Remedial Law civil cases, where parties can agree on venue or it can be subject to

waiver.
Bar 2011 Notes • Jurisdiction over the offense. This is essentially the same as
jurisdiction over subject matter.
Roland Glenn T. Tuazon
• Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Ateneo de Manila University
• Filing fees are not necessary.

TABLE OF CONTENTS:
• What is the definition of jurisdiction?
1. CIVIL PROCEDURE o The power of the court to hear, try, or decide the case
a. POST-JUDGMENT REMEDIES o As conferred by law
b. PROVISIONAL REMEDIES • How will the court know that it has jurisdiction?
c. SPECIAL CIVIL ACTIONS o From the allegations of the complaint.
2. CRIMINAL PROCEDURE o What if the defense interposes claims or defenses outside
3. EVIDENCE the jurisdiction of the court?
4. SPECIAL PROCEEDINGS  It does not divest the court of its jurisdiction;
5. ENVIRONMENTAL CASES otherwise, jurisdiction will be at the mercy of the
defense.
• Where do you take jurisdiction over the case?
PART I: CIVIL PROCEDURE o Conferred by law as well.
o Study BP 129, amended by RA 7691.
 Do not assume that RA 7691 tells all. There are other
Jurisdiction
laws too.
Stuff to take note of in jurisdiction: • Distinguish jurisdiction from venue:
o Jurisdiction is the power to hear and decide a case. Venue is
• What is the definition of jurisdiction? where the action is instituted and tried.
• Jurisdiction over the case or the subject matter? (Subject matter o Venue can be waived; jurisdiction, not.
jurisdiction) • Distinguish errors of jurisdiction from errors of judgment:
• Jurisdiction over the person or the defendant? o When a court takes cognizance of a case over the subject
• Know the rules on filing fees. matter of which it has no jurisdiction, it commits an error of
jurisdiction. It is reviewable by certiorari.
N.B. vis-à-vis for criminal cases: o When a court makes errors in the exercise of such jurisdiction,
it is just an error of judgment, reviewable by appeal.
• Definition – the same, as conferred by law, except you have to add that • What is the jurisdiction of the RTC?
venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in

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 o 1. Right/title/interest over real property, where value is: Value is
> 20K (OMM), > 50K (MM)
 Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
• MTC. Ejectment is always under MTC,
regardless of the claim over unpaid rentals.
 Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
• RTC, based on assessed value (not FMV)
which is over 50K. “Recovery of possession”
does not necessarily mean ejectment (ex.
Accion publiciana).
• Value is determined by assessed value if it
involves right, title, or interest
 Ouano case?
• There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
o 2. Amount incapable of pecuniary estimation
 Examples: rescission, reformation of contract, specific
performance
 Is expropriation capable of pecuniary estimation?
• Expropriation is always filed with the RTC.
Though the subject matter is capable of
pecuniary estimation, the action
exclusively instituted in the RTC.
 What about declaratory relief?
• RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality.
• There is no such thing as determination of
value; just a determination of validity.
 What about support?
• Even if its amount can be determined, the
law confers it to the Family Courts.
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 Foreclosure of mortgage?
• Two views: one says that it’s always with the
RTC, because it only covers the security of
the property. The original action is always
for recovery of money.
• The other view is that it must be governed by
the value of the security.
o 3. Family cases/marriage
 Includes support, annulment, nullity, etc.
o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K (OMM) or 400K
(MM)
 The original text gives lower values. When was it
adjusted?
• Original costs took effect March 25, 1994
• 1999 – adjusted OMM from 100K to 200K
• 2004 – adjusted both MM and OMM to 400K
and 300K respectively
 Always take note of the word “exceeding” so the exact
amount is for the lower court.
o 6. Probate of will, determination of inheritance – same amounts
 Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?
• No. The rules on summary procedure
is explicitly exclude probate proceedings.
 Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.
• So the “not exceeding 100K (OMM) and not
exceeding 200K (MM)” only applies for
summary proceedings. But it explicitly
excluded probate proceedings.
 What is the jurisdiction of the MTC over small
claims?
• Not exceeding 100K.
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 o 7. Admiralty cases – same amounts
o 8. All cases not within the exclusive jurisdiction of any court,
tribunal, person, or body exercising judicial or quasi-judicial
functions
• In determining the 300K/400K, can you include damages, interest,
attorney’s fees, litigation costs, etc?
o NO. Only limit the amount to the demand or the claim. The
“totality rule” only covers purely money claims, and does not
include incidental claims.
o But remember that there can be a principal action for damages,
in which the amount of damages claimed determines the
amount. This is not covered by RA 7691, this is covered by
95-9-94.
• Small claims
o What is the amount?
 Not exceeding 100K.
o Is there a distinction between OMM and MM in small
claims?
 No.
o What should be included in the 100K?
 The claim itself.
 Exclusive of damages
 What if the principal action is for damages?
• Does not apply. Actions for damages are not
covered by small claims actions, because
these have to be ascertained. These are not
akin to sum-of-money cases.
o Does it cover quasi-delicts?
 Yes. (Covers: fault/negligence, quasi-contract, or
contract)
o What if it arises from commission of an offense?
 Yes – for the civil aspect of such (fault/negligence).
 Just remember that when you file a criminal case, the
civil aspect is likewise filed (unless reserved, waived,
or filed ahead). So it cannot be the subject of small
claims.
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 BUT if it is filed ahead or reserved, then it can be the
subject of an action for small claims.
o What, therefore, are the actions covered by small claims?
 A. Money owed under:
• Contract of lease
• Contract of loan
• Contract for services
• Contract of sale
• Contract of mortgage
 B. Damages from:
• Fault or negligence
• Quasi-contract
• Contract
 C. Enforcement of a barangay amicable settlement
o Do you need a lawyer to file the complaint? Do you need
to prepare a regular complaint?
 No need for a lawyer. There is also a standard form
provided.
o What must be filed in the MTC to commence the claim?
 1. Accomplished and verified Statement of Claim
(Form 1-SCC)
 2. CNFS
 3. 2 photocopies of the actionable document
 4. Affidavits of witnesses and other evidence
 Is joinder allowed?
• Yes, as long as the aggregate amount
doesn’t exceed 100K
o What is the next step?
 1. Court may dismiss the small claim
 2. Otherwise, it issues summons on the same day
directing respondent to submit a verified response
 3. Court also issues a notice to both parties directing
them to appear for hearing on a specified date with
warning against unjustified postponement.
 4. Respondent submits verified response within 10
days from receipt of summons, with photocopies of
documents and affidavits of witnesses.
 • What if there is no response?
o Court grants the claim.
o But may reduce the amount of
damages claimed, if excessive.
o When is a counterclaim allowed – requisites?
 1. It is within the coverage of the small claims court,
exclusive of interests and costs
 2. Arises from the same transaction or event as
plaintiff’s claim
 3. Does not require joinder of third parties
 4. Not subject of another pending action
 What if the defendant fails to raise such
counterclaim?
• It is barred.
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
 This is still open for discussion, and is not yet clear.
 Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court and court of summary procedure.
o How is the hearing conducted?
 The judge first attempts to arrive at mediation,
conciliation, early neutral evaluation, or any mode of
JDR.
 Failing that, the JDR judge also proceeds to hearing,
which must terminate within 1 day.
• N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and
consuls
• What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
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o How do you know whether it’s ejectment/UD or claim over
real property or a title therein?
 If the issue is just possession, it’s E/UD. If it involves
rights of the parties to the property, then it’s not.
• What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment of RTC
 N.B. Its original jurisdiction is exclusive as regards
annulment of judgment of RTC
o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
• What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS –
 Actions against members of the Bar [concurrent with
IBP];
 actions against ambassadors, public ministers,
consuls, etc.;
 constitutionality of treaties, laws, proclamations, etc.;
 declaratory relief only when there is a question of
constitutionality
o Appellate:
 decision of CA, decision of CTA en banc, decision of
SB, decision of RTC on pure questions of law;
 REMEMBER this motherhood statement: the only
way to go up to the SC is for petition for review on
certiorari (RULE 45). This applies to civil and criminal
cases, except if the penalty in a criminal case is
death, RP, of life imprisonment.
• Jurisdiction over the person of the defendant:
o 1. Voluntary appearance
 By submitting to the jurisdiction of the court; ex.
Appearing in court or filing an answer or filing motion
 for extension of time without disputing the court’s
jurisdiction
o 2. Proper service of summons
 Rule 14
• Filing fees:
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?
 You include interest, damages, attorney’s fees etc. –
pay everything that you allege for court fees
 But for jurisdictional purposes, just the principal claim
o Rule #3:
 Sun Insurance
 Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o Rule #4:
 Alday v. FGU Insurance
 Permissive counterclaims require docket fees
• The claim does not arise from the principal
action, but involves the same parties. This
could easily have been filed separately.
 Compulsory counterclaims do not require docket fees
 BUT read Korean Technologies case of 2009 – this
is how you answer the question whether compulsory
counterclaims require filing fees
• From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.
• But in practice, based on an SC Resolution,
the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.
• Alday: Payment of filing fees for compulsory
counterclaims is not required. But you have
to take note of Korean Technologies now
o Lien on the judgment?
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 If there are damages granted to the complainant, but
there has been lack of payment of filing fees. The
payment of docket fees is a lien on the damages.
 Also applies if damages are awarded in the judgment
but not specified in the pleading.
 What if the claim has already ripened upon the
filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for
a lien on the judgment?
• Proton Pilipinas v. Banque Nacional
• There was a claim that has ripened but was
not included, and there were interests that
would ripen once the action is pending.
• SC said that a claim ripened during the
pendency of the case, it can be a lien on the
judgment.
• But if you did not allege it, the court cannot
grant an award because you did not pay
docket fees.
o What is the rule on deficient or insufficient payment of
filing fees?
 Rivera v. Del Rosario
 You have to pay full filing fees. The deficiency must
not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.
 Jurisdiction is not automatically lost. Clerk of court
makes a deficiency assessment.
 There must be no intention to defraud.
• Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
• Thornton:
o Husband filed for habeas corpus in RTC Makati to recover
child from wife
 o What are the two kinds of habeas corpus?
 N.B.: there are two kinds of habeas corpus – custody
of minors and regular habeas corpus in the Rules of
Court
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?
 N.B.: Effectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SC – everywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor Habeas
Corpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
• Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper
period, but the complaint was amended to add additional
defendants beyond the 1 year period. Does the court still
have jurisdiction?
 HELD: MTC still had jurisdiction for ejectment (based
on original complaint.)
o After the lapse of the year period for ejectment, has the
claim prescribed?
 No. N.B. One year period is not prescriptive period.
You just file action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
• Oca:
o Repetition of Tijam v. Sibonghanoy – estoppel by laches. After
active participation in a case, you cannot question the court’s
jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
o But what is the general rule?
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 Question of jurisdiction can be raised even for the first
time on appeal, as long as estoppel by laches does
not apply.
 One cannot question jurisdiction which he himself
invoked. (Ex. obtaining affirmative relief against the
other party and then after failing to obtain that relief,
question the court’s jurisdiction)
• Usually decisions of QJA go up to the CA under Rule 43. What are
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the
Office of the President
o 2. CTA decisions, under amended rules, appealable to the
CTA en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions – go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
• Mijares:
o Which court has jurisdiction over enforcement of foreign
judgments?
 RTC, because enforcement of foreign judgments are
incapable of pecuniary estimation.
 ALWAYS, regardless of amount of judgment, since it
is not based on the amount of the claim.
 In this type of action, you don’t need to prove the facts
again, etc.
o Marcos’s group that docket fees must be based on the
value/amount of the claim, which is up to the Billions. Is
this correct?
 This rule applies to money claims against an estate,
but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o How do you impugn a judgment?
 Lack of notice
 Lack of jurisdiction
 Collusion
  Fraud
o What is the rule on Arbitral awards?
 These must be should be enforced or recognized
 An arbitral award is not a foreign judgment (Under
ADR Rules)
• Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o But when you talk about appeals, no need to consider
hierarchy. The law already makes a decision for you.
• Can a court lose jurisdiction after acquiring it?
o Generally, no.
o Exceptions:
 1. Subsequent law provides prohibition for continued
exercise of jurisdiction
 2. Law penalizing the act is repealed by a subsequent
law
 3. Accused deprived of constitutional right
 4. Proceedings are terminated, abandoned, declared
void
 5. Appeal has been perfected
 6. Curative law
• What is the principle of exercise of equity jurisdiction?
When the court is called upon to decide a particular situation
and release the parties from correlative obligations, but if it
would result in adverse consequences to the parties and the
public, the court would go beyond its powers to avoid negative
consequences in the release of the parties
Jurisdiction of special bodies and courts
• CHR:
o Can it review court decisions?
 No; separation of powers
o Can it issue injunctions?
 No. Just fact finding and investigative.
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• What is the extent of the labor arbiter’s power on claims for
damages by employees?
o Action for damages incident to dismissal is part of LA’s powers.
o BUT NOT if the damages are based on quasi-delict not arising
from ER-EE relations.
• What is the remedy for annulment of NHA awards?
o With the Office of the President.
o And then from there, Rule 65.
• What are the cases under HLURB jurisdiction?
o 1. Claims of condo buyers against project owner, developer, or
dealer
o 2. Specific performance of contractual and statutory obligations
filed by condo buyers against same parties
o Does HLURB’s jurisdiction cover actions filed by the
project owner, developer, or dealer?
 No. It’s always the other way around.
• COMELEC:
o When can the SC review COMELEC decisions?
 Only when there is GADALEJ
o Can the COMELEC issue writs of certiorari, prohibition, or
mandamus?
 No.
• What is the jurisdiction of Family Courts?
o 1. Criminal cases where one or more of the accused is below
18 or one or more of the victims was a minor
o 2. Petition for guardianship, custody of children, habeas corpus
for custody of children
o 3. Adoption of children and revocation
o 4. Annulment, nullity, and actions on status and property
relations of married people
o 5. Support and/or acknowledgement
o 6. Summary judicial proceedings other the FC
o 7. Declaration of status of children (abandoned, dependent,
neglected, etc.) and actions on parental authority
o 8. Constitution of family home
o 9. Cases against minors under the DDA
o 10. Violation of Child Abuse Act (RA 7610)
 o 11. VAWC cases
• What are the provisional remedies the Family Court can issue?
o Restraining order against accused or defendant if there is
finding of abuse
o Temporary custody over children
o Support pendente lite
• What is the Katarungang Pambarangay Law?
o There must be settlement of disputes between individual
residents of the same city or municipality, through mediation,
arbitration, or conciliation, before the Katarungang
Pambarangay. Compliance with this is a condition precedent
to filing a complaint or information before the fiscal or court.
• What are the cases over which the lupon can take cognizance of?
o ALL cases between parties residing in the same municipality or
city.
o What is determinative, residence or postal address?
 Residence, which is actual place which one inhabits.
 Must be more or less permanent, not merely transient.
 But it need not be domicile or legal residence;
physical presence is controlling.
o X filed a case against Y, who lived in the same barangay,
and Z, who didn’t. Is barangay conciliation needed?
 No. At least one respondent lived elsewhere.
• What are the exceptions to this rule?
o [Nature of a party]
o 1. One party is the government or
subdivision/instrumentality
o 2. One party is a public officer or employee and the dispute is
re: official functions
o 3. There is no private offended party
o 4. Complaint against juridical entities
o [Nature of complaint]
o 5. Offenses punishable by imprisonment of more than 1 year or
fine exceeding 1000 pesos
o 6. Labor disputes arising from ER-EE
o 7. Disputes arising from CARL
o 8. Action to annul judgment upon compromise
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o [City/municipality requirement]
o 9. Dispute is re: real properties in different cities or
municipalities
 Can be waived by the parties by consenting to submit
the case to the lupon first
o 10. Parties reside in barangays of different cities or
municipalities
 Except where the barangays adjoin each other and
the parties consent to submit the case to the lupon
o [Equity]
o 11. As determined by the President in the interest of justice, or
upon recommendation by the SOJ
o 12. Where urgent legal action is necessary to prevent injustice,
specifically:
 A. criminal case where the accused is under custody
or detention
 B. habeas corpus filed by one illegally detained
 C. actions with provisional remedies
 D. action may be barred by statute of limitations
• Where are objections raised?
o For objections to referral to the lupon, raise before the punong
barangay – else, waived
o Failure to refer to lupon may be raised as a ground for motion
to dismiss – else, waived
• What is the procedure before the lupon?
any o 1. Pay filing fees and submit complaint
o 2. Within the next day the lupon summons respondents and
complainants for mediation
o 3. Failure of mediation within 15 days from first meeting:
constitute the pangkat
o 4. Pangkat has 15 days to resolve the dispute from when it
convenes, extendible for another 15 days
o Who appears before the lupon or pangkat?
 Just the parties, without counsel or representative,
except minors who may be assisted by next of kin
who are not lawyers
• What is the form for settlement needed?
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 o 1. In writing o 2. Obligation of the other to respect
o 2. In a language known to the parties o 3. Breach – MOST IMPT!
o 3. Signed by them • Distinguish cause of action from right of action:
o 4. Attested by lupon chairman o Right of action is the right to commence and prosecute an
o When may it be executed by the lupon? action to obtain the relief sought. Elements:
 Within 6 months from date of settlement.  1. Existence of cause of action
 If it exceeds 6 months, then it can be enforced by  2. Performance of all conditions precedent to bring the
action in the MTC. action
o Within what period may the settlement be repudiated?  3. Right to bring an maintain the action must be held
 10 days, on the ground of vitiation of consent. by the person instituting it
• What is the test of sufficiency of a complaint?
Actions o Whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the
• What are the kinds of actions?
prayer in the complaint
o Civil
o Determined by the facts alleged, not defense alleged
 Protection or enforcement of a right, or prevention or
• What is splitting of a cause of action?
redress of a wrong
o Dividing one cause of action into different parts and making
 Two types?
each part a separate complaint
• Ordinary
o Test: how many wrongs or breaches are there?
• Special
o Is splitting cause of action a ground for MTD?
o Criminal
 No it is Res Judicata and Litis Pendentia
 Once the information is in court, only then does it
o Is the rule against splitting of causes of action absolute?
become a criminal action, that has already been
 No. Except: if the reliefs sought for are cognizable by
prosecuted by the State through the prosecutor.
different tribunals. An example is an Ejectment suit
o Special proceedings
cannot include recovery for unpaid telephone, electric,
 Establishes a right, status, or condition
and water bills, which must be filed in a separate
• When is a civil action commenced? action.
o Upon filing of original complaint in court.
• Can there be joinder of cause of action?
o For additional defendants later impleaded, on the date of filing
o Yes.
of the later pleading.
o BUT it is not mandatory.
• Are civil actions always based on a cause of action?
• Does there have to be just one breach or numerous violations?
o No.
o Numerous.
• Distinguish ordinary civil action from special civil action? o For every cause of action, there is one breach.
o There is Cause of Action in ordinary civil action.
o For as many breaches as there are, there are as many causes
o Ex. Special Civil Action – like declaratory relief does not need
of action.
cause of action
• Requisites of cause of action?
o 1. Right of one party

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• If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) – are there multiple causes of
action?
o No. Just one, because claims for damages are incidents of the
one breach (failure to pay).
• There are three promissory notes, with amounts of 50K, 100K, and
200K, and there is just one loan. There was failure to pay. How
many causes of action do you have?
o Three PNs, three causes of action.
• Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
• If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
o Scenario 3: XYZ against A (multiple plaintiffs). Can only join
the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
• Can you join ordinary civil actions with special civil actions?
o No.
• Can you join two special civil actions?
o No. Because they have their own special rules.
• Can you join recovery of sum of money and ejectment?
o No. Ejectment is summary proceeding, so it has its own rules.
• What is the totality rule?
o When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
o When does the totality rule apply?
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 1. Single plaintiff with multiple causes of action
against the defendant
 2. Multiple plaintiffs with separate causes of action
against the defendant join in a single complaint
o X’s claims against Y are both for claim of ownership for
real property: property 1 is assessed at 49K, and property
2 is assessed at 15K and both are in manila. Can X file in
the RTC?
 No. While the total exceeds the 50K threshold in
Manila, neither property falls within RTC jurisdiction
so the action cannot be filed there.
• There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is waivable.
o Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
• What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?
 It’s lost. So it’s better to file a separate action in this
scenario.
• Is misjoinder of cause of action a ground for its dismissal?
o No, it will NOT cause dismissal of the principal action.
 It is severed and these proceed with separately.
 Although there can only be separate proceeding when
there is separate filing.
o The court is not duty-bound to proceed with it, especially when
it appears that it has no jurisdiction.
• What is a special civil action?
 o Covered by special rules. • What is a transitory action?
• Distinguish actions in rem, actions in personam, and actions o One founded on privity of contracts between the parties
quasi-in-rem: • Atlantic Erectors:
o Action in rem is one instituted against the whole world. o Collection for sum of money over construction project over
o Action in personam is one against a definite defendant. It is property. The plaintiff attempted to make an annotation of lis
intended to subject the interest of the defendant on a property pendens on the title of the property. HELD: You cannot do
to an obligation or lien. this. This is an action in personam, not in rem, as regards the
o Action quasi-in-rem – property.
 When jurisdiction over the person cannot be acquired o A notice of lis pendens will only lie if it is a right, title, or interest
(usually, non-residents) and instead, jurisdiction over over real property. Outside of this, you cannot avail of a notice
the res is acquired, although the owner is still named of lis pendens.
as defendant, unlike true cases in rem • Diaz:
• Ex. by attaching the property of the non- o Rule 43, up to the CA. Attached duplicate of decision, but not
resident pleadings. This is enough for CA to give due course to the
 The relief granted can only be limited to the res petition.
because there is no jurisdiction to grant a personal • PDIC:
judgment o The main case is for declaratory relief (SCA). The question is
 If the person appears, it becomes an action in whether there can be execution of such (yes). There can also
personam. If the person does not, jurisdiction is be a counterclaim, even if declaratory relief is an SCA and the
limited to the property counterclaim is an ordinary action.
• What are personal and real actions? • Tolentino v. Natanauan:
o 1. Real action is one affecting title to or recovery of possession o There is no res judicata between recovery of possession and
or partition, condemnation, or foreclosure of mortgage on real nullity of deed of sale.
property o Requisites of res judicata?
o 2. Personal action covers all others  A) Former judgment final
 Specific performance for delivery of real property is a  B) Court had jurisdiction
personal action  C) judgment on merits
• What are the tests to determine the nature of an action?  D) Identity of parties, subject matter, causes of action
o 1. Ultimate objective test –
 If the ultimate objective is to recover real property, it is Parties
a real action
o 2. Allegations and prayer test – • Who can be parties to an action?
 The allegations of fact and relief prayed for determine o Natural persons
the nature of the action o Juridical persons
o Those authorized by law
• What is a local action?
o One founded on privity of estates only and there is no privity of • What is the general rule?
contracts o All those with capacity can be a party.
o For natural persons, that is the age of majority.

