writs of certiorari,
justify a different conclusion. prohibition and mandamus (CPM) against lower
courts and bodies and writs of quo warranto,

habeas corpus, whether or not in aid of its 5) Decisions of the Central Board of Assessment
appellate jurisdiction, and writ of continuing Appeals in the exercise of its appellate jurisdiction
mandamus on environmental cases. over cases involving the assessment and taxation of
3) With SC, RTC and Sandiganbayan for petitions real property originally decided by the provincial or
for writs of amparo and habeas data where the city board of assessment appeals;
action involves public data or government office 6) Decision of the secretary of Finance on customs cases
elevated to him automatically for review from
EXCLUSIVE APPELLATE JURISDICTION decisions of the Commissioner of Customs which are
1) by way of ordinary appeal from the RTC and the adverse to the government under Sec. 2315 of the
Family Courts. Tariff and Customs Code;
2) by way of petition for review from the RTC 7) Decisions of Secretary of Trade and Industry in the
rendered by the RTC in the exercise of its case of non-agricultural product, commodity or
appellate jurisdiction. article, and the Secretary of Agriculture in the case of
3) by way of petition for review from the decisions, agricultural product, commodity or article, involving
resolutions, orders or awards of the CSC, CBAA dumping duties and counterveiling duties under Secs.
and other bodies mentioned in Rule 43 and of 301 and 302, respectively, of the Tariff and Customs
the Office of the Ombudsman in administrative Code, and safeguard measures under RA 8800,
disciplinary cases. where either party may appeal the decision to impose
4) over decisions of MTCs in cadastral or land or not to impose said duties.
registration cases pursuant to its delegated
jurisdiction; this is because decisions of MTCs in EXCLUSIVE ORIGINAL JURISDICTION
these cases are appealable in the same manner as
decisions of RTCs. 1) Over all criminal cases arising from violation of the
NIRC and the TCC and other laws, part of laws, or
ð Note: There is no action to annul the decision of special laws administered by the BIR or the BOC
the CA. where the principal amount of taxes and fees,
exclusive of charges and penalties claimed is less than
P1M or where there is no specified amount claimed
JURISDICTION OF THE COURT OF TAX
(the offenses or penalties shall be tried by the regular
APPEALS (UNDER RA 9282 AND RULE 5, AM 05
courts and the jurisdiction of the CTA shall be
11 07CTA)
appellate);
2) In tax collection cases involving final and executory
EXCLUSIVE ORIGINAL OR APPELLATE assessments for taxes, fees, charges and penalties
JURISDICTION TO REVIEW BY APPEAL where the principal amount of taxes and fees,
exclusive of charges and penalties claimed is less than
1) Decisions of CIR in cases involving disputed P1M tried by the proper MTC, MeTC and RTC.
assessments, refunds of internal revenue taxes, fees or
other charges, penalties in relation thereto, or other EXCLUSIVE APPELLATE JURISDICTION
matters arising under the NIRC or other laws
administered by BIR; 1) In criminal offenses
2) Inaction by CIR in cases involving disputed a) over appeals from the judgment, resolutions or
assessments, refunds of IR taxes, fees or other orders of the RTC in tax cases originally decided
charges, penalties in relation thereto, or other matters by them, in their respective territorial
arising under the NIRC or other laws administered jurisdiction, and
by BIR, where the NIRC or other applicable law b) over petitions for review of the judgments,
provides a specific period of action, in which case the resolutions or orders of the RTC in the exercise
inaction shall be deemed an implied denial; of their appellate jurisdiction over tax cases
3) Decisions, orders or resolutions of the RTCs in local originally decided by the MeTCs, MTCs, and
taxes originally decided or resolved by them in the MCTCs in their respective jurisdiction.
exercise of their original or appellate jurisdiction;
4) Decisions of the Commissioner of Customs 2) In tax collection cases
a. in cases involving liability for customs a) over appeals from the judgments, resolutions or
duties, fees or other charges, seizure, orders of the RTC in tax collection cases
detention or release of property affected, originally decided by them in their respective
fines, forfeitures or other penalties in relation territorial jurisdiction; and
thereto, or b) over petitions for review of the judgments,
b. other matters arising under the Customs law resolutions or orders of the RTC in the exercise
or other laws, part of laws or special laws of their appellate jurisdiction over tax collection
administered by BOC;

cases originally decided by the MeTCs, MTCs
COURTS
and MCTCs in their respective jurisdiction.
JURISDICTION OF THE SANDIGANBAYAN CRIMINAL CASES
EXCLUSIVE ORIGINAL JURISDICTION

ORIGINAL JURISDICTION in all cases involving
1) Offenses punishable with imprisonment which
1) Violations of RA 3019 (Anti-Graft and Corrupt exceeds 6 years imprisonment
Practices Act) 2) Offenses not within the exclusive jurisdiction of any
2) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act) court, tribunal or body, except those falling under the
3) Sequestration cases (E.O. Nos. 1,2,14,14-A) exclusive jurisdiction of the Sandiganbayan
4) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) ð Note: In cases where the only penalty is fine, the
where one or more of the principal accused are amount thereof shall determine jurisdiction. If
occupying the following positions in the government, the amount exceeds P4,000, the RTC has
whether in permanent, acting or interim capacity at jurisdiction.
the time of the commission of the offense: 3) Family Court – Criminal Cases
a) Officials of the executive branch occupying the a) One or more of the accused is/are below 18
positions of regional director and higher, years old but not less than 9 years old;
otherwise classified as Grade 27 and higher, of b) Where one of the victims is a minor at the
the Compensation and Position Classification time of the commission of the offense;
Act of 1989 (RA 6758) c) Cases against minors cognizable under the
b) Members of Congress and officials thereof Dangerous Drugs Act;
classified as G-27 and up under RA 6758 d) Violations of RA 7610, otherwise known as
c) Members of the Judiciary without prejudice to the “Special Protection of Children Against
the provisions of the Constitution Child Abuse, Exploitation and
d) Chairmen and Members of the Constitutional Discrimination Act” as amended by RA
Commissions without prejudice to the provisions 7658; and
of the Constitution e) Cases of domestic violation against women
e) All other national and local officials classified as and their children.
Grade 27 and higher under RA 6758
f) Other offenses or felonies committed by the APPELLATE JURISDICTION
public officials and employees mentioned in Sec. ð All cases decided by the MTC in their
4(a) of RA 7975 as amended by RA 8249 in respective territorial jurisdiction.
relation to their office
g) Civil and criminal cases filed pursuant to and in
CIVIL CASES
connection with EO Nos. 1, 2, 14-A (Sec. 4, RA
8249)
ð Note: Without the office, the crime cannot be
committed. 1) The action is incapable of pecuniary estimation (such
as rescission of contract, action to revive judgment,
APPELLATE JURISDICTION - from the RTC in cases declaratory relief (1st part), support, expropriation)
under PD 1606, as amended by PD 1861, whether or not
the cases were decided b them in the exercise of their 2) Title to, possession of, or interest in, real property
original or appellate jurisdictions. with assessed value exceeding P20,000 outside Metro
Manila, or exceeds P50,000 in Metro Manila
CONCURRENT ORIGINAL JURISDICTION WITH
SC, CA AND RTC for petitions for writs of habeas data 3) If the amount involved exceeds P300,000 outside
and amparo MM or exceeds P400,000 in MM in the following
cases:
ð The requisites that the offender the offender occupies a) Admiralty and maritime cases
salary Grade 27 and the offense must be intimately b) Matters of Probate (testate and intestate)
connected with the official function must concur for c) Other actions involving personal property
the SB to have jurisdiction – Justice Magdangal De d) Demand for money
Leon
4) Cases not falling within the jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-
JURISDICTION OF THE REGIONAL TRIAL judicial functions (general jurisdiction of RTC)

sufficient property to cover all its debts but
5) All actions involving the contract of marriage and foresees the impossibility of meeting them when
family relations they respectively fall due or in cases where the
corporation, partnership of association has no
JURISDICTION OF FAMILY COURTS (RA 8369) sufficient assets to cover its liabilities, but is
a) Petitions for guardianship, custody of children under the management of a Rehabilitation
and habeas corpus involving children Receiver or Management Committee.
b) Petitions for adoption of children and the
revocation thereof
c) Complaints for annulment of marriage, CONCURRENT JURISDICTION
declaration of nullity of marriage and those 1) with the Supreme Court in actions affecting
relating to status and property relations of ambassadors, other public ministers and consuls
husband and wife or those living together under 2) with the SC and CA in petitions for certiorari,
different status and agreements, and petitions for prohibition and mandamus against lower courts
dissolution of conjugal partnership of gains and bodies in petitions for quo warranto, habeas
d) Petitions for support and/or acknowledgment corpus, and writ of continuing mandamus on
e) Summary judicial proceedings brought under the environmental cases
provisions of EO 209 (Family Code) 3) with the SC, CA and Sandigabayan in petitions
f) Petitions for declaration of status of children as for writs of habeas data and amparo
abandoned, dependent or neglected children, 4) With Insurance Commissioner – claims not
petitions for voluntary or involuntary exceeding P100,000
commitment of children, the suspension,
termination or restoration of parental authority APPELLATE JURISDICTION over cases decided by
and other cases cognizable under PD 603, EO 56 lower courts in their respective territorial jurisdictions
(1986) and other related laws except decisions of lower courts in the exercise of delegated
g) Petitions for the constitution of the family home jurisdiction.
ð In areas where there are no Family
Courts, the above-enumerated cases SPECIAL JURISDICTION – SC may designate certain
shall be adjudicated by the RTC (RA branches of RTC to try exclusively criminal cases,
8369) juvenile and domestic relations cases, agrarian cases,
urban land reform cases not falling within the jurisdiction
6) To hear and decide intra-corporate controversies of any quasi-judicial body and other special cases in the
Sec. 52, Securities and Regulations Code): interest of justice.
a) Cases involving devises or schemes employed by

JURISDICTION OF METROPOLITAN TRIAL
or any acts, of the board of directors, business
COURTS/MUNICIPAL TRIAL COURTS
associates, its officers or partnership, amounting
to fraud and misrepresentation which may be
detrimental to the interest of the public and/or of CRIMINAL CASES
the stockholders, partners, members of
associations or organizations registered with the EXCLUSIVE ORIGINAL JURISDICTION
SEC
b) Controversies arising out of intra-corporate or
1) Cases covered by Summary proceedings
partnership relations, between and among
a) Violations of city or municipal ordinances
stockholders, members or associates; between
including traffic laws
any or all of them and the corporation,
b) Violation of rental law
partnership or association of which they are
c) Violation of traffic laws, rules and regulations
stockholders, members or associates,
d) Violation of BP 22 (Bouncing Check Law)
respectively; and between such corporation ,
effective April 15, 2003
partnership or association and the state insofar as
e) All other criminal cases where the penalty is
it concerns their individual franchise or right to
imprisonment not exceeding 6 months and/or
exist as such entity
P100,000 fine irrespective of other penalties
c) Controversies in the election or appointments of
arising therefrom
directors, trustees, officers or managers of such
corporations, partnerships or associations
2) offenses punishable with imprisonment not exceeding
d) Petitions of corporations, partnerships or
six (6) years irrespective of the amount of fine, and
associations to be declared in the state of
regardless of other imposable accessory or other
suspension of payments in cases where the
penalties, including the civil liability arising from
corporation, partnership of association possesses

such offenses or predicated thereon, irrespective of Ø Where attorney’s fees are awarded, the
the kind, nature, value or amount thereof; provided same shall not exceed P20,000
however, that in offenses involving damage to b) Other civil cases, except probate proceeding,
property through criminal negligence, they shall have where the total amount of the plaintiff’s claim
exclusive original jurisdiction thereof (Sec. 2, RA does not exceed P200,000 in MM, exclusive of
7691). interests and costs.
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
4) All offenses (except violations of RA 3019, RA 1379 1st level courts:

and Arts. 210 to 212, RPC) committed by public a. Metropolitan Trial Court – Metro Manila;
officers and employees in relation to their office, b. Municipal Trial Courts in Cities – situated in
including those employed in GOCCs, and by private cities
individuals charged as co-principals, accomplices or c. Municipal Circuit Trial Court – composed of
accessories, punishable with imprisonment of not multi-sala
more than 6 years OR where none of the accused d. Municipal Trial Courts – in one municipality
holds a position of salary Grade 27 and higher.
CIVIL ACTIONS
SHAR’IAH COURTS
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.

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.
Cases that can be files:

1) Offenses defined and punished under PD 1083 CRIMINAL CASES
2) Disputes relating to:
a. Marriage 1) Violations of traffic law, rules and regulations;
b. Divorce 2) Violation of the rental law;
c. Betrothal or breach of contract to marry 3) All other criminal cases where the penalty prescribed
d. Customary dowry (mahr) is imprisonment not exceeding six (6) months, or fine
e. Disposition and distribution of property not exceeding P1,000, or both, irrespective of other
upon divorce imposable penalties, accessory or otherwise, or of the
f. Maintenance and support and civil liability arising therefrom, provided, that in
consolatory gifts (mut’a) offenses involving damage to property through
g. Restitution of marital rights criminal negligence, RSP shall govern where the
3) Disputes relative to communal properties imposable fine does not exceed P10,000.
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
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

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.
Real actions are based on the privity of real estates; while

personal actions are based on privity of contracts or for
ACTIONS the recovery of sums of money.
The distinction between real action and personal action is

Action (synonymous with suit) is the legal and formal important for the purpose of determining the venue of the
demand of one’s right from another person made and action. A real action is “LOCAL”, which means that its
insisted upon in a court of justice. The kinds of actions venue depends upon the location of the property involved
are ordinary and special, civil and criminal, ex contractu in the litigation. A personal action is “TRANSITORY”,
and ex delicto, penal and remedial, real, personal, and which means that its venue depends upon the residence
mixed action, action in personam, in rem, and quasi in of the plaintiff or the defendant at the option of the
rem. plaintiff.
ORDINARY CIVIL ACTIONS, SPECIAL CIVIL LOCAL AND TRANSITORY ACTIONS

ACTIONS, CRIMINAL ACTIONS

A local action is one founded on privity of estates only personam, not brought against the whole world but
and there is no privity of contracts. A real action is a local against the person upon whom the claim is made.
action; its venue depends upon the location of the
property involved in litigation. “Actions affecting title to SC sums up the basic rules in Biaco vs. Philippine
or possession of real property, or interest therein, shall be Countryside Rural Bank (2007):
commenced and tried in the proper court which has 1) The question of whether the trial court has
jurisdiction over the area wherein the real property jurisdiction depends on the nature of the action –
involved, or a portion thereof is situated” (Sec. 1, Rule 4). whether the action is in personam, in rem, or
quasi in rem. The rules on service of summons
Transitory action is one founded on privity of contracts under Rule 14 likewise apply according to the
between the parties. A personal action is transitory, its nature of the action.
venue depends upon the residence of the plaintiff or the 2) An action in personam is an action against a
defendant at the option of the plaintiff. A personal action person on the basis of his personal liability. And
“may be commenced and tried where the plaintiff or any action in rem is an action against the thing itself
of the principal plaintiffs resides or where the defendant instead of against the person. An action quasi in
or any of the principal defendants resides, or in the case rem is one wherein an individual is named as
of non-resident defendant, where he may be found, at the defendant and the purpose of the proceeding is to
election of the plaintiff”. (Sec. 2, Rule 4). subject his interest therein to the obligation or
lien burdening the property.
Actions in rem, in personam and quasi in rem (this is 3) Jurisdiction over the person of the defendant is
important in service of summons) necessary for the court to validly try and decide a
ð An action in rem, one instituted and enforced against case against said defendant where the action is
the whole world. one in personam but not where the action is in
ð An action in personam is one filed against a definite rem or quasi in rem. Jurisdiction over the res is
acquired either
defendant. It is intended to subject the interest of
a. by the seizure of the property under legal
defendant on a property to an obligation or lien.
process, whereby it is brought into
Jurisdiction over the person (defendant) is required.
actual custody of the law; or
It is a proceeding to enforce personal rights and
b. as a result of the institution of legal
obligations brought against the person, and is based
proceedings, in which the power of the
on the jurisdiction of the person, although it may
involve his right to, or the exercise of ownership of, court is recognized and made effective.
specific property, or seek to compel him to control or
ð Nonetheless, summons must be served upon the
dispose of it in accordance with the mandate of the
defendant not for the purpose of vesting the court
court. The purpose is to impose through the
with jurisdiction but merely for satisfying the due
judgment of a court, some responsibility or liability
process requirements.
directly upon the person of the defendant. No other
than the defendant is liable, not the whole world, as
in an action for a sum of money or an action for CAUSE OF ACTION (Rule 2)
damages.
ð An action quasi in rem, also brought against the
whole world, is one brought against persons seeking MEANING OF CAUSE OF ACTION
to subject the property of such persons to the
discharge of the claims assailed. An individual is A cause of action is the act or omission by which a party
named as defendant and the purpose of the (defendant) violates the rights of another (plaintiff).
proceeding is to subject his interests therein to the
obligation or loan burdening the property. It deals It is the delict or wrong by which the defendant violates
with status, ownership or liability or a particular the right or rights of the plaintiff.
property but which are intended to operate on these
questions only as between the particular parties to the The elements are:
proceedings and not to ascertain or cut off the rights 1) A right in favor of the plaintiff by whatever
or interests of all possible claimants. Examples of means and under whatever law it arises or is
actions quasi in rem are action for partition, action created;
for accounting, attachment, foreclosure of mortgage. 2) An obligation on the part of the named
ð An action in personam is not necessarily a personal defendant to respect or not to violate such right;
action. Nor is a real action necessarily an action in and
rem. An in personam or an in rem action is a 3) Act or omission on the part of such defendant in
classification of actions according to foundation. For violation of the right of the plaintiff or
instance, an action to recover, title to or possession of constituting a breach of the obligation of the
real property is a real action, but it is an action in

defendant to the plaintiff for which the latter may other matter aliunde are not considered but the court may
maintain an action for recovery of damages or consider in addition to the complaint the appended
other appropriate relief. annexes or documents, other pleadings of the plaintiff, or
admissions in the records.
RIGHT OF ACTION VERSUS CAUSE OF ACTION
It is error for the court to take cognizance of external facts
a) A cause of action refers to the delict or wrong or to hold preliminary hearings to determine its existence.
committed by the defendants, whereas right of action
refers to the right of the plaintiff to institute the SPLITTING A SINGLE CAUSE OF ACTION AND
action; ITS EFFECTS
b) A cause of action is determined by the pleadings;
whereas a right of action is determined by the It is the act of instituting two or more suits for the same
substantive law; cause of action (Sec. 4, Rule 2). It is the practice of dividing
a) A right of action may be taken away by the running one cause of action into different parts and making each
of the statute of limitations, by estoppels or other part the subject of a separate complaint.
circumstances; which do not at all affect the cause of
action; In splitting a cause of action, the pleader divides a single
b) There is no right of action where there is no cause of cause of action, claim or demand into two or more parts,
action! brings a suit for one of such parts with the intent to
reserve the rest for another separate. This practice is NOT
FAILURE TO STATE CAUSE OF ACTION ALLOWED by the Rules because it breeds multiplicity of
suits, clogs the court dockets, leads to vexatious litigation,
The mere existence of a cause of action is not sufficient operates as an instrument of harassment, and generates
for a complaint to prosper. Even if in reality the plaintiff unnecessary expenses to the parties.
has a cause of action against the defendant, the complaint
may be dismissed if the complaint or the pleading The filing of the first may be pleaded in abatement of the
asserting the claim “states no cause of action”. This other or others and a judgment upon the merits in any
means that the cause of action must unmistakably be one is available as a bar to, or a ground for dismissal of,
stated or alleged in the complaint or that all the elements the others
of the cause of action required by substantive law must
clearly appear from the mere reading of the complaint. The remedy of the defendant is to file a motion to
dismiss. Hence, if the first action is pending when the
To avoid an early dismissal of the complaint, the simple second action is filed, the latter may be dismissed based
dictum to be followed is: “If you have a cause of action, on litis pendencia, there is another action pending between
then by all means, state it!” Where there is a defect or an the same parties for the same cause. If a final judgment
insufficiency in the statement of the cause of action, a had been rendered in the first action when the second
complaint may be dismissed not because of an absence or action is filed, the latter may be dismissed based on res
a lack of cause of action by because the complaint states judicata, that the cause of action is barred by prior
no cause of action. The dismissal will therefore, be judgment. As to which action should be dismissed would
anchored on a “failure to state a cause of action”. depend upon judicial discretion and the prevailing
circumstances of the case.
It doesn‘t mean that the plaintiff has no cause of action. It
only means that the plaintiff‘s allegations are insufficient JOINDER AND MISJOINDER OF CAUSES OF
for the court to know that the rights of the plaintiff were ACTIONS (SECS. 5 AND 6, ULE 2)
violated by the defendant. Thus, even if indeed the
plaintiff suffered injury, if the same is not set forth in the Joinder of causes of action is the assertion of as many
complaint, the pleading will state no cause of action even causes of action as a party may have against another in
if in reality the plaintiff has a cause of action against the one pleading alone (Sec. 5, Rule 2). It is the process of
defendant. uniting two or more demands or rights of action in one
action, subject to the following conditions:
TEST OF THE SUFFICIENCY OF A CAUSE OF a) The party joining the causes of action shall
ACTION comply with the rules on joinder of parties (same
transaction ad common question of law an fact);
The test is whether or not admitting the facts alleged, the b) The joinder shall not include special civil actions
court could render a valid verdict in accordance with the governed by special rules;
prayer of the complaint. c) Where the cause of action are between the same
parties but pertain to different venues or
To be taken into account are only the material allegations jurisdictions, the joinder may be allowed in the
in the complaint; extraneous facts and circumstances or RTC provided one of the causes of action falls

within the jurisdiction of said court and the ð Without the presence of this party, the judgment of a
venue lies therein; and court cannot attain real judgement.
d) Where the claims in all the causes of action are ð The presence of indispensable parties is a condition
principally for recovery of money, the aggregate for the exercise of juridical power and when an
amount claimed shall be the test of jurisdiction indispensable party is not before the court, the action
(totality rule). should be dismissed.
ð Note: Restrictions on joinder of causes ð The absence of indispensable party renders all
of action are: jurisdiction, venue, and subsequent actions of the court null and void for
joinder of parties. The joinder shall not want of authority to act, not only to the absent parties
include special civil actions or actions but even as to those present.
governed by special rules. ð A person is not an IP if his interest in the controversy
or subject matter is separable from the interest of the
When there is a misjoinder of causes of action, the other parties, so that it will not necessarily be directly
erroneously joined cause of action can be severed or or injuriously affected by a decree which does
separated from the other cause of action upon motion by complete justice between them. Also, a person is not
a party or upon the court‘s own initiative. Misjoinder of an IP if his presence would merely permit complete
causes of action is not a ground for the dismissal of the relief between him and those already parties to the
case. action, or if he has no interest in the subject matter of
the action.
ð Although normally a joinder of action is permissive
PARTIES IN CIVIL ACTION (Rule 3) (Sec. 6, Rule 3), the joinder of a party becomes
compulsory when the one involved is an
indispensable party. Clearly, the rule directs a
REAL PARTY-IN-INTEREST (e.g. plaintiff and compulsory joinder of IP (Sec. 7, Rule 3).
defendant) is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to NECESSARY PARTY is one who is not indispensable
the avails of the suit (Sec. 2, Rule 3). but ought to be joined as a party if complete relief is to be
ð The interest must be real, which is a present accorded as to those already parties, of for a complete
substantial interest as distinguished from a mere determination or settlement of the claim subject of the
expectancy or a future, contingent subordinate or action.
consequential. ð But a necessary party ought to be joined as a party if
ð It is an interest that is material and direct, as complete relief is to be accorded as to those already
distinguished from a mere incidental interest in. parties (Sec. 8, Rule 3).
ð While ordinarily one who is not a privy to a contract ð The non-inclusion of a necessary party does not
may not bring an action to enforce it, there are prevent the court from proceeding in the action, and
recognized exceptions this rule: the judgment rendered therein shall be without
a) Contracts containing stipulations pour atrui or prejudice to the rights of such necessary party (Sec. 9,
stipulations expressly conferring benefits to a Rule 3).
non-party may sue under the contract
provided such benefits have been accepted INDIGENT PARTY is one who is allowed by the court
by the beneficiary prior to its revocation by to litigate his claim, action or defense upon ex parte
the contracting parties (Art. 1311, Civil Code). application and hearing, when the court is satisfied that
b) Those who are not principally or subsidiarily such party has no money or property sufficient and
obligated in the contract, in which they had available for food, shelter, basic necessities for himself
no intervention, may show their detriment and his family (Sec. 21, Rule 3).
that could result from it. For instance, Art. ð If one is authorized to litigate as an indigent, such
1313, CC, provides that “creditors are authority shall include an exemption from the
protected in cases of contracts intended to payment of docket fee, and of transcripts of
defrauded them”. Further, Art. 1318, CC, stenographic notes, which the court may order to e
provides that contracts entered into in fraud furnished by him.
of creditors may be rescinded when the ð However, the amount of the docket and other fees,
creditors cannot in any manner collect the which the indigent was exempt from paying, shall be
claims due them. Thus, a creditor who is not a lien on the judgment rendered in the case favorable to
party to a contract can sue to rescind the contract the indigent. A lien on the judgment shall or arise if
to redress the fraud committed upon him. the court provides otherwise.
INDISPENSABLE PARTY is a real party-in-interest REPRESENTATIVES AS PARTIES pertains to the
without whom no final determination can be had of an parties allowed by the court as substitute parties to an
action (Sec. 7, Rule 3).

action whereby the original parties become incapacitated MISJOINDER AND NON-JOINDER OF PARTIES
of incompetent (Sec. 18, Rule 3).
ð The substitution of a party depends on the nature of A party is
the action. If the action is personal, and a party dies a. misjoined when he is made a party to the action
pendent lite, such action does not survive, and such although he should not be impleaded
party cannot be substituted. If the action is real, death b. not joined when he is supposed to be joined but
of the defendant survives the action, and the heirs is not impleaded in the action
will substitute the dead. A favorable judgment
obtained by the plaintiff therein may be enforced Under the rules, neither misjoinder nor non-joinder of
against the estate of the deceased defendant (Sec. 1, parties is a ground for the dismissal of an action but
Rule 87). failure to obey the order of the court to drop or add a
ð In case a party becomes incapacitated or incompetent party is a ground for the dismissal of the complaint (Sec.
during the pendency of the action, the court, upon 3, Rule 17). Parties may be dropped or added by order of
motion, may allow the action to be continued by or the court on motion of any party or on its own initiative
against the incapacitated or incompetent party with at any stage of the action and on such terms as are just
the assistance of his legal guardian or guardian ad (Sec. 11, Rule 3). Misjoinder of parties does not involve
litem (Sec. 18, Rule 20). questions of jurisdiction and not a ground for dismissal.
ð In case of transfer, the action may be continued by or
against the original party, unless the court upon CLASS SUIT
motion directs the person to whom the interest is
transferred to be substituted in the action or joined A class suit is an action where one or more may sue for
with the original party (Sec. 19, Rule 3). the benefit of all if the requisites for said action are
ð An agent may sue or be sued without joining his complied with.
principal except when the contract involve things
belonging to the principal (Where the action is allowed A class suit does not require commonality of interest in
to be prosecuted and defended by a representative or the questions involved in the suit. What is required by the
someone acting in a fiduciary capacity, the beneficiary shall Rules is a common or general interest in the subject
be included in the title of the case and shall be deemed to be matter of the litigation. The subject matter of the action
the real property in interest, Sec. 3, Rule 3). means the physical, the things real or personal, the
money, lands, chattels, and the like, in relation to the suit
ALTERNATIVE DEFENDANTS are those who may which is prosecuted and not the direct or wrong
be joined as such in the alternative by the plaintiff who is committed by the defendant. It is not also a common
uncertain from whom among them he is entitled to a question of law that sustains a class suit but a common
relief, regardless of whether or not a right to a relief interest in the subject matter of the controversy.
against one is inconsistent with that against the other (Sec.
13, Rule 3). There is no class suit when interests are conflicting.
ð Where the plaintiff cannot definitely identify who Hence, for a class suit to prosper, the following requisites
among two or more persons should be impleaded as must concur:
a defendant, he may join all of them as defendants in a) The subject matter of the controversy must be of
the alternative. common or general interest to many persons;
ð Just as the rule allows a suit against defendants in the b) The persons are so numerous that it is
alternative, the rule also allows alternative causes of impracticable to join all as parties;
action (Sec. 2, Rule 8) and alternative defenses (Sec. c) The parties actually before the court are
5[b], Rule 6). sufficiently numerous and representative as to
fully protect the interests of all concerned; and
COMPULSORY AND PERMISSIVE JOINDER OF d) The representatives sue or defend for the benefit
PARTIES of all (Sec.12, Rule 3).
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

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).
WHEN THE RULES ON VENUE DO NOT APPLY

Venue is the place or the geographical area where an
action is to be filed and tried. In civil cases, it relates only The Rules do not apply
to the place of the suit and not to the jurisdiction of the
court.

a) in those cases where a specific rule or law
provides otherwise (i.e. action for damages B. ANSWER
arising from libel); or
b) where the parties have validly agreed in writing An answer is a pleading in which a defending party sets
before the filing of the action on the exclusive forth his defenses (Sec. 3, Rule 6). It may allege legal
venue thereof (Sec. 4, Rule 4). provisions relied upon for defense (Sec. 1, Rule 8). It may
be an answer to the complaint, counterclaim or a cross-
EFFECTS OF STIPULATIONS ON VENUE claim, third party complaint or complaint-in-intervention.
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 ðWhen 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.
ðIf 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

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
C. COUNTERCLAIM 2. PERMISSIVE COUNTERCLAIM

Permissive counterclaim is a counterclaim which does
A counterclaim is any claim which a defending party may not arise out of nor is it necessarily connected with the
have against an opposing party (Sec. 6, Rule 6). It is in subject matter of the opposing party’s claim. It is not
itself a claim or cause of action interposed in an answer. barred even if not set up in the action.
It is either compulsory or permissive.
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

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.
G. REPLY The signature of counsel constitutes a certificate by him

that he has read the pleading; that to the best of his
Reply is a pleading, the office or function of which is to knowledge, information, and belief there is good ground
deny, or allege facts in denial or avoidance of new to support it; and that it is not interposed for delay.
matters alleged by way of defense in the answer and

An unsigned pleading produces no legal effect. However, The certification against forum shopping is a sworn
the court may, in its discretion, allow such deficiency to statement certifying to the following matters:
be remedied if it shall appear that the same was due to 1) That the party has NOT COMMENCED or filed
mere inadvertence and not intended for delay. Counsel any claim involving the same issues in any court,
who deliberately files an unsigned pleading, or signs a tribunal, or quasi-judicial agency and, to the best
pleading in violation of the Rule, or alleges scandalous or of his knowledge, no such other action or claim
indecent matter therein, or fails to promptly report to the is pending;
court a change of his address, shall be subject to 2) That if there is such other pending action or
appropriate disciplinary action. claim, a complete statement of the present
STATUS thereof; and
In every pleading, counsel has to indicate his professional 3) That if he should therefore learn that the same or
tax receipt (PTR) and IBP receipt, the purpose of which is similar action or claim has been filed or is
to see to it that he pays his tax and membership due pending, he shall REPORT THAT FACT within
regularly. five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has
VERIFICATION been filed.
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

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

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.
PLEADING AN ACTIONABLE DOCUMENT An admission in a pleading cannot be controverted by the

party making such admission because the admission is
An actionable document is a document relied upon by conclusive as to him. All proofs submitted by him
either the plaintiff or the defendant. contrary thereto or inconsistent therewith should be
ignored whether an objection is interposed by a party or
Whenever an actionable document is the basis of a not. Said admission is a judicial admission, having been
pleading, the rule specifically direct the pleader to: made by a party in the course of the proceedings in the
a) set forth in the pleading the substance of the same case, and does not require proof.
instrument or the document; or
b) to attach the original or the copy of the A party who desires to contradict his own judicial
document to the pleading as an exhibit and to be admission may do so only be either of two ways:
part of the pleading; or a) by showing that the admission was made
c) to set forth in the pleading said copy of the through palpable mistake; or
instrument or document (Sec. 7, Rule 8). b) that no such admission was made (Sec. 4, Rule
129).
This manner of pleading a document applies only to one
which is the basis of action or a defense. Hence, if the The following are not deemed admitted by the failure to
document does not have the character of an actionable make a specific denial:
document, as when it is merely evidentiary, it need not be a) The amount of unliquidated damages;
pleaded strictly. b) Conclusions in a pleading which do not have to
be denied at all because only ultimate facts need
SPECIFIC DENIALS be alleged in a pleading;
c) Non-material allegations, because only material
There are three modes of specific denial which are allegations need be denied.
contemplated by the Rules, namely:
a) By specifying each material allegation of the fact WHEN A SPECIFIC DENIAL REQUIRES AN
in the complaint, the truth of which the OATH
defendant does not admit, and whenever
practicable, setting forth the substance of the Specific denials which must be under oath to be sufficient
matter which he will rely upon to support his are:
denial; a) A denial of an actionable document (Sec. 8, Rule
b) By specifying so much of the averment in the 8);
complaint as is true and material and denying b) A denial of allegations of usury in a complaint to
only the remainder; recover usurious interest (Sec. 11, Rule 8).
c) By stating that the defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment in the EFFECT OF FAILURE TO PLEAD (RULE 9)
complaint, which has the effect of denial.
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.

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)
EFFECT OF AN ORDER OF DEFAULT REMEDY AFTER JUDGMENT BECOMES FINAL

AND EXECUTORY:
F PETITION FOR RELIEF FROM JUDGMENT
1) The party declared in default loses his standing in
court preventing him from taking part in the trial; (Rule 38);
2) The party in default shall still be entitled to notices of F ACTION FOR NULLITY OF JUDGMENT (Rule
subsequent proceedings as well as to receive notice 47).
that he was declared in default;
3) The declaration of default is not an admission of the If the order of default is valid, Certiorari is not
truth or validity of the plaintiff’s claims. available. If the default order was improvidently
issued, that is, the defendant was declared in
RELIEF FROM AN ORDER OF DEFAULT default, without a motion, or without having
served with summons before the expiration of the

reglementary period to answer, certiorari is
available as a remedy. Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured by
EFFECT OF A PARTIAL DEFAULT amendment, such as by the reduction of the claim as, for
all legal purposes, there is no original complaint over
When a pleading asserting a claim states a common cause which the court has acquired jurisdiction.
of action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the The rule on payment of docket fee has, in some instances,
case against all upon the answers thus filed and render been subject to the rule on LIBERAL
judgment upon the evidence presented (Sec. 33[c], Rule 9). INTERPRETATION. Thus, in a case, it was held that
while the payment of the required docket fee is a
Default is only against those defendant who didn’t file the jurisdictional requirement, even its nonpayment at the
answer but they can also benefit from the answering time of filing does not automatically cause the dismissal
defendants of the case, as long as the fee is paid within the applicable
prescriptive or reglementary period.
EXTENT OF RELIEF
Also, if the amount of docket fees is insufficient
considering the amount of the claim, the party filing the
A judgment rendered against a party in default may not case will be required to pay the deficiency, but
exceed the amount or be different from that prayed for jurisdiction is not automatically lost.
nor include unliquidated damages which are not awarded
(Sec. 3[c], Rule 9). In fact, there can be no automatic grant Within the period for taking an APPEAL, the appellant
of relief as the court has to weigh the evidence. shall pay to the clerk of court which rendered the
judgment or final order appealed from, the full amount of
The court may render judgment before or after the the appellate court docket and other lawful fees (Sec. 4,
presentation of evidence. So the court may award Rule 41). Hence, the Rule now requires that appellate
unliquidated damages in case where the court default docket and other lawful fees must be paid within the
defendant in default after the presentation of the same period for taking an appeal. Such payment of
evidence. docket fee within the prescribed period is mandatory for
the perfection of an appeal.
ACTIONS WHERE DEFAULT ARE NOT
ALLOWED Without such payment, the appellate court does not
acquire jurisdiction over the subject matter of the action
1) Annulment of marriage; and the decision sought to be appealed from becomes
2) Declaration of nullity of marriage; final and executor. Hence, nonpayment is a valid ground
3) Legal separation for the dismissal of an appeal. However, delay in the
4) In special civil actions of certiorari, prohibition and payment of the docket fees confers upon the court a
mandamus where comment instead of an answer is discretionary, not a mandatory power to dismiss an
required to be filed; and appeal.
5) Summary procedure.
FILING VERSUS SERVICE OF PLEADINGS
FILING AND SERVICE OF PLEADINGS (RULE 13)
FILING is the act of presenting the pleading or other
paper to the clerk of court;
PAYMENT OF DOCKET FEES
SERVICE is the act of providing a party with a copy of
the pleading or paper concerned (Sec. 2, Rule 13).
It is not simply the filing of the complaint or appropriate
initiatory pleading but the payments of the prescribed
PERIODS OF FILING OF PLEADINGS
docket fee that vests a trial court with JURISDICTION
over the subject matter or nature of the action. In
connection with the payment of docket fees, the court The date of the mailing of motions, pleadings, or any
requires that all complaints, petitions, answers and other papers or payments or deposits, as shown by the
similar pleadings must specify the amount of damages post office stamp on the envelope or the registry receipt,
being prayed for both in the body of the pleading and in shall be considered as the date of their filing, payment, or
prayer therein and said damages shall be considered in deposit in court. The envelope shall be attached to the
the assessment of the filing fees; otherwise such pleading record of the case (Sec. 3, Rule 13)
shall not be accepted for filing or shall be expunged from
the record. THE FILING OF RESPONSIVE PLEADINGS
SHALL HAVE THE FOLLOWING PERIODS

ð within 10 days from notice of the order
1) Answer to the complaint admitting the supplemental complaint unless
ð within 15 days after service of summons a different period is fixed by the court.
unless a different period is fixed by the court.
MANNER OF FILING
2) Answer of a defendant foreign private juridical entity
a. If it has a resident agent By PERSONAL SERVICE or by REGISTERED MAIL.
ð within 15 days after service of summons to The filing of pleadings, appearances, motions, notices,
such agent. orders, judgments and all other papers shall be made by
b. If it has no resident agent but it has an agent or presenting the original copies thereof, plainly indicated as
officer in the Philippines such, personally to the clerk of court or by sending them
ð within 15 days after service of summons to by registered mail (Registry Service). In the first case, the
said agent or officer. clerk of court shall endorse on the pleading the date and
c. If it has no resident agent, agent or officer the hour of filing. In the second case, the date of the mailing
service of summons shall be made on the proper of motions, pleadings, or any other papers or payments or
government office which will then forward it by deposits, as shown by the post office stamp on the
registered mail within 10 days to the envelope or the registry receipt, shall be considered as the
corporation’s office date of their filing, payment, or deposit in court. The
ð the answer must be filed within 30 days from envelope shall be attached to the record of the case (Sec. 3,
the receipt of the summons by the home Rule 13).
office.
MODES OF SERVICE
3) When the service is made by publication
ð within the time specified in the order There are two modes of service of pleadings, judgments,
granting leave to serve summons by motions, notices, orders, judgments and other papers:
publication which shall not be less than 60m a) personally, or
days after notice. b) by mail.
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

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

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

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)

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:

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

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)
A litigated motion is one which requires the parties to be

heard before a ruling on the motion is made by the court. PURPOSE AND WHEN APPLIED FOR
Sec. 4 establishes the general rule that every written

The purpose of the motion is to seek an order from the particulars submitted becomes part of the pleading for
court directing the pleader to submit a bill of particulars which it is intended (Sec. 6, Rule 12).
which avers matters with sufficient definitiveness or
particularity to enable the movant to prepare his If the order to file a bill of particulars is not obeyed, or
responsive pleading (Sec. 1, Rule 12), not to enable the in case of insufficient compliance therewith, the court
movant to prepare for trial. The latter purpose is the may:
ultimate objective of the discovery procedures from Rules a) order the striking out of the pleading; or
23 to 29 and ever of a pre-trial under Rule 18. b) the portions thereof to which the order was
directed; or
In other words, the function of a bill of particulars is to c) make such other order as it deems just (Sec. 4).
clarify the allegations in the pleading so an adverse party
may be informed with certainty of the exact character of a EFFECT ON THE PERIOD TO FILE A
cause of action or a defense. Without the clarifications RESPONSIVE PLEADING
sought by the motion, the movant may be deprived of the
opportunity to submit an intelligent responsive pleading. A motion for bill of particulars is not a pleading hence,
not a responsive pleading. Whether or not his motion is
This is to avert the danger where the opposing party will granted, the movant may file his responsive pleading.
find difficulty in squarely meeting the issues raised When he files a motion for BOP, the period to file the
against him and plead the corresponding defenses which responsive pleading is stayed or interrupted.
if not timely raised in the answer will be deemed waived.
After service of the bill of particulars upon him or after
A motion for a bill of particulars is to be filed before, not notice of the denial of his motion, he may file his
after responding to a pleading (Sec. 1, Rule 12). Thus, responsive pleading within the period to which he is
where the motion for bill of particulars is directed to a entitled to at the time the motion for bill of particulars is
complaint, the motion should be filed within fifteen (15) filed. If he has still eleven (11) days to file his pleading at
days after service of summons. If the motion is directed to the time the motion for BOP is filed, then he has the same
a counterclaim, then the same must be filed within ten number of days to file his responsive pleading from the
(10) days from service of the counterclaim which is the service upon him of the BOP.
period provided for by Sec. 4, Rule 11 to answer a
counterclaim. If the motion is denied, then he has the same number of
days within which to file his pleading counted from his
In case of a reply to which no responsive pleading is receipt of the notice of the order denying his motion. If
provided for by the Rules, the motion for bill of the movant has less than five (5) days to file his
particulars must be filed within ten (10) days of the responsive pleading after service of the bill of particulars
service of said reply (Sec. 1, Rule 12). or after notice of the denial of his motion, he nevertheless
has five (5) days within which to file his responsive
ACTIONS OF THE COURT pleading. (Sec.5, 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

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

• 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

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).

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).
PRE-TRIAL (Rule18) Notice of pre-trial is so important that it would be grave

abuse of discretion for the court for example, to allow the
plaintiff to present his evidence ex parte for failure of the
CONCEPT OF PRE-TRIAL defendant to appear before the pre-trial who did not
receive through his counsel a notice of pre-trial.

In one case, the SC said that there is no legal basis for a 2) A summary of admitted facts and proposed
court to consider a party notified of the pre-trial and to stipulation of facts;
consider that there is no longer a need to send notice of 3) The issues to be tried or resolved;
pre-trial merely because it was his counsel who suggested 4) The documents or exhibits to be presented,
the date of pre-trial. stating the purposes thereof;
5) A manifestation of their having availed of or
If the plaintiff failed to move for pre-trial, the clerk of their intention to avail of discovery procedures or
court shall do so. referral to commissioners; and
6) The number and names of the witnesses, and the
APPEARANCE OF PARTIES; EFFECT OF substance of their respective testimonies (Sec.6,
FAILURE TO APPEAR 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;

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.
Intervention is merely a collateral or accessory or SUBPOENA (Rule 21)

ancillary to the principal action ad not an independent
proceeding. With the final dismissal of the original
action, the complaint in intervention can no longer be Court cannot issue subpoena absent any action
acted upon.
Subpoena is a process directed to a person requiring him
REQUISITES FOR INTERVENTION to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted under the laws

of the Philippines, or for taking of his deposition (Sec. 1, a) Where the witness resides more than one
Rule 21). hundred (100) kilometers from his residence to
the place where he is to testify by the ordinary
SUBPOENA DUCES TECUM - is a process course of travel (Viatory Right), or
directed to a person requiring him to bring with him b) Where the permission of the court in which the
at the hearing or trial of an action any books, detained prisoner’s case is pending was not
documents, or other things under his control. obtained.
SUBPOENA AD TESTIFICANDUM – is a process QUASHING OF SUBPOENA

directed to a person requiring him to attend and
testify at the hearing or the trial of the action, or at The court may quash a subpoena duces tecum upon
any investigation conducted by the competent motion promptly made and, in any event, at or before the
authority, or for the taking of his deposition. time specified therein:
a) if it is unreasonable and oppressive, or
SERVICE OF SUBPOENA b) the relevancy of the books, documents or things
does not appear, or
It shall be made in the same manner as personal or c) if the person is whose behalf the subpoena is
substituted service of summons. issued fails to advance the reasonable cost of the
1) The original shall be exhibited and a copy thereof production thereof.
delivered to the person on whom it is served.
2) Tendering to him the fees for one day‘s Subpoena ad testificandum may be quashed on the ground
attendance and the kilometrage allowed by the that the witness is NOT BOUND THEREBY. In either
Rules, except that when a subpoena is issued by case, the subpoena may be quashed on the ground that
or on behalf of the Republic, or an officer or the witness fees and kilometrage (within 100 kilometrage
agency thereof, the tender need not be made. unless the witness maybe cited indirect contempt) allowed by
3) The service must be made so as to allow the the Rules were not tendered when the subpoena was
witness a reasonable time for preparation and served.
travel to the place of attendance.
4) If the subpoena is duces tecum, the reasonable cost
of producing the books, documents or things MODES OF DISCOVERY (Rules 23 -28)
demanded shall also be tendered.
F You can use this at any stage of the proceeding;
Service of a subpoena shall be made by the sheriff, by his
applicable also in special proceedings
deputy, or by any other person specially authorized, who
F Written interrogatories to parties is used only for the
is not a party and is not less than eighteen (18) years of
purpose of calling the defendant to the witness stand
age (Sec. 6, Rule 21).
MODES OF DISCOVERY
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
1) Depositions pending action (Rule 23);
2) Depositions before action or pending appeal
In case of failure of a witness to attend, the court or judge
(Rule 24);
issuing the subpoena, upon proof of the service thereof
3) Interrogatories to parties (Rule 25)
and of the failure of the witness, may issue a warrant to
4) Admission by adverse party (Rule 26);
the sheriff of the province, or his deputy, to arrest the
5) Production or inspection of documents and
witness and bring him before the court or officer where
things (Rule 27); and
his attendance is required, and the cost of such warrant
6) Physical and mental examination of persons
and seizure of such witness shall be paid by the witness if
(Rule 28).
the court issuing it shall determine that his failure to
answer the subpoena was wilful and without just cause
The importance of the rules of discovery is that they
(Sec. 8).
shorten the period of litigation and speed up adjudication.
The evident purpose is to enable the parties, consistent
Failure by any person without adequate cause to obey a
with recognized principles, to obtain the fullest possible
subpoena served upon him shall be deemed a contempt of
knowledge of the facts and issues before civil trials and
the court from which the subpoena is issued. If the
thus prevent said trials from being carried on in the dark.
subpoena was not issued by a court, the disobedience
The rules of discovery serve as (a) devices, along with the
thereto shall be punished in accordance with the
pre-trial hearing under Rule 18, to narrow and clarify the
applicable law or Rule (Sec. 9).
basis issues between the parties; and (b) devices for
ascertaining the facts relative to those issues.
Exceptions:

The deposition may be used for the following purposes:
The basic purposes of the rules of discovery are: 1) For contradicting or impeaching the testimony of
a) To enable a party to obtain knowledge of the deponent as a witness;
material facts within the knowledge of the 2) The deposition of a party or of any one who at
adverse party or of third parties through the time of taking the deposition was an officer,
depositions; director, or managing agent of a public or private
b) To obtain knowledge of material facts or corporation, partnership, or association which is
admissions from the adverse party through a party may be used by an adverse party for any
written interrogatories; purpose;
c) To obtain admissions from the adverse party 3) For any purpose by any party, where the
regarding the genuineness of relevant documents deponent is a witness if the court finds that:
or relevant matters of fact through requests for a) The witness is dead;
admissions; b) The witness resides more than 100
d) To inspect relevant documents or objects, and kilometers from the place of trial or
lands or other property in the possession and hearing, or is out of the Philippines,
control of the adverse party; and unless it appears that his absence was
e) To determine the physical or mental condition of procured by the party offering the
a party when such is in controversy. deposition;
c) That the witness is unable to attend or
testify because of age, sickness,
DEPOSITIONS PENDING ACTION (RULE 23); infirmity, or imprisonment; or
DEPOSITIONS BEFORE ACTION OR PENDING d) That the party offering the deposition
APPEAL has been unable to procure the
attendance of witnesses by subpoena; or
e) When exceptional circumstances exist
MEANING OF DEPOSITION (Sec. 4, Rule 23).
A deposition is the taking of the testimony of any person, SCOPE OF EXAMINATION

whether he be a party or not, but at the instance of a party
to the action. This testimony is taken out of court. It may Unless otherwise ordered by the court as provided by Sec.
be either by oral examination, or by a written 16 or 18, the deponent may be examined regarding:
interrogatory (Sec. 1, Rule 23). a) any matter not privileged
b) which is relevant to the pending action, whether
USES OF DEPOSITIONS PENDING ACTION relating to the claim or defense of any other
party, including the existence, description,
At the trial or upon the hearing of a motion or an nature, custody, condition, and location of any
interlocutory proceeding, any part or all of a deposition, books, documents, or other tangible things and
so far as admissible under the rules of evidence, may be the identity and location of persons having
used against any party who was present or represented at knowledge of relevant facts
the taking of the deposition or who had due notice c) Not restricted by a protective order.
thereof.
WHEN MAY OBJECTIONS TO ADMISSIBILITY
A deposition may be sought for use in a future action BE MADE
(Rule 24), during a pending action (Rule 23), or for use in a
pending appeal (Rule 24). Objection may be made at the trial or hearing to receiving
in evidence any deposition or part thereof for any reason
ð deposition benne esse – taken for use during a which would require the exclusion of the evidence if the
pending action (Rule 23). witness were then present and testifying (Sec. 6).
ð deposition in perpetuam rei memoriam – taken to
perpetuate a testimony for use in future WHEN MAY TAKING OF DEPOSITION BE
proceedings as when it is sought before the TERMINATED OR ITS SCOPE LIMITED
existence of an action, or for cases on appeal.
At any time during the taking of the deposition, any party
Any or all of the deposition, so far as admissible under
or deponent may ask for the termination or limiting of the
the rules of evidence, may be used (a) against any party
scope of the deposition upon showing:
who was present or represented at the taking of the
1) that the examination is being conducted in bad
deposition, or (b) against one who had due notice of the
faith; or
deposition (Sec. 4, Rule 23).

2) that it is conducted in such manner as reasonably compliance therewith shall be deferred until such
to annoy, embarrass, or oppress the deponent or objections are resolved, which resolution shall be made as
party. early as practicable.
WRITTEN INTERROGATORIES TO ADVERSE CONSEQUENCES OF FAILURE TO ANSWER

PARTIES REQUEST FOR ADMISSION
CONSEQUENCES OF REFUSAL TO ANSWER Each of the matters of which an admission is requested

The party who fails to serve his answer to written (facts or documents) shall be deemed admitted unless
interrogatories may be the subject of a judgment by within a period designated in the request which shall not
default be less than 15 days after service thereof, or within such
further time as the court may allow on motion, the party
EFFECT OF FAILURE TO SERVE WRITTEN to whom the request is directed files and serves upon the
INTERROGATORIES party requesting the admission a sworn statement either
A party not served with written interrogatories may not denying specifically the matter of which an admission is
be compelled by the adverse party to give testimony in requested or setting forth in detail the reason why he
open court, or to give deposition pending appeal, unless cannot truthfully either admit or deny those matters.
allowed by the court or to prevent a failure of justice (Sec.
6, Rule 25). EFFECT OF ADMISSION
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)
Objections to any request for admission shall be

submitted to the court by the party requested within the This mode of discovery applies to an action in which the
period for and prior to the filing of his sworn statement as mental or physical condition of a party is in controversy.
contemplated in the preceding paragraph and his

Requisites to obtain Order for Examination: Waiver of privilege. Where the person examined requests
a) A MOTION must be filed for the physical and and obtains a report or the results of the examination, the
mental examination; consequences are:
b) The motion showing Good Cause for the 1) He has to furnish the other party a copy of any
examination; previous or subsequent examination of the same
c) NOTICE to the party to be examined and to all physical and mental condition; and
the other parties 2) He waives any privilege he may have in that
d) The motion shall SPECIFY the time, place, action or any other involving the same
manner, condition and scope of the examination controversy regarding the testimony of any other
and the person or persons by whom it is made. person who has so examined him or may
thereafter examine him.
CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)
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 court, on motion and notice, may:

Failure of party to attend or 1) may strike out all or any part of any pleading of that party;
serve answers 2) dismiss the action or proceeding or any part thereof;
3) enter a judgment by default against disobedient party;
4) order to pay reasonable expenses incurred by the other, including attorney's
fees.

on the facts agreed upon, without the introduction of
TRIAL (Rule 30) evidence. No trial shall thus be held.
If the parties agree to only some facts in issue, trial shall

A trial is the judicial process of investigating and be held as to the disputed facts in such order as the court
determining the legal controversies, starting with the shall prescribe.
production of evidence by the plaintiff and ending with
his closing arguments. The agreed statement of facts is conclusive on the parties,
as well as on the court. Neither of the parties may
ADJOURNMENTS AND POSTPONEMENTS withdraw from the agreement, nor may the court ignore
the same.
The general rule is that a court may adjourn a trial from
day to day, and to any stated time, as the expeditious and ORDER OF TRIAL
convenient transaction of business may require (Sec. 2).
Subject to the provisions of Sec. 2, Rule 31 (Separate trials),
However, the court has no power to adjourn a trial for a and unless the court for special reasons otherwise directs,
period longer than one month from each adjournment, the trial shall be limited to the issues stated in the pre-trial
nor more than three (3) months in all, except when order and shall proceed as follows:
authorized in writing by the Court Administrator. 1) The plaintiff shall adduce evidence in support of
his complaint;
A motion for postponement should not be filed on the 2) The defendant shall then adduce evidence in
last hour especially when there is no reason why it could support of his defense, counterclaim, cross-claim
not have been presented earlier. and third party complaint;
3) The third party defendant, if any, shall adduce
Postponement is not a matter of right. It is addressed to evidence of his defense, counterclaim, cross-
the sound discretion of the court.
claim and fourth-party complaint;
4) The fourth party, and so forth, if any, shall
REQUISITES OF MOTION TO POSTPONE TRIAL adduce evidence of the material facts pleaded by
FOR ABSENCE OF EVIDENCE them;
5) The parties against whom any counterclaim or
1) A motion for postponement stating the ground relied cross-claim has been pleaded, shall adduce
upon must be filed; evidence in support of their defense, in the order
2) The motion must be supported by an affidavit or to be prescribed by the court;
sworn certification showing: 6) The parties may then respectively adduce
a. the materiality or relevancy of the evidence; rebutting evidence only, unless the court, for
and good reasons and in the furtherance of justice,
b. that due diligence has been used to procure it permits them to adduce evidence upon their
(Sec. 3). original case; and
3) If the adverse party admits the facts given in 7) Upon admission of the evidence, the case shall
evidence, the trial shall not be postponed even if he be deemed submitted for decision, unless the
reserves the right to object to the admissibility of the court directs the parties to argue or to submit
evidence. their respective memoranda or any further
pleadings.
REQUISITES OF MOTION TO POSTPONE TRIAL
FOR ILLNESS OF PARTY OR COUNSEL If several defendants or third party defendants and so
forth having separate defenses appear by different
1) A motion for postponement stating the ground relied counsel, the court shall determine the relative order of
upon must be filed; presentation of their evidence (Sec. 5).
2) The motion must be supported by an affidavit or
sworn certification showing: REVERSAL OF ORDER
a. that the presence of the party or counsel at
the trial is indispensable; and When the accused admits the act or omission charged in
b. that the character of his illness is such as to the complaint or information but interposes a lawful
render his non-attendance excusable (Sec. 4). defense, the order of trial may be modified (Sec. 11, Rule
119).
AGREED STATEMENTS OF FACTS
Since the defendant admits the plaintiff’s claim but seeks
The parties to any action may agree in writing upon the to avoid liability based on his affirmative defense, he shall
facts involved in litigation d submit the case for judgment proceed first to prove his exemption.

TRIAL BY COMMISSIONERS (RULE 32)

CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL (RULE 31)
Commissioner includes a referee, an auditor and an
examiner (Sec. 1)
Consolidation When actions involving a common
question of law OR facts are pending before the court, it REFERENCE BY CONSENT
may order a joint hearing or trial of any or all the matters
in issue in the actions; it may order all the actions By written consent of both parties, the court may order
consolidated; and it may make such orders concerning any or all of the issues in a case to be referred to a
proceedings therein as may tend to avoid unnecessary commissioner to be agreed upon by the parties or to be
costs or delay (Sec. 1). appointed by the court.
Modes of consolidating cases: REFERENCE ORDERED ON MOTION

a) By recasting the cases already instituted – reshaping
of the case by amending the pleading and When the parties do not consent, the court may, upon the
dismissing some cases and retaining only one application of either or on its own motion, direct a
case. There must be joinder of causes of action reference to a commissioner in the following cases:
and of parties; 1) When the trial of an issue of fact requires the
b) By consolidation proper or by consolidating the existing examination of a LONG ACCOUNT on
cases – it is a joint trial with a joint decision, the either side, in which case the commissioner
cases retaining their original docket numbers; may be directed to hear and report upon the
and whole issue or any specific question involved
c) By test-case method – by hearing only the principal therein;
case and suspending the hearing on the other 2) When the taking of an account is necessary
cases until judgement has been rendered in the for the information of the court before
principal case. The cases retain their original judgment, or for carrying a judgment or
docket numbers. order into effect;
3) When a question of fact, other than upon the
Severance (Separate) Trials. The court, in furtherance of pleadings, arises upon motion or otherwise,
convenience or to avoid prejudice, may order a separate in any stage of a case, or for carrying a
trial of any claim, cross-claim, counterclaim, or third judgment or order into effect (Sec. 2).
party complaint, or of any separate issue or of any
number of claims, cross-claims, counterclaim, third party POWERS OF COMMISSIONER
complaints or issue (Sec. 2).
ü Note: Consolidation is not a remedy in case Under the Rules, the court’s order may specify or limit
of forum shopping! the powers of the commissioner. Hence, the order may
direct him to:
DELEGATION OF RECEPTION OF EVIDENCE a) Report only upon particular issues;
b) Do or perform particular acts; or
As a general rule, the judge shall personally receive the c) Receive and report evidence only.
evidence to be adduced by the parties. However, the
reception of evidence may be delegated under the The order may also fix the date for beginning and closing
following conditions: of the hearings and for the filing of his report.
1) The delegation may be made only in default or ex
parte hearings, and in any case where the parties Subject to such limitations stated in the order, the
agree in writing; commissioner:
2) The delegation may be made only by the clerk of a) Shall exercise the power to regulate the
court who is a member of the bar; proceedings in every hearing before him;
3) Said clerk of court shall have no power to rule on b) Shall do all acts and take all measures necessary
of evidence objections to any question or to the or proper for the efficient performance of his
admission of exhibits; and duties under the order;
4) He shall submit his report and the transcripts of c) May issue subpoenas and subpoenas duces
the proceedings, together with the objections to tecum, and swear witnesses; and
be resolved by the court, within ten (10) days d) Rule upon the admissibility of evidence, unless
from termination of the hearing. otherwise provided in the order of reference (Sec.
3, Rule 32).

COMMISSIONER’S REPORT; NOTICE TO If the motion is granted and the order of dismissal is
PARTIES AND HEARING ON THE REPORT reversed on appeal , the movants loses his right to present
the evidence on his behalf. The appellate court in case it
The commissioner’s report is not binding upon the court reverses the grant of the motion, should render the
which is free to adopt, modify, or reject, in whole or in judgment therein based on the evidence submitted by the
part, the report. The court may receive further evidence plaintiff.
or recommit the report with instructions (Sec. 11, Rule 32)
It is not correct for the appellate court reversing the order
Notice of the filing of the report must be sent to the granting the demurrer to remand the case to the trial
parties for the purpose of giving them an opportunity to court for further proceedings. The appellate court should,
present their objections. The failure to grant the parties, in instead of remanding the case, render judgment on the
due form, this opportunity to object, may, in some basis of the evidence submitted by the plaintiff.
instances, constitute a serious error in violation of their
substantial rights. WAIVER OF RIGHT TO PRESENT EVIDENCE
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 civil case, if the demurrer is denied, the defendant may

Demurrer to evidence is a motion to dismiss filed by the
proceed to present his evidence. In a criminal case, the
defendant after the plaintiff had rested his case on the
accused may adduce his evidence only if the demurrer is
ground of INSUFFICIENCY OF EVIDENCE.
filed with leave of court. He cannot present his evidence if
he filed the demurrer without leave of court (Sec. 23, Rule
The provision of the Rules governing demurrer to
119).
evidence does not apply to an election case.
In civil case, the plaintiff files a motion to deny motion to
GROUND
demurrer to evidence. In criminal case, the court may
motu proprio deny the motion.
After plaintiff has finished presenting his evidence, the
defendant may move for the dismissal of the complaint
on the ground that upon the facts and the law, the JUDGMENTS AND FINAL ORDERS (Rules 34 – 36)
plaintiff has shown no right to relief.
EFFECT OF DENIAL; EFFECT OF GRANT JUDGMENT WITHOUT TRIAL
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.

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).
WHEN THE CASE NOT FULLY ADJUDICATED

Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse party‘s
pleading, the court may, on motion of that party, direct If judgment is not rendered upon the whole case, the
judgment on such pleading. court shall ascertain what material facts exist without
substantial controversy and those that are controverted.
The following actions CANNOT be the subject of a The court shall then render a partial judgement with trial
judgment on the pleadings: to proceed on the matters that remain controverted.
1) declaration of nullity of marriage

AFFIDAVITS AND ATTACHMENTS the law on which it is based, signed by him, and filed
with the clerk of the court (Sec. 1, Rule 36).
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be ENTRY OF JUDGMENT AND FINAL ORDER
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated If no appeal or motion for new trial or reconsideration is
therein. Certified true copies of all papers or parts thereof filed within the time provided in the Rules, the judgment
referred to in the affidavit shall be attached thereto or or final order shall forthwith be entered by the clerk in the
served therewith (Sec. 5). book of entries of judgments.
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

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).
DENIAL OF THE MOTION; EFFECT FRESH 15-DAY PERIOD RULE
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-

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.

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

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
PERFECTION OF APPEALS ð A party’s appeal by record on appeal is deemed

perfected as to him with respect to the subject
For Ordinary Appeals from MTC to the RTC (Rule 40) matter thereof upon the approval of the record
and from the RTC to the CA (Rule 41). on appeal filed in due time. The court has
ð A party’s appeal by notice of appeal is deemed jurisdiction only over the subject matter thereof
perfected as to him upon the filing of the notice upon such approval for the expiration of the time
of appeal in due time. Upon such perfection or to appeal of the other parties.
the expiration of the same to appeal by the other ð In either case, prior to the transmittal of the
parties, the court loses jurisdiction over the original record or the record on appeal, the court
subject matter thereof may issue orders for the protection and
preservation of the rights of the parties which do

not involve any matter litigated by the appeal, There are three modes of appealing a judgment or final
approve compromises, permit appeals of indigent order of the RTC:
litigants, order execution pending appeal in 1) Ordinary Appeal (Rule 41) from the judgment or
accordance with Sec. 2, Rule 39, and allow final order of the RTC in the exercise of its
withdrawal of the appeal (Sec. 9, Rule 41). original jurisdiction
2) Petition for Review (Rule 42) from the judgment
Perfection of Appeal by Petition for Review under Rule or final order of the RTC to the CA in cases
42. (Sec.8) decided by the RTC in the exercise of its
ð Upon the timely filing of a petition for review appellate jurisdiction
and the payment of the corresponding docket 3) Petition for Review on Certiorari (Rule 45)
and other lawful fees, the appeal is deemed
perfected as to the petitioner. APPEAL FROM JUDGMENTS OR FINAL ORDERS
ð The RTC loses jurisdiction over the case upon OF THE CA
the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other a) Appeal from the judgments or final orders of the CA
parties. concerning purely questions of law which must be
ð However, before the CA give due course to the distinctly set forth may be elevated to the SC by way
petition, the RTC may issue orders for the of Rule 45: Petitions for Review on Certiorari.
protection and preservation of the rights of the b) The general rule is that the SC shall not entertain
parties which do not involve any matter litigated questions of fact, except in the following cases:
by the appeal, approve compromises, permit a) The conclusion of the CA is grounded
appeals of indigent litigants, order execution entirely on speculations, surmises and
pending appeal in accordance with Sec. 2, Rule conjectures;
39, and allow withdrawal of the appeal. b) The inference made is manifestly mistaken,
ð Except in civil cases decided under Rules on absurd or impossible;
Summary Procedure, the appeal shall stay the c) There is grave abuse of discretion;
judgment or final order unless the CA, the law, d) The judgment is based on misapprehension
or the Rules provide otherwise. of facts;
e) The findings of facts are conflicting;
APPEAL FROM JUDGMENTS OR FINAL ORDERS f) The CA in making its findings went beyond
OF THE MTC the issues of the case and the same is
contrary to the admissions of both appellant
An appeal from a judgment or final order of a MTC may and appellee;
be taken to the RTC exercising jurisdiction over the area g) The findings are contrary to those of the trial
over which the MTC sits. The title of the case shall court;
remain as it was in the court of origin, but the party h) The facts set forth in the petition as well as in
appealing the case shall be further referred to as the the petitioner‘s main and reply briefs are not
appellant and the adverse party as the appellee (Sec. 1, disputed by the respondents;
Rule 40). i) The findings of fact of the CA are premised
on the supposed absence of evidence and
Where the MTC dismisses a case for lack of jurisdiction contradicted by the evidence on record; or
of such dismissal is made to the RTC, should the latter j) Those filed under Writs of amparo, habeas
affirm the dismissal and if it has jurisdiction over the data, or kalikasan.
subject matter, the RTC is obliged to try the case as if it
were originally filed with it. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE CTA
The appeal is taken by filing a notice of appeal with the
court that rendered the judgment or final order appealed Under Sec. 11 of RA 9282, no civil proceeding involving
from. The notice of appeal shall indicate the parties to the matters arising under the NIRC, the TCC or the Local
appeal, the judgment or final order or part thereof Government Code shall be maintained, except as herein
appealed from, and state the material dates showing the provided, until and unless an appeal has been previously
timeliness of the appeal. A record on appeal shall be filed with the CTA and disposed of in accordance with
required only in special proceedings and in other cases of the provisions of the Act.
multiple or separate appeals.
A party adversely affected by a resolution of a Division of
APPEAL FROM JUDGMENTS OR FINAL ORDERS CTA on a motion for reconsideration or new trial, may
OF THE RTC file a petition for review with the CTA en banc.