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• Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-ad-
litem.
o A minor can sue, a minor can be sued if assisted.
• What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?
 Judicial separation of property
 Abandonment
 Exclusive property of spouses
 Involving practice of profession
• What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?
 No. Sec. 18 provides that the court will provide
assistance.
• When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
• [Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The “James Yap” rule – they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.
 What is “sufficient age and discretion”? Recent
ruling says age of majority.
 Should not be a transient. Must reside therein.
• Can a foreign corporation sue and be sued?
o If it’s an isolated transaction, a foreign corporation can sue and
be sued.
o If it’s doing business but not licensed, it CANNOT sue, but can
be sued.
o If it’s doing business and is licensed, it can sue and be sued.
• Service of summons to a domestic corporation?
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o Rule 14, Sec 11: president, managing partner, general
manager, corporate secretary, treasurer, in-house counsel
• How do you serve summons to a foreign corporation?
o Resident agent – one named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
• What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and commonly
known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
• How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
• Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
• How do you serve summons?
o Depending on the entity – they have different rules.
• Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
• For public corporations?
o Province – executive head (governor)
o City – city mayor
o Municipality – municipality mayor
• Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
• Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only – it uses “party” as a
generic term, so it can encompass any party impleaded, if he
will benefit or be injured.
• Does this concept of real party in interest apply to all cases?
 o No. The concept of real party in interest will only apply to o Can you sue X only?
private suits.  Yes.
o Does it apply to a taxpayer suit? o Can there be judgment?
 No. Locus standi applies here.  Yes, because the obligation is joint and several
o Does it apply to criminal cases? (solidary).
 [Not answered, but I think not] o Can you sue Y later on, having recovered from X?
o What is the difference from legal standing/locus standi?  No, because you recovered already.
 This is from public suit filed by a private party. There o Can you sue at the same time?
is a broader policy concern here, even if there can be  Yes. The case can proceed against either, or both.
benefit or injury as well. • There is an action for recovery of title AND possession. X holds
o A Congressman does not believe in the act of the title; Y has possession of the property. The action is just for
President, so he questions it as part of his legislative recovery of title. Can you sue X?
prerogative. Is he a RPII? o Yes, because X is the proper party.
 No. Locus standi applies as well. • Same facts. Can you sue Y for recovery of title, without suing X?
• Thus, differentiate RPII from locus standi: o No. Y is a mere possessor. The court cannot render judgment
o Locus standi pertains to acts of government. By reason of this without impleading X. X is an indispensable party in this case.
act, you suffered injury. • What is the failure of failure to implead?
o You do NOT use legal standing in private suits. Only in public o If it is a necessary party, the general rule is that failure to
suits. implead is non-prejudicial. There is no waiver of right to
• Who is a necessary party? implead.
o A) They are not indispensable, B) but ought to be joined if one  BUT if there is an order to implead by the court and
needs complete determination of the case. there is failure to comply, there is a waiver of claim.
• Who is an indispensable party? o If it is an indispensable party, the court should order that the
o If not impleaded, there can be no final determination. indispensable party be impleaded (Domingo).
o N.B. The codal does not use the word “complete.” So they are  If despite this order to implead, the plaintiff did not
compulsorily joined. comply, the case should be dismissed.
• What if there is a suit against joint debtors? o What if the court did not notice non-joinder, and thus did
o The other parties not sued are necessary parties. not order to implead the indispensable party, and renders
o Can you sue one of them only? a decision?
 Yes. The court can issue a valid judgment, although  The judgment is null and void.
not complete. • What is a class suit?
o Can you then proceed against the other one, though not o One where the subject matter of the controversy is of common
impleaded at first? or general interest to many persons so numerous that it is
 Yes. impracticable to join all as parties
• What if there is a solidary obligation, not joint? Ex. X and Y o What is the rule?
solidarily owe Z PHP 100,000. Z sues.
o Neither necessary nor indispensable.

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  The court will allow a number of them sufficiently
numerous and representative to fully protect the
interests of all to sue or defend on behalf of all
o What is the right of an individual party in interest?
 May intervene to protect his individual interest
• When is there substitution of parties in a civil case? There are
three.
o 1. Death
 Who should die?
• Any party. The law does not distinguish.
 This is the most common.
o 2. Change of holder of public position (death, resignation,
removal, cease to hold position)
 This is a very limited application, since it just applies
to public officers.
o 3. Transfer of interest
• What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death
(IMPT)
o Why does the law need to say this?
 Because there are actions that are extinguished by
death. Examples are actions that are purely personal
to the party
 Give examples.
• Ex. Contract for Michael Jackson to sing in a
party.
• Ex. Receipt of a widow of support. When
she dies, the support from widower’s estate
is gone.
• What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
 When is the 30 day period counted?
• From the FACT of death, and not from the
knowledge thereof.
o 2. Give names and addresses of the legal representatives
 Who should be legal representatives?
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• Legal heirs, administrator, or executor
• N.B. The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).
o 3. Court orders substitution and for the substitute to appear
• There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act
accordingly.
• Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
• Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C and
D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally E’s heirs as well
does not change the result.
o This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by this
improper “automatic” substitution.
o What is the effect if E is necessary? If E is indispensable?
 Relate the provisions above. If necessary, you can
subsequently file a suit against E’s heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D.
• What if no legal representative is named by the counsel for the
deceased party or the one named fails to appear?
o The court may order the other party to procure the appointment
of an executor or administrator for the estate of the deceased.
o The costs for appointment may be recovered by the appointing
party.
• What are the requisites for substitution of public officer?
 o 1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the
action sued against
o 3. There is substantial need to continue the action
• Substitution is not automatic. What are needed to be done to
substitute the new public officer?
o 1. Give notice to the new public officer
o 2. Opportunity to be heard for the new officer
 Mere fact that he is inclined to continue the action of
the predecessor is not enough
• Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B
assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer of
interest?
 Yes.
o Can the court order that C be impleaded?
 Yes. But there is no substitution here. C is just
joined.
o How then can there be substitution?
 The court has to order a substitution, not mere
impleading. BOTTOM LINE: there has to be a court
order.
• In case of death of a defendant in a contractual sum of money
case, will there be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o This is the special rule for contractual sum of money cases.
o Ratio for this?
 Because you ultimately deal with the executor or
administrator anyway.
 But it’s wrong to say there is substitution, because the
law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?
 1. The DEFENDANT must die
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 2. It must be a sum of money case based on contract
o What if the plaintiff dies?
 The general rule will apply, even if it’s a sum of money
case.
• Indigents – Algura v. Local Government of Naga: Resolves the
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o If the indigent fits within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.
 What is the Rule 141 requirement?
• Gross income + family income does not
exceed twice of monthly minimum wage
• And owns real property whose FMV is less
or equal to PHP 300K
o If he doesn’t, he falls under Rule 3, Sec. 21 and must apply for
indigent status. (“Indigency test”) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?
 Yes, but under the indigency test.
• If you are declared an indigent, you do not pay filing fees. But
what happens when there is a judgment?
o There is a lien, as regards filing fees.
• What is the rule on stenographic notes?
o It is free. There is no lien on the judgment.
• What happens when the court finds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?
 The court can order execution.
o What if you fail to pay or ignore the execution?
 The court can dismiss the case, for failure to comply
with an order of the court.
• When does the court in its discretion require the Solicitor General
to be heard in person or through a representative?
o When the action involves validity of a law, treaty, ordinance,
EO, PD, or rules and regulations.
Venue
• What is the appropriate venue for:
o 1. Real actions – where the real property is found
o 2. Personal actions – residence of (principal) plaintiff,
residence of (principal) defendant, or wherever a non-resident
may be found
o 3. Against non-residents and (a) the action affects the personal
status of the plaintiff or (b) any property of the defendant in the
Philippines –
 Residence of plaintiff
 Or where the non-resident’s property may be found
 N.B. I suppose this pertains to the two situations,
respectively
• Do not make the mistake of confusing venue and jurisdiction in civil
procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
file it is different.
• There was an agreement to develop a piece of land in Tanay, Rizal
to become a memorial park. The duty of the owner (living in
Quezon City) of the piece of land is to provide property. The duty
of the developer (located in Pasig) is to dig up the land, put
drainages, etc. The owner of the land died, and the heirs are now
substituting for their father. They want to rescind the agreement
to develop. Where do they file?
o There are two steps in venue problems. First, determine: is it
a real action or a personal action?
 It’s a personal action. It involves rights and
obligations of parties, although the subject matter
involves land.
o Where do you file it?
 At the option of the plaintiffs. Either in their principal
residence (Quezon City) or the defendant’s (Pasig)
o Which court has jurisdiction?
 RTC, because it is an action incapable of pecuniary
estimation (rescission)
• Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word “principal” before plaintiff and
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defendant, so that the plaintiffs will not file the case before far-
flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the
principal plaintiff.
• Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
It’s not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o But the mere filing and payment of fees (for multiple properties
in various areas) can be paid in one office, as long as it can be
established that it covers all areas. But the actual sale will only
be done in the place where the properties are located.
• What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o But if it is for collection of a sum of money, file it as a personal
action.
• Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
• What should be your first consideration? What is the general
rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise.
• On specific venues, as provided by law –
o Give an example.
 Actions for Quo warranto – if the Solicitor general
commences it, in can be in the SC, CA, or RTC of
Manila
o What if you want to file an action for perpetuation of
testimony?
  This is covered by Rule 24 (deposition before action
or pending appeal).
 Special rule: Place of residence of any expected
adverse party or defendant
o What about adoption?
 Where the prospective adoptive parents reside
o What about probate?
 Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
 General rule: RTC where the minor is supposed to be
found
 Thornton: But if unknown or cannot be found, in the
CA or SC
• Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu.
Plaintiff resides in Makati, defendant in QC. Where do you
file it?
 In the MTC of Cebu. Residence in general does not
matter.
o What if I file it in Makati?
 Yes.
 But what will you expect?
• Motion to dismiss on the ground of wrong
venue, coming from the defendant.
 But what if there was no motion to dismiss, and in
the answer, there was no allegation of improper
venue?
• There is waiver on the rules of venue.
• Remember Rule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raise
these grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
• What is the distinction that you have to make as to stipulations?
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o If there are no words of exclusivity, then it is only an additional
venue.
o If there are words of exclusivity (ex. “can only be filed in Cebu,
waiving all other venues”), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)
 In this case, the stipulation on venue in the principal
agreement (PN) applies to the accessory contract,
which is the surety agreement – which cannot exist
without the prior agreement.
• What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue, or he
decided to waive it. Can the judge later motu propio dismiss the
case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
• Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
• What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of America)
Summary procedure
• 1. Filing of the complaint
o In summary procedure, after filing the complaint, what can
the court do?
 A) Dismiss the case outright
 B) Issue summons
o What is the responsive pleading?
 Answer.
 Can you file a MTD?
• In general, no. It is a prohibited pleading.
 When do you file the answer?
• 10 days, not the usual 15.
o Can the plaintiff file a reply?
 No. It’s also a prohibited pleading.
o What if there is no answer?
  The plaintiff can file a motion for the court to render
judgment.
 A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
o N.B. all pleadings (complaint, compulsory counterclaim, cross-
claim, answer) must be verified
• 2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
 Within period of 30 days.
o What happens here?
 The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
 Yes, the court can, if it is convinced at this point in
time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step…
• 3. Submission of judicial affidavits or position papers
o Is there a hearing in summary proceeding or trial?
 No hearing, no trial.
o Within how many days do you submit affidavits?
 Within 10 days from the receipt of the order (record of
preliminary conference) • Jalique v. Dandan:
o What is required for the affidavits submitted?
 Must be within personal knowledge of affiants; or else,
expunge the affidavit and subject the party or counsel
to disciplinary action
o Can the court render judgment?
 General rule: 30 days from the filing of the last
pleading
• NOT submission for resolution, but
submission of the last pleading
 Exception: 15 days, if the court asks for further • Bonifacio v. Bellosillo
clarificatory documents
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• What are the prohibited pleadings?
o [Standard pleadings]
o 1. MTD
 Except lack of jurisdiction over subject matter
 Or failure to refer to lupon
o 2. Bill of particulars
o 3. Reply
o 4. Motion to declare in default
o 5. Memoranda
o [Adding other people]
o 1. Interventions
o 2. Third party complaint
o [Remedial pleadings]
o 1. MR or MNT
o 2. Petition for relief from judgment
o 3. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o [Extensions]
o 1. Dilatory motions for postponement
 Does this cover motion for cancellation of
hearing?
• If is not dilatory. But be careful with this,
because the judge has to determine first if it
is dilatory.
o 2. Motion for extension of time
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
 o The judge was sanctioned here, because there was no answer,
and instead of promulgating judgment, he still called for a
preliminary conference.
• Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
• Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?
 YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
• Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in the
plaintiff’s or defendant’s behalf.
o What happens when the plaintiff is absent in preliminary
conference?
 Case is dismissed
o What happens when the defendant does not appear?
 As if he didn’t file an answer. The court can render
judgment.
o What is the stopgap?
 Have an explanation OR send a representative
o Where does this rule come from?
 Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.
Small claims
• What should a plaintiff file?
o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
• Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
• What happens after?
o Court files notice for defendant to submit response
o Defendant has 10 days to file a response
o What are the formal requirements?
 There is already a form provided for the plaintiff and
defendant to fill in.
 They just need to attach documents.
o Can there be a counterclaim in a small claim action?
 Yes. As long as within jurisdiction of the court, and
arising from the same transaction, and does not
require joinder of third parties.
• And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
 Yes. (Aldura)
o Will there be presentation of evidence?
 Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
o Is there a preliminary conference?
 None mentioned.
o Do the parties have to appear?
 Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
• What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral

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 o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral by
JDR judge
• Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception.
o Why is failure to refer to the lupon not an exception?
 Because the claim is below P100K (no barangay
conciliation required)
• Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
 Rule 65 (petition for certiorari) – because there is no
plain, adequate, speedy remedy
Pleadings
• What must be in the complaint?
o Claims a cause of action
o Must contain allegations – brief and concise statement of
ultimate facts, devoid of evidentiary matters
 You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
• As to matters of fraud, how must it be alleged?
o With particularity
• As for mistake, how must it be alleged?
o With particularity
• If it’s a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
• You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document
 To show the court that this is where your cause of
action arises
o 2. You can reproduce the contents of the document in the
pleading en toto
 (But in practice, just always append anyway)
• How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?
 1) When the adverse party is not a party to the
instrument
 2) When there is an order for inspection and it is
refused
• What is the effect of failure to specifically deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and due
execution of the actionable document
• But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
• What is the period for a motion to strike out a pleading or a matter
contained therein?
o 1. Before responding to a pleading
o 2. If no responsive pleading is allowed, then within 20 days of
service of that pleading upon him
o 3. Upon court’s initiative, at any time
o What are the grounds to strike out a matter from a
pleading?
 1. Sham or false
 2. Redundant, immaterial, impertinent
 3. Scandalous
• What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
 For foreign corporation and service is done to
government official designated by law
• What is the period to answer an amended complaint?
o A. If amended as a matter of right, 15 days from service of
copy of the amended pleading (N.B. not from summons
anymore since the defendant has already been summoned)
o B. If not a matter of right, 10 days from notice of order
admitting it

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  N.B. This is not from receipt but notice of admission
because the proposed amended pleading is attached
to the motion to amend the complaint anyway.
• What if there is no new answer filed?
o The prior answer serves as the new answer too if no new one
is filed
• What are the defenses available in answer?
o 1) Affirmative defense
 If you only hypothetically admit, without raising
any defense, what happens?
• In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
34)
• This occurs when the answer does not
tender an issue or admits the material
allegations
o 2) Negative defense
 Specific denial of facts alleged essential to the cause
of action.
 What are the kinds of specific denial?
• 1) general denial
• 2) specific denial
• 3) disavowal of knowledge (lack of
knowledge and belief to form a specific
denial)
o What is a negative pregnant?
 A denial which implies its affirmative opposite by
seeming only to deny a qualification of the allegation
and not the allegation itself (Ex. “I have never
consumed cocaine while on duty” implies the
defendant has consumed cocaine otherwise)
• Is the counterclaim or cross-claim in a separate pleading?
o No.
• What is a compulsory counterclaim?
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o Arises out of the transaction constituting subject matter of the
action and does not require the presence of third parties of
whom the court cannot acquired jurisdiction
• What is a permissive counterclaim?
o Arising from an event unrelated.
• What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
• What is the remedy of the other party if the facts from which the
counterclaim arises from only came about or ripened after the
answer has been filed?
o With leave of court, may be presented as a counterclaim (or
cross-claim) by supplemental pleading before judgment
• What is a cross claim?
o Made against a person/party on the same side.
• Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
• Is there a period to answer a cross claim?
o 10 days
• Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
• For a third party complaint, do you need leave of court?
o Yes. You cannot just file a third party complaint.
o Who is usually the third party plaintiff?
 The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.
 This is the reason why there is need for leave of court.
You need to have the third party impleaded.
 Why would you want a third party complaint?
• To contribute or indemnify
o Classic case: car crash  a hit b hit
c. C sued B. B sued A for
indemnification.
 • Subrogation o 2. The allegations are true and correct based on personal
• Any other similar ground knowledge or authentic records
o What is the period to answer a third party complaint?  Based on “personal knowledge,” not “information and
 15 days, because it is treated as an entirely new belief” or “knowledge, information and belief”
complaint • Must it be under oath?
o Yes.
• Is the reply a mandatory pleading? • Is it mandatory?
o No. o No. Only when the law requires you to verify.
• What is the period to file a reply? o Give examples:
o 10 days.  Rule 45 (Petition for review on certiorari)
• What do you do in a reply?  Rule 65 (Petition for certiorari)
o To controvert the new matters raised in the answer  Rules 57-61 (Provisional remedies)
• What is the effect of failure to file a reply? • Is it jurisdictional?
o All new matters stated in the answer are deemed controverted o No. Failure to attach is not fatal.
• What happens after answer, etc? o But why do the SC and CA dismiss cases for failure to
o Pre-trial attach verification?
 Although it can be cured, the court may dismiss a
• Three important things: pleading for failure to comply with procedural
o Signature, verification, and CNFS requirements.
• What is the effect of a lawyer affixing his signature in a pleading? • Who signs the verification?
o 1. He has read the pleading o The party filing the pleading.
o 2. To the best of his knowledge, the information is correct • Can the lawyer sign it?
o 3. The filing of the same is not for the purposes of delay o General rule, no. Unless there is some compelling reason.
• There are some pleadings that are left unsigned. What happens? o For example, the party’s father is to be buried on the day of
o It has no legal effect at all. filing of the petition – the court allowed it.
o Is there a way to cure it? o Also, the distance of the petition from the counsel (ex. the
 If counsel can show it is due to mere inadvertence petitioner is in the USA and the counsel is in Manila, and there
and not for delay are only 15 days to file.)
o Will the court just give effect to the pleading or will it still • Can a minor sign?
require actual signing? o Must be assisted.
 [Didn’t answer] • Can a married person sign by himself or herself?
• If a lawyer changes his address, what is his duty? o One spouse is enough, but only if there is common interest.
o Inform the court. Failure to do so may lead to disciplinary (N.B. but see note below)
action. • For co-owners or those in the same residence?
• What are the contents of the verification? o Signature of one is enough if there is common interest. (N.B.
o Affidavit stating: but see note below)
o 1. That the affiant has read the pleading

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• TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
• When is a verified pleading/motion needed?
o 1. Rule 24 (depositions pending action/depositions pending
appeal)
o 2. Rule 38 (petition for relief from judgment)
o 3. Rule 42 (petition for review: RTC to CA)
o 4. Rule 43 (appeal from quasi-judicial agency to CA)
 Also: exemption from payment of lawful fees under
Rule 43
o 5. Rule 45 (petition for review on certiorari)
o 6. Rule 47 (annulment of judgment (CA))
o 7. Rule 58 (application for preliminary injunction)
o 8. Rule 59 (application for receivership)
o 9. Rule 61 (application for support pendente lite)
 Also: comment on the application for support
pendente lite
o 10. Rule 64 (review of judgments/final orders of COMELEC
and COA)
o 11. Rule 65 (petition for certiorari, prohibition, or mandamus)
o 12. Rule 66 (quo warranto)
o 13. Rule 67 (expropriation)
o 14. Rule 70 (forcible entry and unlawful detainer)
 N.B. covers all pleadings, including answer,
compulsory counterclaim, and cross-claim
o 15. Rule 71 (petition for indirect contempt)
o 16. ROP of envi cases, Part II: a) civil complaints, b) answer
o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan,
b) return to writ of kalikasan, c) motion for ocular inspection or
production/inspection
o 18. Rule 93 (appointment of guardians)
o 19. Rule 95 (petition of guardian to sell or encumber property
of the ward)
o 20. Rule 97 (petition to examine competency of a ward, for
termination of guardianship)
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o 21. Rule 102 (application for writ of habeas corpus)
o 22. Rule 103 (change of name)
o 23. Rule 108 (cancellation or correction of entries in civil
registry)
o 24. Habeas data: a) petition for writ, b) written return by
respondent, c) return of service by officer executing judgment
o 25. Writ of amparo: a) petition, b) written return by respondent,
c) motion for inspection, d) motion for production, e)
o 26. Rule 126 (Sec. 26: inventory of things seized under
warrant)
• CNFS:
• When is a CNFS required?
o For a complaint or other initiatory pleading
o So a compulsory counterclaim does not require a CNFS
• What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
• What are the contents of the form?
o 1. Plaintiff/principal party shall certify under oath that he has
not filed a similar complaint involving the same issues in
another court, tribunal, QJ agency
o 2. If there is any other pending claim, provide status
o 3. If he learns about similar action, report fact within 5 days to
the court
• Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
• For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
• What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
• Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
• What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o 1. Dismissal of the case
 o 2. Indirect contempt (Failure to comply with order or process of • New Sampaguita
court) o There was no forum shopping here, because the first case
o 3. Administrative and criminal sanctions (since you lied under questioned whether there can be a writ of execution when the
oath) parties agreed to compromise in the first place, when the court
• What if there is willful and deliberate forum shopping? dismissed the initial case. The second case was whether the
o (Meaning, it’s not only false, but you also deliberately disregard court approved the compromise agreement in the first place.
it) These are different.
o 1. Dismiss the case with prejudice • Solar
 What kind of dismissal? o Is the rule on personal service mandatory?
• Summary dismissal – cannot contest  Yes. The rule is priority is by personal service. If you
o 2. Placed in direct contempt cannot do it by personal service, you can do it by
o 3. Administrative sanctions registered mail, but you have to make an explanation.
• BPI v. CA o In this case, it was made by registered mail and there was no
o There was a CNFS filed in the first place. What was not explanation. For this reason, the decision of the court to allow
attached was the board resolution showing the authority of the it was based on its reasonable discretion. BUT this is not the
Vice President to sign the CNFS on behalf of the company. rule.
This authorization was submitted on the MR. • Musa
o NOTE: There was a valid CNFS. There was liberal o What are the material dates here?
interpretation of this provision for these reasons.  Period only commences to run from date of receipt of
• Donato the decision
o Here, the lawyer signed the verification, not the party. This  Date of filing of the MR
was validly excused by the court since the party was in the US,  Date of receipt of denial of the MR
and could not sign the pleading in time given the 15 day period.
There was physical impossibility. Amendments and supplements
o BUT as a general rule, the lawyer cannot sign.
• There is amendment for civil cases and there is amendment for criminal
• Young v. Seng
cases.
o There was no forum shopping, because the first case was
• For civil cases, amendment may either be:
dismissed due to lack of cause of action. When a case is
o 1) As a matter of right
dismissed because of that, it is without prejudice, and that
o 2) With leave of court
party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS. • When is it a matter right?
o Before an answer or within 10 days of service of reply (if the
• OSM Shipping
reply is the one being amended)
o Requires a duplicate original or CTC for the decision being
o What do you need to file?
appealed (here, NLRC decision) and not the prior one (Labor
 NOTICE to amend
Arbiter in this case)
• When do you need leave of court?
• Tan v. Kaakbay
o After an answer has been made
o No need for a CNFS for a compulsory counterclaim
o What do you need to file?

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  Motion to amend
• For criminal cases, the reference point is not an answer. Instead, it is
plea.
o Before plea, can you amend?
 Yes, whether as to matter of form or substance
o After plea, can you still amend?
 Yes, but only as to matters of form, for as long as it
will not prejudice the rights of the accused
• Don’t forget that last bit!
 What is the test when it will prejudice the rights of
the accused, even if it’s a matter of form?
• If the original defense of the accused will not
change.
• What is “amendment to conform to evidence”?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations, you
may file a motion to amend the pleading to conform to
evidence
o What if evidence is objected to on the ground that it is not
within the issues in the pleadings?
 1. The court may sustain the objection
 2. The court may allow the pleadings to be amended if
the ends of substantial justice will be served
• There are two kinds of amendments to conform to evidence. What
are these?
o First kind – no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind – if the other party objects, the amendment is left
to the sound discretion of the court.
• Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?
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 1. Yes, if it is a mere formal (typo) amendment
 2. For bill of particulars, the court can either order
compliance OR an amendment
 3. Motion to dismiss – the court can either grant,
deny, or order an amendment
• There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
amended and that is granted by the court, is there a need for
issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question of
amendment.
o HOWEVER, if there are additional defendants, new summons
must be served to them.
• What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that have
arisen.
o Can there be a supplemental complaint?
 Yes
o Can there be a supplemental answer?
 Yes
o Can there be a supplemental reply?
 Yes
o Can there be a supplemental petition?
 Yes
• So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
o What is the exception?
 Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
• What is the difference between amendments and supplements?
 o Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
 May be filed without leave of court (before responsive
pleading)
o For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.
 Always with leave of court
• What is the period to respond to a supplemental pleading?
o 10 days from notice of order admitting the supplemental
pleading
Default
• N.B. 1: What is the rule on objections?
o General rule: all objections on grounds not raised in an answer
or motion to dismiss are deemed waived.
o What are the exceptions?
 1. Lack of jurisdiction over SM
 2. Res judicata
 3. Litis pendentia
 4. Prescription
o What is the fifth exception provided by jurisprudence?
 5. Lack or absence of cause of action
• This is different from Rule 16 (that the
pleading states no cause of action)
• N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up: barred
forever
o In special proceedings – a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the
exception?
 If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
• N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
 There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
 Called “as in default” in the 1964 Rules of Court
 If the defendant fails to attend, the plaintiff can
present evidence ex parte
o 3. Failure to file answer
• What are the requisites to declare the other party in default?
o 1. Did not file answer
o 2. There is proof of such failure
 You have to show the return
o 3. File motion with court, with notice to defending party
• Upon order of default, what are the options of the court?
o 1. Can render judgment
 No need to present evidence ex parte anymore in this
case.
 What is the extent of relief that can be awarded by
the court?
• Not exceed the kind or amount from that
prayed for
• Cannot award unliquidated damages
 N.B. This is a new provision introduced only in the
1997 Rules of Civil Procedure. This has not been
asked in the Bar examination yet. So be careful.
o 2. Can require submission of evidence
 Can delegate this to the clerk of court
• How can you set aside an order of default?
o 1) File a motion on any of these grounds:
 1. Fraud
 2. Accident
 3. Mistake
 4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?