Sec. 11 of RA 9282 further provides that a party adversely REVIEW OF FINAL ORDERS OF THE NLRC
affected by a decision or ruling of the CTA en banc may
file with the SC a verified petition for review on The remedy of a party aggrieved by the decision of the
certiorari pursuant to Rule 45. National Labor Relations Commission (NLRC) is to
promptly move for the reconsideration of the decision
REVIEW OF FINAL JUDGMENTS OR FINAL and if denied to timely file a special civil action of
ORDERS OF THE COMELEC certiorari under Rule 65 within 60 days from notice of the
decision.
A judgment, resolution or final order of the COMELEC
may be brought by the aggrieved party to the SC on In observance of the doctrine of hierarchy of courts, the
certiorari under Rule 65 in relation to Rule 64, by filing the petition for certiorari should be filed in the CA (St. Martin
petition within 30 days from notice. Funeral Homes vs. NLRC, Sept. 16, 1998). Should the same
be filed with the SC, the latter shall dismiss the same
REVIEW OF FINAL ORDERS OF THE CSC instead of referring the action to the CA.
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.

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.

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.
DIFFERENCE BETWEEN FINALITY OF A discretionary execution is called “discretionary”

JUDGMENT FOR PURPOSE OF APPEAL; FOR precisely because it is not a matter of right. The execution
PURPOSES OF EXECUTION of a judgment under this concept is addressed to the
discretionary power of the court and cannot be insisted
For purposes of appeal, an order is final if it disposes of upon but simply prayed and hoped for because a
the action as opposed to an interlocutory order which discretionary execution is not a matter of right.
leaves something to be done in the trial court with respect
to the merits of the case. Requisites for discretionary execution:
1) There must be a motion filed by the prevailing
For purposes of execution, an order is final or executory party with notice to the adverse party;
after the lapse of the reglementary period to appeal and 2) There must be a hearing of the motion for
no such appeal has been perfected. discretionary execution;
3) There must be good reasons to justify the
WHEN EXECUTION SHALL ISSUE; EXECUTION discretionary execution; and
AS A MATTER OF RIGHT (SEC. 1) 4) The good reasons must be stated in a special
order (Sec. 2, Rule 39).
Execution is a matter of right upon the expiration of the
period to appeal and no appeal was perfected from a HOW A JUDGMENT IS EXECUTED (SEC. 4)
judgment or order that disposes of the action or
proceeding. Once a judgment becomes final and Judgments in actions for injunction, receivership,
executory, the prevailing party can have it executed as a accounting and support, and such other judgments as are
matter of right, and the issuance of a writ of execution now or may hereafter be declared to be immediately
becomes the ministerial duty of the court compellable by executory, shall be enforceable after their rendition and
mandamus except in certain cases, as when subsequent shall not be stayed by an appeal taken therefrom, unless
events would render execution of judgment unjust. otherwise ordered by the trial court.
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
DISCRETIONARY EXECUTION (SEC. 2) – b) Execution by MOTION may be had if the

execution pending appeal enforcement of the judgment is sought within 5 years
from the date of its entry.
It constitutes an exception to the general rule that a
judgment cannot be executed before the lapse of the c) Execution by INDEPENDENT ACTION is when
period for appeal or during the pendency of an appeal. the 5 year period has lapsed from the entry of
judgment and before it is barred by the statute of
Under Sec. 1, Rule 39, execution shall issue only as a limitations. This action to revive the judgment must
matter of right upon a judgment or final order that finally

be filed within 10 years from the date the judgment check payable to the judgment oblige or any other form
became final. of payment acceptable to him (Sec. 9).
ð the sheriff is required to first make a demand on
ISSUANCE AND CONTENTS OF A WRIT OF the obligor for the immediate payment of the full
EXECUTION (SEC. 8) amount stated in the writ of 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

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

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.
d) ACCION REINVINDICATORIA b) By the redemptioner

ð The third party claimant is not precluded by Sec. 1. Amount paid on the last redemption;
14, Rule 57 from vindicating his claim to the 2. 2% interest thereon
property in the same or in a separate action. 3. Any amount of assessments or taxes which
ð He may file a separate action to nullify the levy the last previous redemptioner paid after the
with damages resulting from the unlawful levy redemption by him with interest on such
and seizure. This action may be a totally distinct last-named amount;
action from the former case. 4. Amount of any liens held by the last
redemptioner prior to his own, with interest.
RULES ON REDEMPTION
Generally in judicial foreclosure sale, there is no right of
WHAT MAY BE REDEEMED? redemption, but only equity of redemption. In sale of
F The right of redemption is available only to real estate property to pay off debts of the estate, there is no
properties. When personal properties are sold in redemption at all. Only in extrajudicial foreclosure sale
execution their sale is absolute and no right of and sale on execution is there the right of redemption.
redemption may be exercised.
If no redemption be made within one (1) year from the
WHO MAY REDEEM? date of the registration of the certificate of sale, the
a) Judgment obligor, or his successor in interest in purchaser is entitled to a conveyance and possession of
the whole or any part of the property; the property; or, if so redeemed whenever sixty (60) days
b) Redemptioner – a creditor having a lien by virtue have elapsed and no other redemption has been made,
of an attachment, judgment or mortgage on the and notice thereof given, and the time for redemption has
property sold, or on some part thereof, expired, the last redemptioner is entitled to the
subsequent to the lien under which the property conveyance and possession.
was sold.
Upon the expiration of the right of redemption, the
WHEN TO REDEEM? purchaser or redemptioner shall be substituted to and
a) By the judgment obligor - within 1 year from the acquire all the rights, title, interest and claim of the
date of the registration of the certificate of sale. judgment obligor to the property as of the time of the
b) By the redemptioner - within 1 year from the levy.
date of the registration of the certificate of sale if
he is the first redemptioner, or The possession of the property shall be given to the
c) Within 60 days after the last redemption if he is a purchaser or last redemptioner by the same officer unless
subsequent redemptioner, provided that the a third party is actually holding the property adversely to
judgment debtor has not exercised his right of the judgment obligor.
redemption.
EXAMINATION OF JUDGMENTS OBLIGOR
ð In all cases the judgment obligor shall have the WHEN JUDGMENT IS UNSATISFIED (SEC. 36)
entire period of one (1) year from the date of the
registration of the sale to redeem the property. If When the return of a writ of execution issued against
the judgment obligor redeems, no further redemption is property of a judgment obligor, or any one of several
allowed and he is restored to his estate. obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment
REDEMPTION PRICE obligee, at any time after such return is made, shall be
entitled to an order from the court which rendered the
a) By the judgment obligor said judgment, requiring such judgment obligor to appear
1. Purchase price and be examined concerning his property and income
2. 1% interest thereon up to the time of before such court or before a commissioner appointed by
redemption it, at a specified time and place; and proceedings may
3. Any amount of assessments or taxes which thereupon be had for the application of the property and
the purchaser may have paid thereon after income of the judgment obligor towards the satisfaction
purchase, and interest on such last named of the judgment.
amount at the same rate.
ð If the purchaser be also a creditor having a prior But no judgment obligor shall be so required to appear
lien to that of the redemptioner, other than the before a court or commissioner outside the province or
city in which such obligor resides or is found.

1) In case of a judgment or final order upon a specific
EXAMINATION OF OBLIGOR OF JUDGMENT thing, the judgment or final order is conclusive upon
OBLIGOR (SEC. 37) the title to the thing; and
2) In case of a judgment or final order against a person,
When the return of a writ of execution against the the judgment or final order is presumptive evidence
property of a judgment obligor shows that the judgment of a right as between the parties and their successors
remains unsatisfied, in whole or in part, and upon proof in interest by a subsequent title. In either case, the
to the satisfaction of the court which issued the writ, that judgment or final order may be repelled by evidence
person, corporation, or other juridical entity has property of a want of jurisdiction, want of notice to the party,
of such judgment obligor or is indebted to him, the court collusion, fraud, or clear mistake of law or fact.
may, by an order, require such person, corporation, or
other juridical entity, or any officer or member thereof, to A foreign judgment on the mere strength of its
appear before the court or a commissioner appointed by promulgation is not yet conclusive, as it can be annulled
it, at a time and place within the province or city where on the grounds of want of jurisdiction, want of notice to
such debtor resides or is found, and be examined the party, collusion, fraud, or clear mistake of law or fact.
concerning the same.
It is likewise recognized in Philippine jurisprudence and
The service of the order shall bind all credits due the international law that a foreign judgment may be barred
judgment obligor and all money and property of the from recognition if it runs counter to public policy.
judgment obligor in the possession or in control of such
person, corporation, or juridical entity from the time of
service; and the court may also require notice of such
proceedings to be given to any party to the action in such PROVISIONAL REMEDIES (Rules 57-61)
manner as it may deem proper.
EFFECT OF JUDGMENT OR FINAL ORDERS: RES

JUDICATA (SEC. 47) NATURE OF PROVISIONAL REMEDIES
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)

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

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

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.
HOW TO PREVENT THE ATTACHMENT DEFINITIONS AND DIFFERENCES:

PRELIMINARY INJUNCTION AND TEMPORARY
RESTRAINING ORDER
The party whose property is sought to be attached, my
prevent the attachment by doing either of two things:
1) By depositing with the court an amount equal to A preliminary injunction is an order granted at any stage
the value of the property to be attached; or of an action or proceeding prior to the judgment or final
2) By giving a counter bond executed to the order, requiring a party or a court, agency or a person to
applicant, in an amount equal to the bond posted either refrain (prohibitory) from or to perform (mandatory)
by the latter to secure the attachment. a particular act or acts during the pendency of the action.
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

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
KINDS OF INJUNCTION 1) Upon showing of insufficiency of the application;

2) Other grounds upon affidavit of the party or person
PROHIBITORY – its purpose is to prevent a person enjoined;
from the performance of a particular act which has not 3) Appears after hearing that irreparable damage to the
yet been performed. party or person enjoined will be caused while the
1) Preliminary – secured before the finality of applicant can be fully compensated for such damages
judgment. as he may suffer, and the party enjoined files a
2) Final – issued as a judgment, making the counter-bond;
injunction permanent. It perpetually restrains a 4) Insufficiency of the bond;
person from the continuance or commission of 5) Insufficiency of the surety or sureties.
an act and confirms the previous preliminary
injunction. It is one included in the judgment as DURATION OF TRO
the relief or part of the relief granted as a result of
the action, hence, granted only after trial and no The lifetime of a TRO is 20 days, which is non-extendible
bond is required. (AM 02-02-07-SC).
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.

If a TRO is by the Court of Appeals or a member thereof, It is not available where

it shall be effective for sixty (60) days from notice to a) the summons could not be served personally or
service party to be enjoined. by substituted service despite diligent efforts or
b) where the adverse party is a resident of the
If a TRO is issued by the Supreme Court or a member Philippines temporarily absent therefrom or is a
thereof, it shall be effective until further orders. non-resident thereof.
BAN OF TRO OR WRIT OF INJUNCTION IN SUMMARY/STAGES OF INJUNCTION

CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS: RA 8975 (1) SEVENTY-TWO (72) HOUR TEMPORARY
RESTRAINING ORDER
No court except the SC shall issue any or preliminary a) If the matter is of extreme urgency and the
injunction or preliminary mandatory injunction against applicant will suffer grave injustice and
the government or it subdivisions, officials or any person irreparable injury;
or entity whether public or private acting under the b) Issued by executive judge of a multi-sala court or
government direction, to restrain, prohibit or compel the the presiding judge of a single-sala court;
following acts: c) Thereafter must
1) Acquisition, clearance and development of the i. Serve summons and other documents
right of way and/or site or location of any ii. Conduct summary hearing to determine
government project, whether the TRO shall be extended to
2) Bidding or awarding of a contract or project of 20 days until the application for
the national government, preliminary injunction can be heard.
3) Commencement, prosecution, execution,
implementation, operation of any such contract (2) TWENTY (20) DAY TRO
or project, a) If it shall appear from the facts shown by
4) Termination or rescission of any such affidavits or by the verified application that great
contract/project and or irreparable injury would result to the applicant
5) The undertaking or authorization of any other before the matter can be heard on notice;
lawful activity necessary for such contract or b) If application is included in initiatory pleading:
project. 1. Notice of raffle shall be preceded, or
ü Any TRO, preliminary injunction and contemporaneously accompanied, by
preliminary mandatory injunction issued in service of summons, together with a
violation of the above prohibition shall be void. copy of the complaint or initiatory
pleading and the applicant‘s affidavit
Exceptions to the prohibition: and bond, upon the adverse party in the
a) In cases of extreme urgency; Philippines;
b) If it involves constitutional issue; 2. Raffled only after notice to and in the
c) Grave injustice and irreparable injury presence of the adverse party or the
will arise unless a TRO is issued. person to be enjoined.
c) Issued with summary hearing (to determine
ü In one case, the SC said that injunction is not whether the applicant will suffer great or
available to stop infrastructure projects of the irreparable injury) within 24 hours after sheriff‘s
government including arrastre and stevedoring return of service and/or records are received by
operations. the branch selected by raffle;
d) Within 20-day period, the court must order said
RULE ON PRIOR OR CONTEMPORANEOUS person to show cause why the injunction should
SERVICE OF SUMMONS IN RELATION TO not be granted, and determine whether or not the
ATTACHMENT preliminary injunction shall be granted, and
accordingly issue the corresponding order;
When an application for a writ of preliminary injunction e) Including the original 72 hours, total effectivity
or TRO is made in a complaint or other initiatory of TRO shall:
pleading, the case, if filed in a multi-sala court, shall be 1. Not exceed 20 days, if issued by an RTC
raffled only after notice to and in the presence of the or MTC;
adverse party. In any event, such notice shall be preceded 2. Not exceed 60 days, if issued by the CA
or contemporaneously accompanied by a service of or a member thereof;
summons, together with a copy of the complaint or 3. Until further orders, if issued by the SC.
initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.

f) TRO is automatically vacated upon expiration of Upon a verified application, one or more receivers of the
the period and without granting of preliminary property subject of the action or proceeding may be
injunction; appointed by the court where the action is pending or by
g) Effectivity is not extendible without need of any the Court of Appeals or by the Supreme Court, or a
judicial declaration to that effect; member thereof, in the following cases:
h) No court shall have authority to extend or renew 1. The party applying for the appointment of a
the same on the same ground for which it was receiver has an interest in the property or fund
issued. which is the subject of the action or proceeding,
and that such property or fund is in danger of
(3) PRELIMINARY INJUNCTION being lost, or materially injured unless a receiver
a) Hearing and prior notice to the party sought to be appointed to administer and preserve it;
be enjoined; 2. In an action by the mortgagee for the foreclosure
b) If application is included in initiatory pleading: of a mortgage that the property is in danger of
1. Notice of raffle shall be preceded, or being wasted or dissipated or materially injured,
contemporaneously accompanied, by and that its value is probably insufficient to
service of summons, together with a discharge the mortgage debt, or that the parties
copy of the complaint or initiatory have so stipulated in the contract of mortgage;
pleading and the applicant's affidavit 3. After judgment, to preserve the property during
and bond, upon the adverse party in the the pendency of an appeal, or to dispose of it
Philippines. according to the judgment, or to aid execution
2. Raffled only after notice to and in the when the execution has been returned unsatisfied
presence of the adverse party or the or the judgment obligor refuses to apply his
person to be enjoined property in satisfaction of the judgment, or
c) Applicant posts a bond otherwise to carry the judgment into effect;
4. Whenever in other cases it appears that the
(4) FINAL INJUNCTION appointment of a receiver is the most convenient
• Note that a bond is required only in preliminary and feasible means of preserving, administering,
injunctions, but is not required in TROs. After or disposing of the property in litigation.
lapse of the 20 day TRO, the court can still grant
a preliminary injunction. REQUISITES
• Note that irreparable injury is always a requisite
in TROs. But in the 72 hour TRO, grave injustice 1) Verified application;
must also be shown. In the 20 day TRO, the 2) Appointed by the court where the action is pending,
ground is great or irreparable injury. Without a or by the CA or by the SC, or a member thereof;
preliminary injunction, a TRO issued by the CA ð During the pendency of an appeal, the appellate
expires without necessity of court action. court may allow an application for the
appointment of a receiver to be filed in and
ð Only SC ca issue a Status Quo Order decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
3) Applicant’s bond conditioned on paying the adverse
RECEIVERSHIP (RULE 59) party all damages he may sustain by the appointment
of the receiver in case the appointment is without
sufficient cause;
ð Can be applied even judgment is final and executory 4) Receiver takes his oath and files his bond.
ð Receivership is a provisional remedy wherein the
court appoints a representative to preserve, REQUIREMENTS BEFORE ISSUANCE OF AN
administer, dispose of and prevent the loss or ORDER
dissipation of the real or personal property during the
pendency of an action.
1) Before issuing the order appointing a receiver the
ð It may be the principal action itself or a mere
court shall require the applicant to file a bond
provisional remedy; it can be availed of even after the
executed to the party against whom the application is
judgment has become final and executory as it may
presented, in an amount to be fixed by the court, to
be applied for to aid execution or carry judgment into
the effect that the applicant will pay such party all
effect.
damages he may sustain by reason of the
appointment of such receiver in case the applicant
CASES WHEN RECEIVER MAY BE APPOINTED
shall have procured such appointment without
sufficient cause; and

2) The court may, in its discretion, at any time after the
appointment, require an additional bond as further REPLEVIN (RULE 60)
security for such damages.
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.

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.

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
REQUISITES FOR INTERPLEADER


1) Any person interested under a deed, will, contract or could refrain from declaring the rights of the petitioner
other written instrument or whose rights are affected under the deed or the law.
by a statute, executive order or regulation, ordinance ð A refusal of the court to declare rights or
or other governmental regulation may before breach construe an instrument is actually the functional
or violation thereof, bring an action in the RTC to equivalent of the dismissal of the petition.
determine any question of construction or validity
arising and for a declaration of his rights or duties, On the other hand, the court does not have the discretion
thereunder. to refuse to act with respect to actions described as similar
2) Those who may sue under the contract should be remedies. Thus, in an action for reformation of an
those with interest under the contract like the parties, instrument, to quiet or to consolidate ownership, the
the assignees and the heirs as required by substantive court cannot refuse to render a judgment.
law.
3) If it be a statute, executive order, regulation or CONVERSION TO ORDINARY ACTION
ordinance, the petitioner is one whose rights are
affected by the same. The other parties are all persons If before final termination of the case, a breach should
who have or claim any interest which would be take place, the action may be converted into ordinary
affected by the declaration. The rights of person not action to avoid multiplicity of suits.
made parties to the action do not stand to be
prejudiced by the declaration. Ordinary civil action – plaintiff alleges that his right has
been violated by the defendant; judgment rendered is
REQUISITES OF ACTION FOR DECLARATORY coercive in character; a writ of execution may be
RELIEF executed against the defeated party.
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

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

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
Bottomline: Decisions of quasi-judicial bodies are not

stayed by appeal alone. Decisions of regular courts are CERTIORARI, PROHIBITION AND MANDAMUS
stayed on appeal. Although in petition for review on (RULE 65)
certiorari to the SC via Rule 45, there is no express
provision on effect of appeal on execution.
Certiorari is a remedy for the correction of errors of
The “not less than 5 days” provision for filing a pleading jurisdiction, not errors of judgment. It is an original and
applies only to: independent action that was not part of the trial that had
a) filing an answer after a denial of a MtD; resulted in the rendition of the judgment or order
b) filing an answer after denial or service of a bill of complained of. Since the issue is jurisdiction, an original
particulars; action for certiorari may be directed against an
c) filing an special civil action for certiorari from a interlocutory order of the lower court prior to an appeal
decision of the Comelec or CoA after denial of a from the judgment.
MfR or MNT. It does not apply to filing appeal
from decisions of other entities after denial of a Where the error is not one of jurisdiction, but of law or
MfR or MNT. In such cases, either the parties fact which is a mistake of judgment, the proper remedy
have a fresh 15 days, or the balance. should be appeal. Hence, if there was no question of
jurisdiction involved in the decision and what was being
APPLICATION OF RULE 65 UNDER RULE 64 questioned was merely the findings in the decision of
whether or not the practice of the other party constitutes a
Sec. 7, Art. IX-A of the Constitution reads, “unless violation of the agreement, the matter is a proper subject
otherwise provided by the Constitution or by law, any of appeal, not certiorari.
decision, order or ruling of each commission may be
brought to the Supreme Court on certiorari by the Filing of petition for certiorari does not interrupt the course of
aggrieved party within 30 days from receipt of a copy the principal action nor the running of the reglementary
thereof.” The provision was interpreted by the Supreme periods involved in the proceeding, unless an application for a
Court to refer to certiorari under Rule 65 and not appeal restraining order or a writ of preliminary injunction to the
by certiorari under Rule 45. To implement the above appellate court is granted. Neither does it interrupt the
constitutional provision, the SC promulgated Rule 64. reglementary period for the filing of an answer nor the
course of the case where there is no writ of injunction.
DISTINCTION IN THE APPLICATION OF RULE
65 TO JUDGMENTS OF THE COMELEC AND In a summary proceeding, petitions for certiorari,
COA AND THE APPLICATION OF RULE 65 TO prohibition or mandamus against an interlocutory order
OTHER TRIBUNALS, PERSONS AND OFFICERS of the court are not allowed.
Rule 64 Rule 65 Certiorari is not and cannot be made a substitute for an

appeal where the latter remedy is available but was lost
Directed only to the Directed to any tribunal,
through fault or negligence. The remedy to obtain a
judgments, final orders or board or officers exercising
reversal of judgment on the merits is appeal. This holds
resolutions of the judicial or quasi-judicial
true even if the error ascribed to the lower court is its lack
COMELEC and COA; functions;
of jurisdiction over the subject matter, or the exercise of
Filed within 30 days from Filed within 60 days from
power in excess thereof, or grave abuse of discretion. The
notice of the judgment; notice of the judgment;
existence and availability of the right to appeal prohibits
The filing of a motion for The period within which to
reconsideration or a file the petition if the

the resort to certiorari because one of the requirements for
certiorari is that there is no appeal.
Exceptions to the rule that certiorari is not available when

the period for appeal has lapsed and certiorari may still be
invoked when appeal is lost are the following:
1) Appeal was lost without the appellant’s
negligence;
2) When public welfare and the advancement of
public policy dictates;
3) When the broader interest of justice so requires;
4) When the writs issued are null and void; and
5) When the questioned order amounts to an
oppressive exercise of judicial authority.
CERTIORARI PROHIBITION MANDAMUS
Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ

ANNULLING OR MODIFYING COMMANDING a tribunal, commanding a tribunal, corporation,
the proceedings of a tribunal, board or corporation, board or person, whether board or person, to do an act
officer exercising judicial or quasi- exercising judicial, quasi-judicial or REQUIRED to be done:
judicial functions when such tribunal, ministerial functions, TO DESIST a) When he unlawfully neglects the
board or officer has acted without or from further proceedings when said performance of an act which the
in excess of its or his jurisdiction, or proceedings are without or in excess law specifically enjoins as a duty,
with grave abuse of discretion of its jurisdiction, or with abuse of its and there is no other plain, speedy
amounting to lack or excess of discretion, there being no appeal or and adequate remedy in the
jurisdiction, there being no appeal or any other plain, speedy and adequate ordinary course of law; or
any other plain, speedy and adequate remedy in the ordinary course of law b) When one unlawfully excludes
remedy in the ordinary course of law (Sec. 2, Rule 65). another from the use and
(Sec. 1, Rule 65). enjoyment of a right or office to
which the other is entitled (Sec. 3,
Rule 65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions judicial or quasi-judicial functions, or ministerial duties
ministerial functions
The tribunal, board or officer has The tribunal, corporation, board or It must be the duty of the defendant to
acted without, or in excess of person must have acted without or in perform the act, which is ministerial
jurisdiction or with abuse of discretion excess of jurisdiction or with grave and not discretionary, because the
amounting to lack or excess or abuse of discretion amounting to lack same is mandated by law.
jurisdiction of jurisdiction;
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

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
To prevent an act by a respondent To compel an act desired

May be directed against entities exercising judicial or May be directed against judicial and non-judicial entities
quasi-judicial, or ministerial functions
Extends to discretionary functions Extends only to ministerial functions
MANDAMUS QUO WARRANTO
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).
CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION

(RULE 45) (RULE 65)
Called petition for review on certiorari, is a mode of A special civil action that is an original action and not a mode of
appeal, which is but a continuation of the appellate appeal, and not a part of the appellate process but an independent
process over the original case; action.
Seeks to review final judgments or final orders; May be directed against an interlocutory order of the court or
where not appeal or plain or speedy remedy available in the
ordinary course of law

Raises only questions of law; Raises questions of jurisdiction because a tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without jurisdiction or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction;
Filed within 15 days from notice of judgment or final Filed not later than 60 days from notice of judgment, order or
order appealed from, or of the denial of petitioner‘s resolution sought to be assailed and in case a motion for
motion for reconsideration or new trial; reconsideration or new trial is timely filed, whether such motion
is required or not, the 60 day period is counted from notice of
denial of said motion;
Extension of 30 days may be granted for justifiable Extension no longer allowed;
reasons
Does not require a prior motion for reconsideration; Motion for Reconsideration is a condition precedent, subject to
exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of the petition unless
enjoined or restrained;
Parties are the original parties with the appealing The tribunal, board, officer exercising judicial or quasi-judicial
party as the petitioner and the adverse party as the functions is impleaded as respondent
respondent without impleading the lower court or its
judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of Appeals,
Sandiganbayan, or Regional Trial Court
SC may deny the decision motu propio on the ground
that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration.
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 MANDAMUS INJUNCTION
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

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

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

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.

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

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.
RIGHTS OF PLAINTIFF UPON JUDGMENT AND FORECLOSURE OF REAL ESTATE MORTGAGE

PAYMENT (RULE 68)
After payment of the just compensation as determined in

ð A real estate mortgage is an accessory contract
the judgment, the plaintiff shall have the right to enter
executed by a debtor in favor of a creditor as security
upon the property expropriated and to appropriate the
for the principal obligation.
same for the public use or purpose defined in the
ð This principal obligation is a simple loan or mutuum
judgment or to retain possession already previously
described in Art. 1953, Civil Code. To be a real estate
made.
mortgage, the contract must be constituted on either
immovables (real property) or inalienable real rights.
Title to the property expropriated passes from the owner
If constituted on movables, the contract is a chattel
to the expropriator upon full payment of just
mortgage (Art. 2124, CC).
compensation.
• A mortgage contract may have a provision in
EFFECT OF RECORDING OF JUDGMENT which the mortgage is a security for past, present
and future indebtedness. This clause known as a
DRAGNET CLAUSE OR BLANKET
The judgment entered in expropriation proceedings shall
mortgage clause has its origins in American
state definitely, by an adequate description, the particular
jurisprudence.
property or interest therein expropriated, and the nature
• The Supreme Court ruled that mortgages given
of the public use or purpose for which it is expropriated.
to secure future advancements are valid and legal
contracts (Prudential Bank vs. Alviar, 464 SCRA
When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the 353).
place in which the property is situated, and its effect shall
JUDGMENT ON FORECLOSURE FOR PAYMENT SALE OF MORTGAGED PROPERTY; EFFECT

OR SALE
The confirmation of the sale shall divest the rights in the
If after the trial, the court finds that the matters set forth property of all parties to the action and shall vest their
in the complaint are true, it shall render a judgment rights in the purchaser, subject to such rights of
containing the following matters: redemption as may be allowed by law. The title vests in
a) An ascertainment of the amount due to the the purchaser upon a valid confirmation of the sale and
plaintiff upon the mortgage debt or obligation, retroacts to the date of sale.
including interest and other charges as approved
by the court, as well as costs; The import of Sec. 3 includes one vital effect: The equity
b) A judgment of the sum found due; of redemption of the mortgagor or redemptioner is cut-off
c) An order that the amount found due be paid to and there will be no further redemption, unless allowed
the court or to the judgment obligee within the by law (as in the case of banks as mortgagees).
period of not less than 90 days nor more than
120 days from the entry of judgment; and The equity of redemption starts from the ninety-day
d) An admonition that in default of such payment period set in the judgment of the court up to the time
the property shall be sold at public auction to before the sale is confirmed by an order of the court.
satisfy the judgment. Once confirmed, no equity of redemption may further
be exercised.
The judgment of the court on the above matters is
considered a final adjudication of the case and hence, is The order of confirmation is appealable and if not appealed
subject to challenge by the aggrieved party by appeal or within the period for appeal becomes final. Upon the
by other post-judgment remedies. finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by
The period granted to the mortgagor for the payment of law, the purchaser at the auction sale or last
the amount found due by the court is not just a redemptioner, if any, shall be entitled to the possession of
procedural requirement but s substantive right given by the property and he may secure a writ of possession,
law to the mortgagee as his first chance to save his upon, motion, from the court which ordered the
property from final disposition at the foreclosure sale. foreclosure unless a third party is actually holding the
same adversely to the judgment obligor.

No complaint is filed; Complaint is filed with
DISPOSITION OF PROCEEDS OF SALE the courts;
There is a right of No right of redemption
The proceeds of the sale of the mortgaged property shall, redemption. Mortgagor except when mortgagee is
after deducting the costs of the sale, be paid to the person has a right of redemption a banking institution;
foreclosing the mortgage, and when there shall be any for 1 year from equity of redemption only
balance or residue after paying off the mortgage debt due, registration of the sale; (90 to 120 days, and any
the same shall be paid to junior encumbrancers in the time before confirmation
order of their priority. If there be any further balance after of foreclosure sale);
paying them or if there be no junior encumbrancers, the Mortgagee has to file a Mortagagee can move for
same shall be paid to the mortgagor or any person separate action to recover deficiency judgment in
entitled thereto. any deficiency; the same action
Buyer at public auction Buyer at public auction
DEFICIENCY JUDGMENT becomes absolute owner becomes absolute owner
only after finality of an only after confirmation of
If there be a balance due to the plaintiff after applying the action for consolidation the sale;
proceeds of the sale, the court, upon motion, shall render of ownership;
judgment against the defendant for any such balance. Mortgagee is given a Mortgagee need not be
Execution may issue immediately if the balance is all due special power of attorney given a special power of
the plaintiff shall be entitled to execution at such time as in the mortgage contract attorney.
the remaining balance shall become due and such due to foreclose the
date shall be stated in the judgment. Note that the mortgaged property in
deficiency judgment is in itself a judgment hence, also case of default.
appealable.
No independent action need be filed to recover the EQUITY OF RIGHT OF

deficiency from the mortgagor. The deficiency judgment REDEMPTION REDEMPTION
shall be rendered upon motion of the mortgagee. The The right of defendant A right granted to a debtor
motion must be made only after the sale and after it is mortgagor to extinguish mortgagor, his successor in
known that a deficiency exists. Before that, any court the mortgage and retain interest or any judicial
order to recover the deficiency is void. It has been held ownership of the creditor or judgment
that the mortgagor who is not the debtor and who merely property by paying the creditor or any person
executed the mortgage to secure the principal debtor’s debt within 90 to 120 having a lien on the
obligation is not liable for the deficiency unless he days after the entry of property subsequent to the
assumed liability for the same in the contract. judgment or even after mortgage or deed of trust
the foreclosure sale but under which the property
Since a deficiency judgment cannot be obtained against prior to confirmation. is sold to repurchase the
the mortgagor who is not the debtor in the principal property within one year
obligation, mortgagee may have to file a separate suit even after the confirmation
against the principal debtor. of the sale and even after
the registration of the
INSTANCES WHEN COURT CANNOT RENDER certificate of foreclosure
DEFICIENCY JUDGMENT sale.
May be exercised even There is no right of
Where the debtor-mortgagor is a non-resident and who at after the foreclosure sale redemption in a judicial
the time of the filing of the action for foreclosure and provided it is made foreclosure of mortgage
during the pendency of the proceedings was outside the before the sale is under Rule 68. This right
Philippines, it is believed that a deficiency judgment confirmed by order of of redemption exists only
would not be procedurally feasible. the court. in extrajudicial
foreclosures where there is
A deficiency judgment is by nature in personam and jurisdiction always a right of
over the person is mandatory. Having been outside the country, redemption within one
jurisdiction over his person could not have been acquired. year from the date of sale
(Sec. 3, Act 3135), but
interpreted by the Court to
EXTRA-JUDICIAL JUDICIAL mean one year from the
FORECLOSURE (ACT FORECLOSURE registration of the sale.
3135) (RULE 68) May also exist in favor General rule: In judicial
or other encumbrances. foreclosures there is only

If subsequent lien an equity of redemption 2) When partition is prohibited by the donor or
holders are not which can be exercised testator for a period not exceeding 20 years (Art.
impleaded as parties in prior to the confirmation of 494);
the foreclosure suit, the the foreclosure sale. This 3) When partition is prohibited by law (Art. 494);
judgment in favor of the means that after the 4) When the property is not subject to a physical
foreclosing mortgagee foreclosure sale but before division and to do so would render it
does not bind the other its confirmation, the unserviceable for the use for which it is intended
lien holders. In this mortgagor may exercise (Art. 495);
case, their equity of his right of pay the 5) When the condition imposed upon voluntary
redemption remains proceeds of the sale and heirs before they can demand partition has not
unforeclosed. A prevent the confirmation of yet been fulfilled (Art. 1084).
separate foreclosure the sale.
proceeding has to be WHO MAY FILE COMPLAINT; WHO SHOULD BE
brought against them to MADE DEFENDANTS
require them to redeem
from the first mortgagee The action shall be brought by the person who has a right
or from the party to compel the partition of real estate or of an estate
acquiring the title to the composed of personal property, or both real and personal
mortgaged property. property. The plaintiff is a person who is supposed to be a
If not by banks, the Exception: there is a right co-owner of the property or estate sought to be
mortgagors merely have of redemption if the partitioned. The defendants are all the co-owners. All the
an equity of foreclosure is in favor of co-owners must be joined.
redemption, which is banks as mortgagees,
simply their right, as whether the foreclosure be Accordingly, an action will not lie without the joinder of
mortgagor, to judicial or extrajudicial. all co-owners and other persons having interest in the
extinguish the mortgage This right of redemption is property. All the co-owners, therefore, are indispensable
and retain ownership of explicitly provided in Sec. parties.
the property by paying 47 of the General Banking
the secured debt prior to Law of 2000. While the law MATTERS TO ALLEGE IN THE COMPLAINT FOR
the confirmation of the mentions the redemption PARTITION
foreclosure sale. period to be one year
counted from the date of The plaintiff shall state in his complaint, the nature and
registration of the extent of his title, an adequate description of the real
certificate in the Registry estate of which partition is demanded, and shall join as
of Property defendants all other persons interested in the property. He
must also include a demand for the accounting of the
rents, profits and other income from the property which
he may be entitled to. These cannot be demanded in
PARTITION (RULE 69) another action because they are parts of the cause of
action for partition. They will be barred if not set up in
the same action pursuant to the rule against splitting a
Partition is the separation, division and assignment of a
single cause of action.
thing held in common among those to whom it may
belong.
STAGES IN EVERY ACTION FOR PARTITION
It presupposes the existence of a co-ownership over a
property between two or more persons. The rule allowing A reading of the Rules will reveal that there are actually
partition originates from a well-known principle three (3) stages in the action, each of which could be the
embodied in the Civil Code, that no co-owner shall be subject of appeal:
obliged to remain the co-ownership. Because of this rule, 1) the order of partition where the property of the
he may demand at any time the partition of the property partition is determined;
owned in common. 2) the judgment as to the accounting of the fruits
and income of the property; and
Instances when a co-owner may not demand partition at 3) the judgment of partition.
any time:
1) There is an agreement among the co-owners to ORDER OF PARTITION AND PARTITION BY
keep the property undivided for a certain period AGREEMENT
of time but not exceeding ten years (Art. 494);
During the trial, the court shall determine whether or not
the plaintiff is truly a co-owner of the property, that there

is indeed a co-ownership among the parties, and that a of court shall serve copies thereof on all the interested
partition is not legally proscribed thus may be allowed. If parties with notice that they are allowed ten (10) days
the court so finds that the facts are such that a partition within which to file objections to the findings of the
would be in order, and that the plaintiff has a right to report, if they so desire. No proceeding had before or
demand partition, the court will issue an order of conducted by the commissioners shall pass the title to the
partition. property or bind the parties until the court shall have
accepted the report of the commissioners and rendered
The court shall order the partition of the property among judgment thereon.
all the parties in interest, if after trial it finds that the
plaintiff has the right to partition. It was held that this Upon the expiration of the period of ten (10) days
order of partition including an order directing an referred to in the preceding section, or even before the
accounting is final and not interlocutory and hence, expiration of such period but after the interested parties
appealable; thus, revoking previous contrary rulings on have filed their objections to the report or their statement
the matter. A final order decreeing partition and of agreement therewith, the court may, upon hearing,
accounting may be appealed by any party aggrieved accept the report and render judgment in accordance
thereby. therewith; or, for cause shown, recommit the same to the
commissioners for further report of facts; or set aside the
Partition by agreement. The order of partition is one that report and appoint new commissioners; or accept the
directs the parties or co-owners to partition the property report in part and reject it in part; and may make such
and the parties may make the partition among themselves order and render such judgment as shall effectuate a fair
by proper instruments of conveyance, if they agree among and just partition of the real estate, or of its value, if
themselves. If they do agree, the court shall then confirm assigned or sold as above provided, between the several
the partition so agreed upon by all of the parties, and such owners thereof.
partition, together with the order of the court confirming
the same, shall be recorded in the registry of deeds of the JUDGMENT AND ITS EFFECTS
place in which the property is situated. There always
exists the possibility that the co-owners are unable to The judgment shall state definitely, by metes and bounds
agree on the partition. If they cannot partition the and adequate description, the particular portion of the
property among themselves, the next stage in the action real estate assigned to each party, the effect of the
will follow the appointment of commissioners. judgment shall be to vest in each party to the action in
severalty the portion of the real estate assigned to him.
PARTITION BY COMMISSIONERS;
APPOINTMENT OF COMMISSIONERS If the whole property is assigned to one of the parties
COMMISSIONER’S REPORT; COURT ACTION upon his paying to the others the sum or sums ordered by
UPON COMMISSIONER’S REPORT the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the
If the parties are unable to agree upon the partition, the party making the payment, and the effect of the judgment
court shall appoint not more than three (3) competent and shall be to vest in the party making the payment the
disinterested persons as commissioners to make the whole of the real estate free from any interest on the part
partition, commanding them to set off to the plaintiff and of the other parties to the action.
to each party in interest such part and proportion of the
property as the court shall direct. If the property is sold and the sale confirmed by the court,
the judgment shall state the name of the purchaser or
When it is made to appear to the commissioners that the purchasers and a definite description of the parcels of real
real estate, or a portion thereof, cannot be divided estate sold to each purchaser, and the effect of the
without prejudice to the interests of the parties, the court judgment shall be to vest the real estate in the purchaser
may order it assigned to one of the parties willing to take or purchasers making the payment or payments, free from
the same, provided he pays to the other parties such the claims of any of the parties to the action.
amounts as the commissioners deem equitable, unless
one of the interested parties asks that the property be sold A certified copy of the judgment shall in either case be
instead of being so assigned, in which case the court shall recorded in the registry of deeds of the place in which the
order the commissioners to sell the real estate at public real estate is situated, and the expenses of such recording
sale under such conditions and within such time as the shall be taxed as part of the costs of the action.
court may determine.
PARTITION OF PERSONAL PROPERTY
The commissioners shall make a full and accurate report
to the court of all their proceedings as to the partition, or The provisions of this Rule shall apply to partitions of
the assignment of real estate to one of the parties, or the estates composed of personal property, or of both real and
sale of the same. Upon the filing of such report, the clerk

personal property, in so far as the same may be possession of the
applicable. premises until he was
deprived by the
PRESCRIPTION OF ACTION defendant; and
The one year period is The one-year period is
ð Prescription of action does not run in favor of a co- generally counted counted from the date of
owner or co-heir against his co-owner or co-heirs as from the date of actual last demand.
long as there is a recognition of the co-ownership entry on the property.
expressly or impliedly.
ð The action for partition cannot be barred by ACCION ACCION

prescription as long as the co-ownership exists. PUBLICIANA REINVINDICATORIA
A plenary ordinary civil An action for the recovery
ð But while the action to demand partition of a co- action for the recovery of the exercise of
owned property does not prescribe, a co-owner may of the better right of ownership, particularly
acquire ownership thereof by prescription where possession (juridical recovery of possession as
there exists a clear repudiation of the co-ownership possession), must be an attribute or incident of
and the co-owners are apprised of the claim of filed after the expiration ownership;
adverse and exclusive ownership. of one year from the
accrual of the cause of
action or from the
FORCIBLE ENTRY AND UNLAWFUL DETAINER
unlawful withholding of
(RULE 70) possession of the realty.
In other words, if at the
time of the filing of the
The actions for forcible entry and unlawful detainer
complaint more than
belong to the class of actions known by the generic name
one year had elapsed
accion interdictal (ejectment) where the issue is the right of
since defendant had
physical or material possession of the subject real
turned plaintiff out of
property independent of any claim of ownership by the
possession or
parties involved.
defendant‘s possession
had become illegal, the
Accion Interdictal comprises two distinct causes of action:
action will be not one of
Ø FORCIBLE ENTRY (DETENTACION), where
forcible entry or
one is deprived of physical possession of real unlawful detainer but
property by means of force, intimidation, an accion
strategy, threats or stealth (FISTS);
The basis of the The basis for the recovery
Ø UNLAWFUL DETAINER (DESAHUICO), recovery of possession of possession is ownership
where one illegally withholds possession after the is the plaintiff‘s real itself.
expiration or termination of his right to hold right of possession or
possession under any contract, express or jus possessionis, which
implied. is the right to the
possession of the real
FORCIBLE ENTRY UNLAWFUL property independent of
DETAINER ownership.
The possession of the The possession of the Jurisdiction is based on the value of the of the
defendant is unlawful defendant is lawful from the property applying 20K and 50K rule
from the beginning; beginning becomes illegal
issue is which party by reason of the expiration
has prior de facto or termination of his right HOW TO DETERMINE JURISDICTION IN
possession; to the possession of the ACCION PUBLICIANA AND ACCION
property; REINVINDICATORIA
The law does not Plaintiff must first make
require previous such demand which is The actions of forcible entry and unlawful detainer are
demand for the jurisdictional in nature; within the exclusive and original jurisdiction of the MTC,
defendant to vacate; MeTC and MCTC and shall be governed by the rules on
The plaintiff must The plaintiff need not have summary procedure irrespective of the amount of
prove that he was in been in prior physical damages or rental sought to be recovered.
prior physical possession;

answer, and the answers thereto. All pleadings shall be
In actions for forcible entry, two allegations are verified.
mandatory for the MTC to acquire jurisdiction:
1) plaintiff must allege his prior physical possession ACTION ON THE COMPLAINT
of the property; and
2) he must also allege that he was deprived of his The court may, from an examination of the allegations in
possession by force, intimidation, strategy, threat the complaint and such evidence as may be attached
or stealth. thereto, dismiss the case outright on any of the grounds
for the dismissal of a civil action which are apparent
If the alleged dispossession did not occur by any of these therein. If no ground for dismissal is found, it shall
means, the proper recourse is to file not an action for forthwith issue summons.
forcible entry but a plenary action to recover possession.
WHEN DEMAND IS NECESSARY
Both actions must be brought within one year from the
date of actual entry on the land, in case of forcible entry, Unless there exists a stipulation to the contrary, an
and from the date of last demand, in case of unlawful unlawful detainer case shall be commenced only after the
detainer. demand to pay or comply with the conditions of the lease
and to vacate is made upon the lessee.
Jurisdiction is determined by the allegations of the
complaint. The mere raising of the issue of tenancy does The requirement for a demand implies that the mere
not automatically divest the court of jurisdiction because failure of the occupant to pay rentals or his failure to
the jurisdiction of the court is determined by the comply with the conditions of the lease does not ipso
allegations of the complaint and is not dependent upon facto render his possession of the premises unlawful. It is
the defenses set up by the defendant. the failure to comply with the demand that vests upon the
lessor a cause of action.
WHO MAY INSTITUTE THE ACTION AND
WHEN; AGAINST WHOM THE ACTION MAY BE The demand may be in the form of a written notice
MAINTAINED served upon the person found in the premises. The
demand may also be made by posting a written notice on
A person deprived of the possession of any land or the premises if no person can be found thereon. It has
building by force, intimidation, threat, strategy, or stealth, been ruled, however, that the demand upon a tenant may
or a lessor, vendor, vendee, or other person against whom be oral. Sufficient evidence must be adduced to show that
the possession of any land or building is unlawfully there was indeed a demand like testimonies from
withheld after the expiration or termination of the right to disinterested and unbiased witnesses.
hold possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any such PRELIMINARY INJUNCTION AND
lessor, vendor, vendee, or other person, may, at any time PRELIMINARY MANDATORY INJUNCTION
within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper The court may grant preliminary injunction, in
Municipal Trial Court against the person or persons accordance with the provisions of Rule 58, to prevent the
unlawfully withholding or depriving of possession, or any defendant from committing further acts of dispossession
person or persons claiming under them, for the restitution against the plaintiff.
of such possession, together with damages and costs.
A possessor deprived of his possession through forcible
Unless otherwise stipulated, such action by the lessor entry or unlawful detainer may, within five (5) days from
shall be commenced only after demand to pay or comply the filing of the complaint, present a motion in the action
with the conditions of the lease and to vacate is made for forcible entry or unlawful detainer for the issuance of
upon the lessee, or by serving written notice of such a writ of preliminary mandatory injunction to restore him
demand upon the person found on the premises, or by in his possession. The court shall decide the motion
posting such notice on the premises if no person be found within thirty (30) days from the filing thereof.
thereon, and the lessee fails to comply therewith after
fifteen (15) days in the case of land or five (5) days in the RESOLVING DEFENSE OF OWNERSHIP
case of buildings.
The assertion by the defendant of ownership over the
PLEADINGS ALLOWED disputed property does not serve to divest the inferior
court of its jurisdiction. The defendant cannot deprive the
The only pleadings allowed to be filed are the complaint, court of jurisdiction by merely claiming ownership of the
compulsory counterclaim and cross-claim pleaded in the property involved.

When the defendant raises the issue of ownership, the c) Motion for new trial, or for reconsideration of a
court may resolve the issue of ownership only under the judgment, or for reopening of trial;
following conditions: d) Petition for relief from judgment;
1) When the issue of possession cannot be resolved e) Motion for extension of time to file pleadings,
without resolving the issue of ownership; and affidavits or any other paper;
2) The issue of ownership shall be resolved only to f) Memoranda;
determine the issue of possession. g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
Such judgment would not bar an action between the same court;
parties respecting title to the land or building. The h) Motion to declare the defendant in default;
resolution of the MeTC on the ownership of the property i) Dilatory motions for postponement;
is merely provisional or interlocutory. Any question j) Reply;
involving the issue of ownership should be raised and k) Third-party complaints;
resolved in a separate action brought specifically to settle l) Interventions
the question with finality.
HOW TO STAY THE IMMEDIATE EXECUTION

OF JUDGMENT CONTEMPT (RULE 71)
Defendant must take the following steps to stay the

Contempt is a disregard of, or disobedience to the rules or
execution of the judgment:
orders of a judicial body, or an interruption of its
1) Perfect an appeal;
proceedings by disorderly behavior or insolent language,
2) File a supersedeas bond to pay for the rents,
in its presence or so near thereto as to disturb the
damages and costs accruing down to the time of
proceedings or to impair the respect due to such body.
the judgment appealed from; and
3) Deposit periodically with the RTC, during the
Contempt of court is disobedience to the court by acting
pendency of the appeal, the adjudged amount of
in opposition to its authority, justice and dignity. It
rent due under the contract or if there be no
signifies not only a willful disregard or disobedience of
contract, the reasonable value of the use and
the court‘s orders but also conduct tending to bring the
occupation of the premises.
authority of the court and the administration of law into
disrepute or, in some manner to impede the due
Exceptions to the rule:
administration of justice.
1) Where delay in the deposit is due to fraud,
accident, mistake, or excusable negligence;
The reason for the power to punish for contempt is that
2) Where supervening events occur subsequent to
respect of the courts guarantees the stability of their
the judgment bringing about a material change in
institution. Without such guarantee, said institution
the situation of the parties which makes
would be resting on shaky foundation.
execution inequitable; and
3) Where there is no compelling urgency for the
It is inherent in all courts; its existence is essential to the
execution because it is not justified by the
preservation of order in judicial proceedings and to the
circumstances.
enforcement of judgments, orders and mandates of the
courts, and consequently, to the due administration of
SUMMARY PROCEDURE, PROHIBITED
justice.
PLEADINGS
Contempt proceedings has dual function:
Forcible entry and unlawful detainer actions are 1) Vindication of public interest by punishment of
summary in nature designed to provide for an expeditious contemptuous conduct; and
means of protecting actual possession or the right to 2) Coercion to compel the contemnor to do what
possession of the property involved. These actions shall the law requires him to uphold the power of the
both fall under the coverage of the Rules of Summary Court, and also to secure the rights of the parties
Procedure irrespective of the amount of damages or to a suit awarded by the Court.
unpaid rental sought to be recovered.
KINDS OF CONTEMPT; PURPOSE AND NATURE
Prohibited pleadings and motions: OF EACH
a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject
1) Civil or Criminal, depending on the nature and effect
matter, or failure to comply with section 12;
of the contemptuous act.
b) Motion for a bill of particulars;

2) Direct or indirect, according to the manner of affidavit or of a person who, after being
commission. deposition when dispossessed or ejected from
lawfully required any real property by the
CIVIL CONTEMPT CRIMINAL CONTEMPT to do so; judgment or process of any
It is the failure to do It is a conduct directed f) Acts of a party or court of competent
something ordered to be against the authority and a counsel which jurisdiction, enters or
done by a court or a judge dignity of the court or a constitute willful attempts or induces another
for the benefit of the judge acting judicially; it is and deliberate to enter into or upon such
opposing party therein and an obstructing the forum shopping; real property, for the
is therefore and offense administration of justice g) Unfounded purpose of executing acts of
against the party in whose which tends to bring the accusations or ownership or possession, or
behalf the violated order court into disrepute or allegations or in any manner disturbs the
was made; disrespect; words in a possession given to the
The purpose is to The purpose is to punish, pleading tending person adjudged to be
compensate for the benefit to vindicate the authority of to embarrass the entitled thereto;
of a party; the court and protect its court or to bring 3) Any abuse of or any
outraged dignity; it into disrepute. unlawful interference with
The rules of procedure Should be conducted in the processes or proceedings
governing contempt accordance with the of a court not constituting
proceedings or criminal principles and rules direct contempt under
prosecutions ordinarily are applicable to criminal section 1 of this Rule;
inapplicable to civil cases, insofar as such 4) Any improper conduct
contempt proceedings. procedure is consistent with tending, directly or
the summary nature of indirectly, to impede,
contempt proceedings. obstruct, or degrade the
administration of justice;
5) Assuming to be an attorney
DIRECT INDIRECT CONTEMPT or an officer of a court, and
CONTEMPT acting as such without
In general is It is not committed in the authority;
committed in the presence of the court, but done 6) Failure to obey a subpoena
presence of or so near at a distance which tends to duly served;
the court or judge belittle, degrade, obstruct or 7) The rescue, or attempted
while performing the embarrass the court and justice; rescue, of a person or
judicial function as to property in the custody of an
obstruct or interrupt officer by virtue of an order
the proceedings or process of a court held by
before it; him.
Acts constituting direct Acts constituting indirect contempt
contempt are: are: Failure by counsel to inform the
a) Misbehavior in court of the death of his client
the presence of or After a charge in writing has constitutes indirect contempt
so near the court been filed, and an opportunity within the purview of Sec. 3, Rule
as to obstruct or given to the respondent to 71, since it constitutes an
interrupt the comment thereon within such improper conduct tending to
proceedings period as may be fixed by the impede the administration of
before it; court and to be heard by himself justice.
b) Disrespect or counsel, a person guilty of any
toward the court; of the following acts may be
c) Offensive punished for indirect contempt:
personalities REMEDY AGAINST INDIRECT CONTEMPT;
towards others; 1) Misbehavior an officer of a PENALTY
d) Refusal to be court in the performance of
sworn as a his official duties or in his The punishment for indirect contempt depends upon the
witness or to official transactions; level of the court against which the act was committed;
answer as a 2) Disobedience of or a) Where the act was committed against an RTC or
witness; resistance to a lawful writ, a court of equivalent or higher rank, he may be
e) Refusal to process, order, or judgment punished by a fine not exceeding 30,000 pesos or
subscribe an of a court, including the act imprisonment not exceeding 6 months, or both;

b) Where the act was committed against a lower consolidation of the contempt charge and the principal
court, he may be punished by a fine not action for joint hearing and decision.
exceeding 5,000 pesos or imprisonment not
exceeding one month, or both. Aside from the WHEN IMPRISONMENT SHALL BE IMPOSED
applicable penalties, if the contempt consists in
the violation of a writ of injunction, TRO or ð When the contempt consists in the refusal or
status quo order, he may also be ordered to make omission to do an act which is yet in the power of the
complete restitution to the party injured by such respondent to perform, he may be imprisoned by
violation of the property involved or such order of the court concerned until he performs it.
amount as may be alleged and proved; ð Indefinite incarceration may be resorted to where the
c) Where the act was committed against a person or attendant circumstances are such that the non-
entity exercising quasi-judicial functions, the compliance with the court order is an utter disregard
penalty imposed shall depend upon the of the authority of the court which has then no other
provisions of the law which authorizes a penalty recourse but to use its coercive power.
for contempt against such persons or entities.
• When a person or party is legally and validly
The person adjudged in indirect contempt may appeal required by a court to appear before it for a certain
from the judgment or final order of the court in the same purpose, and when that requirement is disobeyed, the
manner as in criminal cases. The appeal will not however only remedy left for the court is to use force to bring
have the effect of suspending the judgment if the person the person or party before it.
adjudged in contempt does not file a bond in an amount • The punishment is imposed for the benefit of a
fixed by the court from which the appeal is taken. This complainant or a party to a suit who has been injured
bond is conditioned upon his performance of the aside from the need to compel performance of the
judgment or final order if the appeal is decided against. orders or decrees of the court, which the contemnor
refuses to obey although able to do so. In effect, it is
HOW CONTEMPT PROCEEDINGS ARE within the power of the person adjudged guilty of
COMMENCED contempt to set himself free.
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
PECIAL PROCEEDINGS (Rules 72 – 109)
Subject Matters of Special Proceedings: CATCH

AGED SHARC
1) Change of Name 7) Guardianship and Custody of Children
2) Adoption 8) Escheat
3) Trustees
4) Constitution of Family Home 9) (Voluntary) Dissolution of Corporation
5) Hospitalization of Insane Persons 10) Settlement of Estate of Deceased Persons
6) Absence and Death, Declaration of 11) Habeas Corpus

12) (Judicial) Approval of Voluntary Recognition of 14) Cancellation or Correction of Entries in the Civil
Minor Natural Children Registry
13) Rescission and Revocation of Adoption
Venue is waivable. If instituted in two courts, the court in
Special Proceedings is an application or proceeding to which the proceeding was first filed has exclusive
establish the status or right of a party, or a particular fact, jurisdiction to resolve the issue.
generally commenced by application, petition or special
form of pleading as may be provided for by the particular EXTENT OF JURISDICTION OF PROBATE
rule or law. COURT
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 probate court exercises limited jurisdiction, thus it

SETTLEMENT OF ESTATE OF DECEASED
has no power to take cognizance of and determine the
PERSONS VENUE AND PROCESS (RULE 73)
issue of title to property claimed by a third person
adversely to the decedent unless the claimant and all
WHICH COURT HAS JURISDICTION other parties have legal interest in the property consent,
expressly or impliedly, to the submission of the question
to the probate court. In that case, if the probate court
If the decedent is an inhabitant of the Philippines at the
allows the introduction of evidence on ownership it is for
time of his death, whether a citizen or an alien, his will
the sole purpose of determining whether the subject
shall be proved, or letters of administration granted, and
properties should be included in the inventory, which is
his estate settled, in the RTC in the province in which he
within the probate court’s competence.
resides at the time of his death, and if he is an inhabitant
of a foreign country, the RTC of any province in which
The determination is only provisional subject to a proper
he had his estate. The court first taking cognizance of the
action in a separate action to resolve the title.
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts.
The jurisdiction of the probate court merely relates to
matters having to do with the settlement of the estate and
Under RA 7691, the law expanding the jurisdiction of the
the probate of wills, the appointment and removal of
inferior courts, MTC, MeTC and MCTC shall exercise
administrators, executors, guardians and trustees. The
exclusive original jurisdiction over probate proceedings,
question of ownership is, as a rule, an extraneous matter
testate and intestate, where the value of the estate does
which the probate court cannot resolve with finality.
not exceed P300,000 (outside Metro Manila) or where
such estate does not exceed P400,000 (in Metro Manila).
POWERS AND DUTIES OF PROBATE COURT
The jurisdiction of the RTC is limited to the settlement
The powers and duties of a probate court:
and adjudication of properties of the deceased and cannot
1) Distribute shares;
extend to collateral matters.
2) Determine the legal heirs;
3) Issue warrants and processes to secure
VENUE IN JUDICIAL SETTLEMENT OF ESTATE
attendance of witnesses;
4) Determine and rile upon issues relating to the
The residence of the decedent at the time of his death is settlement of the estate, such as administration,
determinative of the venue of the proceeding. liquidation, and distribution of the estate; and
5) Determine the following:
If he was a resident (inhabitant, whether citizen or alien) of a) Heirs of the decedent;
the Philippines, venue is laid exclusively in the province b) Recognition of natural child;
of his residence at the time of his death. Residence means c) Validity of the disinheritance
his personal, actual, or physical habitation, his actual effected by testator;
residence or place of abode. d) Status of a woman who claims to be
the lawful wife of the decedent;
It is only where the decedent was a nonresident of the e) Validity of waiver of hereditary
Philippines at the time of his death that venue lies in any heirs;
province in which he had an estate, The question of f) Status of each heir;
residence is determinative only of the venue and does not g) Whatever property in inventory is
affect the jurisdiction of the court. conjugal or exclusive property of
deceased spouse; and

h) Matters incidental or collateral to 2) The decedent left no debts, or if there were debts
the settlement and distribution of left, all had been paid;
the estate. 3) The heirs are all of age or if they are minors, the
latter are represented by their judicial guardian or
legal representative;
SUMMARY SETTLEMENT OF ESTATES (RULE 74) 4) The partition was made by means of a public
instrument or affidavit duly filed with the
Register of Deeds; and
Summary settlement of estate is a judicial proceeding 5) The fact of the extrajudicial settlement or
wherein, without the appointment of executor or administration shall be published in a newspaper
administrator, and without delay, the competent court of general circulation.
summarily proceeds to value the estate of the decedent;
ascertain his debts and order payment thereof; allow his TWO-YEAR PRESCRIPTIVE PERIOD
will if any; declare his heirs, devisee and legatees; and
distribute his net estate among his known heirs, devisees,
It shall be presumed that the decedent left no debts if no
and legatees, who shall thereupon be entitled to receive
creditor files a petition for letters of administration within
and enter into the possession of the parts of the estate so
two (2) years after the death of the decedent.
awarded to them, respectively.
If it shall appear at any time within two (2) years after the
EXTRAJUDICIAL SETTLEMENT BY
settlement and distribution of an estate in accordance
AGREEMENT BETWEEN HEIRS
with the provisions of either of the first two sections of
WHEN ALLOWED
this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such heir
If the decedent left no will and no debts and the heirs are or such other person may compel the settlement of the
all of age, or the minors are represented by their judicial estate in the courts in the manner hereinafter provided for
or legal representatives duly authorized for the purpose, the purpose of satisfying such lawful participation.
the parties may, without securing letters of
administration, divide the estate among themselves as And if within the same time of two (2) years, it shall
they see fit by means of a public instrument filed in the appear that there are debts outstanding against the estate
office of the register of deeds, and should they disagree, which have not been paid, or that an heir or other person
they may do so in an ordinary action of partition. has been unduly deprived of his lawful participation
payable in money, the court having jurisdiction of the
If there is only one heir, he may adjudicate to himself the estate may, by order for that purpose, after hearing, settle
entire estate by means of an affidavit filed in the office of the amount of such debts or lawful participation and
the register of deeds. order how much and in what manner each distributee
shall contribute in the payment thereof, and may issue
The parties to an extrajudicial settlement, whether by execution, if circumstances require, against the bond
public instrument or by stipulation in a pending action for provided in the preceding section or against the real estate
partition, or the sole heir who adjudicates the entire estate belonging to the deceased, or both. Such bond and such
to himself by means of an affidavit shall file, real estate shall remain charged with a liability to
simultaneously with and as a condition precedent to the creditors, heirs, or other persons for the full period of two
filing of the public instrument, or stipulation in the action (2) years after such distribution, notwithstanding any
for partition, or of the affidavit in the office of the register transfers of real estate that may have been made.
of deeds, a bond with the said register of deeds, in an
amount equivalent to the value of the personal property AFFIDAVIT OF SELF-ADJUDICATION
involved as certified to under oath by the parties BY SOLE HEIR
concerned and conditioned upon the payment of any just
claim that may be filed under section 4 of this rule.
If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of
The fact of the extrajudicial settlement or administration
the register of deeds.
shall be published in a newspaper of general circulation in
the manner provided in the next succeeding section; but
SUMMARY SETTLEMENT OF ESTATES OF
no extrajudicial settlement shall be binding upon any
SMALL VALUE; WHEN ALLOWED
person who has not participated therein or had no notice
thereof.
Whenever the gross value of the estate of a deceased
Extrajudicial partition of the estate shall be valid when person, whether he died testate or intestate, does not
the following conditions concur: exceed ten thousand pesos, and that fact is made to
1) The decedent left no will; appear to the RTC having jurisdiction of the estate by the
petition of an interested person and upon hearing, which

shall be held not less than (1) month nor more than three ð It is mandatory as no will shall pass either real or
(3) months from the date of the last publication of a personal property unless proved and allowed in
notice which shall be published once a week for three (3) accordance with the Rules.
consecutive weeks in a newspaper of general circulation ð It is imprescriptible, because it is required by public
in the province, and after such other notice to interested policy and the state could not have intended to defeat
persons as the court may direct, the court may proceed the same by applying thereto the statute of limitation
summarily, without the appointment of an executor or of actions.
administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who WHO MAY PETITION FOR PROBATE; PERSONS
are the persons legally entitled to participate in the estate, ENTITLED TO NOTICE
and to apportion and divide it among them after the
payment of such debts of the estate as the court shall then Any executor, devisee, or legatee named in a will, or any
find to be due; and such persons, in their own right, if other person interested in the estate, may, at any time
they are of lawful age and legal capacity, or by their after the death of the testator, petition the court having
guardians or trustees legally appointed and qualified, if jurisdiction to have the will allowed, whether the same be
otherwise, shall thereupon be entitled to receive and enter in his possession or not, or is lost or destroyed.
into the possession of the portions of the estate so ð The testator himself may, during his lifetime,
awarded to them respectively. The court shall make such petition the court for the allowance of his will.
order as may be just respecting the costs of the
proceedings, and all orders and judgments made or The court shall also cause copies of the notice of the time
rendered in the course thereof shall be recorded in the and place fixed for proving the will to be addressed to the
office of the clerk, and the order of partition or award, if it designated or other known heirs, legatees, and devisees of
involves real estate, shall be recorded in the proper the testator resident in the Philippines at their places of
register's office. residence, and deposited in the post office with the
postage thereon prepaid at least twenty (20) days before
The court, before allowing a partition, may require the the hearing, if such places of residence be known.
distributees, if property other than real is to be
distributed, to file a bond in an amount to be fixed by A copy of the notice must in like manner be mailed to the
court, conditioned for the payment of any just claim. person named as executor, if he be not be petitioner; also,
to any person named as co-executor not petitioning, if
REMEDIES OF AGGRIEVED PARTIES AFTER their places of residence be known. Personal service of
EXTRA-JUDICIAL SETTLEMENT OF ESTATE copies of the notice at least ten (10) days before the day of
hearing shall be equivalent to mailing. If the testator asks
1) The creditor may ask for administration of enough for the allowance of his own will, notice shall be sent only
property of the estate sufficient to pay the debt, but to his compulsory heirs.
the heirs cannot prevent such administration by
paying the obligation.
2) Where the estate has been summarily settled, the ALLOWANCE OR DISALLOWANCE OF WILL
unpaid creditor may, within the two-year period, file (RULE 76)
a motion in the court wherein such summary
settlement was for the payment of his credit. After
the lapse of the two-year period, an ordinary action
may be instituted against the distributees within the CONTENTS OF PETITION FOR ALLOWANCE OF
statute of limitations, but not against the bond. WILL
3) The action to annul a deed of extrajudicial settlement
on the ground of fraud should be filed within four A petition for the allowance of a will must show, so far as
years from the discovery of the fraud. known to the petitioner:
1) The jurisdictional facts;
2) The names, ages, and residences of the heirs,
PRODUCTION AND PROBATE OF WILL legatees, and devisees of the testator or decedent;
(RULE 75) 3) The probable value and character of the property
of the estate;
4) The name of the person for whom letters are
NATURE OF PROBATE PROCEEDING prayed;
5) If the will has not been delivered to the court, the
ð Probate of a will is a proceeding in rem. It cannot be name of the person having custody of it.
dispensed with and substituted by another
proceeding, judicial or extrajudicial, without
offending public policy.