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  Extrinsic fraud.
o Is the fraud needed here the same fraud needed for
motion for new trial, petition for relief from judgment, and
motion for annulment of judgment?
 YES. For all of these, you need extrinsic fraud.
• How do you set aside an order of “as in default” [or allowance for
plaintiff to present evidence ex parte for the plaintiff]?
o Saguid: Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
 No need. You’re already in pre-trial.
• Can there be partial default?
o Yes.
o In a case where you file a case against A, B, C, D, and E.
E did not file an answer, while A to D did. Will A to D be
allowed to present evidence?
 Yes.
o Will E be allowed to present evidence?
 No. He is in default.
o Can A to D’s evidence be used against E or in favor of E?
 Yes. In fact, E can still win the case along with the
others.
• Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o 2. Summary Procedure
 N.B. When there is failure to file answer, there can be
judgment rendered by court.
o 3. Certiorari, Prohibition, etc.  Some SCAs require a
comment, so there can be no declaration of default
 Are there SCAs where there can be declaration of
default?
• Yes, like interpleader where the special rules
are deficient so there is suppletory
application of the ROC
• Cerezo v. Tuazon:
o Order of default – failure to submit an answer, so the defendant
is declared in default
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o Judgment by default – after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendant’s defense, which he lost
o Remedy for an order of default?
 Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
 SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
 1. MR or MNT (FAME)  within period for filing an
appeal
 2. Petition for relief from judgment
• After the reglementary period for appeal; i.e.
when there is entry of judgment
• Period: 6 months from entry of judgment
AND within 60 days from knowledge
 3. Rule 65 certiorari
• If there is GADALEJ
• Remington Steel:
o When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other – since there is no defense yet that would be
affected or altered by the amendment.
• Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition for
certiorari.
o Amendment to conform to evidence – What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?
 Yes. It is valid, even if it is not consistent with what
was alleged.
Bill of particulars
• Can there be Bill of Particulars in criminal cases? • What if the person fails to file an answer in the time left?
o Yes. Rule 116, Sec. 9. o Will be declared in default
• Only four things to remember in BOP:
o 1. What is the definition of BOP? Filing and service of pleadings
o 2. What is the period to file a BOP?
Filing
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
• What are the modes of filing?
file a BOP?
o 1. Personal
• When you file for a BOP, what do you want to achieve?
o 2. Registered mail
o A more definite statement of facts that appear in the complaint
• Can there be filing by ordinary mail?
that are not averred with sufficient particularity
o None. Because here there is no way the court can find out
o You are to identify the defects and the details desired.
when you filed it.
• Can you file a motion for BOP after an answer has been filed?
o But there can be service by ordinary mail.
o No more, because issues have already been joined.
• What are the requirements for personal and registered mail?
• What is the effect of filing a motion for BOP on the period?
o PERSONAL: Stamped, dated, and signed by the clerk of court.
o The period is interrupted upon filing, but you always have at
o REGISTERED MAIL: Pay for registry receipt and you have to
least five days to file the answer after.
accomplish a return card
• Deadline to file an answer is in 15 days. You received the
• What is the proof that you personally filed?
complaint December 1. You filed a motion on December 5. How
o 1. Primary: if the pleading is found in the records of the court.
many days do you have?
o 2. If it does not appear, you can present the received copy
o TWELVE, not eleven. You don’t count the day causing the
• What is your proof of registered mail filing?
interruption. [VERY IMPT]
o 1. Registry receipt
o This is the same way you count a motion to dismiss.
o 2. Affidavit of the person mailing
• [Same facts] If you filed a motion for bill of particulars on
o 3. Return card
December 14, the motion is interrupted. How many days do you
have? Service
o You still have Five days.
• What can the court do? • What are the modes of service?
o 1. Grant motion o 1. Personal
o 2. Deny it o 2. Registered mail
o 3. Allow the parties to be heard o 3. Ordinary mail
• What if the court grants the BOP? • What does rule 14 cover?
o The party directed to do so must comply within 10 days o 1. Party serving to another party,
• What action can the court take on a BOP if you fail to comply? o 2. Party serving to court,
o 1. Motion to strike out o 3. Court serving notices (section 9)
o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3: • If the person to whom you are serving is not available, then how
non-compliance with court order do you file substituted service?

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 o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.
 N.B. This is different from substituted service of
summons, which is to a person of suitable age and
discretion residing in the same residence
o There should be proof of both failure of personal service and
service by mail.
• What is completeness of personal service?
o Actual delivery
• What is completeness of registered mail?
o Actual receipt or 5 days after first notice of postmaster
o whichever comes first
• What is completeness of ordinary mail?
o 10 days after mailing
• What are the proofs of personal service?
o 1. Written acknowledgement of the party served
o 2. Affidavit of the person serving
o 3. Official return of server
 This refers to service by the court
• What are the proofs of registered mail?
o 1. Registry receipt and affidavit of one who mailed
o 2. Return card or unclaimed letter with certified/sworn copy of
notice given by the postmaster to the addresee
• What are the proofs of ordinary mail?
o Affidavit of person serving
• What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
• Take note that a return card is required by law to be filed, but in
practice, we do not.
• What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?
 Put an explanation why you did not serve it through
personal service
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o What if you don’t comply?
 As if the pleading was not filed.
• Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
• What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
• What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
• I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
• Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?
 Yes.
• Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without
court involvement.
• When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
 1) purpose is to molest other party
 2) no need for the notice to protect the rights of the
parties who caused it
Summons
• When does the clerk of court issue summons?
o Upon filing of complaint and payment of legal fees by the
plaintiff
o What are the contents?
 1. Name of court and names of parties
 2. Direction to answer within required time
  3. Notice that no answer can lead to judgment by
default
o Who serves?
 Sheriff, deputy, or other proper court officer, or any
suitable person designated by court (for justifiable
reasons)
o What is the return?
 1. When service has been completed, the server
within 5 days serves a copy of the return (personally
or registered mail) to plaintiff’s counsel, and
 2. Return summons to the clerk with proof of service
• Can personal service and substituted service of summons work
simultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
• Where?
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
• What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
efforts have been exhausted.
 Is there a set of standards given by law on how
many times you have to try to serve?
• A case says that it must be at least three
times on two different days.
o There has to be an explanation.
o Where will the explanation appear?
 In the sheriff’s return
o How is substituted service of summons done?
 1. Leaving copies at defendant’s residence with
person of suitable age and discretion residing therein,
or
 2. Leaving copies at defendant’s office with competent
person in charge thereof
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• Summons must be served within reasonable time. What do you
mean by this?
o For the sheriff, 15-30 days according to jurisprudence. After
th
the 30 day, the court will require the sheriff to submit the
return.
o Why is this important?
 If you file a complaint and you don’t see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
• What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
• When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
• When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
• Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with “suitable
age or discretion.” So these are two elements.
o A visitor or a transient cannot receive summons. But a house
helper can.
• For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?
 He must be in charge of receiving summons in the
office.
o What does “in charge” mean?
 In charge of the office. President or manager.
• For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
 o Memorize this. It is a closed list. • No need for personal service (since you
• What about foreign corporations doing business? don’t know him or where he is).
o 1. Resident agent  In what kind of case?
o 2. Any officer within Philippines • Whatever kind of action, whether in rem or in
o 3. Government official designated by law to that effect personam – you can do it by publication, as
• How is service done to entities without juridical personalities sued clarified by the SC.
under the name by which it is commonly known? • Not just in rem or quasi in rem anymore.
o 1. Serve to any one of them or  How does publication in 14 differ from 15 and 16?
o 2. Upon person in charge of office/place of business • In 14, ONLY publication is needed. It does
o Who is not bound by this, as an exception? not require service by registered mail in the
 Person whose connection with the entity has, upon last known address.
due notice, been severed prior to the action o Section 15: Defendant that does not reside in the Philippines
• Can you serve summons to a natural person in prison? and is not found in the Philippines.
o Yes. Serve it to the warden.  In what subject matter?
• For public corporations? • 1. Involving personal status of the defendant
o RP – Solicitor General • 2. Property of non-resident defendant
o Province – executive head (governor) • 3. Property is attached
o City – city mayor • 4. Where defendant has actual or contingent
o Municipality – municipality mayor interest over property
• Can substituted service be served on non-residents?  What are the modes of service?
o No. None as a general rule. You cannot do substituted • 1. Personal service outside the Philippines
service to a non-resident. • 2. Publication AND service by registered mail
o [Sec. 15 does not talk about this situation. Sec. 15 talks about in his last known address
non-resident and cannot be found.] o N.B. Both must concur. Take note
o Is there an exception? of this.
 Yes, but it’s very narrow. But there must a a) resident • 3. Other modes deemed applicable by the
spouse b) who was previously appointed as attorney- court
in-fact.  How much time does the defendant have to
• In Secs. 14, 15, and 16: how can summons be done? answer the complaint?
o By publication. • Reasonable time determined by court, which
• Distinguish. must not be less than 60 days from notice
o Section 14: Defendant is unknown or his whereabouts are o Section 16: Temporarily absent from the Philippines
unknown.  Can he be a resident of the Philippines?
 How do you do this? • Yes. But he’s just temporarily absent.
• Just publish.  What is the length of time needed here?
 Do you even have to try personal service? • None provided
 How do you do serve summons?

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 • 1. Personal service outside the Philippines
• 2. Publication AND service by registered mail
in his last known address
o N.B. Both must concur. Take note
of this.
• 3. Other modes deemed applicable by the
court
• 4. Substituted service, if there is impossibility
and there are earnest efforts to serve.
• What is required for Sections 14, 15, and 16?
o Must ask for leave of court, through motion in writing,
supported by affidavits setting for the grounds, to allow for such
service of summons
o What if the leave is granted?
 Can serve summons through publication, etc.
 Court specifies a reasonable time (not less than 60
days) for defendant to answer
• What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
• What is the proof of service of summons?
o Sheriff’s return.
• What is the proof of service by publication?
o 1. Affidavit of printer, foreman, or principal clerk or affidavit of
editor, business or advertising manager, and
o 2. Copy of publication, and
o 3. Affidavit showing deposit of copy of summons and order for
publication in the post office – directed to be sent by registered
mail to last known address (if applicable)
• What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
• What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
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oOld rule: you have to separate the MTD based on lack of
jurisdiction.
• Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
• Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) – it must be shown in the sheriff’s return
• Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because “lack of jurisdiction” is used, it can cover both
lack of jurisdiction over both SM and the person).
• Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
 You can still do personal service, in case you find him
somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
Motions
• What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
answer.
o Does a motion to dismiss take the nature of an answer?
 No, because it will not lead to a joinder of issues
• What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
 To parties.
 But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
hearings.
 o Absence of a notice of hearing has what effect? • What are the grounds in Rule 16?
 The motion becomes a mere scrap of paper. o 1. Lack of J over the SM
• When must notice be given?  How do you determine subject matter
o The motion must be filed in court and served to the other party jurisdiction?
at least three days before the date of hearing. (Three day • It is the law that confers the right to hear, try,
notice rule) and decide a case
• What is the ten day rule? • The most common source is RA 7691
o The hearing itself must be scheduled no later than 10 days amending BP 129
from the filing of the motion o 2. Lack of J over the defendant
 Ex. you file it December 6. The last date you can set  Look again into proper service of summons
the hearing for is December 16.  Or voluntary appearance
o Understand this along with the three day rule. o 3. Improper venue
• What is the Omnibus Motion rule?  Fall back to Rule 4, or special rule under law
o Include all grounds available; or else, it is deemed waived. o 4. No legal capacity to sue
o What are these exceptions?  Minor – age of majority
 1. Lack of subject matter jurisdiction  Corporation – must be duly registered with SEC
 2. Res judicata  Attorney in fact – look into scope of authority
 3. Litis pendentia o 5. Pleading Asserting the Claim States no COA (PACS-COA)
 4. Statute of limitations  Does not go into the falsity or truthfulness of the claim
• What is motion day?  The pleading does not appear to state a COA
o Friday afternoon. o 6. Res judicata
o If it is a holiday, set it on the next working day  What are the elements?
o Is this mandatory? • 1. Final judgment
 Yes. But some judges apply the rule liberally. • 2. J over SM and person
 But since 2008, this rule has been applied strictly. • 3. Judgment on merits
• What is required for motion for leave to file a pleading or motion? • 4. Identity of parties, SM, cause of action
o Attach the pleading or motion sought to be admitted o 7. Litis pendentia
 Same as RJ, but without final judgment yet
Motion to dismiss o 8. Prescription
o 9. Failure to comply with condition precedent
• What are the kinds of dismissal in Civil Procedure?
 Ex. Failure to refer to Katarungang pambarangay
o 1. There is a motion to dismiss in Rule 16, prompted by
• Is this waivable?
defendant. – MOST COMMON
o YES. Because it is not
o 2. But there is also a motion to dismiss in Rule 17, filed by the
jurisdictional.
very same plaintiff who filed.
 Ex. Earnest efforts to compromise
 Rule 17 also covers failure to prosecute, which is
 Ex. Exhaustion of administrative remedies
another form of motion to dismiss.
• Does this fall under this ground?
o 3. Demurrer to evidence

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 o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 10. PWEA (Payment, waiver, extinguishment, or
abandonment)
o 11. Unenforceable under Statute of Frauds
• Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except – [F,H,I]
 1. Prescription
 2. Unenforceable under Statute of Frauds
 3. Res judicata
 4. Extinguish of claim or demand (PWEA)
• When can you file a MTD?
o Within the reglementary period. Fifteen days.
• How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion – same rule for counting here, including the
5 day buffer]
• There was MTD filed on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, filed alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will produce
the same effect.
• Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
MTD.
 This is a new feature of the 1997 Rules of Court. This
has never been asked in the Bar.
o What is the reason for this new rule?
 Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o Why such court attitude?
 Because issues will be joined, and pre-trial sets in
where parties can compromise.
o What is the difference between filing a MTD and an
answer?
 There is no preliminary hearing of defenses in a MTD.
Obviously, in an MTD, the motion itself will be heard
anyway and that is where the grounds will be proved.
In an answer, the court can prioritize the grounds to
dismiss the case, which is why the preliminary
hearing is needed.
• What actions are available to the court?
o 1. Dismiss action or claim
o 2. Deny the motion
o 3. Order amendment of the pleading
o Can the court defer resolving the motion because the
ground is not indubitable?
 No, it cannot.
• If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?
 No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended unless
you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused,
invoking judicial courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?
 The court, subject to its discretion, can either dismiss
or remand it. There is no hard and fast rule.
Dismissal of Actions
• What are the ways by which a plaintiff can dismiss a case?

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 o Filing a notice of dismissal any time before the answer is
served (or before his motion for summary judgment, if
applicable). Dismissal is a matter of right.
o What happens to the counterclaim?
 There is no counterclaim yet, because there is no
answer.
o Can this case be re-filed?
 Yes.
o What is the exception?
 Dismissed a second time under this section.
• What if there is already an answer? – See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?
 It does not get dismissed. Pingga limits the dismissal
to the complaint, not the counterclaim. This
abandoned BA Finance rule.
o Does this rule cover both permissive and compulsory
counterclaim?
 Yes.
o What is the option of the counterclaimant?
 Within 15 days, the party would have to manifest its
willingness to prosecute it in the same action;
otherwise it will be prosecuted in a separate action.
• When is there dismissal due to the fault of the plaintiff?
o 1. Plaintiff fails to appear on the date of presentation of his
evidence in chief without just cause
o 2. Failure to prosecute his action for an unreasonable length of
time
o 3. Failure to comply with the ROC or any order of the court
o How is the dismissal under this section done?
 1. Upon motion of the defendant
 2. Upon court’s own discretion
o How does this affect counterclaims?
 Same; it can be prosecuted by the defendant in the
same or separate action.
o What is the effect of dismissal under this section?
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 It is an adjudication upon the merits (thus with
prejudice)
Pre-trial
• When is pre-trial conducted?
o Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintiff to move the case for pre-trial must be
done “promptly”
o BUT the 2004 guidelines say it must be within 5 days after the
last pleading has been filed
• What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move for
pre-trial.
• Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
• Expect two dates in one notice –
o One setting the preliminary conference
o One setting the pre-trial itself
• On the first day of pre-trial – what is the order of the day?
o The court issues an order referring the case to a court-annexed
mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
 30-60 days.
 But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
• What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
 o The Judge with all “tact, patience, and impartiality,” endeavor
to arrive at a settlement of the dispute
 Confers with each party as to what is acceptable as a
compromise at the present stage
 Judge talks to parties and their counsel separately
 Judge talks to only parties
• What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?
 Same effect as if you didn’t appear at pre-trial.
• Request for admissions: Rule 129 Section 4 – Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the other
party, it becomes an admission.
• Issues – to be submitted for resolution
• Documentary and testimonial evidence to be presented:
o “One day examination of witness rule” – if you can direct,
cross, re-direct, and re-cross a witness in one day, do so.
(This is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence first.
o Evidence will be pre-marked.
 What is the effect of failure to pre-mark?
• You can no longer present the evidence if
you failed to pre-mark it.
• Unless the court allows you in the interest of
justice, or if newly discovered.
o What if you fail to name the witness in court?
 You cannot present the witness anymore.
• What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
• How do you avoid consequences of absence?
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o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on your behalf in pre-trial.
• What happens next?
o Pre-trial order is issued by the court.
• DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
o What if it is a criminal case and the prosecution is absent.
What happens?
 It will be re-scheduled.
o What if the accused is absent?
 The prosecution CANNOT present evidence ex-parte
because it will violate the accused person’s right to
confront witnesses.
o RULE 118. TAKE NOTE OF THIS. THIS IS THE
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against
him, what must be done?
 It must be in writing and signed, by both the counsel
and accused.
 No such requirement in civil admissions in pre-trial.
• Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle – and the new judge
who will undergo pre-trial, hear, try, and decide the case is the
trial judge
o This step happens when the Clerk of Court receives the
Mediator’s Report of a “not settled mediation”
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
• To summarize:
o 1. Preliminary conference
o 2. Court-annexed mediation
o 3. Judicial Dispute Resolution
 If QC, Makati, Manila
 o 4. Pre-trial
Intervention
• What is the concept of intervention?
o A third party takes part in a case between other parties
o Because he has a legal interest in the subject matter of the
case or he will be adversely affected by distribution/disposition
of property in custody of the court
• What are the requisites of intervention?
o 1. Either:
 a. Legal interest in the matter in controversy
 b. Legal interest in the success in either of the parties
 c. Legal interest against both
 d. Will be adversely affected by distribution or
disposition of property in the custody of the court
o 2. Intervention will not unduly delay or prejudice the
adjudication of rights of the original parties
o 3. Intervener’s rights may not be fully protected in a separate
proceeding
• How do you intervene – requisites?
o 1. File a motion to intervene
o 2. Attach the pleading-in-intervention to it
 What are the pleadings in intervention?
• 1. Complaint-in-intervention if he asserts
against either or all of the original parties
• 2. Answer-in-intervention if he unites with the
defending party
o 2. Serve to the original parties
• When can you intervene?
o Any time before rendition of judgment in the trial court
o For appellate courts, it is subject to their discretion (because
the ROC is silent)
• After judgment, can there still be intervention?
o As a rule, no.
o But for an indispensable party, the court will allow intervention
even after judgment.
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• Nordic:
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o There was a complaint filed by the crew members of the vessel
against the vessel in RTC Manila (sum of money case).
o The mortgagee sought to intervene in the sum of money case,
because it held a Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
• What is the remedy if the intervention is denied?
o Aggrieved party must appeal.
o Mandamus will not lie except in case of GADALEJ
• What is the remedy if the intervention is granted?
o Petition for certiorari (since the order is interlocutory, unlike the
dismissal of the complaint/answer-in-intervention, which is
final.
Subpoena
• Types of subpoena?
o 1. Ad testificandum: appear and testify
o 2. Duces tecum: appear and bring with him the documents or
things
 N.B. He must appear too. Cannot just mail or send.
• Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
o Can the OMB issue a subpoena?
 Yes.
o Can the office of the prosecutor issue?
 Yes.
• Is the receipt of a subpoena by a respondent in a case filed before • What are the consequences of failure to comply with the
the office of the prosecutor necessary for the office to acquire subpoena?
jurisdiction over the respondent? o 1. Arrest
o No. It is totally irrelevant. Preliminary investigation before the  Witness pays for the costs of arrest if failure is without
Office of the Prosecutor is a statutory right, not constitutional just cause
right. You can altogether dispense with it, or waive it. It is not o 2. Contempt, if without just cause
essential for due process. o To whom do these provisions not apply to?
o There is an express provision in Rule 112(D) that says failure  1. Those who reside beyond 100KM from place where
to receive the subpoena will not bar the prosecutor from he is to testify
issuing a resolution. It is not imperative.  2. Detention prisoner where no permission of court
• Can a regular court judge subpoena a convicted person? was obtained
o Yes, but the judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be Depositions (Rule 23)
authorized by the SC to appear under subpoena
• What can be the subject of Modes of Discovery?
• Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o As long as (1) relevant and (2) not privileged, and it must be in
o How do you quash a subpoena ad testificandum?
(3) good faith
 1. Witness is not bound thereby
• What do you mean by relevant?
• What is an example of this?
o “Germane” – need not as strict in definition as what the Rules
o If the witness is not qualified. Ex
of Evidence require
the witness is the spouse of the
 So “not covered by pleadings” or “not a fact in issue”
person he/she is testifying against
is not a defense
 2. Witness fees and kilometrage allowed by the Rules
 It just needs to have something to do with the case
were not tendered
o Why the wide latitude in taking advantage of Modes of
• Witness must live within 100 KM of the place
Discovery?
where hearing is conducted
 So that litigants and lawyers cannot suppress
o How do you quash a subpoena duces tecum?
information, and so that all information needed for a
 1. Unreasonable and oppressive
just decision is on the table
 2. Relevancy of the books, documents, etc. does not
• What is the difference between taking a deposition and using it?
appear
o Taking deposition – the court affords the widest latitude.
 3. Failure to tender the costs of production
o Using deposition – the rules are stricter
 4. Kilometrage/witness fees
 Ex. Witness is dead, abroad, cannot be summoned,
 5. Failure to describe with particularity  N.B. not in
etc.
the rules
 What is the difference in the standard of
• Can the clerk of court issue a subpoena in the absence of a
relevance as regards use, vis-a-vis taking?
judicial action? (Note, this is not referring to investigation by a quasi-
• Follow the usual rules of evidence.
judicial body.)
o Can a deposition take the place of an actual oral
o No.
testimony?