But no defect in the petition shall render void the attached to the will and the will and certificate filed and
allowance of the will, or the issuance of letters recorded by the clerk. Attested copies of the will devising
testamentary or of administration with the will annexed. real estate and of certificate of allowance thereof, shall be
recorded in the register of deeds of the province in which
GROUNDS FOR DISALLOWING A WILL the lands lie.
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

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

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.
The court may order the executor or administrator to pay

CLAIMS AGAINST THE ESTATE (RULE 86)
to the special administrator necessary funds to defend
such claim.
Administration is for the purpose of liquidation of the
estate and distribution of the residue among the heirs and PAYMENT OF DEBTS (RULE 88)
legatees. Liquidation means the determination of all the
assets of the estate and payment of all debts and expenses. If there are sufficient properties, the debts shall be paid,
thus:
The purpose of presentation of claims against decedents 1) All debts shall be paid in full within the time
of the estate in the probate court is to protect the estate of limited for the purpose (Sec. 1);
deceased persons. That way, the executor or 2) If the testator makes provision by his will, or
administrator will be able to examine each claim and designates the estate to be appropriated for the
determine whether it is a proper one which should be payment of debts they shall be paid according to
allowed. the provisions of the will, which must be
respected (Sec. 2);
Further, the primary object of the provisions requiring 3) If the estate designated in the will is not
presentation is to apprise the administrator and the sufficient, such part of the estate as is not
probate court of the existence of the claim so that a disposed of by will shall be appropriated for the
proper and timely arrangement may be made for its purpose (Sec. 2);
payment in full or by pro rata portion in the due course of 4) The personal estate not disposed of by will shall
the administration, inasmuch as upon the death of a be first chargeable with payment of debts and
person, his entire estate is burdened with the payment of expenses (Sec. 3);
all his debts and no creditor shall enjoy any preference or 5) If the personal estate is not sufficient, or its sale
would be detrimental to the participants of the

estate, the real estate not disposed of by will shall
be sold or encumbered for that purpose (Sec. 3); ACTIONS BY AND AGAINST EXECUTORS AND
6) Any deficiency shall be met by contributions ADMINISTRATORS (RULE 87)
from devisees, legatees and heirs who have
entered into possession of portions of the estate
before debts and expenses have been paid (Sec. No action upon a claim for the recovery of money or
6); debts or interest thereon shall be commenced against the
7) The executor or administrator shall retain executor or administrator.
sufficient estate to pay contingent claims when
the same becomes absolute (Sec. 4). ACTIONS THAT MAY BE BROUGHT AGAINST
EXECUTORS AND ADMINISTRATORS
If the estate is insolvent, the debts shall be paid in the
following manner: An action to recover real or personal property, or an
1) The executor or administrator shall pay the debts interest therein, from the estate, or to enforce a lien
in accordance with the preference of credits thereon, and actions to recover damages for an injury to
established by the Civil Code (Sec. 7); person or property, real or personal, may be commenced
2) No creditor of any one class shall receive any against the executor or administrator.
payment until those of the preceding class are
paid (Sec. 8); Whenever a party to a pending action dies, and the claim
3) If there are no assets sufficient to pay the credits is not thereby extinguished, it shall be the duty of his
of any one class of creditors, each creditor within counsel to inform the court within thirty (30) days after
such class shall be paid a dividend in proportion such death of the fact thereof, and to give the name and
to his claim (Sec. 8); address of his legal representative or representatives.
4) Where the deceased was a nonresident, his estate Failure of counsel to comply with this duty shall be a
in the Philippines shall be disposed of in such a ground for disciplinary action. The heirs of the deceased
way that creditors in the Philippines and may be allowed to be substituted for the deceased,
elsewhere may receive an equal share in without requiring the appointment of an executor or
proportion to their respective credits (Sec. 9); administrator and the court may appoint a guardian ad
5) Claims duly proved against the estate of an litem for the minor heirs.
insolvent resident of the Philippines, the executor
or administrator, having had the opportunity to The court shall forthwith order said legal representative
contest such claims, shall e included in the or representatives to appear and be substituted within a
certified list of claims proved against the period of thirty (30) days from notice. If no legal
deceased. The owner of such claims shall be representative is named by the counsel for the deceased
entitled to a just distribution of the estate in party, or if the one so named shall fail to appear within
accordance with the preceding rules if the the specified period, the court may order the opposing
property of such deceased person in another party, within a specified time, to procure the appointment
country is likewise equally apportioned to the of an executor or administrator for the estate of the
creditors residing in the Philippines and other deceased and the latter shall immediately appear for and
creditors, according to their respective claims on behalf of the deceased. The court charges in procuring
(Sec. 10); such appointment, if defrayed by the opposing party, may
6) It must be noted that the payments of debts of be recovered as costs.
the decedent shall be made pursuant to the order
of the probate court (Sec. 11). When the action is for recovery of money arising from
contract, express or implied, and the defendant dies
On granting letters testamentary or administration the before entry of final judgment in the court in which the
court shall allow to the executor or administrator a time action was pending at the time of such death, it shall not
for disposing of the estate and paying the debts and be dismissed but shall instead be allowed to continue
legacies of the deceased, which shall not, in the first until entry of final judgment. A favorable judgment
instance, exceed one (1) year; but the court may, on obtained by the plaintiff therein shall be enforced in the
application of the executor or administrator and after manner especially provided in these Rules for prosecuting
hearing on such notice of the time and place therefor claims against the estate of a deceased person.
given to all persons interested as it shall direct, extend the
time as the circumstances of the estate require not REQUISITES BEFORE CREDITOR MAY BRING
exceeding six (6) months for a single extension nor so that AN ACTION FOR RECOVERY OF PROPERTY
the whole period allowed to the original executor or FRAUDULENTLY CONVEYED BY THE
administrator shall exceed two (2) years (Sec. 15). DECEASED

1) There is a deficiency of assets in the hands of an the allowance to the widow, and inheritance tax, if any,
executor or administrator for the payment of debts chargeable to the estate in accordance with law, have
and expenses of administration; been paid, the court, on the application of the executor or
2) The deceased in his lifetime had made or attempted administrator, or of a person interested in the estate, and
to make a fraudulent conveyance of his real or after hearing upon notice, shall assign the residue of the
personal property, or a right or interest therein, or a estate to the persons entitled to the same, naming them
debt or credit, with intent to defraud his creditors or and the proportions, or parts, to which each is entitled,
to avoid any right, debt or duty; or had so conveyed and such person may demand and recover their respective
such property, right, debt, or credit that by law the shares from the executor or administrator, or any other
conveyance would be void as against his creditors; person having the same in his possession. If there is a
3) The subject of the attempted conveyance would be controversy before the court as to who are the lawful
liable to attachment by any of them in his lifetime; heirs of the deceased person or as to the distributive
4) The executor or administrator has shown to have no shares to which each person is entitled under the law, the
desire to file the action or failed to institute the same controversy shall be heard and decided as in ordinary
within a reasonable time; cases.
5) Leave is granted by the court to the creditor to file the
action; No distribution shall be allowed until the payment of the
6) A bond is filed by the creditor as prescribed in the obligations above mentioned has been made or provided
Rules; for, unless the distributees, or any of them, give a bond,
7) The action by the creditor is in the name of the in a sum to be fixed by the court, conditioned for the
executor or administrator. payment of said obligations within such time as the court
directs.
Questions as to advancement to be determined.

DISTRIBUTION AND PARTITION (RULE 90) Questions as to advancement made, or alleged to have
been made, by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate
Before there could be a distribution of the estate, the
proceedings; and the final order of the court thereon shall
following two stages must be followed:
be binding on the person raising the questions and on the
1) Payment of obligations (liquidation of estate)
heir.
– under the Rules, the distribution of a
decedent‘s assets may only be ordered under
By whom expenses of partition paid. If at the time of the
any of the following three circumstances:
distribution the executor or administrator has retained
a. when the inheritance tax, among
sufficient effects in his hands which may lawfully be
other is paid;
applied for the expenses of partition of the properties
b. when a sufficient bond is given to
distributed, such expenses of partition may be paid by
meet the payment of the inheritance
such executor or administrator when it appears equitable
tax and all other obligations; and
to the court and not inconsistent with the intention of the
c. when the payment of the said tax
testator; otherwise, they shall be paid by the parties in
and all other obligations has been
proportion to their respective shares or interest in the
provided for; and
premises, and the apportionment shall be settled and
2) Declaration of heirs – there must first be
allowed by the court, and, if any person interested in the
declaration of heirs to determine to whom
partition does not pay his proportion or share, the court
the residue of the estate should e distributed.
may issue an execution in the name of the executor or
A separate action for the declaration of heirs
administrator against the party not paying for the sum
is not proper.
assessed.
And likewise after, not before the declaration of heirs is
PROJECT OF PARTITION
made may the residue be distributed and delivered to the
heirs. The settlement of a decedent‘s estate is a
proceeding in rem which is binding against the whole ð Project of partition is a document prepared by the
world. All persons having interest in the subject matter executor or administrator setting forth the manner in
involved, whether they were notified or not, are equally which the estate of the deceased is to be distributed
bound. among the heirs.
ð If the estate is a testate estate, the project of partition
LIQUIDATION must conform to the terms of the will; if intestate, the
project of partition must be in accordance with the
provisions of the Civil Code.
When order for distribution of residue made. When the
debts, funeral charges, and expenses of administration, REMEDY OF AN HEIR ENTITLED TO RESIDUE

BUT NOT GIVEN HIS SHARE wishes, in which case, the the estate where the
same vest absolutely in the decedent died intestate,
1) If there is a controversy before the court as to who beneficiary. or where the will was
are the lawful heirs of the deceased person or as to void and not allowed
the distributive shares to which each person is to probate, or where no
entitled under the law, the controversy shall be heard executor was named in
and decided as in ordinary cases. the will, or the
2) The better practice for the heir who has not received executor named therein
his share is to demand his share through a proper in incompetent or
motion in the same probate or administration refuses to serve as
proceedings, or for reopening of the probate or such.
administrative proceedings if it had already been An association or An association or
closed, and not through an independent action, corporation authorized to corporation authorized
which would be tried by another court or judge. conduct the business of a to conduct the business
3) It has been held that an order which determines the trust company in the of a trust company in
distributive share of the heirs of a deceased person is Philippines may appointed the Philippines may
appealable. If not appealed within the reglementary as trustee of an estate in the appointed as executor
period, it becomes final. same manner as an or administrator of an
4) The Court allowed the continuation of a separate individual (Art. 1060, CC). estate in the same
action to annul the project of partition by a preterited manner as an
heir, since the estate proceedings have been closed individual (Art. 1060,
and terminated for over three years, and on the CC).
ground of lesion, preterition and fraud. Duties are usually governed Duties are fixed and/or
by the intention of the trustor limited by law (Rule
INSTANCES WHEN PROBATE COURT MAY or the parties if established 84).
ISSUE WRIT OF EXECUTION by a contract.
Duties may cover a wider
a) To satisfy the contributive shares of devisees, legatees range.
and heirs in possession of the decedent‘s assets; Grounds for removal of trustee: Grounds for removal:
b) To enforce payment of expenses of partition; and a) Insanity; a) Neglect to render
c) To satisfy the costs when a person is cited for b) Incapability of an account and
examination in probate proceedings. discharging trust or settle the estate
evidently unsuitable according to law;
therefor (Sec. 8, Rule b) Neglect to perform
GENERAL GUARDIANS AND GUARDIANSHIP
98); an order or
c) Neglect in the judgment of the
performance of his court;
TRUSTEES (RULE 98) duties; c) Neglect to perform
d) Breach of trust a duty expressly
displaying a want of provided by these
Requisites for existence of a valid trust: fidelity, not mere error rules;
1) Existence of a person competent to create; in the administration of d) Absconds, or
2) Sufficient words to create it; the trust; becomes insane, or
3) A person capable of holding as trustee a specified e) Abuse and abandonment e) otherwise
or ascertainable object; of the trust; incapable or
4) A definite trust res; and f) Refusal to recognize or unsuitable to
5) A declaration of the terms of the trust administer the trust; discharge trust;
g) Failure or neglect or f) (e) Fraud or
TRUSTEE EXECUTOR / impropriety in misrepresentation
ADMINISTRATOR investment of the trust
An instrument or agent of An executor is the estate as to give rise to
the cestui que trust, who person named in the waste of trust property;
acquires no beneficial will to administer the h) Failure to file accounts,
interest in the estate; he decedent‘s estate and and failure of one co-
merely took the legal estate carry out the provisions trustee to keep himself
only as the proper execution thereof. informed of the conduct
of the trust required; and, his An administrator is the of the other in the
estate ceases upon the person appointed by administration of the
fulfilment of the testator‘s the court to administer trust.

belonging to him as trustee, which at the time of
CONDITIONS OF THE BOND the making of such inventory shall have come to
his possession or knowledge;
A trustee appointed by the court is required to furnish a b) That he will manage and dispose of all such
bond and the terms of the trust or a statute may provide estate, and faithfully discharge his trust in
that a trustee appointed by a court shall be required to relation thereto, according to law and the will of
furnish a bond in order to qualify him to administer the the testator or the provisions of the instrument or
trust. order under which he is appointed;
c) That he will render upon oath at least once a
However, the court may until further order exempt a year until his trust is fulfilled, unless he is
trustee under a will from giving a bond when the testator excused therefrom in any year by the court, a
has directed or requested such exemption or when all true account of the property in his hands and of
persons beneficially interested in the trust, being of full the management and disposition thereof, and
age, request the exemption. Such exemption may be will render such other accounts as the court may
cancelled by the court at any time, and the trustee order.
required to forthwith file a bond. If the trustee fails to
furnish a bond as required by the court, he fails to qualify That at the expiration of his trust he will settle his
as such. Nonetheless the trust is not defeated by such a accounts in court and pay over and deliver all the estate
failure to give bond. remaining in his hands, or due from him on such
settlement, to the person or persons entitled thereto. But
The following conditions shall be deemed to be a part of when the trustee is appointed as a successor to a prior
the bond whether written therein or not: trustee, the court may dispense with the making and
a) That the trustee will make and return to the return of an inventory, if one has already been filed, and
court, at such time as it may order, a true in such case the condition of the bond shall be deemed to
inventory of all the real and personal estate be altered accordingly.
REQUISITES FOR THE REMOVAL AND A trustee whose acts or omissions are such as to show a
RESIGNATION OF A TRUSTEE want of reasonable fidelity will be removed by the court
and where trust funds are to be invested by the trustee,
A trustee may be removed upon petition to the proper neglect to invest constitutes of itself a breach of trust, and
RTC of the parties beneficially interested, after due notice is a ground for removal.
to the trustee and hearing, if it appears essential in the
interests of the petitioners. The court may also, after due EXTENT OF AUTHORITY OF TRUSTEE
notice to all persons interested, remove a trustee who is
insane or otherwise incapable of discharging his trust or A trustee appointed by the RTC shall have the same
evidently unsuitable therefor. A trustee, whether rights, powers, and duties as if he had been appointed by
appointed by the court or under a written instrument, the testator. No person succeeding to a trust as executor
may resign his trust if it appears to the court proper to or administrator of a former trustee shall be required to
allow such resignation. accept such trust.
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.

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;

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
DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

Governed by RA 8552, the Domestic Adoption Act Governed by RA 8043, the Inter-Country Adoption Act of
of 1998; procedure governed by AM No. 02-06-02- 1995; procedure governed by the Amended Implementing
SC, Aug. 22, 2002. Rules and Regulations on ICAA.

Applies to domestic adoption of Filipino children, Applies to adoption of a Filipino child in a foreign country,
where the entire adoption process beginning from where the petition for adoption is filed, the supervised trial
the filing of the petition up to the issuance of the custody is undertaken and the decree of adoption is issued
adoption decree takes place in the Philippines. outside of the Philippines.
Who may be adopted Who may be adopted
A child legally available for adoption. Only a legally free child may be adopted.
Requisites: Requisites:
a) Below 18 years of age; and a) Below 15 years of age; and
b) Judicially declared available for adoption. b) Has been voluntarily or involuntarily committed to the
c) Exceptions: DSWD in accordance with PD 603.
d) Legitimate son/daughter of one spouse by
the other spouse;
e) Illegitimate son/daughter by a qualified
adopter;
f) Person of legal age if, prior to the adoption
said person has been consistently
considered and treated by the adopter/s as
his/her own child since minority.
Who may adopt Who may adopt
A. FILIPINO CITIZENS A. FILIPINO CITIZENS
1) Of legal age; 1) Permanent resident of a foreign country;

2) In possession of full civil capacity and legal 2) Has the capacity to act and assume all rights and
rights; responsibilities of parental authority under Philippine
3) Of good moral character; laws;
4) Has not been convicted of any crime 3) Has undergone the appropriate counseling from an
involving moral turpitude; accredited counselor in country of domicile;
5) Emotionally and psychologically capable 4) Has not been convicted of a crime involving moral
of caring for children; turpitude;
6) In a position to support and care for 5) Eligible to adopt under Philippine laws;
his/her children in keeping with the means 6) In a position to provide the proper care and support
of the family; and to give the necessary moral values and example to
7) At least 16 years older than the adoptee all his children, including the child to be adopted;
but this latter requirement may be waived 7) Agrees to uphold the basic rights of the child as
if (a) the adopter is the biological parent of embodied under Philippine laws, the UN Convention
the adoptee; or (b) the adopter is the on Rights of the Child, and to abide by the rules and
spouse of the adoptee‘s parent; and regulations issued to implement the provisions of the
8) Permanent resident of the Philippines. ICAA;
8) Residing in a country with whom the Philippines has
B. ALIENS diplomatic relations and whose government maintains
a similarly authorized and accredited agency and that
1) Same qualifications as above, and in adoption is allowed in that country;
addition: 9) Possesses all the qualifications and none of the
2) His/her country has diplomatic relations disqualifications provided in the ICAA and in other
with the Republic of the Philippines; applicable Philippine laws;
3) His/her government allows the adoptee to 10) At least 27 years of age at the time of the application;
enter his/her country as his/her adopted and
son/daughter; 11) At least 16 years older than the child to be adopted at
4) Has been living in the Philippines for at the time of application, unless (a) adopted is the parent
least 3 continuous years prior to the filing by nature of the child to be adopted; or (b) adopter is
of the application for adoption and the spouse of the parent by nature of the child to be
maintains such residence until the adopted.
adoption decree is entered; and
5) Has been certified by his/her diplomatic or B. ALIENS
consular office or any appropriate
government agency that he/she has the 1) At least 27 years of age at the time of the application;
legal capacity to adopt in his/her country. 2) At least 16 years older than the child to be adopted at
This requirement may be waived if (a) a the time of application unless the adopter is the parent
former Filipino citizens seeks to adopt a by nature of the child to be adopted or the spouse of

relative within the 4th degree of such parent;
consanguinity or affinity; (b) one seeks to 3) Has the capacity to act and assume all rights and
adopt the legitimate son/daughter of responsibilities of parental authority under his national
his/her Filipino spouse; (c) one who is laws;
married to a Filipino citizen and seeks to 4) Has undergone the appropriate counseling from an
adopt a relative within the 4th degree of accredited counselor in his/her country;
consanguinity or affinity of the Filipino 5) Has not been convicted of a crime involving moral
spouse. turpitude;
6) Eligible to adopt under his/her national law;
7) In a position to provide the proper care and support
and to give the necessary moral values and example to
all his children, including the child to be adopted;
8) Agrees to uphold the basic rights of the child as
embodied under Philippine laws, the UN Convention
on the Rights of the Child, and to abide by the rules
and regulations issued to implement the provisions of
the ICAA;
9) Comes from a country with whom the Philippines has
diplomatic relations and whose government maintains
a similarly authorized and accredited agency and that
adoption is allowed under his/her national laws; and
10) Possesses all the qualifications and none of the
disqualifications provided in the ICAA and in other
applicable Philippine laws.
Requirement of Joint Adoption by Spouses Requirement of Joint Adoption by Spouses
General rule: husband and wife shall jointly adopt; Rule: if the adopter is married, his/her spouse must jointly file
otherwise, the adoption shall not be allowed. for the adoption.
Exceptions:
1) If one spouse seeks to adopt the legitimate
son/daughter of the other;
2) If one spouse seeks to adopt his/her own
illegitimate son/daughter but the other
spouse must give his/her consent;
3) If the spouses are legally separated from
each other.
Procedure Procedure
Where to file application: In the Family Court of Where to file application: Either in (a) Family Court having
the province or city where the prospective parents jurisdiction over the place where the child resides or may be
reside. found, or (b) Inter-Country Adoption Board (ICAB) through
an intermediate agency, whether governmental or an
After filing: The petition shall not be set for hearing authorized and accredited agency, in the country of the
without a case study report by a licensed social prospective adoptive parents.
worker.
After filing:
Supervised Trial Custody: a) if filed in the FC, court determines sufficiency of
a) Temporary parental authority is vested in petition in respect to form and substance, after which,
prospective adopter; petition is transmitted to ICAB;
b) Period is at least 6 months, but may be b) if petition is already with ICAB, it conducts matching
reduced by the court motu propio or upon of the applicant with an adoptive child;
motion; c) after matchmaking, the child is personally fetched by
c) If adopter is alien, the law mandatorily the applicant for the trial custody which takes place
requires completion of the 6-month trial outside of the Philippines.
custody and may not be reduced, except if:
1) a former Filipino citizen seeks to Supervised Trial Custody:
adopt a relative within 4th degree of a) This process takes place outside of the country and
consanguinity or affinity; under the supervision of the foreign adoption agency;
2) one seeks to adopt the legitimate b) For a period of 6 months;
son/daughter of his/her Filipino c) If unsuccessful, ICAB shall look for another

spouse; prospective applicant. Repatriation of the child is to be
3) one who is married to a Filipino resorted only as a last resort;
citizen and seeks to adopt jointly with d) If successful, ICAB transmits a written consent for the
his/her spouse a relative within the adoption to be executed by the DSWD, and the
4th degree of consanguinity or affinity applicant then files a petition for adoption in his/her
of the Filipino spouse. country.
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.
a) The adoption decree shall state the name by

DOMESTIC ADOPTION ACT
which the child is to be known. An amended
(RA 8552; AM 02-06-02-SC)
certificate of birth shall be issued by the Civil
Registry attesting to the fact that the adoptee is
EFFECTS OF ADOPTION the child of the adopter(s) by being registered
with his/her surname;
Transfer of parental authority – except in cases where b) The original certificate of birth shall be stamped
the biological parent is the spouse of the adopter, the “cancelled” with the annotation of the issuance
parental authority of the biological parents shall terminate of an amended birth certificate in its place and
and the same shall be vested in the adopters. shall be sealed in the civil registry records. The
new birth certificate to be issued to the adoptee
Legitimacy – the adoptee shall be considered the shall not bear any notation that it is an amended
legitimate son/daughter of the adopter(s) for all intents issue;
and purposes and as such is entitled to all the rights and c) All records, books, and papers relating to the
adoption cases in the files of the court, the
obligations provided by law to legitimate sons/daughters
DSWD, or any other agency or institution
born to them without discrimination of any kind.
participating in the adoption proceedings shall be
Successional rights kept strictly confidential and the court may order
its release under the following conditions only:
a) In legal and intestate succession, the adopter(s)
(1) the disclosure of the information to a third
and the adoptee shall have reciprocal rights of
person is necessary for purposes connected with
succession without distinction from legitimate
or arising out of the adoption; (2) the disclosure
filiation;
will be for the best interest of the adoptee; and (3)
b) However, if the adoptee and his/her biological
the court may restrict the purposes for which it
parent(s) had left a will, the law on testamentary
may be used.
succession shall govern;
c) The adoptee remains an intestate heir of his/her
INSTANCES WHEN ADOPTION MAY BE
biological parent.
RESCINDED
Issuance of new certificate and first name and surname
of adoptee Grounds for rescission:

a) Repeated physical and verbal maltreatment by “BEST INTEREST OF THE MINOR” STANDARD
the adopter(s) despite having undergone
counselling; In case of custody cases of minor children, the court after
b) Attempt on the life of the adoptee; hearing and bearing in mind the best interest of the
c) Sexual assault or violence; or minor, shall award the custody as will be for the minor‘s
d) Abandonment and failure to comply with best interests.
parental obligations.
“Best interests of the child” - means the totality of the
Prescriptive period: circumstances and conditions as are most congenial to
a) If incapacitated – within five (5) years after he the survival, protection, and feelings of security of the
reaches the age of majority; child and most encouraging to his physical,
b) If incompetent at the time of the adoption – psychological, and emotional development. It also means
within five (5) years after recovery from such the least detrimental available alternative for safeguarding
incompetency. the growth and development of the child.
EFFECTS OF RESCISSION OF ADOPTION
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

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 HABEAS CORPUS WRIT OF AMPARO WRIT OF HABEAS DATA

A remedy available to any person, A remedy available to any person A remedy available to any person whose
it covers cases of illegal whose right to life, liberty and right to privacy in life, liberty or security
confinement or detention by security is violated or threatened is violated or threatened by an unlawful
which any person is deprived of with violation by an unlawful act or act or omission of a public official or
his liberty, or by which the rightful omission of a public official or employee, or of a private individual or
custody of any person is withheld employee, or of a private individual entity engaged in the gathering, collecting
from the person entitled thereto. or entity. The writ covers or storing of data or information regarding

extrajudicial killings and enforced the person, family, home and
disappearances or threats thereof. correspondence of the aggrieved party.
It is a form of constitutional relief.
Who may file petition: Who may file (in order): Who may file (in order):
By the party for whose relief it is a) Any member of the immediate a) Any member of the immediate family:
intended, or by some person on family: spouse, children and spouse, children and parents of the
his behalf. parents of the aggrieved party; aggrieved party;
b) Any ascendant, descendant or b) Any ascendant, descendant or
collateral relative of aggrieved collateral relative of aggrieved party
party within the 4th civil degree within the 4th civil degree of
of consanguinity or affinity; consanguinity or affinity.
c) Any concerned citizen,
organization, association or
institution, if no known member
of immediate family.
Filing by the aggrieved party suspends
the right of all other authorized person to
file such petition.
Where to file: Where to file: Where to file:
RTC, enforceable within its area RTC, Sandiganbayan, CA, SC; Writ RTC, SC, CA, Sandiganbayan; Writ is
of jurisdiction. CA or SC, is enforceable anywhere in the also enforceable anywhere in the
enforceable anywhere in the Philippines. Philippines.
Philippines.
Where is the venue:
If filed in the RTC:
a) in the place where the petitioner
resides;
b) in the place where the respondents
reside;
c) in the place where the data or
information is gathered, collected or
stored.
– At the option of the petitioner
Petitioner is exempted to pay docket Indigent petitioner is exempted to pay
and other lawful fees. docket and other lawful fees.
When issued: When issued: When issued:
Forthwith when a petition therefor Immediately if on its face it ought to Immediately if on its face it ought to be
is presented and it appears that the be issued; Served immediately; issued; Served within 3 days from
writ ought to issue, Summary hearing set not later than issuance; Summary hearing set not later
seven (7) days from date of issuance. than ten (10) work days from date of
issuance.
Contents of verified petition: Contents of verified petition: Contents of verified petition:
a) That the person in whose a) Personal circumstances of a) Personal circumstances of petitioner
behalf the application is made petitioner and of respondent and respondent;
is imprisoned or restrained of responsible for the threat, act or b) The manner the right to privacy is
his liberty; omission; violated or threatened and how it
b) The officer or name of the b) Violated or threatened right to affects the right to life, liberty or
person by whom he is so life, liberty and security of security of aggrieved party;
imprisoned or restrained; or, aggrieved party, and how c) Actions and recourses taken by
if both are unknown or committed with attendance petitioner to secure the data or
uncertain, such officer or circumstances detailed in information;
person may be described by supporting affidavits; d) Location of files, registers or
an assumed appellation, and c) Investigation conducted, databases, government office, and the
the person who is served with specifying names, personal person in charge, in possession or in
the writ shall be deemed the circumstances and addresses of control of the data or information, if
person intended; investigating authority or known;
c) The place where he is so individuals, as well as manner e) Reliefs prayed for, which may include
imprisoned or restrained, if and conduct of investigation the updating, rectification, suppression

known; together with any report; or destruction of the database or
d) A copy of the commitment or d) Actions and recourses taken by information or files kept by
cause of detention of such petitioner to determine the fate respondent;
person, if it can be procured or whereabouts of aggrieved f) In case of threats, relief may include a
without impairing the party and identity of person prayer for an order enjoining the act
efficiency of the remedy; or, if responsible for the threat, act or complained of; and
the imprisonment or restraint omission; and g) Such other reliefs as are just and
is without any legal authority, e) The relief prayed for. equitable.
such fact shall appear f) May include general prayer for
other just and equitable reliefs.
Contents of return: Contents of return: Contents of return:
a) Whether he has or has not the Within 72 hours after service of the a) Lawful defenses such as national
party in his custody or power, writ, respondent shall file a verified security, state secrets, privileged
or under restraint; written return together with the communications, confidentiality of
b) If he has the party in his supporting affidavits, which shall source of information;
custody or power, or under contain: b) Disclosure of data/info about
restraint, the authority and the a) Lawful defenses; petitioner, nature of data/info,
true and whole cause thereof, b) Steps or actions taken to purpose of collection;
set forth at large, with a copy determine whereabouts of c) Steps or actions taken by respondent
of the writ, order, execution, aggrieved party; to ensure security and confidentiality
or other process, if any, upon c) All relevant information of data or information;
which the party is held; pertaining to threat, act or d) Currency and accuracy of data or
c) If the party is in his custody or omission against aggrieved information;
power or is restrained by him, party; e) Other allegations relevant to
and is not produced, d) If respondent is a public official resolution of the proceedings.
particularly the nature and or employee, further state:
gravity of the sickness or 1) verify the identity of * A general denial of the allegations in the
infirmity of such party by aggrieved; petition is not allowed.
reason of which he cannot, 2) recover and preserve
without danger, be brought evidence related to death or
before the court or judge; disappearance of person
d) If he has had the party in his identified in petition;
custody or power, or under 3) identify witnesses and their
restraint, and has transferred statements;
such custody or restraint to 4) determine cause, manner,
another, particularly to location and time of death
whom, at what time, for what or disappearance as well as
cause, and by what authority pattern or practice;
such transfer was made. 5) identify and apprehend
person/s involved in the
death/disappearance;
6) bring suspected offenders
before a competent court.
Effects of failure to file return: Effects of failure to file return:
The court, justice or judge shall The court, justice or judge shall proceed to
proceed to hear the petition ex parte. hear the petition ex parte, granting the
petitioner such relief as the petition may
warrant unless the court in its discretion
requires petitioner to submit evidence.
Procedure for hearing: Procedure for hearing:
The hearing on the petition shall be The hearing on the petition shall be
summary. However the court, summary. However the court, justice or
justice or judge may call for a judge may call for a preliminary
preliminary conference to simplify conference to simplify the issues and
the issues and determine the determine the possibility of obtaining
possibility of obtaining stipulations stipulations and admissions from the
and admissions from the parties. parties.
The hearing shall be from day to day
until completed and given the same

priority as petitions for habeas
corpus.
Interim reliefs available before final (Not applicable)
judgment:
a) ) Temporary Protection Order –
protected in a government
agency of by an accredited
person or private institution
capable of keeping and securing
their safety;
b) Inspection Order – with a
lifetime of 5 days which may be
extended, may be opposed on
the ground of national security
or privileged information,
allows entry into and inspect,
measure, survey or photograph
the property;
c) Production Order – to require
respondents to produce and
permit inspection, copying or
photographing of documents,
papers, books, accounts, letters,
photographs, objects or tangible
things that contain evidence.
d) Witness Protection Order – the
court may refer the witnessed to
the DOJ
Effect of filing criminal action: Effect of filing criminal action:
A criminal action first filed excludes A criminal action first filed excludes the
the filing of the writ; relief shall be filing of the writ; relief shall be by motion
by motion in the criminal case. A in the criminal case; A criminal case filed
criminal case filed subsequently subsequently shall be consolidated with the
shall be consolidated with the petition for the writ of habeas data.
petition for the writ of amparo.
Appeal: Appeal: Appeal:
To the SC under Rule 45, within To the SC under Rule 45, within 5 Any party may appeal the decision within
48 hours from notice of judgment. days from notice of adverse 5 working days from the final judgment or
A writ of habeas corpus does not judgment, to be given the same order to the SC by way of Petition for
lie where petitioner has the priority as habeas corpus cases. Review on Certiorari under Rule 45 on
remedy of appeal or certiorari pure questions of law and facts or both, to
because it will not be permitted to be given the same priority as habeas corpus
perform the functions of a writ of and amparo cases.
error or appeal for the purpose of
reviewing mere errors or
irregularities in the proceedings of
a court having jurisdiction over
the person and the subject matter.
Quantum of proof: Quantum of proof:
By substantial evidence. Private The court shall render judgment within 10
respondent to prove ordinary days from the time the petition is
diligence was observed in the submitted for decision. If the allegations
performance of duty. Public are proven by substantial evidence, the
official/employee respondent to court shall enjoin the act complained of, or
prove extraordinary diligence was the deletion, destruction, or rectification of
observed, and cannot invoke the the erroneous data or information and
presumption that official duty has grant other reliefs as may be just and
been regularly performed to evade equitable; otherwise the privilege shall be
responsibility or liability. denied.

RULES ON CUSTODY OF MINORS AND WRIT OF WRIT OF AMPARO SEARCH WARRANT

HABEAS CORPUS IN RELATION TO CUSTODY Issuance of the Writ. Requisites for issuing search
OF MINORS (AM NO. 03-04-04-SC) warrant
Upon the filing of the
petition, the court, justice A search warrant shall not
The Family Court has exclusive original jurisdiction to
or judge shall immediately issue except upon probable
hear petitions for custody of minors and the issuance of
order the issuance of the cause in connection with
the writ of habeas corpus in relation to custody of minors.
writ if on its face it ought one specific offense to be
The Court is tasked with the duty of promulgating special
to issue. The clerk of court determined personally by
rules or procedure for the disposition of family cases with
shall issue the writ under the judge after examination
the best interests of the minor as primary consideration,
the seal of the court; or in under oath or affirmation
taking into account the United Nations Convention on
case of urgent necessity, of the complainant and the
the Rights of the Child. It should be clarified that the writ
the justice or the judge witness he may produce,
is issued by the Family Court only in relation to custody
may issue the writ in his or and particularly describing
of minors. An ordinary petition for habeas corpus should
her own hand, and may the place to be searched
be filed in the regular Court. The issue of child custody
deputize and the things to be seized
may be tackled by the Family Court without need of a
any officer or person to which may be anywhere in
separate petition for custody being filed.
serve it. The writ shall also the Philippines.
set the date and time for
The Committee chose the phrase “any person claiming
summary hearing of the
custody” as it is broad enough to cover the following: (a)
petition which shall not be
the unlawful deprivation of the custody of a minor; or (b)
later than seven (7) days
which parent shall have the care and custody of a minor,
from the date of its
when such parent is in the midst of nullity, annulment or
issuance.
legal separation proceedings.
The hearings on custody of minors may, at the discretion

OMNIBUS WAIVER RULE
of the court, be closed to the public and the records of the
case shall not be released to non-parties without its
approval. Defenses Not Pleaded Deemed Waived — All defenses
shall be raised in the return, otherwise, they shall be
A motion to dismiss the petition is not allowed except on deemed waived.
the ground of lack of jurisdiction over the subject matter
or over the parties. Any other ground that might warrant WRIT OF HABEAS DATA (AM NO. 08-1-16-SC)
the dismissal of the petition shall be raised as an
affirmative defense in the answer.
Scope of writ; Availability of writ; Distinguish from
Upon the filing of the verified answer of the expiration of Habeas Corpus and Amparo; Who may file; Contents
the period to file it, the court may order a social worker to of the petition; Consolidation; Effect of filing of a
make a case study of the minor and the parties and to criminal action; Institution of separate action (See table
submit a report and recommendation to the court at least above)
three days before the scheduled pre-trial.
INSTANCES WHEN PETITION BE HEARD IN
Hold Departure Order – The minor child subject of the CHAMBERS
petition shall not be brought out of the country without
prior order from the court while the petition is pending.
A hearing in chambers may be conducted where the
The court motu propio or upon application under oath
respondent invokes the defense that the release of the data
may issue ex parte a hold departure order addressed to
or information in question shall compromise national
the BID of the DOJ a copy of the hold departure order
security or state secrets, or when the data or information
within 24 hours from its issuance and through the fastest
cannot be divulged to the public due to its nature or
available means of transmittal.
privileged character.
WRIT OF AMPARO (AM NO. 07-9-12-SC) (See table CHANGE OF NAME (RULE 103)
above)

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.

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

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

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
RULES OF CRIMINAL PROCEDURE (Rules 110 – 127)
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)
REQUISITES FOR EXERCISE OF CRIMINAL CRIMINAL ACTIONS; HOW INSTITUTED

JURISDICTION
1) For offenses where a preliminary investigation is
1) The offense if one which the court is by law required pursuant to section 1 of Rule 112, by filing
authorized to take cognizance of; the complaint with the proper officer for the purpose
2) The offense must have been committed within its of conducting the requisite preliminary investigation.
territorial jurisdiction; and 2) For all other offenses, by filing the complaint or
3) The person charged with the offense must have been information directly with the Municipal Trial Courts
brought into its forum for trial, forcibly or by warrant and Municipal Circuit Trial Courts, or the complaint
of arrest or upon his voluntary submission to the with the office of the prosecutor.
court. 3) In Manila and other chartered cities, the complaint
shall be filed with the office of the prosecutor, unless
JURISDICTION OF CRIMINAL COURTS (see otherwise provided in their charters.
jurisdiction of courts in civil pro)
ð The institution of the criminal action shall interrupt
WHEN INJUNCTION MAY BE ISSUED TO the period of prescription of the offense charged
RESTRAIN CRIMINAL PROSECUTION unless otherwise provided in special laws.

Only the Solicitor General may represent the People of
ð Preliminary investigation is required for offenses the Philippines on appeal. The private offended party or
punishable by at least 4 years, 2 months, and 1 day, complainant may question such acquittal or dismissal or
unless the accused was lawfully arrested without a appeal therefrom only insofar as the civil aspect is
warrant, in which case, an inquest must have been concerned, in the name of the petitioner or appellant and
conducted. not in the name of the People of the Philippines. The rule
that the Solicitor General is the lawyer of the People in
WHO MAY FILE THE CRIMINAL ACTION appellate courts admits an exception, “in all cases elevated
to the Sandiganbayan and from the Sandiganbayan to the
1) Offended party Supreme Court, the Office of the Ombudsman, through its
2) Any peace officer; or special prosecutor, shall represent the People of the Philippines,
3) Other public officer charged with the except in cases filed pursuant to EO 1, 2, 14 and 14-A, issued in
enforcement of the law violated. 1986.”
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.

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

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

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.
PREJUDICIAL QUESTION Where the amount of damages, other than actual, is

specified in the complaint or information, the
A petition for suspension of the criminal action based corresponding filing fees shall be paid by the offended
upon the pendency of a prejudicial question in a civil party upon filing thereof in court. Except as otherwise
action may be filed in the office of the prosecutor or the provided in these Rules, no filing fees shall be required for
court conducting the preliminary investigation. When the actual damages.
criminal action has been filed in court for trial, the
petition to suspend shall be filed in the same criminal With respect to criminal actions for violations of BP 22,
action at any time before the prosecution rests. the offended party shall pay in full the filing fees based on
the face value of the checks as the actual damages.
GENERAL RULE: Criminal action takes precedence of
civil actions.
PRELIMINARY INVESTIGATION (RULE 112)
EXCEPTIONS:
a) independent civil actions
b) prejudicial question Preliminary investigation is an inquiry or proceeding for
the purpose of determining whether there is sufficient
Prejudicial question which arises in a case the resolution ground to engender a well-founded belief that a crime has
of which is a logical antecedent of the issues involved in been committed and that the respondent is probably
said cases, and the cognizance of which pertains to guilty thereof, and should be held for trial.
another tribunal.
NATURE OF RIGHT
The elements of a prejudicial question are:
a) the previously instituted civil action The right to preliminary investigation is not a
involves an issue similar or intimately constitutional grant; it is merely statutory and may be
related to the issue raised in the invoked only when specifically created by statute. It is a
subsequent criminal action, and component part of due process in criminal justice.
b) the resolution of such issue determines
whether or not the criminal action may Preliminary investigation is a function that belongs to the
proceed. public prosecutor. It is an executive function, although
the prosecutor, in the discharge of such function, is a
TEST: It must appear not only that the civil case involves quasi-judicial authority tasked to determine whether or
the same facts upon which the criminal prosecution is not a criminal case must be filed in court.
based, but also that the resolution of the issues in said
civil action would be necessarily determinative of the The right to preliminary investigation may be waived by
guilt or innocence of the accused. the accused either expressly or impliedly. The posting of a
bond by the accused constitutes such a waiver, such that
even if the warrant was irregularly issued, any infirmity

attached to it is cured when the accused submits himself authorized officer, has personally examined the
to the jurisdiction of the court by applying for bail. It is complainant and his witnesses; that there is reasonable
also cured by submitting himself to arraignment ground to believe that a crime has been committed and
that the accused is probably guilty thereof; that the
PURPOSES OF PRELIMINARY INVESTIGATION accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
The basic purpose of preliminary investigation is to opportunity to submit controverting evidence. Otherwise,
determine whether a crime has been committed and he shall recommend the dismissal of the complaint.
whether there is probable cause to believe that the
accused is guilty thereof. Within five (5) days from his resolution, he shall forward
the record of the case to the provincial or city prosecutor
Generally, preliminary investigation has a three-fold or chief state prosecutor, or to the Ombudsman or his
purpose: deputy in cases of offenses cognizable by the
1) To inquire concerning the commission of crime Sandiganbayan in the exercise of its original jurisdiction.
and the connection of accused with it, in order They shall act on the resolution within ten (10) days from
that he may be informed of the nature and their receipt thereof and shall immediately inform the
character of the crime charged against him, and parties of such action.
if there is probable cause for believing him guilty,
that the state may take the necessary steps to No complaint or information may be filed or dismissed
bring him to trial; by an investigating prosecutor without the prior written
2) To preserve the evidence and keep the witnesses authority or approval of the provincial or city prosecutor
within the control of the state; and or chief state prosecutor or the Ombudsman or his
3) To determine the amount of bail, if the offense is deputy. Where such the recommendation of dismissal
bailable. was disapproved on the ground that a probable cause
exists, the chief prosecutor may file the information
WHO MAY CONDUCT DETERMINATION OF against the respondent, or direct another assistant
EXISTENCE OF PROBABLE CAUSE prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
On the basis of the evidence before him, the investigating
office must decide whether to dismiss the case or to file REVIEW
the information in court. This involves the determination
of probable cause. A preliminary investigation falls under the authority of
the state prosecutor who is given by law the power to
The Court has maintained the policy of non-interference direct and control criminal actions. He is, however,
in the determination of the existence of probable cause, subject to the control/appeal to the Secretary of Justice,
provided there is no grave abuse in the exercise of such which the latter may exercise motu propio or upon petition
discretion. The rule is based not only upon respect for the of the proper party.
investigatory and prosecutorial powers of prosecutors but
upon practicality as well. The Secretary of Justice exercises the power of direct
control and supervision over prosecutors, and may thus
OFFICERS AUTHORIZED TO CONDUCT affirm, nullify, reverse or modify their rulings. In
PRELIMINARY INVESTIGATION reviewing resolutions of state prosecutors, the Secretary
of Justice is not precluded from considering errors,
1) Provincial or city prosecutors and their assistants; although unassigned, for the purpose of determining
2) National and Regional State Prosecutors; and whether there is probable cause for filing cases in court.
3) Other officers as may be authorized by law
(COMELEC, PCGG, Ombudsman) An aggrieved party may appeal by filing a verified
petition for review with the Secretary and by furnishing
Their authority to conduct preliminary investigation shall copies thereof to the adverse party and prosecution office
include all crimes cognizable by the proper court in their issuing the appealed resolution. The appeal shall be taken
respective territorial jurisdictions. within 15 days from receipt of the resolution or of the
denial of the motion for reconsideration/reinvestigation if
RESOLUTION OF INVESTIGATION one has been filed within 15v days from receipt of the
PROSECUTOR assailed resolution. Only one motion for reconsideration
shall be allowed. Unless the Secretary directs otherwise,
If the investigating prosecutor finds cause to hold the the appeal SHALL NOT STAY the filing of the
respondent for trial, he shall prepare the resolution and corresponding information in court on the basis of the
information. He shall certify under oath in the finding of probable cause in the assailed decision. If the
information that he, or as shown by the record, an Secretary of Justice reverses or modifies the resolution of

the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the REMEDIES OF ACCUSED IF THERE WAS NO
corresponding information without conducting another PRELIMINARY INVESTIGATION
preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to ð Refuse to enter a plea upon arraignment and object to
the parties. further proceedings upon such grounds
ð To hold in abeyance the proceedings and order/insist
WHEN WARRANT OF ARREST MAY ISSUE the prosecutor to hold preliminary investigation.
ð Raised the lack of PI as an error in appeal
(a) By the Regional Trial Court
§ Within ten (10) days from the filing of the If the case has been conducted, the accused may within 5
complaint or information, the judge shall days from the time he learns of its filing ask for a
personally evaluate the resolution of the preliminary investigation. The five-day period to file the
prosecutor and its supporting evidence. motion for preliminary investigation is mandatory, and
§ He may immediately dismiss the case if the an accused is entitled to ask for preliminary investigation
evidence on record clearly fails to establish by filing the motion within the said period. The failure to
probable cause. file the motion within the five-day period amounts to a
§ If he finds probable cause, he shall issue a waiver of the right to ask for preliminary investigation.
warrant of arrest, or a commitment order if the Apart from such waiver, posting bail without previously
accused has already been arrested pursuant to a or simultaneously demanding for a preliminary
warrant issued by the judge who conducted the investigation justifies denial of the motion for
preliminary investigation or when the complaint investigation.
or information was filed pursuant to section 6 of
this Rule. INQUEST
§ In case of doubt on the existence of probable
cause, the judge may order the prosecutor to It is a summary investigation conducted by a public
present additional evidence within five (5) days prosecutor in criminal cases involving persons arrested
from notice and the issue must be resolved by the and detained without the benefit of a warrant of arrest
court within thirty (30) days from the filing of the issued by the court for the purpose of determining
complaint or information. whether or not said persons should remain under custody
and correspondingly be charged in court. Such
(b) By the Municipal Trial Court proceedings must terminate within the period prescribed
§ When required pursuant to the second paragraph under Art. 125 of the Revised Penal Code.
of section 1 of this Rule, the PI of cases falling
under the original jurisdiction of the MTCs shall Required where the crime is punishable by at least 4
be conducted by the prosecutor. The procedure for years, 2 months and 1 day.
the issuance of a warrant of arrest by the judge shall be
governed by paragraph (a) of this section (Sec. 5,
Rule112). ARREST (RULE 113)
(c) When warrant of arrest not necessary

A warrant of arrest shall not issue if the accused Arrest is the taking of a person into custody in order that
is already under detention pursuant to a warrant he may be bound to answer for the commission of an
issued by the Municipal Trial Court in offense.
accordance with paragraph (b) of this section, or
if the complaint or information was filed HOW AN ARREST MADE?
pursuant to section 6 of this Rule or is for an
offense penalized by fine only. The court shall 1) by an actual restraint of a person to be arrested, OR
then proceed in the exercise of its original 2) by his submission to the custody of the person
jurisdiction (Sec. 5, as amended by AM 05-8-26-SC). making the arrest.
ü No violence or unnecessary force shall he used in
CASES NOT REQUIRING A PRELIMINARY making an arrest. The person arrested shall not
INVESTIGATION be subject to a greater restraint than is necessary
for his detention.
1) Cases in which the imposable penalty DOES NOT
EXCEED four (4) years, two (2) months and one (1) ARREST WITHOUT WARRANT,WHEN LAWFUL
day
2) When the accused has undergone inquest
proceeding.

1) When, in his presence, the person to be arrested has Requisites for arrest warrant issued by a RTC judge
committed, is actually committing, or is attempting under Sec. 5, Rule 112:
to commit an offense; 1) Within 10 days from the filing of the complaint
2) When an offense has just been committed and he has or information
probable cause to believe based on his personal knowledge of 2) The judge shall personally evaluate the
facts or circumstances that the person to be arrested has resolution of the prosecutor and its supporting
committed the crime; evidence.
3) When the person to be arrested is a prisoner who has 3) If he finds probable cause, he shall issue a
escaped from a penal establishment or place where he warrant of arrest
is serving final judgment or is temporarily confined 4) In case of doubt on the existence of probable
while his case is pending, or has escaped while being cause
transferred from one confinement to another. a. The judge may order the prosecutor to
4) Where a person who has been lawfully arrested present additional evidence within 5
escape or is rescued; days from notice; and
5) When the bondsmen arrests a prisoner out on bail for b. The issue must be resolved by the court
the purpose of bringing him to court; within 30 days from the filing of the
6) Where the accused attempts to leave the country complaint of information.
without the permission of the court.
Requisites for issuing search warrant under Sec. 4, Rule
METHOD OF ARREST 126:
1) It must be issued upon probable cause in
Method of arrest by officer by virtue of warrant connection with one specific offense;
2) The probable cause must be determined by the
The officer shall inform the person to be arrested of the judge himself and not by the applicant or any
cause of the arrest and the fact that a warrant has been other person;
issued for his arrest, except when he flees or forcibly 3) In the determination of probable cause, the judge
resists before the officer has opportunity to so inform must examine under oath or affirmation, the
him, or when the giving of such information will imperil complainant and the witness he may produce;
the arrest. and
4) The warrant issued must particularly describe the
The officer need not have the warrant in his possession at person to be arrested in connection with a
the time of the arrest but after the arrest, if the person specific offense or crime.
arrested so requires, the warrant shall be shown to him as
soon as practicable. DETERMINATION OF PROBABLE CAUSE FOR
ISSUANCE OF WARRANT OF ARREST
Method of arrest by officer without warrant
It is the judge alone who determines the probable cause
for the issuance of warrant of arrest. It is not for the
The officer shall inform the person to be arrested of his
provincial fiscal or prosecutor to ascertain.
authority and the cause of the arrest, unless the latter is
either engaged in the commission of an offense, is
DISTINGUISH PROBABLE CAUSE OF FISCAL
pursued immediately after its commission, has escaped,
FROM THAT OF A JUDGE
flees or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information
will imperil the arrest. The determination by the prosecutor of probable cause is for
the purpose of either filing an information in court or
dismissing the charges against the respondent, which is
Method of arrest by private person
an executive function.
A private person shall inform the person to be arrested of The determination by the judge of probable cause begins
the intention to arrest him and cause of the arrest, unless only after the prosecutor has filed the information in
the latter is either engaged in the commission of an court and the latter’s determination of probable cause is
offense, is pursued immediately after its commission, or for the purpose of issuing an arrest warrant against the
has escaped, flees or forcibly resists before the person accused, which is judicial function. . A judge cannot be
making the arrest has opportunity to so inform him, or compelled to issue a warrant of arrest if he or she believes
when the giving of such information will imperil the honestly that there is no probable cause for doing so.
arrest.
Probable cause to hold a person for trial refers to the
REQUISITES OF A VALID WARRANT OF ARREST finding of the investigating prosecutor after the conduct of
a preliminary investigation, that there is sufficient ground

to hold a well-founded belief that a crime has been any, shall be returned to the accused or to
committed and that the respondent is probably guilty whoever made the deposit.
thereof and should be held for trial. Based on such
finding, the investigating prosecutor files the WHEN A MATTER OF RIGHT; EXCEPTIONS
corresponding complaint or information in the competent
court against the accused. All persons in custody shall be admitted to bail as a
matter of right, with sufficient sureties, or released on
recognizance:
BAIL (RULE 114) a) before or after conviction by the MTC, and
b) before conviction by the RTC of an offense NOT
punishable by death, reclusion perpetua, or life
NATURE
imprisonment and the evidence of guilt is strong.
All persons, except those charged with offenses
If bail can be granted in deportation cases and extradition
punishable by reclusion perpetua when evidence of guilt cases; both are administrative proceedings where the
is strong, shall before conviction, be bailable by sufficient innocence or guilt of the person detained is not in issue.
sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired Bail is a matter of right before final conviction, but the
even when the privilege of the writ of habeas corpus is rule is not absolute. The exception is when a person is
suspended. Excessive bail shall not be required (Sec. 13, charged with a capital offense when the evidence of guilt
Art. III, The Constitution). is strong, or when the offense for which on is charged is
punishable by reclusion perpetua. The exception to this
Bail is the security required by the court and given by the rule, however, is even if a person is charged with a capital
accused to ensure that the accused appear before the offense where the evidence of guilt is strong, if the
proper court at the scheduled time and place to answer accused has failing health, hence, for humanitarian
the charges brought against him. It is awarded to the reasons, he may be admitted to bail, but that is
accused to honor the presumption of innocence until his discretionary on the part of the court.
guilt is proven beyond reasonable doubt, and to enable
him to prepare his defense without being subject to WHEN A MATTER OF DISCRETION
punishment prior to conviction. Its main purpose is to
relieve an accused from the rigors of imprisonment until
1) Before conviction, in case of offenses punishable by
his conviction and secure his appearance at the trial.
reclusion perpetua, life imprisonment or death;
ð If it is determined that it is NOT strong, then bail
The person seeking provisional release need not wait for a
is a matter of right. There is no more discretion
formal complaint or information to be filed against him
of the court in denying the bail, the moment
as it is available to all persons where the offense is
there is a determination that the evidence of guilt
bailable, so long as the applicant is in the custody of the
is not strong.
law.
2) After conviction by the RTC of a non-capital offense.
Kinds of bail:
The application for bail may be filed and acted upon by
a) Corporate bond — one issued by a corporation
the trial court despite the filing of a notice of appeal,
licensed to provide bail subscribed jointly by the
provided it has not transmitted the original record to the
accused and an officer duly authorized by its
appellate court. However, if the decision of the trial court
board of directors.
convicting the accused changed the nature of the offense
b) Property bond — an undertaking constituted as
from non-bailable to bailable, the application for bail can
a lien on the real property given as security for only be filed with and resolved by the appellate court.
the amount of the bond.
c) Recognizance — an obligation of record entered If the penalty imposed by the trial court is imprisonment
into usually by the responsible members of the exceeding six (6) years, the accused shall be denied bail,
community before some court or magistrate duly or his bail shall be cancelled upon a showing by the
authorized to take it, with the condition to do prosecution, with notice to the accused, of the following
some particular act, the most usual act being to or other similar circumstances:
assure the appearance of the accused for trial. a) That he is a recidivist, quasi-recidivist, or
d) Cash deposit — the money deposited by the habitual delinquent, or has committed the crime
accused or any person acting on his behalf, with aggravated by the circumstance of reiteration;
the nearest collector of internal revenue, or b) That he has previously escaped from legal
provincial, city or municipal treasurer. confinement, evaded sentence, or violated the
Considered as bail, it may be applied to the conditions of his bail without valid justification;
payment of any fees and costs, and the excess, if

c) That he committed the offense while under prosecution must be given ample opportunity to show
probation, parole, or under conditional pardon; that the evidence of guilt is strong, because it is on the
d) That the circumstances of his case indicate the basis of such evidence that judicial discretion is exercised
probability of flight if released on bail; or in determining whether the evidence of guilt is strong is a
e) That there is undue risk that he may commit matter of judicial discretion.
another crime during the pendency of the appeal.
A hearing is absolutely indispensable. In receiving
Where the grant of bail is a matter of discretion, or the evidence on bail, while a court is not required to try the
accused seeks to be released on recognizance, the merits of the case, he must nevertheless conduct a
application may only be filed in the court where the case summary hearing to determine the weight of the evidence
is pending, whether on preliminary investigation, trial, or for purposes of the bail.
on appeal.
A judge should not hear a petition for bail in capital
HEARING OF APPLICATION FOR BAIL IN offenses on the same day that the petition was filed. He
CAPITAL OFFENSES should give the prosecution a reasonable time within
which to oppose the same. Neither is he supposed to
grant bail solely on the belief that the accused will not flee
GUIDELINES IN FIXING AMOUNT OF BAIL during the pendency of the case by reason of the fact that
he had even voluntarily surrendered. Voluntary surrender
A bail application in capital offense does not only involve is merely a mitigating circumstance in decreasing the
the right of the accused to temporary liberty, but likewise penalty but is not a ground for granting bail to an accused
the right of the State to protect the people and the peace charged with a capital offense.
of the community from dangerous elements. The
a) Financial ability of the accused to give bail; h) Forfeiture of other bail;
b) Nature and circumstances of the offense; i) The fact that the accused was a fugitive from
c) Penalty for the offense charged; justice when arrested; and
d) Character and reputation of the accused; j) Pendency of other cases where the accused is on
e) Age and health of the accused; bail.
f) Weight of the evidence against the accused;
g) Probability of the accused appearing at the trial;
Excessive bail shall not be required.
After the accused is admitted to bail, the court may, upon
BAIL WHEN NOT REQUIRED good cause, either increase or reduce its amount.
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.

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.
APPLICATION NOT A BAR TO OBJECTIONS IN

ILLEGAL ARREST, LACK OF OR IRREGULAR RIGHTS OF THE ACCUSED (RULE115)
PRELIMINARY INVESTIGATION
RIGHTS OF ACCUSED AT THE TRIAL
The posting of the bail does not constitute a waiver of any
question on the irregularity attending the arrest of person.
He can still question the same before arraignment, 1) To be PRESUMED INNOCENT until the contrary
otherwise, the right to question it is deemed waived. is proved beyond reasonable doubt.
2) To be INFORMED OF THE NATURE AND
An application for or admission to bail shall not bar the CAUSE OF THE ACCUSATION against him.
accused from challenging the validity of his arrest or the 3) To be PRESENT AND DEFEND IN PERSON
legality of the warrant issued therefor, or from assailing AND BY COUNSEL AT EVERY STAGE OF THE
the regularity or questioning the absence of a preliminary PROCEEDINGS, from arraignment to promulgation
investigation of the charge against him, provided that he of the judgment.
raises them before entering his plea. 4) To TESTIFY AS A WITNESS IN HIS OWN
BEHALF but subject to cross-examination on
The arraignment of an accused is not a prerequisite to the matters covered by direct examination. His silence
conduct of hearings on his petition for bail. A person is shall not in any manner prejudice him;
allowed to petition for bail as soon as he is deprived of his 5) To be EXEMPT FROM BEING COMPELLED TO
liberty by virtue of his arrest or voluntary surrender. Bail BE A WITNESS AGAINST HIMSELF.
should be granted before arraignment; otherwise the 6) To CONFRONT AND CROSS-EXAMINE THE
accused may be precluded from filing a motion to quash. WITNESSES against him at the trial.
7) To have COMPULSORY PROCESS issued to
HOLD DEPARTURE ORDER & BUREAU OF secure the attendance of witnesses and production of
other evidence in his behalf.
IMMIGRATION WATCHLIST
8) To have SPEEDY, IMPARTIAL AND PUBLIC
TRIAL.
Supreme Court Cir. No. 39-97 dated June 19, 1997 limits the
9) To appeal in all cases allowed and in the manner
authority to issue hold departure orders to the RTCs in prescribed by law.
criminal cases within their exclusive jurisdiction.
Consequently, MTC judges have no authority to issue
RIGHTS OF PERSONS UNDER CUSTODIAL
hold-departure orders; neither does it has authority to
INVESTIGATION
cancel one which he issued.
1) To be informed of his rights to remain silent and to
A court has the power to prohibit a person admitted to
have competent and independent counsel preferably
bail from leaving the Philippines. This is necessary
of his own choice. If the person cannot afford the
consequence of the nature and function of a bail bond.
services of counsel, he must be provided with one.
Where it appears that the accused had the propensity to
These rights cannot be waived except in writing and
evade or disobey lawful orders, the issuance of a hold
in the presence of counsel;
departure order is warranted.
2) No torture, force, violence, intimidation or any other
The secretary of justice may issue a watchlist order in means which vitiate the free will shall be used against
the following circumstances: him. Secret detention places, solitary,

incommunicado, or other similar forms of detention 1) Special counsel, private or public prosecutor,
are prohibited; counsel of the police, or a municipal
3) Any confession or admission in violation of Self- attorney whose interest is adverse to that of
Incrimination Clause shall be inadmissible in the accused;
evidence against him; 2) a mayor, unless the accused approaches him
4) The law shall provide for penal and civil sanctions as as counselor or adviser;
well as compensation to aid rehabilitation of victims 3) a barangay captain;
of torture or similar practice, and their families. 4) any other whose interest may be adverse to
that of the accused.
UNDER RA 7834
c) The right to be informed of his rights — the right
The following are the rights of persons arrested, detained guaranteed here is more than what is shown in
or under custodial investigation: television shows where the police routinely reads out
1) To be assisted by counsel at all times; the rights from a note card; he must also explain their
2) Shall be informed , in a language known to and effects in practical terms.
understood by him, of his right to remain silent
and to have competent and independent counsel, CUSTODIAL INVESTIGATION
preferably of his own choice, who shall at all
times be allowed to confer privately with him; The right to custodial investigation begins only when the
3) The custodial investigation report shall be read investigation is no longer a general inquiry into an
and adequately explained to him by his counsel unsolved crime but has begun to focus on a particular
or by the assisting counsel in the language or suspect, the suspect has been taken into police custody,
dialect known him; otherwise, such investigation the police carry out a process of interrogations that lends
report shall be null and void; itself to eliciting incriminating statements.
4) Any extrajudicial confession made by him shall
be in writing and signed in the presence of his It has extended to situations in which an individual has
counsel or upon a valid waiver, and in the not been formally arrested but has merely been “invited”
presence of his any immediate family members, for questioning.
otherwise, such extrajudicial confession shall be
inadmissible in any proceeding;
5) Any waiver under the provisions of Art. 125 of the ARRAIGNMENT AND PLEA (RULE 116)
RPC or under custodial investigation, shall be in
writing signed by such person in the presence of
It is the mode of implementing the constitutional right to
his counsel; otherwise such waiver shall be null
be informed of the nature of the accusation against him,
and void and of no effect;
and to fix the identity of the accused.
6) Shall be allowed visits by his or conferences with
any member of his immediate family, or any
SOME RULES ON ARRAIGNMENT:
medical doctor or priest or religious minister
chosen by him or by his counsel, or by any a) Trial in absentia is allowed only after
national NGO duly accredited by the Office of arraignment;
the President. b) Judgment is generally void if the accused has not
been arraigned;
THREE RIGHTS ARE MADE AVAILABLE c) There can be no arraignment in absentia;
d) If the accused went to trial without arraignment,
BY SEC. 12(1):
but his counsel had the opportunity to cross-
examine the witnesses of the prosecution and
a) The right to remain silent after prosecution, he was arraigned, the defect
ü Under the right against self-incrimination in was cured.
Sec. 17, only an accused has the absolute
right to remain silent. A person who is not ARRAIGNMENT AND PLEA, HOW MADE
an accused may assume the stance of silence
only when asked an incriminatory question.
a) The accused must be arraigned before the court
ü Under Sec. 12, however, a person under
where the complaint or information was filed or
investigation has the right to refuse to
assigned for trial. The arraignment shall be made in
answer any question. His silence, moreover,
open court by the judge or clerk by furnishing the
may not be used against him.
accused with a copy of the complaint or information,
reading the same in the language or dialect known to
b) The right to counsel — Example of those who are not
him, and asking him whether he pleads guilty or not
impartial counsel are:
guilty.

b) When the accused is under preventive detention, his OFFENSE, WHAT THE COURT SHOULD DO
case shall be raffled and its records transmitted to the
judge to whom the case was raffled within three (3) The court should accomplish three (3) things;
days from the filing of the information or complaint. 1) It should conduct searching inquiry into the
The accused shall be arraigned within ten (10) days voluntariness and full comprehension of the
from the date of the raffle. The pre-trial conference of consequences of the plea;
his case shall be held within ten (10) days after 2) It should require the prosecution to prove the
arraignment. guilt of the accused and the precise degree of
c) The private offended party shall be required to appear culpability; and
at the arraignment for purposes of plea-bargaining, 3) It should inquire whether or not the accused
determination of civil liability, and other matters wishes to present evidence on his behalf and
requiring his presence. In case of failure of the allow him if he so desires.
offended party to appear despite due notice, the court
may allow the accused to enter a plea of guilty to a SEARCHING INQUIRY
lesser offense which is necessarily included in the
offense charged with the conformity of the trial Searching question means more than informing cursorily
prosecutor alone. the accused that he faces a jail term. It also includes the
d) The arraignment shall be held within thirty (30) days exact lengthy of imprisonment under the law and the
from the date the court acquires jurisdiction over the certainty that he will serve at the national penitentiary or
person of the accused. The time of the pendency of a a penal colony.
motion to quash or for a bill of particulars or other
causes justifying suspension of the arraignment shall It is intended to undermine the degree of culpability of
be excluded in computing the period. the accused in order that the court may be guided in
determining the proper penalty.
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED IMPROVIDENT PLEA
a) The accused so pleaded; ð It is a plea without information as to all the

b) When he refuses to plead; circumstances affecting it; based upon a mistaken
c) Where in admitting the act charged, he sets up assumption or misleading information or advise.
matters of defense or with a lawful justification; ð Conviction based on an improvident plea of guilty
d) When he enters a conditional plea of guilt; may set aside only when such plea is the sole basis of
e) Where, after a plea of guilt, he introduces the judgment.
evidence of self-defense or other exculpatory ð At any time before the judgment of conviction
circumstances ; and becomes final, the court may permit the withdrawal
f) When the plea is indefinite or ambiguous. of an improvident plea of guilty, to be substituted by
a plea of not guilty, even after judgment has been
WHEN MAY AN ACCUSED ENTER A PLEA OF promulgated but before the same becomes final.
GUILTY TO A LESSER OFFENSE ð A plea of not guilty can likewise be withdrawn so
that the accused may instead plead guilty to the same
AT ARRAIGNMENT, the accused, with the consent of offense, but for obvious reasons, this must be done
the offended party and the prosecutor, may be allowed by before promulgation of judgment.
the trial court to plead guilty to a lesser offense which is ð When the accused pleads guilty but presents
necessarily included in the offense charged. exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered
AFTER ARRAIGNMENT BUT BEFORE TRIAL, the for him.
accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No GROUNDS FOR SUSPENSION OF
amendment of the complaint or information is necessary. ARRAIGNMENT
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.