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  As a general rule, it cannot. It’s hearsay. You have to
present the witness in court.
 A deposition is not a substitute for oral testimony.
Oral testimony is required under Rule 132.
 But this pertains to the use of depositions. In taking
them, you have wide latitude. But to use it, you have
to present the actual witness in court still.
o What are the exceptions?
 Provided in ROC. Ex. Witness is out of the country, is
dead, resides 100 km away from place of hearing,
cannot be subpoenaed, sick, infirm, etc.
o If you take a deposition, are you compelled to present it in
court?
 No.
o If you use a part of a deposition, can the rest be
presented?
 Yes.
o If you fail to cross examine the witness in the deposition,
can you still cross-examine him in court?
 Yes, you definitely can! (Sabio)
o Always distinguish between “take” and “use.”
• Are modes discretionary?
o Yes, the court ultimately has discretion
o While the parties can resort to it without leave of court, the
latter still can control how modes of discovery are used
 Ex. Changing from oral deposition to written
interrogatories; deeming something as harassment,
etc.
o Also, if there is no answer yet, there must be leave of court.
o Can the court say “you have enough information already,
don’t resort to modes?
 Yes. It’s within court discretion.
o What is the rule on SC involvement?
 SC does not get involved with TC decision unless it is
committed with GADALEJ.
• Are modes of discovery cumulative?
o Yes. You can use them one after another, or at the same time.
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o But when will the court prevent resort to one mode after
another?
 When you slept on your rights. Example: you could
have filed all at the same time, but you chose not to.
• When can you avail of Modes of Discovery?
o Any time, even during execution
• When do you need leave of court, and when do you not?
o Prior to filing of the answer, you need leave of court. The
issues for contention have not yet been joined. You don’t
exactly know yet what is germane to the case.
o After filing of the answer, no need for leave of court.
o Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
• Who can be examined?
o Anyone.
• Who can seek deposition?
o Any party.
• What is the scope of examination?
o Any matter not privileged, even if it is hearsay and may not be
used in court eventually (again, taking is different from use)
o See Sec. 2
• How is information taken?
o Question and answer, like in trials. Direct, cross.
• How is it used in trial (Sec. 4)?
o 1) To impeach or contradict the testimony of the deponent as
witness
 What if you called the witness yourself? Can you
impeach your own witness by presenting the
deposition?
• Yes. Because when you take the deposition,
you are not considered to have made the
deponent your witness.
• Or, if the witness starts becoming hostile,
you can move to have him declared an
adverse witness so you can impeach him.
 Alternatively: just get another witness to contradict the
prior one.
 o 2) Can be used by one party against an adverse party • X substituted for Y. X raised the objection that the deposition
(including responsible officers of corporation as adverse party) cannot be used against her because she said she is a new party
of for any purpose and the deposition cannot be used against her.
 WIDEST discretion. o Rule 23, Sec 5 provides that substitution does not affect the
 Can be used to support own evidence, can be used to right of depositions previously taken;
impeach, etc. o Notice to Y is notice to X. X only stepped into the shoes of Y.
o 3) Used in place of oral testimony, when: • How do you object when a deposition is being used against you?
 A) Witness-deponent is dead o There are actually two stages in objecting to depositions:
 B) Resides more than 100KM away, except if the  First stage – during taking of the deposition. You can
party calling that witness procured the party’s object to questions as being leading, etc.
absence // or out of the Philippines  Second stage – time of use. You can object on any
 C) Unable to attend due to age, sickness, ground that would lead to the exclusion of the
imprisonment, etc. deposition, as if the witness were present.
 D) Unable to compel attendance of the witness • Ex. witness is incompetent to testify, is a
through a subpoena minor and has no capacity to perceive, etc.
 E) Exceptional circumstances o Exactly in which stage of trial do you object to the use of
• Take note that for this ground, there must be the deposition?
application and notice to the court, since it  At the time it is being offered, as with all kinds of
has to decide whether exceptional evidence
circumstances exist. • Before whom can a deposition be taken?
• What if the witness lives in Rockwell and he is temporarily o A. If in Philippines:
assigned to Pangasinan, do you need to summon him to court or  1. Judge
can you depose him?  2. Notary public
o Even if he is assigned elsewhere, the term is “RESIDES” so he  3. Any person agreed upon by the parties, as long as
must live there. This is the rule that applies if he is still inside he can administer oaths
the Philippines, but elsewhere. o B. Outside the Philippines:
o This rule DOES NOT apply if the person is outside the  1. Embassy, legation, consul, consular agent
Philippines. Even if a party is temporarily outside the  2. Any person
Philippines, you can depose him. • By commission
o N.B. Take note, however of the rule that absence must not be • Letters rogatory
procured by the deposing party.  3. Any person agreed upon by the parties, as long as
• A party can present a part of a deposition at any time. What is the he can administer oaths
right of the other party? • Who are disqualified to be deposition officers? [Memorize; this has
o Right to compel the introduction of the rest of the deposition not yet been asked]
relevant to the fact in issue. o 1. Sixth degree of consanguinity from party
o 2. Employee or counsel of party

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 o 3. Sixth degree of consanguinity or employee of party’s o What notice is given?
counsel  Actual notice.
o 4. Financially interested in the action • Can the other party oppose the taking of a deposition?
• Can a judge before whom the action is pending take depositions? o Yes.
o Yes. (Ayala Land) o Under what grounds?
• Dulay v. Dulay – A brother duped his brother; both are Filipinos. One  “Annoy, embarrass, oppress”  memorize these
brother is a naturalized American, and applied for the latter’s words
naturalization. The US government approved it. The later, once there,  It is irrelevant
was made the trustee of the deposits of the former. He spent the • What is the process to take deposition?
money. Filed case in Philippines. Took deposition of bank manager in o Rule 23, Sections 19-21.
US. The local court communicated the request with foreign authority o Who does the recording?
(letters rogatory – communication by one judicial authority to another –  A stenographer, clerk, secretary – under the direction
to follow the rules of the latter). This is distinguished from commission and supervision of the officer
– where a person is appointed commissioner; the deposition is o Then?
governed by Philippine rules.  The deponent examines it and signs it
o What is the difference?  Can signing be waived?
 Commissioner has no power to issue compulsive • Yes.
processes like subpoenas. Courts can. o After the signature, what next?
o In this case, the court of Boston ignored the letters rogatory, so  The officer certifies it first
they applied for deposition before a notary public. The local  Then files it in court with indication that it is authentic
court refused to accept, requiring a consular certification. and complete
o The court here allowed because the letters were ignored and o If there are objections, etc, can the officer rule upon
there was no consular office in Boston, so they allowed them?
deposition before NY notary.  No. He just records the objections.
• What is the rule in setting the time/date for deposition? o There is a notice for oral deposition. If one of the parties
o Reasonable notice is the general rule. to the deposition cannot attend, and just instead sends a
o What is the rule on notice? list of questions, can this be done?
 Give name and address of deponent  Yes. But the officer will read the questions verbatim
 Give time, place, date of deposition and record the answers verbatim.
o Do you have to say who the deposition officer is? o What if the deponent does not want to answer? (Ex. He
 No. No need to disclose it. says “no comment.”)
o Why is notice to the other party needed?  Generally, if you’re the officer in a deposition, you
 Due process. So the other party can make cannot do anything about it.
objections, etc.  EXCEPT: if you are a judge empowered through
o Whose duty is it to give notice to the other party? letters rogatory
 The party taking the deposition, because in general, • If the procedure is not followed, what will happen? What is the
the court does not intervene consequence?

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 o A party can file a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?
 The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows it’s authentic and complete by personal
knowledge.
• Can a subpoena be issued by reason of deposition-taking to make
sure that the deponent comes?
o Yes. Rule 21, Sec. 5
• What if the one called for the deposition does not show up?
o He will be asked to pay for the costs of the other party/witness
which attended
o [If you ask for a deposition, you can rely on the compulsory
powers of the court (ex. To issue a subpoena) to make sure
witnesses attend, because at least you won’t be liable if he fails
to show up.]
• Can a deposition of a deceased person be presented in court? Is
this not hearsay?
o It can be presented, as long as it was subjected to cross
examination. It is hearsay, but it can be submitted.
o Is cross examination a necessity?
 Yes; necessary to exempt it from the hearsay rule.
• Re: irregularities on taking of deposition. What is the general rule
on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
 Relevance or competency of evidence  failure to
object is not a waiver
 Unless a timely objection could have obviated the
defect
• How are written interrogatories different from oral deposition?
o The questions are in written form instead, instead of personally
appearing.
o This is usually the most relied upon form of deposition since it
saves time and costs, and especially if the issue to be
discovered is not very contentious
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• When are cross-interrogatories submitted?
o Within 10 days
• Re-direct?
o Within 5 days
• Re-cross?
o Within 3 days
• When is the period to object?
o The same as the period to file the responsive pleading.
• Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
 No need, even if you do not reserve it during pre-trial.
(Jonathan Landoil)
• What are the consequences for non-compliance with order for
deposition? Can it be dismissed?
o Yes, the court can dismiss. There can even be a judgment by
default
o However, in the old case of Arellano, the court dismissed the
case due to refusal to be subjected to deposition. But the SC
said it was wrong. In this case though, the matter subject to
deposition is an incidental matter only, not the main issue of
the case.
o Bottom line: it IS a possible result, but fall back on materiality of
the matter
Depositions before action or pending appeal
• If there is no pending case can you take a deposition?
o No. You file a case for the perpetuation of a testimony
o So you file a case for the purpose of perpetuating a testimony
• What is the special rule on venue here?
o Place where the expected adverse party resides
• Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is
expecting that Ms. Tan will file an action against her for malicious
mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take
his deposition and file a verified petition in the court of the place where
Ms. Tan resides.
• What are the contents of the petition?
o 1. That the petitioner expects to be a party to an action in a
court in the Philippines but is presently unable to bring it
o 2. Subject matter of expected action and his interest therein
o 3. Facts he wants to establish by the proposed testimony and
reasons for such
o 4. Names/description of expected adverse parties and
addresses if known
o 5. Names and addresses of persons to be examined and
substance of testimony expected
o What is the relief sought?
 Ask for order authorizing petitioner to take depositions
of these persons
• What is the requirement for notice and service?
o Petitioner serves notice upon each expected adverse party
o At least 20 days before hearing, court causes notice to be
served on:
 1. Parties
 2. Prospective deponents
• For which can it be used?
o It can be used in any action involving the same subject matter
• What if it involves the same subject matter but different parties –
but not impleaded?
o Cannot be used. Must be the same party, or one represented
during the deposition taking. The general rule should apply.
• When could you apply for deposition pending appeal?
o Before judgment becomes final
• Where filed?
o In the court where judgment was rendered
o The taking is different from the use, again. So it can be taken
in the RTC but used in the CA.
• There is a pending case for certiorari, can you take a deposition
pending appeal?
o No, certiorari is not an appeal
Interrogatories to parties
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• What is the nature of interrogatories to parties?
o Served only by parties to parties
o Generally only one set, unless allowed by court (sec. 4)
• How are interrogatories to parties served?
o Serve on adverse party and file in court
o Serve on party, not on counsel; but counsel may answer
• How are answers served?
o Answers are served on party submitting and filed in court
o Written, subscribed and sworn to under oath
o 15 days to file answers
• When must objections be filed?
o Objections must be filed within 10 days
o N.B. Fresh period applies (according to some opinions)
• What objections may be made?
o 1. Irrelevant
o 2. Meant to harass
o 3. Not within knowledge, hearsay
• What is consequence of failure to file written interrogatories to
parties?
o Failure to serve and file  can’t call adverse party as witness
o Party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court
or to give deposition pending appeal
• What is the scope and use of these interrogatories?
o May relate to any matter under Rule 23 Sec. 2 for same use in
Rule 23 Sec. 4
• What is the effect of failure to answer?
o Case may be dismissed if material
o Or judgment by default
• Distinguish Rules 23 and 25:
o Rule 23 – Party or a witness, or any person for that matter
o Rule 25 – Interrogatories to PARTIES. Always to parties.
• How must the questions be answered?
o Rule 23 – there is direct, cross, re-direct, and re-cross
o Rule 25 – Just one set of questions to be answered by the
other party
• Re: time to answer
o Rule 23 – no fixed time to answer, because what dictates the
period is the officer (since they have to appear before the
officer)
o Rule 25 – 15 days from service thereof
• Segue: can you call the adverse party to the witness stand?
o YES! In general, YES. The answer is in Rule 132, Sec. 12
o It is different if you call on the witness the accused himself (in a
criminal case)
Request for admission
• What is a request for admission?
o 1. Requesting to the other party that he admit the genuineness
of any material/relevant document
 What else do you need to do?
• Attach the document so it can be examined
 Does an admission cover the contents of the
document?
• No, just the genuineness – so you do not
have to prove it exists and it is genuine
• The contents can be up for contentions
 Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
asked that the first party prepare a new list to submit
to the court within X days. Instead of submitting it to
court, the first party submitted a request for admission
to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
o 2. Or truth of any material and relevant matter
• How do you initiate it?
o File it in court and serve it to the other party
• When?
o After issues have been joined
• The admission must be directed to whom?
o The adverse party (Not the counsel – it must be served to the
other party) (Duque)
o But the party’s counsel may answer (Larada)
• What is the effect of failure to answer or reply to a request for
admission?
o It is deemed admitted.
o Must reply within 15 days.
 What can the party also do in this period?
• Can submit an objection
 What happens to the period?
• It suspends the fifteen days
 What if the objection is denied, what happens to
the period?
• The court sometimes gives extra 10 days, 5
days, etc. So it’s really within its discretion.
• Who will suffer the cost?
o The other party who refused to admit, if it is eventually proven
to be genuine or true
o But in the meantime, advanced by the party requesting
• What is the effect if you fail to ask the party to admit certain
material facts, which you could have asked and ought to be within
the personal knowledge of the latter?
o You cannot present evidence on such facts.
o This is very important although a lot of judges or litigants fail to
take advantage of this or recognize this.
o But this is still subject to the court’s discretion.
• What do you attack in requests for admission? Ultimate facts or
evidentiary matters?
o As a matter of advice, attack the evidentiary matters.
o Evidentiary matters are harder to deny (Ex. “Is it true that the
day before you were caught beating the red light and your
license was already confiscated for a prior violation?”)
• There are four ways to respond to respond the request for written
admission:
o 1. Specifically deny written admissions
o 2. Not do anything
o 3. Admit

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 o 4. State why he cannot truthfully admit or deny for lack of
knowledge
 N.B. A denial for want of knowledge if the fact is so
plainly and necessarily within the defendant’s
knowledge, his alleged ignorance or lack of
information will not be considered as a specific denial
• Can you use an admission made in one case for another case?
o No. It can only be used for that case and for that purpose
alone.
o If it’s the same case, but for a different purpose?
 It’s actually hard to say because admissions are not
stated for a particular purpose.
 Atty. Melo: So it’s safe to say that once admitted, it
usually be used in that same case.
• When an admission is made, is there any way for it to be
retracted?
o The party making the admission can withdraw or amend
o Must have “good reason.” So this is discretionary upon the
court.
Producing or inspection of things/documents
• How do you initiate or start?
o Filing a motion in the court where the case is pending
o Comply with the requisites of motions (so give notice to other
parties)
• What kinds of documents can you produce or inspect?
o Anything that is relevant/material and not privileged
o But you have to show good cause
• “Fishing expeditions” are generally allowed in Modes. Is it the
same for this rule?
o No. Rule 27 is not as free as the other rules – see Solidbank
 The SC said that the motion to produce must not
permit a “roving inspection of a promiscuous mass of
documents.”
 So the general rule that fishing expeditions are
allowed has less application for this rule.
o Because here: (MEMORIZE)
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 1. You need a motion
 2. You need to show good cause
 3. You need to describe the documents with
particularity
• What’s the difference between a subpoena duces tecum and
production of a document?
o 1. SDT: just request for a subpoena to be issued by the court
and the court will issue. POD: you have to name the
documents with more particularity.
 The process to secure the subpoena is a bit more
lenient (as opposed to motion for production, which is
in a motion that must be heard)
o 2. POD: you have to file a motion and provide good cause.
Since this is a mode of discovery, you still don’t have particular
documents in mind, though you still have to describe them with
some particularity.
o 3. SDT: If the one with custody over the documents is a non-
party, use a subpoena duces tecum
• What must be the subject?
o Books or things in the custody of the party addressed
o “Possession, control or custody”  So if it’s no longer in the
possession, control, or custody of the party, he or she may
refuse
o “Control” implies that sometimes the person does not have
authority to release/disclose these things or books
• When can it be done?
o There must be a pending case.
• Can it be applied to land or other property?
o Yes, there can be ocular inspection of land or other property.
• What are the tests involved?
o Reasonableness and practicability
• Tanda v. Aldaya:
o Motion to produce must be for inspection, photocopying, etc.
o The document cannot be left with the court for distraint, as one
party here wanted to leave them with the clerk of court.
• Is production required for presentation of secondary evidence?
 o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a specific
document, most likely it is for secondary evidence
• You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
evidence?
o No, you’re not required. It is a mode of discovery – a way of
discovering evidence. If you like what you see, you still have to
go through the process of presenting it in court.
• N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 25-
27
Physical and mental examination
• This is so limited in its use that even the ‘04 guidelines do not include it
• When can you apply for this?
o Mental or physical condition is in controversy
• N.B. This is the only mode of discovery which the court can motu propio
can issue. The other modes, you have to apply for.
• What is required?
o 1. Also upon motion
o 2. And with good cause shown
• When can it be done?
o When the physical or mental condition of a party is in
controversy
o Ex. Guardianship, Physical Injuries, etc.
• What does “in controversy” mean?
o It has to be one of the main issues of the case, not just a side
matter.
• What is the consequence if the copy of the examination is given to
the party examined, upon the latter’s request?
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o That examining party can now also ask for previous or
subsequent examination on the same matters of the examined
party
o It must refer to the same condition. So if the examination was
on the other party’s head for mental examination, she can only
ask for similar reports on the mental condition of that party.
• What if the examined party refuses?
o The court may make an order for delivery of the report
o If there is refusal or failure to do so, and if by chance, that
examined party’s physicians were allowed to testify, their
testimonies can be excluded.
• What is the effect of the requested party requesting for a copy of
the report made or taking the deposition of the examining
physician?
o He waives any privilege in that action or another action
involving the same controversy, as regards testimony of other
examining persons, whether before or after
o N.B. Privilege of doctor-patient only applies to civil case, not
criminal case
Consequences of non-compliance
• What if there is refusal to answer questions in oral examination or
interrogatories (Rule 23 or 25)?
o 1. The proponent may pursue other questions
o 2. The examination may be adjourned
o 3. The proponent may request for a court order to compel an
answer
o What if the application for the order is granted?
 1. The deponent must answer
• What if the deponent still refuses to
answer?
o Indirect contempt
 2. And if there was without substantial justification to
refuse, the court may compel payment of reasonable
expenses to procure the order, including attorney’s
fees
o What if the application is denied?
  1. The deponent need not answer
 2. If the application was without substantial
justification, the court may require the proponent or
counsel or counsel (or both) to pay the deponent
reasonable expenses to oppose the application,
including attorney’s fees
• When is there indirect contempt of court?
o 1. The deponent refuses to be sworn in
o 2. The deponent refuses to comply with court order to answer a
question
• What if a party or officer/managing agent of a party refuses to
obey either: a) order to answer, b) Rule 27 (production/inspection),
or c) Rule 28 (physical/mental examination), what are the court’s
options?
o 1. The matter asked, contents of the paper/property, or
mental/physical condition – deemed established, for purposes
of the action
o 2. Order refusing to oppose claims on that matter, or submit
designated documents/thing, or introducing evidence on
physical/mental condition
o 3. Any of the following:
 Striking out pleadings or some parts thereof
 Staying proceedings
 Dismissal of the action
 Judgment by default
o 4. Arrest of the party/agent of the party
 Exception?
• For Rule 28 (examination of physical/mental
condition)
• What if a party refuses to admit genuineness of a document or
truth of a matter of fact (Rule 26) and then it was found to be
genuine/true?
o The proponent may apply to the court for an order requiring
reimbursement of reasonable fees to procure his proof,
including attorney’s fees
o When does the court award this?
 Every time, except:
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 1. If the denial was with good reasons
 2. The admissions sought were without substantial
importance
• What if a party/managing agent of a party fails to appear in
deposition or fails to serve answers to written interrogatories?
o On motion and notice, the court may:
 N.B. There must be notice by the party
o 1. Strike out
o 2. Dismiss action
o 3. Enter judgment by default
o 4. Order payment of reasonable fees including attorney’s fees
• Against whom can there be no order of payment of expenses and
attorney’s fees?
o The Republic
• Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
• Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is no trial yet.
o You can call witnesses even before trial and obtain their
testimony.
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.
 For prosecution – examination before trial can only be
done in the court where the action is pending because
the law wants it to be harder for prosecution.
 For the accused, it should be made before either any
judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say it’s deposition. But it’s akin to such,
according to a Supreme Court decision.
• Does physical/mental examination as a mode of discovery apply in • Examples of ex parte proceedings?
criminal trial? o Default
o It’s inherent. o Application of indigent
o “As in” default [did not appear
Trial during PT]
 3. Parties agree in writing
• Both civil and criminal procedures will not provide for conduct in
• Can an adoption case proceeding be delegated to the clerk of
examination of a witness. Where is it found?
court for reception of evidence?
o Rules on Evidence.
o No.
• What is the order of presentation of evidence?
o Always with the judge
o 1. Plaintiff, to support complaint
• Can a clerk of court issue a subpoena?
o 2. Defendant, present defense
o Yes, if it is a subpoena ad testificandum. If it is a subpoena
o 3. Third party, and so on
duces tecum, there must be order by court.
o 4. Parties faced with counter or cross claim, present defense
• Can the clerk of court resolve objections raised in an ex parte
o 5. Rebutting evidence
proceeding?
• Can it be reversed?
o No.
o Yes, it can, if there is an affirmative defense.
o Just note the objections, and forward to the judge.
o Plaintiff in the usual and ordinary course of things presents
o The other party is not there – who will object?
before the defendant.
 Well, the clerk of court just has to note it down if
o Can there be reverse order if it is a civil case?
clearly objectionable.
 [Check answer]
• Can there be judgment without trial? Trial by commissioner
o When parties agree on facts involved in the action
o If the agreement of facts is partial, trial shall be held as to • Who is a commissioner?
others o Person authorized by the court to receive evidence
• What are the grounds for cancellation of hearing (actually, o Ex. auditor, referee, examiner
postponement)? • Any matter can be referred to the commissioner, when?
o 1. His presence is indispensable and illness is excusable o If the parties consent. ANY MATTER.
 N.B. it does not say the party must be indispensable; • But if the parties do not agree, what can be referred to the
just his presence commissioner?
o 2. Absence of evidence, and the evidence is material and o 1. Requires examination of long account
cannot be procured despite due diligence o 2. Taking of account necessary for court’s information for court
• Who can receive evidence? to render judgment/execute it
o Generally, the judge o 3. Question of fact arising from motion
o Exception: to the clerk of court – delegated authority to receive • Can a commissioner issue a subpoena?
evidence o Yes.
 1. There are default proceedings o Can he issue a subpoena duces tecum?
 2. Ex parte

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  Yes, as long as within the order of reference (his
authority)
• What if a witness refuses to obey a subpoena issued by the
commissioner or give evidence before him?
o Deemed a contempt of the court that appointed the
commissioner
• Can he resolve objections?
o Yes.
o N.B. this distinguishes him from a clerk of court
• When are commissioners mandatory?
o Expropriation  mandatory in second stage
o Partition  only optional
 If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
• Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
o What if the parties stipulate that the commissioner’s
findings of fact are final?
 Only questions of law shall be considered thereafter
• What is the rule on objections?
o 10 days from filing of report, parties can object to the findings
of the report
o BUT, must make it before the commissioner during
proceedings, if these can be made by then – otherwise, will not
be considered by the court
• Who shoulders the cost?
o The losing party, in general. But the court may apportion
Consolidation
• When can there be a consolidation?
o When actions involve a common question of law or fact
• What is the difference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being filed
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• There was a case where the court allowed for the consolidation of cases
in two different judicial regions – even when it was not even an issue in
the case!
• What are the grounds for separate trials?
o Convenience or avoidance of prejudice – may separate a claim
(ordinary, cross, counter, third-party)
Demurrer to evidence
• When do you apply for demurrer?
o In civil, when plaintiff has completed presentation of evidence
o In criminal, when the prosecution rests its case
o When is this exactly?
 After formal offer of evidence
• Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you file leave, is it okay?
 Nothing really wrong, but you’re just delaying your
case.
o In criminal cases, can you file demurrer without leave of
court?
 Yes, but if it is denied, the consequences are serious.
 If there is no leave, and demurrer is denied 
accused waives the right to present evidence
 If there is leave of court, and demurrer is denied 
accused can still present evidence
• What is your remedy of the losing party defendant if the demurrer
is granted? (civil)
o Can still appeal, because demurrer is a final disposition of a
case.
• If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?
 Yes, you can file. As long as there is an order, you
can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?
 File certiorari
• But in criminal demurrer, can you file for certiorari after denial of
the MR?
o You cannot appeal a denial or file for certiorari until final
disposition of the case.
• Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-file.
o But is it reviewable by appeal?
 No. It is an acquittal. Double jeopardy has set in.
o But is it reviewable by another mode?
 Petition for Certiorari (Rule 65)
• Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he files it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
 Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
 So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
• Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This effect does not apply to criminal cases
• P v. Cachola: N.B. In a bar exam, demurrer was once coined as
“motion to dismiss on the ground of insufficiency of evidence.” This
case used the very same terms.
Judgment on the pleadings
• When is there judgment on the pleadings?
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o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
party’s pleading
• What do the “material allegations” mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
difference is with that concept
• Who files a motion for judgment on the pleadings?
o The plaintiff, always
• Can there be partial judgment on the pleadings on this ground?
o No. It’s ALWAYS a full judgment on the pleadings.
o N.B. This is different from summary judgment, where there can
be partial or complete summary judgments.
• Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
• If you’re the plaintiff, when can you file a motion for judgment on
the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?
 Yes under Rule 18, Section 2g.
 But as a rule of strategy, file it upon first chance to do
so.
o Can you file a motion for judgment on the pleadings after
pre-trial?
 Yes. But this is really belated.
• If you’re the defendant, when can you file?
o Anytime. (Note: this is on a counterclaim, so it doesn’t kill the
general rule that only the plaintiff can file this motion)
• Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But it’s still, ultimately with the parties’ consent. So in the
end, the judge still cannot grant it on his own.
• What are the effects of motion for judgment on the pleadings?
 o 1. The movant admits all of the material allegations of the other
party and rests his motion for judgment on those.
o 2, Movant waives or renounces claims for damages because
allegations as to amount of damages are not deemed admitted
if not specifically denied.
• What is the requirement for notice of hearing?
o 3-day notice of hearing (general rule on motions)
o N.B. in summary judgment, the opposing party is given 10
days notice
• What is the remedy against judgment on the pleadings?
o Rule 45 certiorari, because a judgment on the pleadings does
not raise questions of fact, as the judgment is based on
pleadings alone and the judgment is final
Summary judgment
• What is summary judgment?
o There is no genuine issue as to a material fact. Memorize this
phrase.
o When is there “no genuine issue”?
 When the issue does not require presentation of
evidence for its resolution, and was just set up as
sham, fictitious, contrived, set-up in bad faith, or is
unsusstantial
• What is the difference between this and “the answer does not
tender an issue”?
o There is no issue as to a material fact (note: not on the issues)
• But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
• When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
• The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
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o N.B. these attachments must be sworn or certified copies
o What must the affiant show?
 The he is competent to the matters stated therein,
 that the facts are the admissible in evidence,
 and it is based on personal knowledge
• What is the requirement for the motion and hearing?
o Written motion at least 10 days before it is heard
o When can the opposing party serve opposing affidavits?
 At least 3 days before the hearing
• Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
• Promissory note with no date when it is due and demandable. X
owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this
something that would lead to summary judgment or judgment on
the pleadings?
o Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but it’s actually
sham or fictitious.
o Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
• What is the remedy of the aggrieved party against a summary
judgment?
o Appeal
o Except if there is already a writ of execution, then certiorari
might be more applicable (because there is no plain, speedy,
available remedy)
Judgments
• Can the court change its judgment?
o Before it becomes final (ex. appeal period), it can as a matter
of right.
o Once it becomes final, only clerical errors can be corrected.
• What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modified once final and executory
• When is the judgment considered promulgated or rendered?
o Filing with the Clerk of court, not mere signing
• What are the exceptions?
o 1. Nunc pro tunc 
 antedated judgment, when delay or error is due to the
court’s fault
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain finality – like
support
• Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o No.
• Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it.
• Is filing of memoranda by the parties (after the trial, after
submission of evidence) required/mandatory?
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
• What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation – there are two judgments:
 1. Authority to expropriate
 2. Just compensation
o Ex. Summary judgment (one case has several judgments –
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
• What is the difference between a separate judgment from a
several judgment?
o Several refers to parties, separate refers to claims
• Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
• The judgment awards attorney’s fees. What is required for it to be
valid?
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o The court must state its factual, legal, and equitable
justification. They are not recoverable as a matter of right. If
there is no factual basis, then the award of attorney’s fees is
void.
• What is required for a memorandum decision?
o It must attach the findings of the lower court in an attached
annex which is made an indispensable part of the decision.
o Remote reference is not allowed.
• What is a sin prejuicio judgment?
o It is not binding, because it makes reservation in favor of some
parties as to the right to do something in a separate and further
proceeding
• What is a mittimus?
o Final process for carrying into effect the decision of the
appellate court and the transmittal to the court a quo. It is
predicated on the finality of judgment.
Execution
• When is execution a matter of right?
o Judgment is final and executory  USUAL CASE
 Ex. period appeal has already lapsed
• When is execution a matter of discretion?
o For good reasons, when it is not yet final and executory
o Execution of several, separate, or partial judgment
• Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then to
the SC. Who issues the writ of execution?
 The RTC – the court of original jurisdiction
o Are there instances wherein the writ will be issued by an
appellate court, or a court other than that of original
jurisdiction?
 In the interest of justice, you can apply to the
appellate court. But the general rule is that it is still
the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
instance?
  When it exercises original jurisdiction.
• Where do you file a motion for execution?
o File it in the court that rendered the judgment.
o Can it be filed with the appellate court?
 Same with above.
• Do you need to file a bond to apply for discretionary execution?
o The obligor needs to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file a
supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?
 Proof showing good reason
o What are examples when discretionary execution vest?
 1. Perishable goods
 2. Old age + sickness [?]
• When does judgment become final and executory?
o A final judgment or order is one that finally disposes of a case.
This is the only thing that could be subject to execution.
• What is the difference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.
• Should the writ of execution conform to the dispositive portion?
o Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the judgment.
(Intramuros)
• Is a full blown trial required for a motion for execution?
o No.
• Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
• Do you need a bond to stay a writ of execution that was issued as
a matter of right?
o No. You cannot stay it anymore – even with a bond. It’s a
matter of right.
o What is the exception?
 Get an injunction or TRO, claiming GADALEJ.
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• What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other judgments
saying it’s immediately executory
• Can an MR stay a motion for execution?
o The provision only says “an appeal” can stay a judgment…
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
• In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
 Mina: Discretionary execution can be entertained by
the RTC.
• Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
• Is a motion for execution indispensable before the court can
execute?
o Yes, even for those immediately executory in nature.
o Cagayan de Oro: A lawful levy for execution is needed before
there can be a sale can be effected.
o Can the court motu propio issue a writ of execution?
 OCA v. Corpuz: Court on its own, cannot issue a writ
of execution without motion of another party
• What is revival of judgment by an independent action?
o If you went beyond 5 years from entry of judgment, but are still
within the prescriptive period, you can file an independent
action to execute.
• When can you file a motion for execution?
o Within 5 years from entry of judgment
• After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?
 YES. This is the flat prescriptive period for
judgments.
• Death after judgment:
 o If the judgment obligee dies, then the executor/administrator  5 days from receipt of notice. The custodian/manager
applies for execution has 5 days to report if there is money.
o If the judgment obligor dies, and judgment is for recovery of o What does the court do next?
real/personal property – there is a lien over his property  It issues an order requiring transfer of funds.
o What if levy has already been effected? o Can you garnish without prior demand of payment?
 Proceed to sale of the property to satisfy the  No.
judgment. • Specific acts
o What if the judgment is for money, not property? o If the court requires the obligor to do something, but he
 File a claim against the estate refuses, what happens?
• Section 8: Contents.  The court can require another person to perform it.
o Do the contents have to always be there? o If the other person does not comply?
 No. Only to the extent applicable.  The court may consider that it has been DEEMED
• Money judgments complied with.
o Payment must be in what form?  Give an example.
 In cash. • The court orders that there must be
o Payment must be made to whom? execution of deed of sale in favor of Y, done
 To the judgment obligee, if available by X. X refuses. The court orders Z to
 What if he is not available? perform it. Z refuses. The court will deem it
• To his representative complied with. This deed of sale will be
 What if he is not available? forwarded to the Register of Deeds or
• To the sheriff whoever/whatever office
o Can payment be effected not by cash (Ex. check or PN)? o Can an order for demolition be given along with the writ of
 Certified bank check is allowed execution?
 Or any other form of payment acceptable to the latter  No. It is punitive in nature, so there must be a
o What if there is no cash? hearing.
 Go to   How is this accomplished?
• Levy on real or personal property • There must be motion of judgment obligee
o What will be disposed first? after due hearing and after the former has
 Choice of judgment obligor failed to remove the same within a
 If he doesn’t make a choice, personal property is reasonable time fixed by the court
prioritized over real property o When can there be contempt?
o What if there is no property?  ONLY applies for special judgment, and there is
 Go to  refusal to comply.
• Garnishment • What are the properties exempt from judgment?
o Custodian of the funds/deposit/royalty has to make a report. o Family home, homestead, and the land
o How many days to report?  If you mortgaged your Family Home, will it still be
exempt from execution?

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 • No. • Real property – posted for 20 days
 What are homestead lands? o N.B. not “at least”
• Public lands given to people giving them a  What if the assessed value of the real property
chance to cultivate exceeds 50,000, what is needed?
o Libraries of professionals not beyond 300K • There must be publication
o Furniture for the family not beyond 100K  Should you notify the judgment obligor?
o Beasts of burden (up to 3) • Perishable goods – just notice before the
o Tombstones sale
 What about mausoleums? • In all cases, notice at least 3 days before the
• No. sale
o [Among others]  What time must the sale be?
• When can you apply for a motion for execution? • 9 am to 2 pm, and it must be in the office of
o Section 14. This also tells you the life of the writ. the Clerk of Court. But usually, it is done
o What is the life of the writ? outside the hall of justice
 5 years, before it expires.  What if it is personal property capable of
• Sec. 15-34: delivery?
o Important parts: • It must be done in the place where the
 Requirements of sale property is located
 Certificates of sale o What is the consequence of selling without notice or
 Redemption defacing/removing the notice?
 Redemption period  Penalty of 5000 pesos recoverable in the same action
 Who will be in possession of the property sold in o What if there is a third party claimant?
public sale  He asserts his claim in the proceedings through an
 Who will be entitled to fruits/profits of the property affidavit of title
 What if after participating in the sale, you are unable • Served on the levying officer
to take possession of the property – remedies • Serve copy to the judgment obligee
o What are the requirements for sale?  What is the effect?
 TWO NOTICE REQUIREMENT: one to the judgment • The officer is not bound to keep the property
obligor, one to the public  What is the remedy of the judgment obligee?
• Public – posting in 3 conspicuous places (or • Post a bond approved by the court to
even by publication if assessed value of real indemnify the claimant (value is not less than
property is 50K+) value of property)
 What if it is a perishable good or personal • In such a case the officer shall not be liable
property? for damages for taking/keeping the property
• Perishable goods – within reasonable time if the bond is filed
(no strict timeframe)  When can there be a claim of damages for taking
• Personal property – at least 5 days notice or keeping of the property?

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 • Only within 120 days from the date of filing of
the bond
 N.B. The claimant is not precluded from filing a claim
to the property in a separate action
o Is a certificate of sale mandatory for personal properties
capable of manual delivery?
 No, it is not.
 For real properties, you need a certificate of sale.
 What are the contents of a certificate of sale?
• 1. Particular description of the real property
sold
• 2. Price paid for each distinct parcel or lot
• 3. Whole price paid
• 4. Statement that right of redemption expires
1 year from the date of registration of the
certificate of sale
•  registered with the ROD
o Can you redeem personal property sold on public sale?
 No. Personal properties cannot be redeemed, only
real properties.
 Who can redeem real property?
• The judgment obligor can redeem
 Who else?
• Those who have interest on the property,
either by credit, encumbrance
(redemptioners)
 What is the distinction?
• Judgment obligor always has a period of 1
year, non-extendable
• Once the judgment obligor redeems, no
further redemption is allowed.
• Redemptioners may redeem, but it may
again be redeemed from them within 60 days
by another redemptioner
• What about the redemptioners?
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o Their rights were never
extinguished. It still exists, over the
property.
• If the judgment obligor does not redeem,
can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
property.
o Who has possession during redemption period?
 Obligor.
o Who is entitled to fruits and profits?
 Obligor.
 N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
o How must redemption be made?
 It must be willingness and intention coupled with
tender of payment. Willingness and intention without
tender is not enough.
 Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held to
be invalid.
 Beyond the redemption period, can it still be
redeemed?
• It is not anymore redemption as
contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.
• Amount subject to sale + interest + taxes, if
before the one year period; however, after
the period is over, the amount can be
dictated by the parties freely.
 o I purchased property in a public sale, but someone with a
better interest came forward, so I wasn’t able to get
possession and transfer of the property. But I already
parted with my money, and paid the sheriff. What should I
do?
 1. You can recover its value in the same action or
separate action
 2. You can have the judgment revived in the name of
the purchaser – he steps into the shoes of the
judgment obligee.
• In this case, he can execute – just like any
other judgment obligee.
• [So if he cannot pay, he can levy, and if not,
he can garnish.]
• In execution, you need to remember the word “satisfaction.” Sections
44 and 45 have this end in mind. The books of the case will not be
closed, even if you won, if judgment has not yet been fully satisfied.
• What are the remedies of the judgment obligee if the writ of
execution as returned shows that the judgment has not been
satisfied?
o 1. Call the judgment obligor and have him examined in court,
through subpoena
 N.B. only if the residence of the judgment obligor is in
the province or city of the court
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena
 What if in the course of examination, we find that
he owes the obligor?
• He can then be charged.
 NB. Obligor/debtor of the judgment obligor may pay
what he owes directly to the sheriff, and the sheriff
issues a proper receipt – enough to discharge
o 3. Amortization of payments
o 4. Court appoints a receiver over the property
 Akin to the provisional remedy on receivership
 This is the only provisional remedy that can be given
by the court even after judgment
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 The reason: to preserve the property.
o 5. If it is later discovered that the obligor has an interest over a
certain real property, the court can order a sale to satisfy the
judgment
 Who is ordered to sell it?
• The receiver
 The property must be within the place in which
proceedings are had
 N.B. the interest over the real property must be
ascertainable without controversy
o 6. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor:
 1. The court may issue an order that the judgment
obligee institute an action for recovery of the interest
or debt against the judgment obligor
 2. The court can forbid a transfer or other disposition
of the property within 120 days from notice of the
order
 3. Punish the judgment obligee for failure to comply
with the order
• N.B. ironically, it is the judgment obligee
subjected to punishment for failure to comply
• N.B. Atty. Salvador said the sale must be
within the 120 days provided by the order
• In sum:
o 1. Examine obligor
o 2. Examine obligor’s obligor
o 3. Amortize
o 4. Receivership
o 5. Sale of obligor’s interest
o 6. Obligee action against obligor’s adverse claimant
• What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court
 Every 30 days, the sheriff has to report on the status
of the writ
o 2. Written acknowledgement of the judgment obligee or
counsel
 o 3. When there is an endorsement on the face of the records of POST-JUDGMENT REMEDIES
the case
• Even if the other party does not consent, but the court believes that it Motion for reconsideration
has been satisfied, the court may enter that it has been satisfied.
• What are the effects of domestic judgment? (MEMORIZE) • Is an MR a prerequisite to appeal?
o 1. As against a specific thing, condition/status/relationship of a o No.
person – conclusive upon it • In a case involving summary procedure, is MR allowed?
 As an exception to this, where a will has been o No, it is a prohibited pleading
probated, is death of the party conclusive? • How many days to file?
• It’s only presumed o 15 days
o 2. Res judicata o Can it be extended?
 Baretto v. CA: Two aspects of RJ – 1. judgment bars  Cannot be extended
the prosecution of the same claim, demand, or cause  This rule has never been changed. You cannot file an
of action, 2. Precludes the re-litigation of a particular extension on an MR
fact or issue in another action between the same o So what’s the remedy?
parties in a different claim or cause of action  Some lawyers suggest filing a supplement. But
o 3. Preclusion of issues/conclusiveness of judgment actually, there must be a new event or fact that arises
 As to other litigation actually and necessarily included to do this. So this is dangerous.
therein • How long must an MR be resolved?
• What are the effects of foreign judgment? o Within 30 days
o 1. Conclusive as a specific thing • Can there be a partial MR?
o 2. Presumptive evidence of rights between parties o Yes, when the court finds that the MR affects only a part of the
• How do you enforce foreign judgments? judgment (ex. just one of the issues).
o 1. File a verified petition in the RTC • Distinguish an MR from an MNT.
o 2. Show there was jurisdiction of the court over the subject o A. The grounds are different. In MNT, the grounds are FAME
matter and over the parties and newly discovered evidence.
o 3. Prove the law of that jurisdiction  What fraud is needed here?
• How do you impugn that foreign judgment? • Extrinsic fraud.
o 1. Want of jurisdiction/notice to party  What is mistake?
o 2. Collusion • Mistake of fact in good faith
o 3. Fraud • If there’s a mistake of law, the remedy is an
o 4. Clear mistake of law/fact MR, not MNT
• How about foreign arbitral awards?  What is newly discovered evidence?
o You file an action for recognition. It is not a foreign judgment. • 1. It must be material
• 2. It was not available during trial despite
exercise of due diligence

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 • 3. If considered by the court, it could
later/change the result
o B. The effect is different. An MR involves a trial de novo, if
approved.
o What are the grounds for MR?
 1. Evidence not sufficient to support the judgment
 2. Excessive damages
 3. Decision contrary to law
• What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
• Does the Neypes ruling apply to other kinds of appeal?
o No. Just Rules 40 and 41 (ordinary appeal).
• Why? What about the others?
o Rule 42 (petition for review) – no need for Neypes ruling,
because the provision itself provides for it
 “The petition shall be filed and served within 15 days
from notice of the decision to be reviewed or of the
denial of the petitioner’s MNT/MR filed in due time”
o Rule 43 (review of QJA) – no need as well
 Same wording as Rule 42.
o Rule 45 (petition for review on certiorari) –
 Same wording (15 days from notice of judgment/final
order or of denial of MNT/MR)
• How many times can you file an MR?
o Just once
• How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
first MNT was filed
• What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
• Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
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o Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are different periods as well –
 In the MNT in trial court: 15 days from judgment
 In the CA: for as long as it’s an active case (no need
to wait for a judgment in the CA – as long as the CA
has jurisdiction)
• Is there a MNT in the SC?
o Rule 56 –
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that
it should do it in the interest of justice.
Petition for relief
• How many kinds of petition for relief do we have?
o Two.
o 1. From judgment
o 2. From denial of appeal
• Where do you file it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal: from the court that gives due course to
an appeal
 N.B. So if it’s ordinary review, to the lower court. If it’s
a petition for review, then to the appellate court.
• A lawyer forgot to file an appeal on time. He filed late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground. He just forgot; he wasn’t prevented.
o You file an MR.
o Why?
 You file a petition for relief from denial of appeal if you
were prevented from filing it. Here, he was not.
• What is the time period for filing petition for relief?
o Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
 o BUT NOT more than 6 months after entry of judgment/order o1. Although section one states that only a party may file a
o N.B. both periods must apply (“60 within 6”) petition for relief from judgment, settlement of estate is an
 The sixty days can only move around the six months. action in rem. It requires publication, so the heirs have been
If you found out the day before six months expire, you notified and deemed as parties.
are left with one day, not 60 days. o 2. The learned of the judgment 2 months (60 days) from
• Can you file a petition for relief from judgment when there is still learning of the judgment. So the proper remedy is petition for
an available remedy of MR, MNT, or appeal? relief, since it falls within the period.
o No. As long as there are still available reliefs, you cannot • N.B. Remember this: petition for relief is filed by a party to a case.
resort to petition for relief from judgment. Take note, that there Annulment of judgment can be availed of even by a non-party to a case.
must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal. Appeals
• Where else does FAME apply?
• 1. Appeal is a statutory privilege
o 1. MNT
o Neither a natural right nor a constitutional right
o 2. Petition for relief from judgment/denial of appeal
o There is right to due process. But the right to appeal an
o 3. MR to court order declaring defendant “as in default” (failed
adverse decision is not part of the right to due process.
to appear in pre-trial)
o Thus you cannot deviate from the requirements made
o 4. Motion to lift order of default (failure to file an answer)
mandatory under that law that gave you such privilege.
• What are the grounds for annulment of judgment (Rule 47)?
• 2. “Matter of right” (qualified)
o 1. Extrinsic fraud
o One can technically view appeal as a right as long as there is a
 Prescribes 4 years from time of discovery
statute providing you such privilege already laid down
o 2. Lack of jurisdiction (covers both SM and person)
o Ex. judgments of MTC and RTC exercising original jurisdiction
 N.B. This is the only provision that uses lack of
 So if the RTC exercised original jurisdiction, the CA
jurisdiction both ways
must entertain the appeal
• Mr. X died, leaving an estate. Juan claims to be the sole heir. The
• 3. Not a “matter of right”
estate court adjudicated the entire estate in favor of Juan.
o Ex. appealing from judgment of a court already exercising
Judgment became final and executory. After 2 months, the rest of
appellate jurisdiction
the heirs who learned of the judgment came forward and filed a
o Ex. MTC (original)  RTC (appellate)
motion to set aside the judgment. Court denied the motion to set
 One may file a Petition for Review  technically, this
aside the judgment. So they went to the CA on an annulment of
is still a matter of right [at least, to file, from one’s
judgment. (N.B. a petition for annulment of judgment is an original
point of view]
action; it is not an appeal. You file this for a decision of the MTC, to the
 But whether it is given due course by the higher court
RTC and for a decision of the RTC, to the CA.) Did they use the
or not is another issue – there is discretion not to
proper remedy for filing petition for annulment of judgment in the
entertain the petition for review
CA and not petition for relief to the court that issued the
o Ex. Rule 42, Rule 43, Rule 45
judgment? (Alaban v. CA)
o Petition for relief. • 4. Purpose of appeal
o Review errors of judgment
 Errors of fact or errors of law

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  One is talking about a court having jurisdiction over • May the State appeal on the ground that the penalty imposed is
the person and subject matter not what the prosecution wanted?
 Goal: to achieve reversal or modification of judgment o Yes.
o Contra: errors of jurisdiction • Appeal is a remedy. A remedy to what?
 Goal: set aside judgment. This is covered by Rule 65. o An appeal may be taken from a judgment or final order that
• ONLY the defenses that were put up in trial court may be elevated for completely disposes of the case,
appeal. Issues not discussed below at all, in the pleadings, may not be o Or of a particular matter therein when declared by these Rules
elevated for appeal. (Rule 44, Sec. 15) to be appealable. (Rule 41, Sec. 1)
 Ex. special proceedings or SCAs usually allow
o How are issues raised in the trial court?
multiple appeals; e.g. settlement of estate: probate of
 Raised in the pleadings
will, appointment of executor, etc.
o May that issue not included in the pleadings be tried
o Why does the provision not put the word “final” before
nonetheless?
“judgment”?
 No. Except if one moves to amend the pleadings to
 Because if the judgment is final, then it would be
conform to evidence or authorize its presentation
executory otherwise. To remove this confusion, then
o A party submits evidence outside the issues raised in the
the provision does not state “final”
pleadings. The other party accedes to it. How does the
o Why does the provision put “final” before “order”?
other party show that he did not object to the raising of
 Because the provision wants to contrast this against
issues outside the pleadings?
interlocutory orders, which are non-appealable.
 Submitted evidence on that issue too
o Is there a distinction between judgment that completely
 Cross-examination
disposes of the case and final order that completely
 Remaining silent
disposes of the case?
• A question of jurisdiction is something that you can question
 Judgment is based on the merits of the case, after a
anytime. (“A dragon that may be slain each time it rears its ugly
full-blown trial and evaluation of evidence.
head.”):
 Final order is based on adjudication not after going
o It doesn’t matter if you raise it on appeal or through SCA; the
through a full blown trial. Ex. MTD or demurrer
point is you can raise it to a higher court.
• The defendant files an answer but it did not controvert the
• What is the exception?
allegations in the complaint. What should the plaintiff do?
o Estoppel. For instance, X failed to object to jurisdiction of the
o File motion for judgment on the pleadings (Rule 34).
tribunal and actively participated in the trial.
o This is a final order that completely disposes of the case, and
• If a party to a case got a smaller amount than prayed for, but he
is appealable.
won the case, can he appeal?
o Yes, he was not satisfied with the award. It does not follow
• What matters cannot be appealed?
that just because a person won the case, he is not allowed to
o 1. Order denying petition for relief from judgment:
appeal.
 Remedy is any of the Rule 65 remedies
• In a criminal case, the accused is convicted. May he appeal?
o 2. Order denying interlocutory order:
o Yes.
 Judy Ann Santos v. People – MTQ denied. Filed MR
to the denial of the MTQ. HELD: The denial of the