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.
MOTION TO QUASH DEMURER TO EVIDENCE

Rule 117 Section 23, Rule 119
When filed At any time before accused enters plea After the prosecution rests its case
Grounds a) That the facts charged do not constitute an
offense; ü Insufficiency of evidence
b) That the court trying the case has no jurisdiction
over the offense charged;
c) That the court trying the case has no jurisdiction
over the person of the accused;
d) That the officer who filed the information had no
authority to do so;
e) That it does not conform substantially to the
prescribed form;
f) That more than one offense is charged except
when a single punishment for various offenses is
prescribed by law;
g) That the criminal action or liability has been
extinguished;
h) That it contains averments which, if true, would
constitute a legal excuse or justification; and
i) That the accused has been previously convicted or
acquitted of the offense charged, or the case

against him was dismissed or otherwise
terminated without his express consent.
Effect if granted • If the motion to quash is sustained, the court may • If leave of court is granted, the
order that another complaint or information be accused shall file the demurrer to
filed except as provided in section 6 of this rule. evidence within a non-extendible
Ø If the order is made, the accused, if in period of ten (10) days from
custody, shall not be discharged unless notice.
admitted to bail. • The prosecution may oppose the
Ø If no order is made or if having been made, no demurrer to evidence within 10
new information is filed within the time days from receipt of the motion.
specified in the order or within such further
time as the court may allow for good cause,
the accused, if in custody, shall be discharged
unless he is also in custody of another charge.
• The remedy of prosecution is to amend the
information to correct the defects thereof, except
on the grounds of (g) and (j); of the prosecution
may appeal the quashal of information or
complaint
Effect if denied The usual course to take is for the accused to proceed • An accused who files a demurrer to
with trial, and in case of conviction, to appeal evidence with leave of court does not
therefrom and assign as error the denial of the motion lose the right to present evidence in
to quash, the event his motion is denied.
• On the other hand, if he files the
demurrer without leave of court and
the same is denied, he loses the right
to present evidence, in which event
the case will be deemed submitted for
decision.
Remedies if The order denying the motion to quash is interlocutory The order denying the motion for leave of
denied and therefore not appealable, nor can it be the subject court to file demurrer to evidence or to
of a petition for certiorari. demur itself shall not be reviewable by
appeal or certiorari before judgment.
A special civil action may lie against an order of

denial of a motion to quash, as an exception to the EFFECTS OF SUSTAINING THE MOTION TO
general rule, in any of the following instances: QUASH
a) Where there is necessity to afford protection
to the constitutional rights of the accused; If the motion to quash is sustained, the court may order
b) When necessary for the orderly that another complaint or information be filed except as
administration of justice or to avoid provided in section 6 of this rule.
oppression or multiplicity of actions; a) If the order is made, the accused, if in custody,
c) Where there is prejudicial question which is shall not be discharged unless admitted to bail.
sub judice; b) If no order is made or if having been made, no
d) When the acts of the officer are without or in new information is filed within the time specified
excess of authority; in the order or within such further time as the
e) Where the prosecution is under an invalid court may allow for good cause, the accused, if
law, ordinance or regulation; in custody, shall be discharged unless he is also
f) When double jeopardy is clearly apparent; in custody of another charge.
g) Where the court has no jurisdiction over the
offense; EXCEPTION TO THE RULE THAT SUSTAINING
h) Where it is a case of persecution rather than THE MOTION IS NOT A BAR TO ANOTHER
prosecution; PROSECUTION
i) Where the charges are manifestly false and
motivated by the lust for vengeance; 1) An order sustaining the motion to quash is not a bar
j) When there is clearly no prima facie case to another prosecution for the same offense unless the
against the accused; and motion was based on the grounds specified in Sec.
k) To avoid multiplicity of actions. 3(g) and (i) – that the criminal action or liability has

been extinguished and that the accused has been 1) A case shall not be provisionally dismissed except
previously convicted or in jeopardy of being with the express consent of the accused and with
convicted, or acquitted of the offense charged. notice to the offended party.
2) An order denying a motion to quash is interlocutory 2) The provisional dismissal of offenses punishable by
and not appealable and generally, such denial cannot imprisonment not exceeding six (6) years or a fine of
be controlled by certiorari; and the denial of a motion any amount, or both, shall become permanent one
to quash grounded on double jeopardy is not (1) year after issuance of the order without the case
controllable by mandamus having been revived.
3) With respect to offenses punishable by imprisonment
DOUBLE JEOPARDY of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance
No person shall be twice put in jeopardy of punishment of the order without the case having been revived.
for the same offense. If an act is punished by a law and an 4) The raison d‘etre for the requirement of the express
ordinance, conviction or acquittal under either shall consent of the accused to a provisional dismissal of a
constitute a bar to another prosecution for the same act criminal case is to bar him from subsequently
(Sec. 21, Art. III, Constitution). asserting that the revival of the criminal case will
place him in double jeopardy for the same offense or
The requirements of double jeopardy are: for an offense necessarily included therein.
a) Valid indictment;
b) Competent court; PRE-TRIAL (RULE 118)
c) Valid arraignment;
d) Valid plea entered; The court shall, after arraignment and within thirty (30)
e) Case is dismissed or terminated without the days from the date the court acquires jurisdiction over the
express consent of the accused. person of the accused, unless a shorter period is, order a
pre-trial conference. Its main objective is to achieve an
When an accused has been convicted or acquitted, or the expeditious resolution of the case.
case against him dismissed or otherwise terminated
WITHOUT HIS EXPRESS CONSENT by a court of MATTERS TO BE CONSIDERED DURING PRE
competent jurisdiction, upon a valid complaint or TRIAL
information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused 1) plea bargaining;
had pleaded to the charge, the conviction or acquittal of 2) stipulation of facts;
the accused or the dismissal of the case shall be a bar to 3) marking for identification of evidence of the
another prosecution for the offense charged, or for any parties;
attempt to commit the same or frustration thereof, or for 4) waiver of objections to admissibility of evidence;
any offense which necessarily includes or is necessarily 5) modification of the order of trial if the accused
included in the offense charged in the former complaint admits the charge but interposes a lawful
or information. defense; and
6) such matters as will promote a fair and
However, the conviction of the accused shall not be a bar expeditious trial of the criminal and civil aspects
to another prosecution for an offense which necessarily of the
includes the offense charged in the former complaint or
information under any of the following instances: WHAT THE COURT SHOULD DO WHEN
1) the graver offense developed due to supervening PROSECUTION AND OFFENDED PARTY AGREE
facts arising from the same act or omission TO THE PLEA OFFERED BY THE ACCUSED
constituting the former charge;
2) the facts constituting the graver charge became
The agreements shall be approved by the court. Provided
known or were discovered only after a plea was
that the agreement on the plea of the accused should be to
entered in the former complaint or information;
a lesser offense necessarily included in the offense
or
charged.
3) the plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
PRE-TRIAL AGREEMENT
offended party except as provided in section 1(f)
of Rule 116.
All agreements or admissions made or entered during the
PROVISIONAL DISMISSAL pre-trial conference shall be reduced in writing and signed
by the accused and counsel; otherwise, they cannot be
used against the accused.

NON-APPEARANCE DURING PRE-TRIAL 9) All civil cases involving title to or possession of
real property or an interest therein brought on
If the counsel for the accused or the prosecutor does not appeal from the exclusive and original
appear at the pre-trial conference and does not offer an jurisdiction granted to the first level courts; and
acceptable excuse for his lack of cooperation, the court 10) All habeas corpus cases decided by the first level
may impose proper sanctions or penalties. courts in the absence of the Regional Trial Court
judge, that are brought up on appeal from the
PRE-TRIAL ORDER special jurisdiction granted to the first level
courts.
After the pre-trial conference, the court shall issue an
order reciting the actions taken, the facts stipulated, and The following CASES SHALL NOT BE REFERRED
evidence marked. Such order shall bind the parties, limit TO CAM AND JDR:
the trial to matters not disposed of, and control the course 1) Civil cases which by law cannot be
of the action during the trial, unless modified by the court compromised;
to prevent manifest injustice. 2) Other criminal cases not covered under
paragraphs 3 to 6 above;
3) Habeas Corpus petitions;
REFERRAL OF SOME CASES FOR COURT 4) All cases under Republic Act No. 9262 (Violence
ANNEXED AND MEDIATION AND JUDICIAL against Women and Children); and
DISPUTE RESOLUTION (AM 11-1-6-SC PHILJA) 5) Cases with pending application for Restraining
Orders/Preliminary Injunctions.
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;

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.

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)
Evidence adduced in support of the discharge shall

Judgment means the adjudication by the court that the
automatically form part of the trial. If the court denies the
accused is guilty or is not guilty of the offense charged,
motion for discharge of the accused as state witness, his
and the imposition of the proper penalty and civil liability
sworn statement shall be inadmissible in evidence.
provided for by law on the accused.
EFFECTS OF DISCHARGE OF ACCUSED AS
Memorandum decision is one in which the appellate
STATE WITNESS court may adopt by reference, the findings of facts and
conclusions of law contained in the decision appealed
The order shall amount to an acquittal of the discharged from.
accused and shall be a bar to future prosecution for the
same offense, unless: REQUISITES OF A JUDGMENT
a) The accused fails or refuses to testify against his
co-accused in accordance with his sworn
statement constituting the basis for his discharge.

It must be written in the official language, personally and because he jumped bail or escaped from prison, the notice
directly prepared by the judge and signed by him and to him shall be served at his last known address.
shall contain clearly and distinctly a statement of the facts
and the law upon which it is based. In case the accused fails to appear at the scheduled date
of promulgation of judgment despite notice, the
CONTENTS OF JUDGMENT promulgation shall be made by recording the judgment in
the criminal docket and serving him a copy thereof at his
If the judgment is of conviction, it shall state: last known address or thru his counsel.
1) the legal qualification of the offense constituted
by the acts committed by the accused and the If the judgment is for conviction and the failure of the
aggravating or mitigating circumstances which accused to appear was without justifiable cause, he shall
attended its commission; lose the remedies available in these rules against the
2) the participation of the accused in the offense, judgment and the court shall order his arrest. Within
whether as principal, accomplice, or accessory fifteen (15) days from promulgation of judgment,
after the fact; however, the accused may surrender and file a motion for
3) the penalty imposed upon the accused; and leave of court to avail of these remedies. He shall state the
4) the civil liability or damages caused by his reasons for his absence at the scheduled promulgation
wrongful act or omission to be recovered from and if he proves that his absence was for a justifiable
the accused by the offended party, if there is any, cause, he shall be allowed to avail of said remedies within
unless the enforcement of the civil liability by a fifteen (15) days from notice.
separate civil action has been reserved or waived.
WHEN DOES JUDGMENT BECOME FINAL
In case the judgment is of acquittal, it shall state whether (FOUR INSTANCES)
the evidence of the prosecution absolutely failed to prove
the guilt of the accused or merely failed to prove his guilt a) After the lapse of the period for perfecting an
beyond reasonable doubt. In either case, the judgment appeal;
shall determine if the act or omission from which the civil b) When the sentence has been partially or totally
liability might arise did not exist. satisfied or served;
c) When the accused has waived in writing his right
PROMULGATION OF JUDGMENT; INSTANCES to appeal; or
OF PROMULGATION OF JUDGMENT IN d) Has applied for probation.
ABSENTIA
MNT OR MR IN MNT OR MR IN
The judgment is promulgated by reading it in the CRIMINAL CASES CIVIL CASES
presence of the accused and any judge of the court in Either on motion of Must be upon motion of
which it was rendered. However, if the conviction is for a accused, or the court a party, can’t be motu
light offense, the judgment may be pronounced in the motu proprio with proprio
presence of his counsel or representative. When the judge consent of the accused
is absent or outside the province or city, the judgment Grounds for MNT – errors Grounds for MNT –
may be promulgated by the clerk of court. of law or irregularities FAME, or newly
committed during the discovered evidence
If the accused is confined or detained in another province trial, or newly discovered
or city, the judgment may be promulgated by the evidence
executive judge of the Regional Trial Court having Ground for MR – error of Grounds for MR –
jurisdiction over the place of confinement or detention law or fact Excessive damages,
upon request of the court which rendered the judgment. insufficient evidence, or
The court promulgating the judgment shall have decision is contrary to
authority to accept the notice of appeal and to approve law
the bail bond pending appeal; provided, that if the Filed any time before Filed within the period
decision of the trial court convicting the accused changed judgment of conviction for taking an appeal
the nature of the offense from non-bailable to bailable, the becomes final
application for bail can only be filed and resolved by the Should include all the
appellate court. grounds then available
and those not so
The proper clerk of court shall give notice to the accused included shall be deemed
personally or through his bondsman or warden and waived.
counsel, requiring him to be present at the promulgation When granted, the There may be partial
of the decision. If the accused was tried in absentia original judgment is grant
always set aside or

vacated and a new This rule was adopted TO STANDARDIZE THE
judgment rendered APPEAL PERIODS provided in the Rules to afford fair
opportunity to review the case and, in the process,
minimize errors of judgment. Obviously, the new 15 day
GROUNDS FOR NEW TRIAL period may be availed of only if either motion is filed and was
denied; otherwise, the decision becomes final and executory after
a) That errors of law or irregularities prejudicial to the the lapse of the original appeal period provided in Rule 41
substantial rights of the accused have been
committed during the trial; If the motion is denied, the movants has a fresh period of
b) That new and material evidence has been discovered 15 days from receipt or notice of the order denying or
which the accused could not with reasonable dismissing the motion for reconsideration within which
diligence have discovered and produced at the trial to file a notice to appeal.
and which if introduced and admitted would
probably change the judgment. This fresh period rule applies only to Rule 41 governing
appeals from the RTC but also to Rule 40 governing
GROUNDS FOR RECONSIDERATION appeals from MTC to RTC, Rule 42 on petitions for
review from the RTC to the CA, Rule 43 on appeal from
The court shall grant reconsideration on the ground of quasi-judicial agencies to the CA, and Rule 45 governing
errors of law or fact in the judgment, which requires no appeals by certiorari to the SC.
further proceedings.
Neypes ruling shall not be applied where no motion for
REQUISITES BEFORE A NEW TRIAL MAY BE new trial or motion for reconsideration has been filed in
GRANTED ON GROUND OF NEWLY which case the 15-day period shall run from notice of the
DISCOVERED EVIDENCE judgment.
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

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).
SEARCH WARRANT (RULE 126) WARRANT OF ARREST (RULE 113)

A search warrant is an order in writing issued in the name Arrest is the taking of a person into custody in order
of the People of the Philippines, signed by a judge and that he may be bound to answer for the commission of
directed to a peace officer, commanding him to search for an offense (Sec. 1, Rule 113).
personal property described therein and bring it before the
court (Sec. 1, Rule 126).
Requisites: Requisites for arrest warrant issued by RTC judge under Sec.
A search warrant shall not issue except upon probable 5, Rule 112:
cause in connection with one specific offense to be a) Within 10 days from the filing of the complaint or
determined personally by the judge after examination information
under oath or affirmation of the complainant and the b) The judge shall personally evaluate the resolution
witness he may produce, and particularly describing the of the prosecutor and its supporting evidence.
place to be searched and the things to be seized which c) If he finds probable cause, he shall issue a warrant
may be anywhere in the Philippines (Sec. 4, Rule 126). of arrest

d) In case of doubt on the existence of probable cause
e) The judge may order the prosecutor to present
additional evidence within 5 days from notice; and
f) The issue must be resolved by the court within 30
days from the filing of the complaint of information
Search or seizure without warrant, when lawful: Arrest without warrant, when lawful:
1) Consented search; a) When, in his presence, the person to be arrested has
2) As an incident to a lawful arrest; committed, is actually committing, or is attempting
3) Searches of vessels and aircrafts for violation of to commit an offense;
immigration, customs and drug laws; b) When an offense has just been committed and he
4) Searches of moving vehicles; has probable cause to believe based on personal
5) Searches of automobiles at borders or constructive knowledge of facts or circumstances that the person
borders; to be arrested has committed it; and
6) Where the prohibited articles are in plain view; c) When the person to be arrested is a prisoner who
7) Searches of buildings and premises to enforce fire, has escaped from a penal establishment or place
sanitary and building regulations; where he is serving final judgment or is temporarily
8) “Stop and frisk” operations; confined while his case is pending, or has escaped
9) Exigent and emergency circumstances (in times of war while being transferred from one confinement to
and within the area of military operation) another (Sec. 5, Rule 113).
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.

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

3) the evidence must be immediately apparent; and
4) “plain view” justified mere seizure of evidence 10. EXIGENT AND EMERGENCY
without further search. CIRCUMSTANCES
6. STOP AND FRISK SITUATION

11. IN TERMS OF WAR WITHIN THE AREA OF
MILITARY OPERATION
A person who was carrying a bag and acting suspiciously
could be searched by police officers and the unlicensed
firearm seized inside the bag is admissible in evidence,
REMEDIES FROM UNLAWFUL SEARCH AND
being an incident of a lawful arrest.
SEIZURE
A person roaming around in a place where drug addicts
usually are found, whose eyes were red and who was A motion to quash a search warrant and/or to suppress
wobbling like a drunk, could be legally searched of his evidence obtained thereby may be filed in and acted upon
person and the illegal drug seized from him is admissible only by the court where the action has been instituted. If
in evidence against him. no criminal action has been instituted, the motion may be
filed in and resolved by the court that issued search
A stop and frisk serves a two-fold interest: warrant. However, if such court failed to resolve the
a) the general interest of effective criminal motion and a criminal case is subsequently filed in
protection and detection which underlie the another court, the motion shall be resolved by the latter
recognition that a police officer may, under court.
appropriate circumstances and in an appropriate
manner, approach a person for purposes of Alternative remedies of the accused adversely affected by
investigating possible criminal behavior even a search warrant are the following:
without probable cause; and 1) Motion to quash the search warrant with the
b) the more pressing interest of safety and self- issuing court; or
preservation which permit the police officer to 2) Motion suppress evidence with the court trying
take steps to assure himself that the person with the criminal case.
whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be The remedies are alternative, not cumulative. If the
used against him. motion to quash is denied, a motion to suppress cannot
be availed of subsequently. Replevin may also be proper
if the objects are legally possessed.
7. ENFORCEMENT OF CUSTOM LAWS
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.
KINDS OF PROVISIONAL REMEDIES

9. SEARCHES OF BUILDINGS AND PREMISES TO
ENFORCE FIRE, SANITARY AND BUILDING
ATTACHMENT
REGULATIONS

When the civil action is properly instituted in the criminal
action as provided in Rule 111, the offended party may
have the property of the accused attached as security for 2) In an action for money or property
the satisfaction of any judgment that may be recovered embezzled or fraudulently misapplied or
from the accused in the following cases: converted to his own use by a public officer,
1) When the accused is about to abscond from the or an officer or a corporation, or an attorney,
Philippines; factor, broker, agent, or clerk, in the course
2) When the criminal action is based on a claim for of his employment as such, or by any other
money or property embezzled or fraudulently person in a fiduciary capacity, or for a willful
misapplied or converted to the use of the accused violation of duty;
who is a public officer, officer of a corporation, 3) In an action to recover the possession of
attorney, factor, broker, agent or clerk, in the property unjustly or fraudulently taken,
course of his employment as such, or by any detained or converted, when the property, or
other person in a fiduciary capacity, or for a any part thereof, has been concealed,
willful violation of duty; removed, or disposed of to prevent its being
3) When the accused has concealed, removed, or found or taken by the applicant or an
disposed of his property, or is about to do so; and authorized person;
4) When the accused resides outside the 4) In an action against a party who has been
Philippines. guilty of a fraud in contracting the debt or
incurring the obligation upon which the
ð Rule 57 on preliminary attachment applies on the action is brought, or in the performance
procedure to secure an attachment in the cases thereof;
authorized under Rule 127. 5) In an action against a party who has
ð At the commencement of the action or at any time removed or disposed of his property, or is
before entry of judgment, a plaintiff or any proper about to do so, with intent to defraud his
party may have the property of the adverse party creditors; or
attached as security for the satisfaction of any 6) In an action against a party who does not
judgment that may be recovered in the following reside and is not found in the Philippines, or
cases: on whom summons may be served by
1) In an action for the recovery of a specified publication.
amount of money or damages, other than
moral and exemplary, on a cause of action
arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is
about to depart from the Philippines with
intent to defraud his creditors;
EVIDENCE (Rules 128 – 134)
CONCEPT OF EVIDENCE Evidence is also secured by resorting to modes of

discoveries, such as:
Evidence is the means, sanctioned by the Rules of Court, a) Taking of depositions of any person, oral or
of ascertaining in a judicial proceeding the truth written (Rule 23);
respecting a matter of fact. It is only a means of b) Serving of interrogatories to parties (Rule 25);
ascertaining the truth. This truth should depend upon the c) Serving of requests for admission by the adverse
evidence submitted in a court in accordance with the party (Rule 25);
rules. d) Production and inspection of documents (Rule
27); and
Generally, the manner of proving factual allegations is e) Examination of physical and mental conditions
through witnesses who are placed in the witness stand to of persons (Rule 28).
testify on what they personally know or to identify
relevant documents. They are presented voluntarily or A matter may also be proved by means of affidavit, such
through the coercive process of subpoena duces tecum. as in motions based on facts not appearing on record, in
cases covered by the Rules on Summary Procedure, and
those filed in administrative or quasi-judicial bodies.

SCOPE OF THE RULES OF EVIDENCE a) That it is relevant to the issue; and
b) That it is competent, that is, that it does not belong to
The rules of evidence are guided by the principle of that class of evidence which is excluded by the law or
uniformity. As a general policy, the rules of evidence shall the rules.
be the same in all courts and in all trials and hearings.
RELEVANCE OF EVIDENCE AND COLLATERAL
EVIDENCE IN CIVIL EVIDENCE IN MATTERS
CASES CRIMINAL CASES
The party having the The guilt of the accused Relevance - evidence must have such a relation to the fact
burden of proof must has to be proven beyond in issue as to induce belief in its existence or non-
prove his claim by a reasonable doubt. existence.
preponderance of
evidence. Collateral matters - evidence on collateral matters shall not
An offer of compromise is Except in cases of be allowed, except when it tends in any reasonable degree
not an admission of any criminal negligence or to establish the probability or improbability of the fact in
liability, and is not those allowed by law to issue or to corroborate or supplement facts established
admissible in evidence be compromised, an offer previously by direct evidence.
against the offeror. of compromise by the a) Prospectant collateral matters – those preceding
accused may be received of the fact in issue but pointing forward to it, like
in evidence as an implied moral character, motive, conspiracy;
admission of guilt. b) Concomitant collateral matters – those
Generally, there is no The accused enjoys the accompanying the fact in issue and pointing to it,
presumption for or against presumption of like alibi, or opportunity and incompatibility;
a party, except in some innocence. c) Retrospectant collateral matters – those
civil cases such as in a succeeding the fact in issue but pointing
contractual suit against backward to it, like flight and concealment,
the carrier, there exists a behavior of the accused upon being arrested,
presumption against the fingerprints or footprints, articles left at the scene
defendant. of the crime which may identify the culprit.
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

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.
In a criminal case, circumstantial evidence is sufficient for

conviction provided the following requisites concur: PRESUMPTIONS
1) There is more than one circumstances;
2) The facts from which the inferences are derived A presumption is an assumption of fact resulting from a
are proven; and rule of law which requires such fact to be assumed from
3) The combination of all the circumstances is such another fact or group of facts found or otherwise
as to produce a conviction beyond reasonable established in the action. It is not evidence in itself but it
doubt. is an assumption resulting from the evidence. They
merely affect the burden of offering evidence. In a sense,
POSITIVE AND NEGATIVE EVIDENCE it is an inference which is mandatory unless rebutted.
ð Testimony is positive when the witness affirms that a A. CONCLUSIVE PRESUMPTIONS

fact did or did not exist and is entitled to greater (JURIS ET DE JURE)
weight.
ð It is negative when he says that he did not see or It is conclusive when the presumption becomes
know of the factual occurrence. It is considered to be irrebuttable upon the presentation of the evidence tending
a very weak defense and can never overcome an to rebut the presumption is not admissible. This
affirmative or positive testimony particularly when it presumption is in reality a rule of substantive law.
comes from the mouth of a credible witness. Examples:
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.
COMPETENT CREDIBLE EVIDENCE

EVIDENCE B. DISPUTABLE PRESUMPTIONS
Competency is a question Credibility concerns the (JURIS TANTUM)
which arises before degree of credit to be
considering the evidence given to his testimony; It is disputable or rebuttable or it may be contradicted or
given by the witness; overcome by other evidence. When evidence that rebuts
Denotes the personal Denotes the veracity of the presumption is introduced, the force of the
qualification of the witness the testimony presumption disappears.

a) That a person is innocent of crime or wrong; C. PREPONDERANCE OF EVIDENCE
b) That an unlawful act was done with an unlawful
intent; ð required in civil cases
c) That a person intends the ordinary consequences ð that which is of greater weight or more convincing
of his voluntary act; than that which is offered in opposition to it;
d) That a person takes ordinary care of his synonymous with the terms “greater weight of
concerns; evidence” or “greater weight of credible evidence.” It
e) That evidence willfully suppressed would be means probably the truth. It is evidence which is
adverse if produced (Rule 131, Sec 3). more convincing to the court as worthy of belief than
that which is offered in opposition thereto.
LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE D. SUBSTANTIAL EVIDENCE
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
MATTERS OF JUDICIAL NOTICE

A. PROOF BEYOND REASONABLE DOUBT
There are matters which must be admitted without need
ð required for conviction of an accused in criminal case for evidence. All these matters which the court may take
ð the logical and inevitable result of the evidence on cognizance of without evidence are called matters of
record, exclusive of any other consideration, of the “judicial notice”.
moral certainty of the guilt of the accused or that
degree of proof which produces conviction in an The function of judicial notice is to abbreviate litigation
unprejudiced mind. It does not mean such degree of by the admission of matters that need no evidence. It
proof as, excluding possibility of error, produces takes the place of proof and is of equal force. It displaces
absolute certainty. Moral certainty only is required. evidence and fulfils the purpose for which the evidence is
designed to fulfil.
B. CLEAR AND CONVINCING EVIDENCE
a. MANDATORY – when the matter is subject to a
ð that measure or degree of proof which will produce mandatory judicial notice, no motion of hearing is
in the mind of the trier of facts a firm belief or necessary for the court to take judicial notice of a fact.
conviction as to the allegations sought to be These are:
established. a) the existence and territorial extent of states;
ð it is more than preponderance but not to the extent of b) the political history, forms of government and
such moral certainty as is required beyond reasonable symbols of nationality of states;
doubt as in criminal cases. It is often said that to c) the law of nations;
overcome a disputable presumption of law, clear and d) the admiralty and maritime courts of the world
convincing evidence is required (use to contradict the and their seals;
presumption of validity and regularity in favor of a notarial e) the political constitution and history of the
or public document; the law enforcers have regularly Philippines;
performed their duties requires that proof of frame-up; an f) the official acts of the legislative, executive and
accused who invokes self-defense). judicial departments of the Philippines;
g) the laws of nature;
This standard should be lower than proof beyond h) the measure of time; and
reasonable doubt but higher than preponderance of i) the geographical divisions.
evidence.

b. DISCRETIONARY - A court may take judicial notice
of matters: JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
a) which are of public knowledge; or NATIONS AND MUNICIPAL ORDINANCE
b) capable of unquestionable demonstration; or
c) ought to be known to judges because of their Foreign laws may not be taken judicial notice of and have
judicial functions. to be proven like any other fact by an official publication
or by a duly attested and authenticated copy thereof. It
The principles of discretionary judicial notice will apply must be alleged and proved. The provisions of the foreign law
here the following requisites are met: may also be the subject of judicial admission under Sec. 4, Rule
a) The matter must be of common knowledge; 129. Absent any of the foregoing evidence or admission, the
b) The matter must be settled beyond reasonable foreign law is presumed to the same as that in the Philippines,
doubt (if there is nay uncertainty about the under the so-called doctrine of processual presumption.
matter, then evidence must be adduced); and
c) The knowledge must exist within the jurisdiction However, the court may take judicial notice of the treatise
of the court. containing the foreign law.
JUDICIAL ADMISSIONS Law of nations is subject to mandatory judicial notice

under Sec. 1, Rule 129. Under the Philippine Constitution,
Judicial admissions are conclusive upon the party making the Philippines adopts the generally accepted principles of
them, while extrajudicial admissions or other admissions international law as part of the law of the land. They are
are, as a rule, and where the elements of estoppels are not therefore technically in the nature of local laws and hence, are
present, disputable and needs to be formally offered in subject to a mandatory judicial notice.
evidence.
MTCs must take judicial notice of municipal ordinances
Declaration of a party favorable to himself are not in force in the municipality in which they sit.
admissible as proof of the facts asserted.
RTCs should also take judicial notice of municipal
They may be express or implied, implied admissions by a ordinances in force in the municipalities within their
defendant of material facts alleged in a complaint include jurisdiction but only when so required by law. (i.e. the
1) keeping silent on such material facts, charter of City of Manila requires all courts sitting therein to
2) denying such material facts without setting forth take judicial notice of all ordinances passed by the city council.)
the matters upon which he relies to support his Such court must take judicial notice also of municipal
denial, and ordinances on appeal to it from the inferior court in
3) asserting lack of knowledge or information of the which the latter took judicial.
truth of the material allegations when the same is
plainly and necessarily within the knowledge of The CA may take judicial notice of municipal ordinances
defendant. because nothing in the Rules prohibits it from taking
cognizance of an ordinance which is capable of
EFFECT OF JUDICIAL ADMISSIONS unquestionable demonstration.
An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not RULES OF ADMISSIBILITY (RULE 130)
require proof. Under Sec. 4, Rule 129, the following are
the effects of judicial admissions:
OBJECT (REAL) EVIDENCE; NATURE OF
1) They do not require proof; and
OBJECT EVIDENCE
2) They cannot be contradicted because they are
conclusive upon the party making it.
ð Objects as evidence are those addressed to the senses
HOW JUDICIAL ADMISSIONS MAY BE of the court. When an object is relevant to the fact in
CONTRADICTED issue, it may be exhibited to, examined or viewed by
the court.
ð Real evidence is also called autoptic preference,
Judicial admissions can be contradicted:
which is inspection by the court of a thing itself and
1) That it was made through palpable mistake; or
its conditions, to enable the court to effectively
2) No such admission was in fact made. These
exercise its judicial power of receiving and weighing
exceptions may negate the admission. But before
the evidence. It is knowledge acquired by the court
the court may allow a party to relieve him of the effects
from inspection or by direct self-perception or
of admissions or to withdraw therefrom, he has to
autopsy of the evidence.
show, by proper motion, justifiable reason or palpable
mistake.