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 MTQ is an interlocutory order which is not the proper
subject of appeal or petition for certiorari.
 There would be no procedural void:
• A) There can still be appeal of the main case
• B) There can be petition for certiorari of the
main case if there is GADALEJ
 Two reasons why interlocutory order cannot be
appealed:
• A) Still subject to modification or rescission
by the court
o Ex. for preliminary injunction, may
file for motion to discharge the
injunction or may file counter bond
• B) To avoid multiplicity of appeals
o 3. An order disallowing or dismissing an appeal.
 “Disallowing an appeal” – this is fairly obvious
 “Dismissing an appeal”
• This does not refer to adverse decisions. It
just gets confusing for many because the
appellate courts use the term “hereby the
appeal is dismissed” if a party loses an
appeal.
• It actually means the same thing as
disallowance; so for instance, there was no
payment of docket fees, etc.
o 4. An order denying a motion to set aside judgment by consent,
confession, or compromise on ground of duress, fraud, or
mistake or any ground vitiating consent.
 What is unique about judgment rendered by court
based on compromise?
• It is immediately executory.
 For instance, a party is defrauded by the other
party in a compromise agreement. He files a
motion to set aside the judgment. It was denied.
What is the remedy?
• He can’t appeal, but can avail of Rule 65.
o 5. Order of execution
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o 6. Order dismissing an action without prejudice
 What is a dismissal without prejudice?
• One that does not bar the party from again
filing the same action disposed of.
 MTD was filed by the defendant on the ground of
failure to state cause of action, and it was
granted. Is it appealable?
• No. It is dismissal without prejudice.
 MTD based on statute of limitations: dismissal
without prejudice?
• No. It is a dismissal with prejudice, and
therefore appealable, because the action has
prescribed, and cannot be re-filed.
 What are the four grounds where dismissal is with
prejudice?
• 1. Statute of limitations
• 2. Statute of frauds
• 3. Res judicata
• 4. Payment, waiver, extinguishment,
abandonment
o 7. Judgment or final order in an action with several parties or
rd
claims, counterclaims, cross-claims, and 3 party claims, when
the main case is pending unless the court allows
 General rule: wait for the main decision. Even if the
main decision comes out 2 years after, the party
receiving an adverse decision may still file an appeal
in time.
• In all of the grounds stated therein, where there is no appeal
allowed, what is the proper remedy?
o Rule 65.
• What ground has been deleted?
o Order denying MNT or MR – this used to be the first in the
enumeration
o SC-07-7 (Dec 2007) removed this from the enumeration.
o Does this mean that you may appeal from the order
denying the MR or MNT?
 No, still not.
 o So why was this removed from the enumeration? The private respondent just files the response on
 So the parties cannot avail of the last paragraph of behalf of the public respondent.
Sec. 1 (Rule 65 – certiorari, prohibition, mandamus) to o Under Rule 43 (Q-J), what is the rule?
question the denial of the MR or MNT.  There is no set rule. It can be appellant/appellee or
 But this is a bit unfair, because for instance, your MNT petitioner/respondent.
was denied even if there actually was new evidence – o What if both parties appeal?
you don’t have certiorari as a remedy anymore!  Plaintiff-appellant v. Defendant-appellant
 Although nothing prevents filing a separate petition for  But in their briefs, they would refer to the other party
certiorari to question this act by the TC. as “appellee”
• What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41) Ordinary appeals (Rule 40-41)
o 2. Petition for review
• Period to appeal?
o 3. Petition for review on certiorari
o 15 days for notice of appeal, from receipt of notice of the
• What are the ordinary appeals?
judgment
o 1. Notice of appeal
o Receipt by whom?
o 2. Record on appeal
 The party or the counsel
• When is there record on appeal?
o If there was notice sent to both the party and the counsel,
o 1. Multiple appeals
and the notice to counsel arrived earlier, what is the
o 2. Special proceedings
reckoning point?
• What happens to the title of the case?
 The notice to counsel, because notice to counsel is
o The title remains the same. So the plaintiff is still mentioned
notice to the party.
first, and the defendant next.
o If you have multiple counsels, and the court clerk sent a
 But the designation just changes.
copy to all such, what is the reckoning point?
 Ex. Glenn Tuazon, plaintiff v. Rensi Pua, defendant
 Upon the receipt of the lead counsel, as opposed to
  Glenn Tuazon, appellee v. Rensi Pua, appellant or
collaborating counsel.
  Glenn Tuazon, appellant v. Rensi Pua, appellee
 If both are co-counsels, then receipt by either starts
o What if it goes up to the Supreme Court?
the reglementary period.
 When one goes up to the Supreme Court, it becomes
o Can you extend the period of 15 days?
petitioner v. respondent.
 Not extendable
 And the title need not remain the same.
 But if you file an MR and it is denied, following
 You do not include the CA as a respondent when you
Neypes (as adopted by SC 07-7), you get a fresh
appeal to the SC, still the same private party. (The
period.
SC already issued a circular for this.)
 X set a hearing for MNT on June 20. The court
 The lower court only becomes a respondent, for
ruled on July 6, denying the MNT. X got a copy
instance, in a petition for certiorari. If there is
on July 9 by registered mail.
GADALEJ, for instance, the defendant is the court.
• X can still appeal. It is immaterial how long
the court took to resolve the MNT.

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 • Fresh period of 15 days to appeal.
o X, instead of filing an MR, filed a motion for extension to
th
file the MR. He filed on the 14 day. It was denied
outright. Having the motion denied, how many days
remain to file a notice of appeal?
 This is a prohibited motion, so it should be treated as
if it were not filed. The period continues to run. If it
th
was decided beyond the 15 day, then X is barred.
• When is the period of appeal 30 days?
o Record on appeal (to be discussed in Rule 41)
o But you must file both notice and record. When is the
notice of appeal filed?
 There is no separate time frame for the notice of
appeal. Both can be filed within the 30 day period.
o Can you extend the period of 30 days?
 No
 Except when there is an authorized alteration or
modification of the record
• What is the period to appeal for Habeas Corpus cases?
o Within 48 hours
o What about Writ of Amparo and Writ of Habeas Data
cases?
 Within 5 working days, Petition for Review on
Certiorari (Rule 45) – but can raise both questions of
fact and law
• Appeal docket fee and other lawful fees – when and where do you
pay?
o Where: to the court that rendered the decision
o When: within the period to take appeal (so same as 15/30)
o Note: this above requirement is MANDATORY AND
JURISDICTIONAL.
o What if the notice was filed within 15 days, but the docket
fees were not paid within the same time (ex. 18 days)?
 The dismissal is not automatic – the trial court still
retains jurisdiction. It can decide whether to decide to
dismiss the appeal (failure to comply with a
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mandatory and jurisdictional requirement) or to
continue with the appeal.
o What if he paid but the fees are short?
 What is mandatory and jurisdictional is the payment of
the whole docket fee.
 Usually the judge gives an order giving the party time
to comply with filing the entire docket fee.
• Contrast the Neypes fresh period with other fresh periods in Civil
Procedure –
th
o Filed motion to dismiss on the 13 day. It was denied.
How many days remain for you to file an answer – the 2
days or a fresh period?
 Fresh period of 5 days. (Rule 16)
th
o If it is a bill of particulars, filed on the 13 day. 2 days
remain or fresh period?
 Fresh period of 5 days. (Rule 12)
• If the notice of appeal to the MTC did not make mention to which
court the appeal will go to, is it fatal?
o No. The law will fill the gaps that it would be the RTC hearing
the appeal.
• If the notice of appeal to the MTC was flawed enough to state that
the appeal will go straight to the Supreme Court, because he is
just raising pure questions of law?
o The court may have discretion to send it to the RTC instead.
But of course, this is up for question.
• If a court must to make a ruling that the appeal is erroneous, who
makes that decision? The trial court or the erroneously selected
higher court?
o Higher court.
• What if there was no copy of the notice filed to the other party?
o It is a fatal defect.
• What is a record on appeal?
o It’s a sequential compilation of the pleadings, orders, etc. of the
judge.
o Unlike a notice of appeal, which is just a statement of: a) when
you received the decision, b) that you paid appeal docket fees
within period, and c) you intend to appeal
• When is a record of appeal required?
o 1. Special proceedings
o 2. Separate or multiple appeals if allowed by law or the rules
 For separate appeals, the judge decides if it is
allowed. GENERAL rule: wait for all the claims to be
decided (in a case with multiple claims).
• Can there be record on appeal be required for an appeal coming
from the MTC?
o Yes. For example, settlement of estate of decedent who
resided outside MM, and 300K or less.
• Why is there a need for approval of the Record by the trial court?
o The court must determine whether the record of appeal is
complete.
o Note: the copy furnished to the other party also gives him
chance to scrutinize the completeness of the record.
• When will you not indicate which documentary or testimonial
evidence you are including in the record in the reference?
o When ALL of the testimonial and documentary evidence is
included. One just has to make a statement to that effect.
• When is appeal perfected?
o Upon filing notice + payment of docket fees
• When is the trial court’s jurisdiction lost?
o Upon the perfection of appeal by all the parties in due time OR
upon the lapse of the reglementary period given for them to
appeal lapses
• How about record on appeal?
o Not upon mere filing of notice, but upon APPROVAL of the
record on appeal
• When does the court lose jurisdiction over the whole case?
o Only upon final order or decision of the case
o Because the record on appeal is only about a particular subject
matter in the trial
• If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
o Period for filing of briefs?
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 15 days, appellant’s memorandum (from notification
of RTC clerk of receipt of complete record/record on
appeal)
 15 days, appellee’s memorandum (from receipt of
appellant’s memorandum)
• In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because it’s only been decided on once, and will be reviewed
for the first time.
o What is the procedure in the CA?
 Filing of appellant’s and appellee’s brief. The
procedure is found in Rule 44, not 41.
o Period for filing of briefs?
 45 days, appellant’s brief (from receipt of notice of the
clerk that all evidence have been attached to record)
 45 days, appellee’s brief (from receipt of appellant’s
brief)
 20 days, for reply (from receipt of appellee’s brief)
• Coming from a loss in the RTC (exercising original jurisdiction),
what are the available remedies?
o 1. Ordinary appeal
o 2. Petition for review on certiorari (Rule 45)
 For pure questions of law
o 3. Record on appeal + Notice of appeal
• Differentiate:
o Petition for certiorari (Rule 65) – errors of jurisdiction
o Petition for review (Rule 42 and 43) – second level appeal
o Petition for review on certiorari (Rule 45) – pure questions of
law
• When can you NOT go straight to the SC despite the appeal being
of pure questions of law?
o If it is coming from the MTC, it has to go to the RTC first, then
CA, then SC. Cannot go straight to the SC.
o N.B. If the RTC is exercising appellate J (came from the
MTC), you cannot go straight to the SC by Rule 45. If original,
you can go straight to the SC by Rule 45.
• A case was filed in the MTC, but it was dismissed for lack of o DOJ Prosecutors  DOJ Secretary (petition for review) 
jurisdiction. There was notice of appeal filed, and it was held that CA (Rule 65, based on GADALEJ)
the RTC had jurisdiction, which heard the case. Is the RTC  N.B. this is only for civil procedure. The rule for
performing original or appellate jurisdiction? criminal procedure differs (involves Office of the
o Either argument seems defensible. President)
o As a practitioner, what would be more protective of your • If the issues you are going to raise are questions of fact (ex.
client, Rule 41 or 42? whether there was cultivation of the land, to the DAR), where
 Rule 41 seems precarious. Play safe, go for Rule 42. should he bring that problem?
 Although using Rule 42 would be more burdensome, o To the CA (of course, exhaust admin remedies first)
since you have to come up with your entire • If the question you are going to raise is purely legal, where do you
assignment of errors within 15 days (rather than just go?
filing the notice). o Still to the CA
o Sec. 3 (“whether the appeal involves questions of fact, law, or
Petitions for review (Rules 42-43) mixed questions of fact and law”)
• Why is Rule 43 still called petition for review even if the QJ-A is
• What are the two kinds of petition for review?
exercising original jurisdiction?
o Rule 42
o Because the QJ-A is presumed to have the proper expertise,
o Rule 43 (quasi judicial agencies)
beyond what the courts possess. The presumption is definitely
o What about petition for review of the decisions of the
against the one appealing.
Prosecutor?
o This is why the CA does not automatically provide due course.
 It is technically not a petition for review because it is
• What are the periods?
for criminal procedure, and is in the executive branch
o Same for Rule 42 and 43 – 15 days
• When does Rule 42 apply?
o Can you ask for an extension?
o There is denial in the MTC, and then denial in the RTC, and
 Yes, you can ask for one during the reglementary
then it goes up to the CA through Petition for Review.
period.
• When does Rule 43 apply?
 Upon motion and payment of docket fees
o Body with original jurisdiction is a quasi-judicial agency
o Can you ask for a second extension?
o Is the enumeration in Rule 43 of QJAs exclusive?
 General rule is that no further extensions are allowed,
 No.
except for the most compelling reasons.
• Particular rules:
• What are the requirements of a Rule 42?
o HLURB  Office of the President  CA
o 1. It must be verified
o NLRC  CA, but under Rule 65, not 43
o 2. Attach a copy of the decision or a duplicate original
o DARAB  CA
o 3. Affidavit of material dates
o CTA  CTA en banc  SC
 Date of receipt of decision, date of filing of MR, date
o COMELEC, COA  SC (Rule 65)
of denial of MR
o CSC  CA (Rule 43)
o 4. Contents of petition:
o OMB  CA (Rule 43) for admin cases
 Parties
o OMB  SC (Rule 65) for non-admin cases

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  Issues, grounds relied upon, errors
 Explanation if service is other than personal
o 5. Furnish RTC and other copy a copy of the petition
o 6. Pay docket fees to CA
o What are some causes that will dismiss the petition?
 1. The jurat does not comply with the requirements of
the notarial law
 2. Failure to attach registry receipt
• What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?
 Because it came from a QJA, the court cannot verify if
the issued resolutions, etc. are genuine
• Is a Certification of Non-Forum Shopping required?
o Yes, for both Rules 42 and 43.
• What actions can be taken by the CA?
o 1. Require respondent to file comment within 10 days of notice
 Not motion to dismiss
o 2. Dismiss petition outright if:
 A) patently without merit
 B) manifestly filed for delay
 C) too unsubstantial to require consideration
• What are the requirements of the comment to be filed by the
adverse party?
o 1. 7 copies
o 2. Accompanied by relevant certified true copies of material
portions of record
o 3. Contents:
 A) whether or not he accepts statement of matters
 B) point out insufficiencies and inconsistencies in
statement of matters
 C) reasons why petition must not be given due course
o 4. Copy given to petitioner
• What is due course?
o That which is given when the CA finds prima facie that the
lower court has committed an error of fact or law that will
warrant reversal or modification of decision
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o You have to wait for a notice whether the CA is giving due
course to the petition.
o When does the CA decide w/n to give due course?
 After submission of the comment or expiration of date
to file it.
• Does the appeal stay the implementation or execution of the
judgment of lower courts in a Rule 42 petition?
o Yes.
o Exception: summary proceedings in MTC
 Ex. Ejectment from MTC. The judgment in this
ejectment case is immediately executory.
 But it can be appealed to the RTC. However, even
pending appeal, it is still executory.
 BUT it can be stayed by posting supersedeas bond
and making deposit of monthly rentals and fair
compensation for usage.
• Does the appeal stay the implementation or execution of the
judgment of QJAs in a Rule 43 petition?
o QJ-A’s decisions is NOT stayed, as a general rule.
o Although each law creating the administrative agency will
provide a specific rule as to whether its decision will be stayed
by appeal to the CA. BUT remember the general rule. It will
not be stayed.
o Why is it that the general rule under Rule 42, is that the
judgment of the RTC will be stayed pending resolution,
whereas in Rule 43, it will not be stayed?
 Because there is presumption of correctness on the
matter of expertise of the QJ-A.
• When is there elevation of record from the RTC?
o Only when CA deems necessary
o May order clerk of RTC to elevate records 15 days from notice
• When is there perfection of appeal?
o Upon timely filing of petition for review + payment of docket
and other lawful fees
o When does the RTC lose jurisdiction over the case?
 Perfection of appeals + expiration of time for others
 o When can the RTC issue orders under its residual
powers?
 Before giving due course by CA
o Residual powers:
 1. Protection and preservation of rights of parties on
matter not subject of appeal
 2. Approve compromises
 3. Permit appeals of indigent litigants
 4. Order execution of judgment pending appeal
 5. Approve withdrawal of appeal
o Why are there no residual powers in Rule 43?
 Because we are dealing with QJ-As, not regular
courts.
• After giving due course, what may the CA require?
o 1. Set case for oral argument
o 2. Or require parties to submit memoranda within 15 days
• When is the case deemed submitted for decision?
o Upon filing last memorandum or pleading
Petition for Review on Certiorari (Rule 45)
• The only way to go up to the SC is through Petition for Review on
Certiorari.
o EXCEPTION: what if in a criminal case, the judgment of
the SB, RTC, or CA is life imprisonment or reclusion
perpetua?
 Go to the SC, but NOT by appeal by certiorari but by
notice of appeal.
o There are two situations where the SC can entertain
questions of facts, apart from life/RP decisions. What are
these?
 Writ of amparo (2007)
 Writ of habeas data (2008)
 (“Any aggrieved party in a lower court decision re:
WOA or WOHD may go straight to the SC, even if
there are questions of fact.”)
• What does Rule 45 cover?
o Only appeals involving pure questions of law
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o Because the SC does not try facts, nor calibrate evidence
o Question of law:
 If the doubt or the difference pertains to what law
applies to a given set of facts.
o Question of fact:
 If the doubt pertains to the truth or falsity of an alleged
fact
o What if the issue raised in appeal is whether the contract
between parties is a contract of sale or contract of
equitable mortgage – what is the nature of the question?
 Question of fact and law.
• What are the exceptions to the rule that the SC cannot review
findings of fact of the lower court?
o 1. Conclusion based on speculation, surmises, conjectures
o 2. Inference is manifestly absurd, mistaken, impossible
o 3. Grave abuse in apprehension of facts
o 4. Decision based on misapprehension of facts
o 5. Contradicting findings of fact
o 6. Lower court went beyond issues raised and against what
was stipulated by the parties
• Whose decisions can you appeal to the SC under Rule 45?
o 1. CA
 EITHER original or appellate (from RTC) jurisdiction,
as long as questions are purely of law
 Examples of original J: certiorari, prohibition, etc.
o 2. CTA
 Under RA 9282, it must be a decision of the CTA en
banc
o 3. RTC
 ONLY those decided under its original jurisdiction.
 Because for decisions under its appellate jurisdiction,
you have to go to the CA. (Rule 42), EVEN IF it is
only pure questions of law.
o 4. Sandiganbayan
 It goes automatically to the SC, because it is a co-
equal court with the CA. So the CA cannot review its
decisions
• Take note of this amendment: AM 07-7-12-SC:
o The petitioner can now apply for provisional remedies (like
preliminary injunction, TRO) along with the petition for review
by certiorari
o May seek these same remedies through verified motion in the
same action or proceeding anytime during its pendency
o N.B. can include attachment, but this would be rare in the SC
level. Support pendente lite is fairly common. Replevin is also
fairly common.
• Petition for Review on certiorari – what is the period?
o 15 days.
 N.B. count from receipt of final order or judgment, or
denial of the MR (“auto fresh period”)
o Can there be extension?
 ONLY ONE extension for 30 days, for good reason
o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?
 NOPE. You only get one extension.
o What are the requirements for motion for extension?
 1. Pay docket and filing fees.
• N.B. The docket and filing fees must be paid
at the time you ask for the extension; and
NOT during the extended period.
 2. There must be a justifiable reason.
 3. Serve a copy of the motion for extension of time to
the adverse party
• You raise a question of law to the SC. Is the review on certiorari a
matter of right?
o No. It is still subject to judicial discretion.
• So what questions of law do you need to raise to raise the
likelihood that your appeal will be given due course?
o It must not just be a question of law; it must be a substantial
question of law.
o What are the grounds to not give due course?
 1) patently without merit
 2) filed manifestly for delay
 3) too unsubstantial to require further consideration
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 N.B. Same as in the CA
• What are the contents of the petition?
o 1. Full name of the parties, without impleading the lower court
o 2. Material dates showing timeliness
o 3. Concise statement of matters involved
o 4. Duplicate or CTC of judgment or final order or resolution
appealed from
o 5. Sworn certification against forum shopping
 This is an odd rule, since usually it is only required for
initiatory pleadings
• COMPARE with Rule 65.
o Who is the private respondent in a petition for certiorari
(Rule 65)?
 The other party, who benefited from the adverse
decision.
o Who is the public respondent in Rule 65?
 The judge or public officer.
 Not required to answer the petition.
o What about Rule 45?
 The lower court is NOT impleaded. The case title
also doesn’t change.
 So instead of Tuazon v. CA, it is still Tuazon v. Pua
• Why is there a need to append to the appeal material portions of
the record?
o Because the matter of elevating the records comes at a later
time, from the CA clerk to the SC. So at the time of the filing of
petition, you need to pinpoint the errors ahead of time.
• What are the factors that must be considered whether the petition
should be given due course?
o N.B. These are not controlling over the court’s ultimate
discretion
o 1. The question of substance has not yet been passed upon by
the SC [novel issue]; or decided not according to law [power of
correction]
o 2. Departed from usual accepted course of judicial
proceedings, or sanctioned such an act by a lower court [power
of supervision]
  E.g. In a lower court hearing, the judge arbitrarily
disallowed a party from presenting evidence.
• This is an example of #2.
 How do you differentiate it from GADALEJ under
Rule 65?
• It’s difficult to do so, because the wording of
the second ground has all the trimmings of
Rule 65 Petition on Certiorari.
• The CA and SC have concurrent jurisdiction over original petitions
for certiorari, mandamus, prohibition, etc. What negative
considerations must you have in deciding where to file?
o For CA – know that this is not final. There is still possibility of
petition for review by certiorari to SC.
o For SC – Sol-Gen can launch the issue of judicial hierarchy
• There are possible sanctions in case of non-filing or unauthorized filing,
or non-compliance with conditions, when the SC asks for comment.
• Sec 8 – due course after exchange of pleadings
o It is a good sign and there is a receipt of resolution that the SC
has given due course to the petition
Rules 44-56 – CA
• How is jurisdiction acquired over persons for original cases filed
in CA?
o Service of order/resolution or voluntary submission to the
court’s jurisdiction
o What does service of order or resolution mean?
 Akin to Rule 13 service of judgment
o What if there was an effort to serve and it was not
received? Is the court deemed to have acquired
jurisdiction?
 No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
• Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment, mandamus,
prohibition, quo warranto.
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o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.
 Can you seek an annulment of judgment of an
MTC decision?
• Yes. You file annulment in the RTC.
 Can you seek an annulment of judgment of a CA
decision?
• No. Fall back to the usual rule that you can
only go up to the SC through Rule 45.
o Can the justices hear the case?
 Yes. Alternatively, it can ask the RTC to receive
evidence.
• Preliminary conference is the equivalent of pre-trial in the CA. Whether
it is an original or appealed case, the CA can set it for preliminary
conference.
o What is the effect if the appellant is absent here?
 The appeal will be dismissed. This is provided in Rule
50. This is almost the same rule as absence of the
plaintiff in a regular pre-trial.
• Rule 50 enumerates grounds for dismissal of appeals:
o [Failure to properly appeal]
o 1. Order or judgment is not appealable
o 2. Failure to file notice of or record of appeal within proper
period
o 3. Failure of appellant to pay docket and lawful fees
o [Record of appeal-related]
o 1. Failure of record on appeal to show on its face that the
appeal was taken within the proper period
o 2. Unauthorized alterations, omissions, additions to the
approved record on appeal
o 3. Failure to make necessary corrections or completion of
record, according to order by court
o [Brief-related]
o 1. Failure to serve proper number of copies of brief or
memorandum
 When is a brief filed, and when is a memorandum
filed?
 • If you lose in an SCA in the lower court, you
file a memorandum on appeal.
• Otherwise, you file a brief.
o 2. Absence of specific assignment of errors in appellant’s brief;
OR absence of page references to the record
o [Failure to comply]
o 1. Failure of appellant to appear in preliminary conference;
o 2. Failure to comply with orders, circulars, directives of court
without justifiable cause
• If any one of these circumstances appear, will the dismissal be
mandatory?
o No. It “may” be dismissed. There is court discretion.
o Except: if order of judgment cannot be appealed
• If your appeal in disallowed, what is the remedy?
o Petition for certiorari, or petition for mandamus
• Two errors noted by Sec. 2 – and the appeal “SHALL” be
dismissed:
o 1. Pure questions of law sent to CA, instead of SC
o 2. Notice of appeal instead of petition for review from RTC to
CA
• When is withdrawing appeal a matter of right?
o Before filing of appellee’s brief  matter of right
o After: discretion of court
o “Motion for withdrawal.”
• What is the legal effect of withdrawal?
o Lower court decision becomes final and executory.
• Compromise agreement – when can it be done?
o Anytime. Even when the judgment has become final and
executory.
• Can the parties stipulate on the facts?
o Yes, if it is an original action, or there is a grant of new trial on
the ground for newly discovered evidence
o (Note: newly discovered evidence is the only ground for the
CA; FAME is not included)
• Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
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 But if the CA feels that there is a need for the parties
to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o 2. Motions are NOT heard in the CA
 While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
party.
 BUT in the Court of Appeals, motions in the CA need
not be heard (same with the SC)
o 3. Comply with minimum requirements of Rule 44 and 50.
 What if you don’t have an assignment of errors?
• Your appeal will be dismissed.
 What if you don’t comply with court circulars?
• Dismissed.
• Rule 51 – provision on judgment.
o For trial courts, it is Rule 36.
• Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds – except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
• Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
 TC – reglementary period within receipt of adverse
decision
 CA – from the time appeal is perfected and as long as
the CA has jurisdiction
Annulment of judgment in the CA
• When does annulment of judgment vest as a remedy?
o For final judgments of the RTC where ordinary remedies of
MNT, appeal, petition for relief, or other remedies are not
available
o What if it’s a decision of the MTC?
  File with the RTC and follow these same rules, and o 5. Found in the Constitution: constitutionality of law, treaty,
treat it as an ordinary civil action ordinance, tax imposition, EO, etc.
• What are the grounds? • What do you need to follow for original cases?
o 1. Extrinsic fraud o Rule 46 – original cases
 But not if it could have been availed of in an MNT or o PLUS:
petition for relief  Rule 48 (preliminary conference),
o 2. Lack of jurisdiction  Rule 49 (oral argument),
• When is the period for filing?  Rule 51 (judgment),
o If based on extrinsic fraud, within 4 years from discovery  Rule 52 (MR)
o If based on lack of jurisdiction, before barred by laches or o Is there a MNT?
estoppel  No.
• Must it be verified? • For appealed cases to the Supreme court, what is the mode?
o Yes o Rule 45 – the only way to go up to the Supreme Court
• What else is required? o PLUS:
o 1. Attach CTC of the judgment sought to be annulled  Rule 48 (preliminary conference),
o 2. CNFS  Rule 51 (judgment),
• What is the court action available?  Rule 52 (MR)
o Either dismiss it or issue summons to respondent o Is there oral argument?
• What is the effect of a favorable judgment on the action?  No.
o The judgment becomes null and void, without prejudice to • Grounds for dismissal of appeals in the Supreme Court?
refilling o [Failure to properly appeal]
o Or if the ground is extrinsic fraud, the court can order a trial de o 1. Failure to appeal within proper period
novo, as if an MNT was granted  Ex. 15 days in Rule 45
o The court can grant damages o 2. Failure to pay docket and lawful fees or make deposit for
costs
Rule 56 – Supreme Court  You have to pay directly to the SC because you are
appealing directly to the SC
• Remember Sec. 1 and 3. Memorize the cases that will be originally filed  The usual rule that you pay the docket and lawful fees
in the SC. in the lower court, and it will merely transmit to the
• What are the cases that can be originally filed in the SC? higher court does not apply here
o 1. Certiorari, prohibition, mandamus o 3. Error in the choice or mode of appeal
o 2. Quo warranto o 4. Fact that case is not appealable to SC
o 3. Disciplinary actions against members of the Bar/bench  Always think of rule 45, general rule
 But if you file a case against a member of the Bench, • Note: Rule 65 is not an appeal, but an
it will be referred to the Court Administrator. If against original action
a member of the Bar, it will be referred to the IBP.
o 4. Against ambassadors, consuls, other public ministers, etc.

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  There is no other. Ex. Notice of appeal is improper, o This applies in an en banc case. This rule does not apply to a
except one situation: Reclusion Perpetua or Life division in the SC.
Imprisonment (to be discussed later) o 1. Deliberate again.
o [Patently without merit] o 2. If still no majority:
o 1. Lack of merit in the petition  Original action – dismissed
 An appeal patently without merit  Appealed cases – decision affirmed
o [Failure to comply]  Incidental matters – petition of motion denied
o 1. Failure to comply with requirements regarding proof of
service and contents of and the documents which should Contents of briefs
accompany the petition
[Appellant’s brief]
 Not just to adverse party, but also the lower court who
rendered the judgment
1. Subject index
o 2. Failure to comply with circular, directive, or order of SC
a. Like a table of contents
without just cause
b. For posterity’s sake, put this even if it’s just short
 Ex. Indicating telephone number, e-mail address –
2. Assignment of errors
stuff in addition to PTR, etc.
a. How the lower court erred
• N.B. For all grounds, take note it says “MAY BE” dismissed, so it is not
b. Key word: “specific” errors. Not allowed to just make general
automatic.
statements
• What if there is appeal by Rule 45 to the SC from the RTC 3. Statement of the Case
submitting issues of fact?
a. Clear and concise statement of:
o May be referred to CA for decisions or appropriate action.
i. Nature of action
Determination of SC whether or not there are issues of fact is
ii. Summary of proceedings
final
iii. Appealed rulings and orders, and nature of judgment
o What is the situation contemplated here? b. Easiest way to do it: chronological sequence
 On its face, there are only issues of law. But after a
c. Don’t bother mentioning the irrelevant motions like motion to
while, the SC realized there are mixed questions of
extend, unless there is a timing issue, etc.
fact and law.
4. Statement of Facts
o Options of SC: a. Clear and concise statement in narrative form of the facts
 1) dismiss the case – improper mode
b. E.g. “The following facts are not disputed by both parties:”
• Consequence: appellant had lost his time to 5. Statement of issue
properly appeal to the CA (15 days only) a. Just a simple statement of what the court needs to resolve: e.g.
 2) remand to the CA W/N the marriage between plaintiff and defendant should be
• Because otherwise, there would be no more declared void on the ground of psychological incapacity.
time for you to go to the CA 6. Arguments
• What is the procedure if opinion of the SC is equally divided a. Must be with reference to the record
(stalemate situation)? b. And cite authorities
7. Relief

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8. Copy of the final order or judgment being appealed
a. In cases not brought up through record on appeal, appellant’s
brief must contain this as an appendix,
[Appellee’s brief]
1. Subject index
2. Statement of facts
a. Or counter-statement
3. Arguments
• Grounds for attachment? MEMORIZE
PROVISIONAL REMEDIES
Rule 57 – attachment
• When should jurisdiction over the defendant vest in attachment?
(Manguila, citing Davao Light and Power)
o Distinguish between issuance and implementation of the writ of
attachment – to determine when jurisdiction is needed over the
defendant.
o Remember you could file an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
upon motion.
o To answer the question: there are three stages for attachment
– concealment of the property
 1. Court issues order granting application
 2. Writ of attachment issues pursuant to the order
 3. Implementation of the writ
 FOR THE FIRST TWO STAGES, jurisdiction over the
defendant is not yet required because it is an ex parte
application. However, when you are implementing the
writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?
 You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
• What are the contents of affidavit for attachment?
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.
 Either personal or substituted service.
o What are the exceptions to prior or contemporaneous
service of summons?
 1. Summons cannot be served personally or by
substituted service, despite diligent efforts
 2. Defendant is a resident of the RP temporarily
absent therefrom
 3. Defendant is a nonresident of the RP
 4. Action is in rem or quasi in rem
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasi-
contract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud
 What if claim is recovery for sum of money only?
• No. You could only apply for attachment if
the defendant is about to depart with intent to
defraud.
o 2. Embezzlement/abuse of trust by one with a fiduciary
relationship
 For all intents and purposes, this is estafa
o 3. Action to recover property and there is willful fraudulent
o 4. Action against a person who removes/conceals property
 Unlike (3), this is directed against a person
o 5. Fraud in contracting the obligation or fraud in the
performance thereof – most asked ground
 First: If not for the fraud, the other party would not
have entered into the transaction
 Second: In the manner of the performance, it was
fraudulent
o 6. Defendant is a non-resident
 Fraud not required here, because he can leave at any
time

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 o 1. Cause of action
o 2. Statement that any of the grounds applies
o 3. There is no sufficient security
o 4. Amount due to applicant or value of the property he seeks to
recover is as much as the sum for which the order is granted,
above all legal counterclaims
• How do you discharge an attachment?
o 1. Most common: post a counter-bond
 When do you post a counter-bond?
• Can be posted after enforcement of the writ.
• You cannot anticipate its enforcement.
o 2. Improper, irregular, or excessive attachment
 What is “improper”?
• Grounds are not present in the case
 What is “irregular”?
• Wrong process.
 When can this be raised?
• ANYTIME, even before enforcement.
o What if the writ of attachment was issued for a ground that
it is also the cause of action of the plaintiff?
 The only way to dissolve it is to post a counter bond.
• Can you recover damages?
o Yes, Section 20 – if there is improper, irregular, or excessive
attachment.
 N.B. Section 20 applies to all provisional remedies
except support pendent lite.
o Where can you apply for it?
 In the trial court; during or after trial.
 You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?
 No.
• What kind of damages can be recovered?
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
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damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
attachment?
 1. With best evidence obtainable, fact of loss or injury
 2. Amount thereof
o Can actual damages cover unrealized profits?
 Yes. But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?
 Prove that the wrongful attachment was with malice or
bad faith.
• How about attorney’s fees?
o Generally, attorney’s fees cannot be awarded when moral or
exemplary damages are not granted.
o Exception: when a party incurs expenses to lift wrongfully
issued writ of attachment.
• What is the procedure for terceria (third party claim)?
o The applicant has posted a bond when he applied for a writ of
attachment (to cover whatever damages defendant will suffer
due to attachment)
o By reason of a third party claim (with no bond needed from the
third party claimant – just an affidavit of his title), the process
will be suspended.
o Now it is the burden of the applicant to post another bond in
the value of the property, to cover the third party’s damages.
o How long can a claim for damages for taking/keeping of
property be enforced against the bond?
 Within 120 days from date of filing of the bond
• What is the difference in the third party claim in execution of
judgment (Rule 39) and Preliminary Attachment (57) or other
provisional remedies?
o The right of the third party claimant in attachment could be
vindicated in the same or in a separate action. In execution, it
could only be done in a separate action.
 o Why?
 Because in execution, the judgment is already final.
• In Rural Bank, a motion was filed to release property from attachment,
giving affidavit of title to the sheriff. The court said that the filing of the
motion can be deemed the same as a third party claim (because 3P
claim must be filed with sheriff). It can also be treated as a form of
intervention.
• What takes precedence, levy on attachment or prior unregistered
sale?
o Levy on attachment duly registered takes preference over a
prior unregistered sale. The preference created by attachment
is not defeated by the subsequent registration (to the
attachment) of a prior sale, because attachment is a
proceeding in rem.
• What is the procedure when there is an alleged irregular and
improper issuance of attachment?
o When the attachment is challenged for being illegally or
improperly issued, there must be a hearing. The hearing
embraces the right to present evidence, and also the
establishment of rights of other parties.
o Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o N.B. The discharge of an attachment, whether through
counterbond or irregular, improper, or excessive – can only be
done through hearing.
o Security case: Two ways to secure discharge of attachment.
1) Party whose property or his representative has been
attached can post a security. 2) Said party can show that the
attachment has been improperly or irregularly issued. Mere
posting of counter bond does not discharge the attachment.
There should be a specific resolution for the discharge.
• What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of execution?
o 1. If there is money duly garnished or obtained through sale of
perishable goods, the money will be applied.
 What does this refer to?
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• If the property attached is perishable or the
sale of the property will best subserve the
parties’ interests, as determined by the court,
the property can be sold in public auction
• The proceeds will be deposited in court and
take the place of the property
o 2. If not sufficient, sell real or personal property that has been
attached. These have to be sold on public sale. Procedure is
consistent with Rule 39.
o 3. What if the properties attached are not sufficient to
satisfy the judgment?
 Court proceeds with ordinary execution to cover the
balance.
• What if the defendant filed a counterbond?
o Recovery can be sought against it; it takes the place of the
property sought to be attached, but released by the CB
Rule 58 - Injunction
• N.B. Rule 58 has been amended on Dec 2007. It was amended
alongside Rules 41 and 65.
• What was affected by the amendment?
o Rule 58, Sec. 5. [Discussed later on]
• Bacolod City v. Labayo: Can there be a principal action for
injunction?
o Yes. There can be a principal action for injunction. There is a
distinction made in this case between principal action and
preliminary injunction:
o Principal action – seeks a judgment for a final injunction which
is separate and distinct from a preliminary injunction
o Preliminary injunction – object is just to preserve status quo
• What are the requisites for a PI?
o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material
and substantial
 Borromeo: Where the parties stipulated in their credit
agreement, PN, contract, etc., that the mortgagee has
 the right to foreclose in case of default, this defeats not ordinarily want to perform, in order to maintain the status
any future claim for the issuance of a PI. quo
o 3. There is an urgent and permanent necessity for the writ to • Estares: A writ of PI based only on initial and incomplete evidence
prevent serious damage – is this allowed? What kind of evidence is required?
• How is a WPI granted? o You don’t need to present your entire case. Only a sampling of
o 1. Verified application showing facts entitling applicant to the evidence is needed, to give the court an idea to justify why you
relief demanded need to obtain the PI.
o 2. Bond (to cover for damages to other party in case the • Can a judge issue a PI without a notice and hearing?
WPI/TRO is wrongfully issued) o No. It’s an absolute no. (Dela Paz)
o 3. If the application for WPI or TRO is alongside a complaint or • Can the court issue a TRO without notice and hearing?
initiatory pleading,: o Today, yes. (This is the amendment)
 A. Notice given to party to be enjoined o 1. 20 day TRO ex parte – if great and irreparable injury
• Raffle case only after such notice, and in the o 2. 72-hour TRO ex parte – if the matter is of extreme urgency
presence of that person and the applicant will suffer grave injustice and irreparable
 B. Notice preceded or contemporaneously injury
accompanied by summons o N.B. “Ex parte” means no notice and hearing
• What are the exceptions to the • What are the differences between the 20 day and the 72 hour
requirement that summons are required TROs?
to be served prior or o 1. Only an executive judge of a multi-sala court, or the
contemporaneously? presiding judge of a single-sala court, there can issue a 72
o 1. Cannot be served personally or hour TRO
through substituted service despite o 2. Count the 20 days from service to the party or person to be
diligent efforts enjoined; count the 72 hours from issuance of the TRO
o 2. Defendant is a resident  N.B. this is because the 72 hour TRO can precede
temporarily absent from the RP summons, which must still be complied with and
o 3. Defendant is a nonresident of the served after
RP o 3. What is heard/determined within the period
o 4. Action is in rem or quasi in rem  Within the 20 day period, the court must order the
 C. Notice with copy of the initiatory pleading + bond enjoined person or party to show cause at a specified
o 4. Hold a summary hearing conducted within 24 hours after the time and place which the PI should not be granted
sheriff’s return of service and the records are received by the (and the court decides);
branch selected to hear it • Can a 20 day TRO be extended?
• Types of PI? o No, it automatically expires w/ or
o 1. Preliminary injunction to prohibit or stop (status quo ante) w/o a period.
o 2. Preliminary mandatory injunction – an injunction which o Unless you obtain a preliminary
requires you to do something or perform something that you do injunction

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  Within the 72 hour period, the court determines
whether extension to a 20 day TRO must be granted
in a summary hearing
• How long is a TRO that was issued by a higher court?
o CA: 60 days from service on the party enjoined
o SC: indefinite
• Can a preliminary injunction be issued without notice and
hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or
preliminary injunction.
• Can an injunction have an effect if enforced outside the judicial
district? (ex. enforced in Makati and Mandaluyong, and the judge
is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
• What is the purpose of the bond?
o To protect the person against whom the writ of injunction has
been issued. Garcia: Posting of a bond is a condition sine qua
non to issue a writ of PI.
o The posting of a bond in connection with PI does not operate to
relieve the party obtaining the injunction from paying damages
– the bond only gives additional protection in favor of the
defendant
o So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.
 Aquino: Dissolution of the injunction, even if it was
obtained in good faith, amounts to a determination
that it was wrongfully obtained. A right of action
against the bond accrues.
• A court issued a writ of PI. What is the duty of the court in relation
to the main case?
o The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.
• SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
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o 1. Today it is not enough to say that you have paid the amount.
Mere allegation of payment without showing actual payment is
not basis for issuance of PI.
o 2. Mere claim/allegation that the interest is unconscionable or
excessive does not justify issuance of the PI unless the legal
interest is paid.
• What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or extrajudicial
foreclosure of mortgage.
• Can the court require you to post a bond for a TRO?
o Yes.
• If you file a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition
for certiorari (60 days)?
 No more.
 Before the 2007 amendment, you can ask for a 15
day extension. This was removed already.
• How can you deny a writ of PI or TRO?
o Prove insufficiency of the application for injunction.
o This is just a ground to deny but not to dissolve; so once the
WPI or TRO is granted, insufficiency is not a ground anymore.
• How can you dissolve a writ of PI or TRO?
o 1. File affidavits showing there is no reason for the PI
o 2. File a counterbond + an affidavit showing that he will suffer
more damage than applicant will
 Is a mere counterbond enough?
• No
 Is the mere statement enough?
• No
 o N.B. Note the difference with preliminary attachment, where a
counterbond alone can dissolve the writ. In preliminary
injunction, it has to be statement + counterbond.
• What is the prohibition under RA 8975?
o There can be no PI or TRO against acquisitions, bidding or
awarding of contracts, commencement or execution of such,
termination or rescission of the same, or other similar lawful
activities in relation to government projects.
o Any TRO or PI issued is null and void.
o What is the exception?
 Except when issued by the SC.
Rule 59 – Receivership
• The only provisional remedy that can be applied for post-judgment and
even if it is already final and executory.
• Grounds:
o 1. There is interest in property which is in danger of being lost
o 2. In a foreclosure action, and the property is in danger of
being wasted/dissipated, and that its value will not be sufficient
to cover the value of the debt
 Or there is a stipulation for such in the mortgage
contract
o 3. Preserve property during pendency of appeal, to dispose of
it according to judgment, to aid execution if execution is
returned unsatisfied, or to carry judgment into effect
o 4. Other reasons the court finds convenient and feasible
• What are the requirements?
o 1. The applicant files a bond
o 2. The receiver must also file a bond and take oath
o N.B. TWO bonds (applicant and receiver himself)
• What are the ways to dissolve the bond?
o 1. Show no cause
o 2. Post a counter bond
• What are the general powers of a receiver that need no court
approval?
o 1. Take and keep possession of property in controversy
 Receive rents
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o 2. Collect debts due on the property, estate, person, fund, etc.
 Compound for and compromise these
 Make transfers
 Pay outstanding debts
o 3. Divide money and other property remaining among persons
legally entitled
o 4. Perform acts authorized by the court
• What powers of the receiver need court approval?
o 1. Bring and defend actions in his name
 N.B. need court approval for either
o 2. Invest the funds – must have written consent of the parties
to the action
• When is receivership terminated?
o When there is no more need for a receiver.
 1. Motu propio determined by the court or
 2. Upon motion of either party
o What happens?
 After due notice to all interested parties and hearing,
settle accounts of receiver, and direct delivery of
property.
 The receiver receives reasonable compensation.
Rule 60 – Replevin
• What are the contents of the affidavit?
o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
• Can property held as evidence in criminal case be subject to a writ
of replevin?
o Superlines: NO. In the affidavit of the affiant, the property is
not subject of custodia legis, execution, or attachment. The
deprivation, to be validly subject to replevin, must be illegal or
unlawful.
o Property can be said to be in custodia legis, not only when it is
in official custody, but if it pursuant to a legal order in a case
• Danao: Can you subject to replevin a motor vehicle in custody of
another court?
o No. It is in custodia legis.
• Can goods under custody of an agency of the government (here,
ex. Bureau of Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
• Can one quash a writ of replevin?
o Of course, it may be quashed or dissolved
o How do you dissolve?
 1. If you want to regain immediately custody or
possession, you just simply post a counter-bond
• N.B. Take note. No need to oppose the
grounds, etc. Just post a counterbond.
• When can he post this counterbond?
o Anytime before the property is
delivered to applicant
• What is the time period between the
sheriff’s taking of the property and its
delivery to the applicant?
o 5 days. So this is the time frame to
object.
 2. Attack the sufficiency of the bond
• Here, you cannot effect an immediate
release
• What is the value of the bond?
o This is the only provisional remedy where the
bond/counterbond is double the value of the property.
o Pinggol: A replevin bond was deemed invalid because the
officer who signed the bond is without authority to do so from
his company.
• When can replevin be applied for?
o You can only apply for this at any time before an answer.
o For the other provisional remedies, you can apply anytime
while the action is pending (or for receivership, even after)
• What is your remedy after an answer is filed?
o You file an attachment, but the effects are different.
o What are the differences?
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 1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
personal are attached to secure the judgment
 2. In replevin, when the writ is served, the sheriff
takes possession, and delivers it to the applicant
(unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff
and delivered to the court; for real property, the sheriff
annotates at the dorsal portion of the title.
• Note that the main action is recovery of possession of property. The
issuance of a writ of replevin is just a provisional remedy.
• Once the sheriff takes the property what is his duty?
o He delivers it to the applicant for the writ of replevin.
o How long does the adverse party have to object?
 Within 5 days of taking, can object to sufficiency of the
bond
• Can there be a principal action for replevin as a provisional
remedy?
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can file any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
• In attachment and replevin, there are rules for third party claims.
What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third
party claimant can vindicate his right in the same or a separate
action. In Rule 39, a third party claimant can only vindicate his
right in a separate action, because judgment is final and
executory.
o What is the rule on intervention (Rule 19)?
 You can intervene anytime before judgment. But this
only applies to trial courts.
o What about appellate courts?
 You can still intervene, but subject to the appellate
court’s sound discretion.
Rule 61 – Support pendente lite
• When can you apply for this?
o Anytime before final judgment
• What is the procedure?
o 1. Submit verified application for SPL stating grounds,
attaching affidavits, depositions, documents
o 2. Adverse party files verified comment within 5 days
o 3. Set for hearing not more than 3 days thereafter
o N.B. only provisional remedy that cannot have ex parte hearing
• This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
needs money.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages
from a bond while the action is pending.
o So what is the rule if you are wrongfully compelled to give
support?
 You don’t recover damages. You ask for
reimbursement.
• What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of
execution even when there is no final judgment:
 1. Support pendente lite
 2. Indigent (which the court finds that you are not an
indigent and requires you to give filing fees)
• Who can apply for support in criminal cases where the accused is
charged with a crime where a child is borne by the offended party?
o 1. Offended party
o 2. Parents
o 3. Grandparents
o 4. Guardian
o 5. State
• What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
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o If the action is still pending, you can apply for reimbursement in
the same action.
o If there is a judgment already, you can apply for it in a separate
court proceeding.
• Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
SPECIAL CIVIL ACTIONS
Rule 62 – Interpleader
• When is interpleader proper (Requisites)?
o 1. Conflicting claims on the same subject matter
o 2. Made against a person who:
 Claims no interest over it
 Or an interest which is not disputed by the claimants
• What is the procedure?
o 1. Action for interpleader brought to court
o 2. Court issues order requiring parties to interplead
 May ask for subject matter to be delivered/paid to
court
o 3. Issue summons to parties, with complaint and order
o 4. Parties can file:
 MTD (if denied, at least 5 days to file answer)
 Answer
• Can there be a counterclaim in an interpleader case?
o Yes.
• Stuff to remember:
o In the interpleader case, the one filing the case was not
violated. There was no breach.
o The person filing the action can either have an interest which is
not in conflict with the claiming parties, or has no interest at all.
• Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest – is entitled to a lien on the judgment award
• What is the difference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.
Rule 63 – Declaratory relief and Similar Remedies
• What are the requisites of declaratory relief?
o 1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o 2. The terms of the documents are doubtful and require judicial
construction
o 3. There must have been no breach of the documents in
question
 Malana: Reiterates that declaratory
presupposes no actual breach. An action for
declaratory relief must be dismissed if there is a
pending action for unlawful detainer.
o 4. Actual justiciable controversy
o 5. Ripe for judicial determination
o 6. Adequate relief is not available
• Bottom line: purpose is for interpretation and determination of validity.
It’s not about constitutionality.
o Also, there must be no breach
• What if there is breach?
o There will be conversion to an ordinary civil action. This is the
only such action that can be converted.
• Do you need to pay filing fees when it is converted?
o Yes, you need.
• Which court has original jurisdiction?
o RTC.
o What if there is an allegation of unconstitutionality?
 The RTC has no exclusive jurisdiction; you can file it
elsewhere like the SC. The RTC only has exclusive
jurisdiction if it is a pure question of declaratory relief
• What are the “other similar remedies” covered by par. 2?
o 1. Removal of cloud
o 2. Quieting of title
o 3. Reformation of instrument
"
 When can you reform?
• There must be mutual mistake.
• Can there be execution in a declaratory relief case?
o Yes, nothing prevents the filing of a counterclaim in a
declaratory relief, and there can be execution pursuant to this.
• Who intervenes when there is challenge against validity of statute,
EO, or other government regulation?
o Solicitor General
o What about local government ordinances?
 LGU prosecutor or attorney
 Solicitor General as well, if there is challenge against
constitutionality
relief Rule 64 – Review of judgments and Final orders of COMELEC/COA
• What is the nature of this petition?
o This is actually a petition for certiorari. If you file under Rule
64, it will be named a Petition for Certiorari
o This has a limited application; it only covers decisions by the
COMELEC and COA.
• What is the difference in period for a Rule 64 petition as compared
to Rule 65?
o The period to file a petition for certiorari under Rule 64 is 30
days, non-extendable.
o What if there was an MR/MNT and it was denied?
 If there is an MR or MNT and denied, you get the
period remaining which will always be at least 5 days
(“partial fresh period”)
o N.B. this is unlike the 60 day period for Rule 65
o N.B. for Rule 65, you always get the full 60 days period even
after denial of MR/MNT
• What must be the nature of the attachments?
o As with Rule 43, all the attachments in Rule 64 are certified
true copies, because you involve Quasi Judicial Agencies.
• Must it be verified?
o Yes.
• Is a CNFS needed?
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 o Yes.
• After filing the petition and serving a copy with the adverse party
and the Commission, what is the next step?
o 1. If SC finds the petition sufficient in form and substance, it
orders respondents to file comment within 10 days from notice.
 N.B. Comment: 18 copies too, with CTC of record and
supporting papers
o 2. SC may dismiss the petition outright if:
 A. It is not sufficient in form or substance
 B. it was filed manifestly for delay
 C. Questions raised are too unsubstantial to warrant
further proceedings
• Does the Rule 65 petition stay execution of judgment?
o No, unless the SC directs otherwise
• When is the case deemed submitted for decision?
o Upon submission of the comment by the respondent
o Unless the SC requires submission of memoranda or requires
oral argument
Rule 65 – Petition for certiorari, mandamus, prohibition
• First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
65: you do not talk about Rule 65. Third rule of Rule 65: You have to
fight on your first night.
• Real first rule of Rule 65: this is not an appeal
• Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
• What is prohibition? Should there be GADALEJ?
o Yes. The same is required – GADALEJ. No plain, available,
speedy ordinary remedy.
o It is the same as certiorari.
o In prohibition, you cannot prohibit an act that has already been
performed. It is already moot.
• Certiorari – whose decision can you question?
o Judicial or QJA
• Prohibition – whose decision can you question?
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o Judicial, QJA, or ministerial
• How does mandamus differ from prohibition?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
• Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
• If you entered into a contract with X to build a house for you, and X
received the advance of the contract price, and X did not build the
house, can you compel his performance by mandamus?
o No; it is not a ministerial function. It is a contractual obligation
– specific performance is the proper remedy.
• How can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
• Must a petition under Rule 65 (C, P, or M) be verified?
o Yes.
• What must be included too?
o 1. CNFS
o 2. For certiorari or prohibition, the copies of order, resolution, or
judgment (for certiorari) questioned, and all pertinent
documents
• What is the period to file the petition?
o 60 days from the notice of judgment, order, or resolution
o What if an MR or MNT is denied?
 Count 60 days from denial of the motion (real fresh
period rule)
 N.B. this is different from Rule 64 where only the
remaining period not less than 5 days would remain
• Where do you file a Rule 65 petition?
o A. For MTC, corporation, board, officer, or person:
 RTC
 It could be in the CA or SB, whether or not the same
is in aid of the court’s appellate jurisdiction
o B. Act or omission of a QJA:
 CA only
o C. Election cases involving act or omission of MTC or RTC:
  COMELEC, in aid of appellate jurisdiction o 1. The court may award in favor of respondent treble costs
 [N.B. based on 2007 amendment] solidarily against petition and counsel
• Who defends the questioned judgment, order, etc? o 2. Counsel may be subjected to administrative sanctions
o The private party interested in the judgment o May the court motu propio impose disciplinary sanctions
o The public party will be nominally made a party but shall not and measures on erring lawyers?
appear in or file an answer/comment to the petition or file a  Yes, based on res ipso loquitur
pleading
• What does the court do after filing of the petition? Quo Warranto
o If sufficient in form and substance, issue an order requiring
• Who commences an action for quo warranto?
respondent/s to comment on the petition within 10 days from
o Liban: Generally commenced by the government.
receipt of copy
o 1. President, directing the Sol-Gen
o What is the rule if the petition is filed before the CA or
o 2. Sol-Gen, in the name of the government, when he has good
SC?
reason to believe
 Before giving due course, it can require the
o 3. Upon the relation of another person, telling the Sol-Gen to
respondents to file their comment to the petition and,
institute the action
if it wants to, a reply from the petitioner
 What is the special requirement if it is upon the
 Can the respondent file a motion to dismiss
relation of another person?
instead?
• There must be approval by the court. If not
• No.
approved by the court, the Sol-Gen will not
• What happens after comment is filed?
file.
o 1. The court may hear the case or require submission of
 N.B. also, the Solicitor General will require the other
memoranda
person to file indemnity for expenses/costs of the
o 2. Or it may dismiss the petition if it is found to be:
action to the court
 A. Patently without merit
 N.B. the respondent will also be given prior notice and
 B. prosecuted manifestly for delay
the chance to be heard prior to the court giving
 C. Questions raised are too unsubstantial to require
approval for the filing
consideration
o 4. The person instituting quo warranto in his own behalf must
• Does Rule 65 suspend the principal case?
show that he is entitled to the office in dispute.
o No, unless the court where the petition is filed issues a TRO or
 This is where the person aggrieved himself files
preliminary injunction
 What should he show?
o If there is no TRO or PI, the public respondent must proceed
• 1. His claim
with the principal case within 10 days from the filing of the
• 2. And that he is entitled to the office
petition
• When can you file it?
 N.B. else, administratively liable
o 1. Usurpation of public office, position, or franchise
• What are the consequences of filing a petition patently without
o 2. Public officer who does or suffers an act constituting ground
merit or manifestly for delay, or questions are too unsubstantial
to forfeit office
for consolidation?
o 3. Association acting as a corporation but not duly incorporated