ð Physical evidence is evidence of the highest order. It The inspection may be made inside or outside the
speaks more eloquently than a hundred witnesses. courtroom. An inspection or view outside the courtroom
should be made in the presence of the parties or at least
REQUISITES FOR ADMISSIBILITY OF (REAL) with previous notice to them. It is error for the judge for
EVIDENCE example, to go alone to the land in question, or to the
place where the crime was committed and take a view
a) The object must be relevant to the fact in issue (to without the previous knowledge of the parties. Such
be relevant, the evidence must have a relationship to inspection or view is part of the trial since evidence is
the fact in issue); thereby being received.
b) The object must be competent (must not be
excluded by the rules); CHAIN OF CUSTODY IN RELATION TO
c) The object must be authenticated before it is SECTION 21 OF THE COMPREHENSIVE
admitted (it must be shown that it is the very thing DANGEROUS DRUGS ACT OF 2002
which is the subject matter of the suit);
d) The authentication must be made by a The purpose of chain of custody is to guaranty the
competent witness; and integrity of the physical evidence and to prevent the
e) The object must be formally offered in evidence. introduction of evidence which is not authentic.
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

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
MEANING OF DNA Post-conviction DNA testing may be available, without

need of prior court order, to the prosecution or any
DNA means deoxyribonucleic acid, which is the chain of person convicted by final and executory judgment
molecules found in every nucleated cell of the body. The provided that
totality of an individual’s DNA is unique for the a) a biological sample exists,
individual, except identical twins. b) such sample is relevant to the case, and
c) the testing would probably result in the
DNA evidence constitutes the totality of the DNA reversal or modification of the judgment of
profiles, results and other genetic information directly conviction.
generated from DNA testing of biological samples.
Remedy - The convict or the prosecution may file for a
DNA profile means genetic information derived from writ of habeas corpus in the court of origin if he results of
DNA testing of a biological sample obtained from a the post-conviction DNA testing are favorable to the
person, which biological sample is clearly identifiable as convict. In case the court, after due hearing finds the
originating from that person; petition to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the
DNA testing means verified and credible scientific convict, unless continued detention is justified for a
methods which include the extraction of DNA from lawful cause.
biological samples, the generation of DNA profiles and
the comparison of the information obtained from the ASSESSMENT OF PROBATIVE VALUE OF DNA
DNA testing of biological samples for the purpose of EVIDENCE AND ADMISSIBILITY

of statistical calculations used in comparing
The following are the guidelines to be used in assessing DNA profiles.
the probative value of the DNA evidence:
a) How the samples were collected; DOCUMENTARY EVIDENCE
b) How they were handled;
c) The possibility of contamination of the samples; Documentary evidence is evidence supplied by written
d) The procedure followed in analyzing the instruments, or derived from conventional symbols, such
samples; as letters, by which ideas are represented on material
e) Whether the proper standards and procedures substances; documents produced for the inspection of the
were followed in conducting the tests; and court or judge. It includes books, papers accounts and the
f) The qualification of the analyst who conducted like.
the test.
Documents as evidence consist of writing or any material
The determination of the probative value of the DNA (not only writing) containing letters, words, numbers,
evidence rests upon the sound judicial assessment taking figures, symbols or other modes of written expressions
into considerations the following matters: offered as proof of their contents.
a) The chair of custody, including how the
biological samples were collected, how they were REQUISITES FOR ADMISSIBILITY
handled, and the possibility of contamination of
the samples; a) The document must be relevant to the fact in
b) The DNA testing methodology, including the issue
procedure followed in analyzing the samples, the b) The document must be competent
advantages and disadvantages of the procedure, c) The document must be authenticated before it is
and compliance with the scientifically valid admitted
standards in conducting the tests; d) The authentication must be made by a
c) The forensic DNA laboratory, including competent witness; and
accreditation by any reputable standards-setting e) The document must be formally offered in
institution and the qualification of the analyst evidence.
who conducted the tests. If the laboratory is not
accredited, the relevant experience of the BEST EVIDENCE RULE
laboratory in forensic casework and credibility
shall be properly established; and
MEANING OF THE RULE
d) The reliability of the testing result, as herein after
provided.
It requires the highest grade of evidence obtainable to
The provisions of the Rules of Court concerning the prove a disputed fact. It cannot be invoked unless the
appreciation of evidence shall apply suppletorily. contents of writing is the subject of judicial inquiry, in
which case the best evidence is the original writing itself.
RULES ON EVALUATION OF RELIABILITY OF
THE DNA TESTING METHODOLOGY The best evidence refers to that which the law or the rules
consider as the best evidence to prove the fact in dispute.
The best evidence is the evidence which the case in its
In evaluating whether the DNA testing methodology is
nature is susceptible and which is within the power of the
reliable, the court shall consider the following:
a) The falsifiability of the principles or methods party to produce. Evidence cannot be received which
used, that is, whether the theory or technique can indicates on its face that it is secondary, that is, merely
be and has been tested; substitutionary in its nature, and that the original source
b) The subjection to peer review and publication of of information is in existence and accessible. The
the principles or methods; underlying purpose is the prevention of fraud.
c) The general acceptance of the principles or
methods by the relevant scientific community; WHEN APPLICABLE
d) The existence and maintenance of standards and
controls to ensure the correctness of data When the subject of inquiry is the contents of a
generated; document, no evidence shall be admissible other than the
e) The existence of an appropriate reference original document itself, except in the following cases:
population database; and a) When the original has been lost or destroyed, or
f) The general degree of confidence attributed to cannot be produced in court, without bad faith
mathematical calculations used in comparing on the part of the offeror;
DNA profiles and the significance and limitation b) When the original is in the custody or under the
control of the party against whom the evidence is

offered, and the latter fails to produce it after When original document is unavailable - When the
reasonable notice; original document has been lost or destroyed, or cannot
c) When the original consists of numerous accounts be produced in court, the offeror, upon proof of its
or other documents which cannot be examined execution or existence and the cause of its unavailability
in court without great loss of time and the fact without bad faith on his part, may prove its contents by a
sought to be established from them is only the copy, or by a recital of its contents in some authentic
general result of the whole; and document, or by the testimony of witnesses in the order
d) When the original is a public record in the stated.
custody of a public officer or is recorded in a
public office. When original document is in adverse party's custody
ð It applies only to documentary evidence. or control - If the document is in the custody or under the
control of the adverse party, he must have reasonable
MEANING OF ORIGINAL notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the
The original does not necessarily mean the one first document, secondary evidence may be presented as in the
written; its meaning is relative only to the particular issue. case of its loss.
The original is the document whose contents are to be
proved. Evidence admissible when original document is a public
record - When the original of a document is in the
Sec. 4, Rule 130 has clarified what constitutes the original custody of a public officer or is recorded in a public
of a document: office, its contents may be proved by a certified copy
a) The original of a document is one the contents of issued by the public officer in custody thereof.
which are the subject of inquiry;
b) When a document is in two or more copies
executed at or about the same time, with
identical contents, all such copies are equally RULES ON ELECTRONIC EVIDENCE
regarded as originals; and A.M. NO. 01-7-01-SC)
c) When an entry is repeated in the regular course
of business, one being copied from another at or
near the time of the transaction, all the entries
are likewise equally regarded as originals. MEANING OF ELECTRONIC EVIDENCE;
ELECTRONIC DATA MASSAGE
REQUISITES FOR INTRODUCTION OF
SECONDARY EVIDENCE ð Electronic evidence is that which use of electronic
data message as evidence.
ð Electronic data message refers to information
The offeror must satisfy first the requirements for laying
generated, sent, received or stored by electronic,
the basis for the presentation of secondary evidence.
optical or similar means.
Laying the basis involves explaining to the satisfaction of
ð Electronic documents as functional equivalent of
the court the reason for the inability to offer the original
paper-based documents. Whenever a rule of evidence
of the document, in the following:
to the term of writing, document, record, instrument,
1) The execution or existence of the original;
memorandum or any other form of writing, such
2) The loss and destruction of the original or its
term shall be deemed to include an electronic
nonproduction in court;
document.
3) Unavailability of the original is not due to bad
faith on the part of the offeror.
Electronic document refers to information or the
representation of information, data, figures, symbols or
If the offeror has successfully laid the basis for the
other modes of written expression, described or however
presentation of the secondary evidence, then the original
represented, by which a right is established or an
need not be presented. However, one must observe the
obligation extinguished, or by which a fact may be
order in which the secondary evidence is to be offered.
proved and affirmed, which is received, recorded,
This is because not every secondary evidence can be
transmitted, stored, processed, retrieved or produced
offered. The following order must therefore, be observed:
electronically. It includes digitally signed documents and
a) A copy of the original;
any print-out or output, readable by sight or other means,
b) If there is no copy, then a recital of its contents in
which accurately reflects the electronic data message or
some authentic document;
electronic document.
c) In default of hereof, by the testimony of
F The term “electronic document” may be used
witnesses in the order stated.
interchangeably with electronic data message.

PROBATIVE VALUE OF ELECTRONIC a) By evidence that it had been digitally signed by
DOCUMENTS OR EVIDENTIARY WEIGHT; the person purported to have signed the same;
METHOD OF PROOF b) By evidence that other appropriate security
procedures or devices as may be authorized by
An electronic document is admissible in evidence if it the Supreme Court or by law for authentication
complies with the rules on admissibility prescribed by the of electronic documents were applied to the
Rules and related laws and is authenticated in the manner document; or
prescribed by the Rules on Electronic Evidence. c) By other evidence showing its integrity and
reliability to the satisfaction of the judge.
In assessing the evidentiary weight of an electronic
document, the following factors may be considered: A document electronically notarized in accordance with
a) The reliability of the manner or method in which the rules promulgated by the Supreme Court shall be
it was generated, stored or communicated, considered as a public document and proved as a notarial
including but not limited to input and output document under the Rules of Court.
procedures, controls, tests and checks for
accuracy and reliability of the electronic data An electronic signature or a digital signature
message or document, in the light of all the authenticated in the manner prescribed hereunder is
circumstances as well as any relevant agreement; inadmissible in evidence as the functional equivalent of
b) The reliability of the manner in which its the signature or a person on a written document.
originator was identified;
c) The integrity of the information and An electronic signature may be authenticated in any of
communication system in which it is recorded or the following manners:
stored, including but not limited to the hardware a) By evidence that a method or process was
and computer programs or software used as well utilized to establish a digital signature and verify
as programming errors; the same;
d) The familiarity of the witness or the person who b) By any other means provided by law; or
made the entry with the communication and c) By any other means satisfactory to the judge as
information system; establishing the genuineness of the electronic
e) The nature and quality of the information which signature.
went into the communication and information
system upon which the electronic data message Upon the authentication of an electronic signature, it
or electronic document was based; or shall be presumed that:
f) Other factors which the court may consider as a) The electronic signature is that of the person to
affecting the accuracy or integrity of the whom it correlates;
electronic document or electronic data message. b) The electronic signature was affixed by that
person with the intention of authenticating or
METHOD OF PROOF: affidavit of evidence - All approving the electronic document to which it is
matters relating to the admissibility and evidentiary related or to indicate such person‘s consent to the
weight of an electronic document may be established by transaction embodied therein; and
an affidavit stating facts of direct personal knowledge of c) The methods or processes utilized to affix or
the affiant or based on authentic records. The affidavit verify the electronic signature without error or
must affirmatively show the competence of the affiant to fault.
testify on the matters contained therein.
Upon the authentication of a digital signature, it shall
METHOD OF PROOF: cross-examination of deponent be presumed, in addition to those mentioned in the
- The affiant shall be made to affirm the contents of the immediately preceding section, that:
affidavit in open court and may be cross-examined as a a) The information contained in a certificate is
matter of right by the adverse party. correct;
b) The digital signature was created during the
AUTHENTICATION OF ELECTRONIC operational period of a certificate;
DOCUMENTS AND ELECTRONIC SIGNATURES c) The message associated with a digital
signature has not been altered from the time
it was signed; and
The person seeking to introduce an electronic document
d) A certificate had been issued by the
in any legal proceeding has the burden of proving its
certification authority indicated therein.
authenticity.
ELECTRONIC DOCUMENTS AND THE
Before any private electronic document offered as
HEARSAY RULE
authentic is received in evidence, its authenticity must be
proved by any of the following means:

An electronic document shall be regarded as the Ephemeral electronic communication refers to telephone
equivalent of an original document under the Best conversations, text messages, chatroom sessions,
Evidence Rule if it is a printout or output readable by streaming audio, streaming video, and other electronic
sight or other means, shown to reflect the data accurately. forms of communication the evidence of which is not
recorded or retained.
When a document is in two or more copies executed at or
about the same time with identical contents, or is a
counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or PAROL EVIDENCE RULE (RULE 130)
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which accurately
reproduces the original, such copies or duplicates shall be APPLICATION OF THE PAROL EVIDENCE RULE
regarded as the equivalent of the original.
When the terms of an agreement have been reduced to
Notwithstanding the foregoing, copies or duplicates shall writing, it is considered as containing all the terms agreed
not be admissible to the same extent as the original if: upon, and there can be between the parties and their
a) A genuine question is raised as to the successors in interest, no evidence of such terms other
authenticity of the original; or than the contents of the written agreement.
b) In the circumstances it would be unjust or
inequitable to admit a copy in lieu of the It seeks to preserve what the parties have reduced in
original. writing and prohibits evidence alliunde or oral testimonial
evidence from being presented to vary the terms of, or
A memorandum, report, record or data compilation of add stipulations to, the written agreement. In other
acts, events, conditions, opinions, or diagnoses, made by words, any oral evidence of an agreement should be
electronic, optical or other similar means at or near the excluded when the existing agreement is already in
time of or from transmission or supply of regular course writing.
of conduct of a business activity, and such was the regular
practice to make the memorandum, report, record, or Oral testimony cannot prevail over a written agreement
data compilation by electronic, optical or similar means, of the parties, the purpose being to give stability to
all of which are shown by the testimony of the custodian written agreements and to remove the temptation and
or other qualified witnesses, is excepted from the rule on possibility of perjury, which would be afforded if parol
hearsay evidence. evidence were admissible.
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.

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.
MEANING OF AUTHENTICATION - Authentication HOW TO PROVE GENUINENESS OF A

is the process of evidencing the due execution and HANDWRITING
genuineness of a document. Evidence when presented in
court is not presumed authentic. The general rule The handwriting of a person may be proved by:
therefore is to prove its authenticity unless it is self- a) any witness who believes it to be the handwriting
authenticating. of such person because he has seen the person
write, or
PUBLIC VERSUS PRIVATE DOCUMENTS b) has seen writing purporting to be his upon which
the witness has acted or been charged, and has
For the purpose of their presentation evidence, thus acquired knowledge of the handwriting of
documents are either public or private. Public documents such person.
are:
a) The written official acts, or records of the official Evidence respecting the handwriting may also be given by
acts of the sovereign authority, official bodies a comparison, made by the witness or the court, with
and tribunals, and public officers, whether of the writings admitted or treated as genuine by the party
Philippines, or of a foreign country; against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge.

officer, if there be any, or if he be the clerk of a court
ð Note: The identification of handwriting should not having a seal, under the seal of such court.
rest, therefore, on the apparent similarity or
dissimilarity of one feature but should be based on PUBLIC RECORD OF A PRIVATE DOCUMENT
the examination of all the basic characteristics of the
handwriting under study. An authorized public record of a private document may
be proved by the original record, or by a copy thereof,
PUBLIC DOCUMENTS AS EVIDENCE attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody.
Public documents are:
a) The written official acts, or records of the official PROOF OF LACK OF RECORD
acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the A written statement signed by an officer having the
Philippines, or of a foreign country; custody of an official record or by his deputy that after
b) Documents acknowledged before a notary public diligent search no record or entry of a specified tenor is
except last wills and testaments; and found to exist in the records of his office, accompanied by
c) Public records, kept in the Philippines, of private a certificate as above provided, is admissible as evidence
documents required by law to be entered therein. that the records of his office contain no such record or
entry.
Public documents are of two classes:
a) Those issued by competent public officials by HOW A JUDICIAL RECORD IS IMPEACHED
reason of their office, and
b) Those executed by private individuals which are Any judicial record may be impeached by evidence of:
authenticated by notaries public. a) want of jurisdiction in the court or judicial
officer,
Documents consisting of entries in public records made in b) collusion between the parties, or
the performance of a duty by a public officer are prima c) fraud in the party offering the record, in respect
facie evidence of the facts therein stated. All other public to the proceedings
documents are evidence, even against a third person, of ð which must be clear, convincing and more than
the fact which gave rise to their execution and of the date merely preponderant, in order to overcome the
of the latter. presumption of regularity in the performance of
official duties and the presumption of regularity of
PROOF OF OFFICIAL RECORD judicial proceedings, and the burden of proof lies on
the part of the party who challenges the validity of
The record of public documents (official acts), when judicial records.
admissible for any purpose, may be evidenced
a) by an official publication thereof or PROOF OF NOTARIAL DOCUMENTS
b) by a copy attested by the officer having the legal
custody of the record, or by his deputy, and A document acknowledged before a notary public
accompanied, if the record is not kept in the becomes a public instrument and renders it admissible in
Philippines, with a certificate that such officer court without further proof of its authenticity.
has the custody.
HOW TO EXPLAIN ALTERATIONS IN A
If the office in which the record is kept is in a foreign DOCUMENT
country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, The party producing a document as genuine which has
or consular agent or by any officer in the foreign service been altered and appears to have been altered after its
of the Philippines stationed in the foreign country in execution, in a part material to the question in dispute,
which the record is kept, and authenticated by the seal of must account for the alteration.
his office.
He may show that the alteration was made by another,
ATTESTATION OF A COPY without his concurrence, or was made with the consent of
the parties affected by it, or was otherwise properly or
Whenever a copy of a document or record is attested for innocently made, or that the alteration did not change the
the purpose of evidence, the attestation must state, in meaning or language of the instrument. If he fails to do
substance, that the copy is a correct copy of the original, that the document shall not be admissible in evidence.
or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting DOCUMENTARY EVIDENCE IN AN

UNOFFICIAL LANGUAGE refers to the weight and the trustworthiness or reliability
of the testimony.
Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a DISQUALIFICATIONS OF WITNESSES
translation into English or Filipino. To avoid interruption
of proceedings, parties or their attorneys are directed to ABSOLUTE DISQUALIFICATION
have such translation prepared before trial.
a) Those who cannot perceive.
b) Those who can perceive but cannot make their
TESTIMONIAL EVIDENCE
perception known.
c) Mentally incapacity – Those whose mental
QUALIFICATIONS OF A WITNESS condition, at the time of their production for
examination, is such that they are incapable of
A prospective witness must show that he has the intelligently making known their perception to
following abilities: others.
1) To Observe – the testimonial quality of d) Mentally immaturity – Children whose mental
perception maturity is such as to render them incapable of
2) To Remember – the testimonial quality of perceiving the facts respecting which they are
memory examined and of relating them truthfully.
3) To Relate – the testimonial quality of narration e) Marital disqualification – During their
4) To Recognize a duty to tell the truth – the marriage, neither the husband nor the wife may
testimonial quality of sincerity. testify for or against the other without the
consent of the affected spouse, except in a civil
ð All persons who can perceive, and perceiving, can case by one against the other, or in a criminal
make known their perception to others, may be case for a crime committed by one against the
witnesses. Religious or political belief, interest in the other or the latter's direct descendants or
outcome of the case, or conviction of a crime unless ascendants.
otherwise provided by law, shall not be a ground for f) Parental and filial privilege -- No person may be
disqualification. compelled to testify against his parents, other
direct ascendants, children or other direct
ð Loss of the perceptive sense after the occurrence of descendants.
the fact does not affect the admissibility of the
testimony. RELATIVE DISQUALIFICATION
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;

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

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;

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

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.
private corporation or of a partnership or

Cross-examination of a witness is the absolute right, not a association which is an adverse party.
mere privilege, of the party against whom he is called; 6) In all stages of examination of a child if the same
and with regard to the accused, it is a right granted by the will further the interests of justice (Sec. 20, AM
Constitution. Sec. 14(2), Art. III thereof provides that the 004-07-SC).
accused shall enjoy the right to meet the witnesses face to
face. A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary to
LEADING AND MISLEADING QUESTIONS that which he has previously stated. It is not allowed
(SEC. 10, RULE 132) (Sec. 10). The adverse party should object thereto or
ask the court to expunge the answer from the records,
A question which suggests to the witness the answer if he has already given his answer.
which the examining party desires is a leading question.
It is not allowed, except: METHODS OF IMPEACHMENT OF ADVERSE
1) On cross examination; PARTY’S WITNESS
2) On Preliminary matters;
3) When there is difficulty in getting direct and To impeach means to call into question the veracity of
intelligible answers from a witness who is the witness’s testimony by means of evidence offered for
ignorant, or a child of tender years, or is of feeble that purpose, or by showing that the witness is unworthy
mind, or a deaf-mute; of belief. Impeachment is an allegation, supported by
4) Of an unwilling or hostile witness; or proof, that a witness who has been examined is unworthy
5) Of a witness who is an adverse party or an of credit.
officer, director, or managing agent of a public or

A witness be impeached by the party against whom he A witness cannot be impeached by evidence of
was called: contradictory or prior inconsistent statements until the
a) By contradictory evidence; proper foundation or predicate has been laid by the party
b) By evidence that his general reputation for truth, against whom said witness was called.
honesty, or integrity is bad; or
c) By evidence that he has made at other times Laying the predicate means that it is the duty of a party
statements inconsistent with his present trying to impugn the testimony of a witness by means of
testimony; prior or subsequent inconsistent statements, whether oral
d) But not by evidence of particular wrongful acts, or in writing, to give the witness a change to reconcile his
except that it may be shown by the examination conflicting declaration.
of the witness, or the record of the judgment, that
he has been convicted of an offense. Where no predicate is laid during the trial proof of
alleged inconsistent statements of the witness, whether
Other modes of impeachment aside from those provided verbal or written, cannot be admitted on objection of the
by the Rules are: adverse party, or be pointed out on appeal for the purpose
a) By producing the record of his conviction of an of destroying the credibility of the witness.
offense;
b) By showing improbability or unreasonableness of An exception to the rule requiring the laying of
testimony; foundation for the admissibility of evidence of
c) By showing bias, prejudice or hostility; inconsistent statements has been allowed in the case of
d) By prior acts or conduct inconsistent with his dying declarations.
testimony;
e) By showing social connections, occupation and EVIDENCE OF THE GOOD CHARACTER OF A
manner of living. WITNESS
f) By showing interest.
g) By showing intent and motive. Evidence of the good character of a witness is not
admissible until such character has been impeached. The
The party producing a witness is not allowed to impeach law presumes every person to be reputedly truthful until
his credibility. evidence shall have been produced to the contrary.
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

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.
RES INTER ALIOS ACTA RULE ADMISSION BY A CONSPIRATOR

Conspiracy exists when two or more persons come to an
Res inter alios acta alteri nocere debt means that "things agreement concerning the commission of a felony and
done to strangers ought not to injure those who are not decide to commit it. Once conspiracy is proven, the act of
parties to them” It has two branches, namely: one is the act of all. The statement therefore of one may
a) The rule that the rights of a party cannot be be admitted against the other co-conspirators as an
prejudiced by an act, declaration, or omission of exception to the rule of res inter alios acta.
another; and
b) The rule that evidence of previous conduct or For the exception to apply, the following requisites must
similar acts at one time is not admissible to prove concur:
that one did or did not do the same act at another 1) The declaration or act be made or done during
time. the existence of the conspiracy;
2) The declaration or act must relate to the
The rule has reference to extrajudicial declarations. conspiracy; and
Hence, statements made in open court by a witness 3) The conspiracy must be shown by evidence other
implicating persons aside from his own judicial than the declaration or act.
admissions are admissible as declarations from one who
has personal knowledge of the facts testified to. ADMISSION BY PRIVIES
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

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.

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.

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 common reputation must have been existing

ACT OR DECLARATION ABOUT PEDIGREE previous to the controversy.
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.

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.
Res gestae is from the Latin meaning “things done”. As

applied to a crime, res gestae means the complete
criminal transaction from its beginning or starting point ENTRIES IN THE COURSE OF BUSINESS
in the act of the accused until the end is reached.
Requisites for admissibility:
The general classes of declarations to which the term res a) Entries must have been made at or near the time
gestae is usually applied are (a) spontaneous statements, of the transaction to which they refer;
and (b) verbal acts. b) Entrant must have been in a position to know the
facts stated in the entries;
SPONTANEOUS VERBAL ACTS c) Entries must have been made by entrant in his
STATEMENTS professional capacity or in the performance of his
Statement or exclamation Utterances which duty;
made immediately after accompany some act or d) Entries were made in the ordinary or regular
some exciting occasion by conduct to which it is course of business of duties;
a participant or spectator desired to give a legal e) Entrant must be deceased or unable to testify.
and asserting the effect. When such act
circumstances of that has intrinsically no
ENTRIES IN OFFICIAL RECORDS
occasion as it is observed definite legal
by him. significance, or only an
ambiguous one, its legal Entries in official records made in the performance of his
purport or tenor may be duty by a public officer of the Philippines, or by a person
ascertained by in the performance of a duty specially enjoined by law,
considering the words are prima facie evidence of the facts therein stated.
accompanying it, and
these utterances thus
enter merely as verbal COMMERCIAL LISTS AND THE LIKE
part of the act.
The res gestae is the The res gestae is the Evidence of statements of matters of interest, to persons
startling occurrence equivocal act engaged in an occupation contained in a list, register,
Spontaneous exclamation Verbal act must be periodical, or other published compilation is admissible
may be prior to, contemporaneous with as tending to prove the truth of any relevant matter so
simultaneous with, or or must accompany the stated if that compilation is published for use by persons
subsequent to the startling equivocal act to be

engaged in that occupation and is generally used and a) Training and education;
relied upon by them therein. b) Particular, first-hand familiarity with the facts of
the case; and
c) Presentation of the authorities or standards upon
LEARNED TREATIES
which his opinion is based.
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:

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.
VIDEOTAPED DEPOSITION OF A CHILD

APPLICABILITY OF THE RULE WITNESS
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,

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.
The child witness shall be considered unavailable under OBJECTION

the following situations:
a) Is deceased, suffers from physical infirmity, lack ð Objection to evidence offered orally must be made
of memory, mental illness, or will be exposed to immediately after the offer is made.
sever psychological injury; or ð Objection to a question propounded in the course of
b) Is absent from the hearing and the proponent of the oral examination of a witness shall be made as
his statement has been unable to procure his soon as the grounds therefor shall become reasonably
attendance by process or other reasonable mean. apparent.
ð An offer of evidence in writing shall be objected to
When the child witness is unavailable, his hearsay within three (3) days after notice of the offer unless a
testimony shall be admitted only if corroborated by other different period is allowed by the court. In any case,
admissible evidence. the grounds for the objections must be specified.
ð Grounds for objection: Hearsay; Argumentative; Leading;
SEXUAL ABUSE SHIELD RULE Misleading; Incompetent; Irrelevant; Best evidence rule;
Parole evidence rule; Question has no basis
a) The following evidence is NOT ADMISSIBLE in REPETITION OF AN OBJECTION
any criminal proceeding involving alleged child
sexual abuse:
When it becomes reasonably apparent in the course of the
a. Evidence offered to prove that the alleged examination of a witness that the questions being
victim engaged in other sexual behavior; and
propounded are of the same class as those to which
b. Evidence offered to prove the sexual pre-
objection has been made, whether such objection was
disposition of the alleged victim.
sustained or overruled, it shall not be necessary to repeat
b) EXCEPTION: Evidence of specific instances of
the objection, it being sufficient for the adverse party to
sexual behavior by the alleged victim to prove that a
record his continuing objection to such class of questions.
person other than the accused was the source of
semen, injury, or other physical evidence shall be
RULING
admissible.
The ruling of the court must be given immediately after
PROTECTIVE ORDERS the objection is made, unless the court desires to take a
reasonable time to inform itself on the question presented;
Protection of privacy and safety - Any videotape or but the ruling shall always be made during the trial and at
audiotape of a child that is part of the court record shall such time as will give the party against whom it is made
be under a protective order. The court may, motu propio an opportunity to meet the situation presented by the
or on motion of any party, the child, his parents, legal ruling.
guardian, or the guardian ad litem, issue additional
orders to protect the privacy of the child. STRIKING OUT OF AN ANSWER
Should a witness answer the question before the adverse

party had the opportunity to voice fully its objection to
OFFER AND OBJECTION (RULE 132) the same, and such objection is found to be meritorious,
OFFER OF EVIDENCE the court shall sustain the objection and order the answer
given to be stricken off the record. On proper motion, the
court may also order the striking out of answers which
are incompetent, irrelevant, or otherwise improper.
The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is
offered must be specified. TENDER OF EXCLUDED EVIDENCE
ð If documents or things offered in evidence are
WHEN TO MAKE AN OFFER excluded by the court, the offeror may have the same
attached to or made part of the record.
ð testimony of a witness - the offer must be made at the ð If the evidence excluded is oral, the offeror may state
time the witness is called to testify. for the record the name and other personal
ð Documentary and object evidence shall be offered circumstances of the witness and the substance of the
after the presentation of a party's testimonial proposed testimony.

Note: Supreme Court Rulings as of December 2010 – ð This is without prejudice to the applicability of
included Sec. 4, Rule 18 if there are two or more
defendants.
PRELIMINARY CONFERENCE AND

REVISED RULES ON SUMMARY PROCEDURE APPEARANCES OF PARTIES
(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

other and the parties thereto agree to submit their WHEN PARTIES MAY DIRECTLY GO TO COURT
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.
The court in which non-criminal cases not falling within

the authority of the lupon under the Code are filed may, RULE OF PROCEDURE FOR SMALL CLAIMS
at any time before trial, motu propio refer the case to the CASES (AM No. 08-8-7-SC, as amended)
lupon concerned for amicable settlement.
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

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
ð No evidence shall be allowed during the hearing which was

not attached to or submitted together with the Claim, unless
a) Motion to dismiss the complaint; g) Petition for certiorari, mandamus, or prohibition
b) Motion for a bill of particulars; against any interlocutory order issued by the
c) Motion for new trial, or for reconsideration of a court;
judgment, or for reopening of trial; h) Motion to declare the defendant in default;
d) Petition for relief from judgment; i) Dilatory motions for postponement;
e) Motion for extension of time to file pleadings, j) Reply;
affidavits, or any other paper; k) Third-party complaints; and
f) Memoranda; l) Interventions.
the dispute and to enter into stipulations or admissions of

APPEARANCES facts and of documentary exhibits.
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.

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.

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

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
WRIT OF KALIKASAN (WOK)
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

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.

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:

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

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.
In applying the precautionary principle, the following

factors, among others, may be considered:
a) threats to human life or health;
b) inequity to present or future generations; or
c) prejudice to the environment without legal
consideration of the environmental rights of
those affected.
DOCUMENTARY EVIDENCE
Photographic, video and similar evidence of events, acts,

transaction of wildlife, wildlife by-products or derivatives,
forest products or mineral resources subject of a case shall
be admissible when authenticated by the person who took
the same, by some other person present when said
evidence was taken, or by any other person competent to
testify on the accuracy thereof.
Entries in official records made in the performance of his

duty by a public officer of the Philippines, or by a person
in performance of a duty especially enjoined by law, are
prima facie evidence of the facts therein stated.

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2011 Bar Examinations 1

BERT – NOTES in REMEDIAL LAW

SYLLABUS FOR 2011 BAR EXAMINATIONS

1) The rules shall provide a simplified and

Ø Rules of procedure of special courts and quasi-

ð Where substantial and important issues await

(b) Second Level (RTCs, Family Courts)

A court may also be considered general if it has the DOCTRINE OF NON-INTERFERENCE OR

CRIMINAL CASES EXCLUSIVE ORIGINAL JURISDICTION in petitions

CONCURRENT JURISDICTION 1) With Court of Appeals in petitions for certiorari,

JURISDICTION OF THE SANDIGANBAYAN CRIMINAL CASES

EXCLUSIVE ORIGINAL JURISDICTION

a) Cases involving devises or schemes employed by

4) All offenses (except violations of RA 3019, RA 1379 1st level courts:

Cases that can be files:

Real actions are based on the privity of real estates; while

The distinction between real action and personal action is

ORDINARY CIVIL ACTIONS, SPECIAL CIVIL LOCAL AND TRANSITORY ACTIONS

WHEN THE RULES ON VENUE DO NOT APPLY

C. COUNTERCLAIM 2. PERMISSIVE COUNTERCLAIM

G. REPLY The signature of counsel constitutes a certificate by him

PLEADING AN ACTIONABLE DOCUMENT An admission in a pleading cannot be controverted by the

EFFECT OF AN ORDER OF DEFAULT REMEDY AFTER JUDGMENT BECOMES FINAL

A litigated motion is one which requires the parties to be

PRE-TRIAL (Rule18) Notice of pre-trial is so important that it would be grave

Intervention is merely a collateral or accessory or SUBPOENA (Rule 21)

SUBPOENA AD TESTIFICANDUM – is a process QUASHING OF SUBPOENA

A deposition is the taking of the testimony of any person, SCOPE OF EXAMINATION

WRITTEN INTERROGATORIES TO ADVERSE CONSEQUENCES OF FAILURE TO ANSWER

CONSEQUENCES OF REFUSAL TO ANSWER Each of the matters of which an admission is requested

Objections to any request for admission shall be

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)

The court, on motion and notice, may:

If the parties agree to only some facts in issue, trial shall

TRIAL BY COMMISSIONERS (RULE 32)

Modes of consolidating cases: REFERENCE ORDERED ON MOTION

In civil case, if the demurrer is denied, the defendant may

EFFECT OF DENIAL; EFFECT OF GRANT JUDGMENT WITHOUT TRIAL

WHEN THE CASE NOT FULLY ADJUDICATED

DENIAL OF THE MOTION; EFFECT FRESH 15-DAY PERIOD RULE

PERFECTION OF APPEALS ð A party’s appeal by record on appeal is deemed

DIFFERENCE BETWEEN FINALITY OF A discretionary execution is called “discretionary”

DISCRETIONARY EXECUTION (SEC. 2) – b) Execution by MOTION may be had if the

d) ACCION REINVINDICATORIA b) By the redemptioner

EFFECT OF JUDGMENT OR FINAL ORDERS: RES

HOW TO PREVENT THE ATTACHMENT DEFINITIONS AND DIFFERENCES:

KINDS OF INJUNCTION 1) Upon showing of insufficiency of the application;

If a TRO is by the Court of Appeals or a member thereof, It is not available where

BAN OF TRO OR WRIT OF INJUNCTION IN SUMMARY/STAGES OF INJUNCTION

REQUISITES FOR INTERPLEADER

Bottomline: Decisions of quasi-judicial bodies are not

Rule 64 Rule 65 Certiorari is not and cannot be made a substitute for an

Exceptions to the rule that certiorari is not available when

CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ

To prevent an act by a respondent To compel an act desired

MANDAMUS QUO WARRANTO

CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION

PROHIBITION MANDAMUS INJUNCTION

RIGHTS OF PLAINTIFF UPON JUDGMENT AND FORECLOSURE OF REAL ESTATE MORTGAGE

After payment of the just compensation as determined in

JUDGMENT ON FORECLOSURE FOR PAYMENT SALE OF MORTGAGED PROPERTY; EFFECT

No independent action need be filed to recover the EQUITY OF RIGHT OF