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  Quo warranto is also available if a government
corporation has offended against its chapter.
• It is a prerogative writ, where the government can exercise its right to
demand proof of what right a person has over office
• What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?
 If it is the Sol-Gen who institutes the action, it can be
filed in the RTCs of the City of Manila
• What is the period to institute an action for quo warranto?
o One year from happening of the event (usurpation)
• Can you recover damages from a quo warranto judgment?
o One year from entry of judgment entitling petitioner to the
position
• What are the rights of the person adjudged entitled to the public
office?
o A. After taking oath and executing any bond required by law,
may demand books and papers in respondent’s custody
 What if the respondent refuses?
• Contempt of court
o B. Action for damages against usurper
• If there is a dispute between and among the Board of Directors of
a private corporation, one group claiming that they have been
usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be filed in the regular
courts (RTC) having original jurisdiction.
• Distinguish from Quo Warranto in election cases:
o 1. Filed by any registered voter in the constituency
o 2. On grounds of a) ineligibility or b) disloyalty to the RP (ex.
Having a green card)
o 3. Within 10 days from proclamation of results
Rule 67 – Expropriation
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• Who can expropriate?
o National government
o LGU
o Instrumentality of government
• Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is “inferior domain.”
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?
 1. Public use, public purpose, public welfare
 2. Ordinance by local legislative body authorizing local
chief executive to exercise eminent domain
 3. Just compensation
 4. Valid and definite offer previously made to owner
but not accepted
• What must be alleged in the expropriation complaint?
o 1. Right and purpose of expropriation
o 2. Description of the property sought to be expropriated
o 3. Names of persons owning or claiming to own it, or
possessing it, or having interest over it
o N.B. it must be verified
• Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet
o Once there is an order for expropriation, it can no longer be
withdrawn
• What if the defendant has no objection?
o He files and serves a notice of appearance and manifestation
only. Thereafter, he is entitled to notices.
• What if the defendant has objections?
o He files and serves an answer within the time stated in the
summons, stating his objections.
o Can there be a counter-claim, cross-claim, or third party
complaint?
 No.
o Can there be amendments to the answer filed?
  Generally no, but in the interest of justice, the court
may allow an extension of not more than 10 days.
o N.B. Even if the defendant initially objected and filed an answer
(not a manifestation/appearance), he is still entitled to just
compensation.
• When does an order of expropriation issue?
o If the objections and defenses are overruled, or when there is
no defendant, the court issues an order of expropriation
o May the order of expropriation be appealed?
 Yes, but it does not prevent the court from entering
the second stage (just compensation)
• After order of expropriation, what is the second stage?
o Determination of just compensation
o The court appoints not more than 3 commissioners to ascertain
the value of the property.
 Non-compliance with this step is a denial of due
process
• When can the plaintiff enter the property and appropriate it for
public use?
o In general, after judgment and payment of just compensation
as determined by the court
o Or the plaintiff can continue its possession of the property if it
made a prior deposit and entry
 N.B. see below
• When is there immediate entry allowed for expropriation under
Rule 67?
o 1. Filing of complaint + due notice to defendant and
o 2. Deposit with authorized government depositary an amount
equivalent to the assessed value of the property
• When is there immediate entry allowed for expropriation under the
LGC?
o 1. Filing of complaint for expropriation sufficient in form and
substance and
o 2. Deposit of amount equivalent to 15% of FMV of the property
to be expropriated, based on latest tax declaration
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• When is there immediate entry allowed for expropriation under RA
8974 (acquisition of property for right of way or for government
infrastructure projects)?
o 1. Filing of complaint + immediate payment of 100% assessed
value of the property and the improvements (same rule as Rule
67)
o 2. If there is no zonal valuation AND the expropriation is of
utmost importance: Filing of complaint + payment of proffered
value of the property
• What is the general rule for valuation?
o Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general. If it is personal property, assessed
too
• Government entered property (took it) and caused demolition of
improvements. But before there was order for expropriation, the
government said “huwag na lang.” Can the government
withdraw?
o Yes. But it is liable for damages.
• What if there is a subsisting contract between government and the
private person?
o There can be no expropriation contrary to that contract.
• What is the nature of determination of just compensation?
o It is a judicial function, which is why the judiciary still has
control over the commissioners.
• In traversing a lot with transmission lines, is there expropriation or
easement?
o There is expropriation (NPC v. Manubay)
• What is the nature and limitation of “public purpose”?
o Mactan Cebu Airport: When you say “public purpose,” it must
be the purpose stated, and not another, even if public too
o The acquisition of government of property is limited to the
public purpose stated, because it is not a simple purchase in
fee simple, unlike in the normal purchase of property.
• How is just compensation ascertained?
o 1. Court appoints 3 commissioners
 Copies of order served on the parties
  Objections to appointment of commissioners must be o Judicial foreclosure (Rule 68)
filed within 10 days of service o Extrajudicial (Act 3135)
 Resolved within 30 days after all commissioners have • What is the difference?
received copies of the objections o Rule 68 – you have to file a case, just like any other action; you
o 2. Commissioners take oath have to pay filing fees
o 3. Commissioners receive evidence o Act 3135 – you file a verified petition before the office of the
 Consider consequential damages and consequential clerk of court, who is the ex-officio sheriff
benefits  When is the EJF scheduled?
 N.B. But in no case should he be deprived of actual • After paying of incidental fees and fees for
value of the property taken publication
o 4. Commissioners issue report • What is diff between JF and execution?
 Can they issue partial reports? o A. When there is award of JF, the mortgagor continues to be in
• Yes possession of the property.
 What is the time period for the report?  When does the purchaser at auction sale or the
• 60 days from notice of appointment last redemptioner get possession of the
 What is the period to file objections? property?
• 10 days from receipt of the report by the • Finality of the order of confirmation (or
parties expiration of redemption period if allowed by
o 5. Court may accept, reject, or recommit the report law)
 N.B. can be in part or wholly o B. In execution, the obligor continues to be in possession of the
 When does the court do this? property.
• After expiration of 10 day period or after o C. What about Banking Law?
submission of objections by all parties  In Banking Law, the possession is different. If the
 What else can the court do? lender is a bank and the borrower/mortgagor is an
• Secure to the plaintiff the property essential individual – the one in possession after foreclosure
to the right of expropriation and to the sale is the purchaser or the bank, if it purchased.
defendant, just compensation o D. What about Act 3135?
o 6. Plaintiff may take over property after payment of costs  After foreclosure, the mortgagor still possesses.
 What if the defendant refuses to accept the  Unless the lender is a banking institution – follow the
payment? Banking law.
• Tender in court • How is the disposition of the proceeds of sale?
• Does appeal stay entry by the plaintiff? o 1. Deduct costs of sale
o No. o 2. Pay to the person foreclosing the mortgage
o 3. Balance or residue to junior encumbrancers in order of
Rule 68 – Foreclosure priority
o 4. If no junior encumbrancers, balance to mortgagor or his
• Two kinds of foreclosure? agent

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 o What if after execution, there is still a deficiency? o When the complaint to enforce a repurchase, if filed within the
 Can execute against the mortgagor redemption period is treated as an offer to redeem and will
• What is the redemption period in JF? have the effect of preserving the right of redemption.
o Equity of redemption: period 90-120 days. • Take note of the 2007 SC Circular re: TRO and injunction of
 This is just the general rule. If there is a law giving a foreclosures [discussed in Rule 58]
longer period of redemption for the mortgagor, then • Different types of sale of property?
that prevails. o 1. Ordinary execution sale
o In execution in Rule 39?  Governed by Rule 39
 Redemption is one year. o 2. Judicial foreclosure sale
o In Act 3135?  Rule 68
 Redemption is one year. o 3. Extrajudicial foreclosure sale
o Bank as lender and mortgagor/borrower is a corporation?  Act 3135
 90 days or registration of certificate of sale, whichever • What is the jurisdiction of courts in JF?
comes first. o “Any right title or interest over real property” depends on
• Metrobank v. Tan: assessed value. So decide whether it’s RTC or MTC.
o Filing of a civil case involving annulment and cancellation of an
EJF sale. Rule 69 – Partition
o The general rule in redemption – not enough to manifest intent
to redeem. It must be accompanied by actual and • In the last five years, there were questions in the Bar exam, but they
simultaneous tender of payment. (This also applies even to involved EJ partition, not J partition.
redemption in execution.) • Compare an EJP from a JP?
• What constitutes payment for purposes of redemption? o JP – covered by Rule 69
o 1. The price which the purchaser paid for the property  You must implead all the co-owners because
o 2. Interest of 1% per month on the purchase price everyone is an indispensable party
o 3. Amount of any assessment or taxes which the purchaser o EJP – covered by Rule 74
may have paid on the property • What are the two stages in JP?
o 4. Interest of 1% per month on such assessment o 1. Determination of existence of a co-ownership
• Distinguish a legal redemption from conventional redemption?  The co-ownership is created by agreement of the
o Legal redemption is one that is within the period provided for parties or by operation of law
by law. o 2. Partition of the property
o Conventional redemption – beyond the redemption period, and • Who institutes action for JP?
you still want to redeem, and you would like to agree on a o Any co-owner
different price • What is the role of the commissioner?
 Governed by contractual law. So the redeemer o There is a need to refer the matter to a commissioner. But
cannot insist on the calculation above remember that under this rule, it is NOT mandatory. If the
• Metrobank case: parties agreed, the matter will not be referred. (As compared to

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 expropriation, where failure to refer to commissioners is a • Can you contest a JP?
violation of due process) o Paramount rights cannot be prejudiced, even if there is
• Step-by-step example of JP: judgment already
o There is a co-ownership created by death (inheritance) • Can JP cover both real and personal properties?
o An action was instituted under Rule 69. o Yes.
o The provision of law does not provide for an answer. But in the
absence of rules, there is an answer. So file one. Rule 70 – Forcible entry and unlawful detainer
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment • Distinguish.
based on the stipulation of the parties. o Forcible entry – possession by reason of force, intimidation,
o If there is lack of agreement, refer to commissioners. strategy, threat, or stealth
 What if the property cannot be divided without o Unlawful detainer – previous lawful possession but by violation
prejudice to the interest of the parties? of K or expiration of the period, it became unlawful
• Commissioners can assign the property to • What is the most important allegation in FE cases?
one party, who reimburses the others o Prior physical possession and when
o This must be proved because it is the way the 1 year period is
• If one party asks that the property be sold
counted
instead, the commissioners sell it
 What is the procedure for approval of the • What is the most important requirement in UD cases?
Commissioners’ report? o A demand letter is a specific requirement
o 1. There is a demand to pay unpaid rentals or comply
• Same as expropriation (10 days to object
o 2. AND vacate
and court may accept, reject, etc. it)
 There must always be a demand to vacate for
• Examples of EJP:
unlawful detainer
o 1. Affidavit of self-adjudication
o What if the demand letter is defective?
o 2. EJP upon a notarized public instrument
 The complaint can be dismissed. A defective demand
o 3. Even if there is petition for JP, but the parties agreed, it will
letter is jurisdictional.
be treated as an EJP
o When is demand not required?
 Needs publication
 Expiration of contract, because there’s nothing left to
• Do you need a bond?
pay
o For JP, no.
o When should demand to vacate be given prior to action
o For EJP, yes, for personal property.
for unlawful detainer?
• Requisites of EJP?
 15 days prior in case of land
o 1. There is no will
 5 days prior in case of buildings
o 2. There is no debt
• What is the period to file this action?
o 3. If there are minors, there is appointment of guardians
o Within 1 year of entry into the property for forcible entry
• Until what period can you contest the distribution of the estate
 Except if done by stealth – 1 year from discovery of
under EJP?
entry and prohibition
o Within a period of 2 years.
o Within 1 year of the last demand for unlawful detainer

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• Can you touch on the question of ownership in FE and UD cases?
o Yes, but only to preliminarily determine who is entitled to
possession.
o But the determination is not binding /prejudicial to future
questions of ownership.
• Salient portions of procedure:
o In ejectment cases, unlike ordinary cases, the court can
dismiss the case outright.
o Absence of an answer will not lead to default, but a judgment
of the court. No need to declare the defendant in default.
o There is a Preliminary conference, just like summary
procedure. But after preliminary conference even without
position papers, the court can render judgment if it is already
satisfied.
o Third chance to make a decision: 30 days from filing of last
judicial affidavit or position paper
• How do you stay execution of the MTC decision?
o 1. File notice of appeal and pay filing fees
o 2. Post a supersedeas bond
 Covers arrearages
o 3. Pay the monthly rentals before the trial court
o What if the defendant’s appeal is clearly frivolous or
dilatory or the plaintiff’s appeal is prima facie
meritorious?
 Upon motion of the plaintiff, within 10 days of
perfection of appeal, the RTC may issue a writ of
preliminary mandatory injunctions restoring the
plaintiff to possession of the property
• Can you file an MR in an ejectment case?
o No, it is a prohibited pleading.
o Don’t file an MR, file a notice of appeal.
• Are you entitled to a provisional remedy?
o Yes. You can apply for a TRO or preliminary mandatory
injunction so you can recover possession in the pendency of
the case.
o But you have to file it within 5 days from filing of the complaint.
 In the rule on property, it says 10 days.
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 What prevails: 5 days.
• Can you appeal?
o Yes. The appeal will be elevated to the RTC.
o The decision of the RTC, once final, is executory and cannot
be stayed.
o Even an appeal will not stay the execution.
o Benedicto v. CA: If you can get a preliminary injunction or
TRO from the next level court, it can be stayed.
• What is the mode of appeal from RTC decision in exercise of its
appellate jurisdiction?
o Petition for review
o Can you file an MR before you file a petition for review?
 Yes, because RTC is an appellate court and not
subject to rules of summary procedure.
• What is accion publiciana?
o Action to recover right to possess property
o Filed in the RTC or MTC depending on property value
o File within 10 years after possession was lost
• What is accion reivindicatoria?
o Action to recover ownership of property
o Follow same valuations for jurisdiction
o Filed within 10 years or 30 years, as the case may be (if the
defendant is in GF or BF)
• Usually, ejectment suit is in personam. But who else can be
bound by the judgment even if not impleaded?
o 1. Trespasser, squatter, or agent of defendant occupying the
property to frustrate the judgment
o 2. Guest of the defendant or member of family
o 3. Sub-lessee, co-lessee
o 4. Transferee pendente lite or privy of defendant
• Will the filing of another action for annulment of sale, cancellation
of title, etc. suspend the action fro ejectment?
o No. Note that the other actions all deal with ownership and
ejectment is just a matter touching on possession so the
actions can coincide.
Rule 71 – Contempt
• What is direct contempt?
o An act of disrespect in the presence of, or so near the court of
a judge
o It MUST be within the four corners of his office
o Ex. Refusal to take the witness stand or refuses to take an
oath. Or wearing shorts in court. Or your phone keeps ringing.
• What is the nature of direct contempt?
o Direct contempt is summary. You will not be asked to explain.
• Distinguish from indirect contempt.
o Contempt which is in violation of order or process of court.
 Ex. failure to comply with subpoena of court.
o There is notice and hearing.
• How do you charge?
o For direct contempt, there is no need to charge. You just need
to disobey or disrespect.
o For indirect contempt, there are two ways:
 1. Formal charge of the judge motu propio
 2. Upon a verified complaint filed and docketed
separately
o Where do you file case for indirect contempt?
 If against an RTC, file in the RTC
 If against MTC, either:
• RTC
• Or MTC, subject to appeal to RTC
• X had a main case pending in an RTC branch in Makati. X obtained
a preliminary injunction but the other party refused to comply.
Can he file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:
 Let them proceed separately
 File a motion to consolidate.
• What is your remedy for direct contempt?
o It’s immediately executory, so you can stay its execution by
posting a bond.
o File a petition for certiorari or prohibition based on GADALEJ.
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• What is your remedy for indirect contempt?
o Remedy is an appeal.
o Judgment will only be stayed from being executed by posting a
bond.
• What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days. Fine
not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day. Fine not
exceeding 200.
• Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.
• When is imprisonment imposed?
o When the contempt stems from the refusal or omission to do
an act which is yet in the power of the respondent to perform –
he may be imprisoned by the court until he performs it
• What is difference between criminal and civil contempt?
o Criminal contempt  disrespect of the court/judiciary
o Civil contempt  violation of right of other party
o Can there be administrative contempt? See below (QJAs)
o In case of absence of rules in QJA, what is the rule?
 Venue is RTC where the contemptuous act was
performed (default)
 Rules of Court apply
PART II: CRIMINAL PROCEDURE
General matters, jurisdiction
• When did Rules on Criminal Procedure take effect?
o Dec 1, 2000
• What is the rule on venue and jurisdiction?
o VENUE IS JURISDICTIONAL. The place of commission
determines jurisdiction.
o Contrast with civil cases where these are separate concepts.
 o The crime of stabbing was committed in Makati; where
can it be filed?
 ONLY in the courts of Makati.
o What is the exception?
 Transitory and continuing offenses, wherein one or
more of the elements happened in more than one
venue.
 Ex. Estafa, where the elements may be committed in
different places (ex. misappropriation in one place and
damage in another).
 Ex. BP22  either place of issue, or where the check
bounced
• Can an offense be committed outside the Philippines yet be filed
here?
o Yes.
o 1. Exceptions under article 2 of the RPC
o 2. Under the Human Security Law (Sec. 49)
 Covers acts of terrorism
 Even if the act was committed outside the Philippines
(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)
 Act against Philippine citizens or against a specific
ethnic group.
• But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o No, it’s not an exception, even if there are instances like the
Ampatuan case being heard in Manila instead of Maguindanao,
or Mayor Sanchez case being heard in Pasig instead of
Laguna.
o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o Where is this rule allowing transfer of hearing found?
 Found in the Constitution, and subject to approval of
the SC.
• What is the jurisdiction of courts under RA 7691?
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o RTC: Penalty exceeds six years imprisonment
 W/N committed in MM or outside MM does not matter
at all.
 Regardless of fine or accessory penalty.
o MTC: Penalty does not exceed six years imprisonment.
o What if the penalty consists of just a fine?
 SC Circular 09-94
 If the fine exceeds 4,000 pesos, RTC has jurisdiction.
 If it does not exceed 4,000 pesos, the MTC has
jurisdiction.
• What is the jurisdiction of Special Agrarian Court?
o This is important because there can be a penalty for its
violation.
o DAR court has exclusive jurisdiction over all matters pertaining
to the DAR Law
 Exception to DAR’s exclusive and original jurisdiction
are matters pertaining to just compensation which
goes to the courts
 Also and more importantly the RTC as special
Agrarian Reform Court also has exclusive and original
jurisdiction for prosecution of all criminal cases under
the DAR Law
• What is the jurisdiction of the Sandiganbayan?
o 1. The accused is at least a Salary Grade 27 employee.
o 2. And the office must be a constitutive element of the offense.
o Can you be charged of offenses falling under the RPC?
 Yes.
• Can there be instances when you are not SG27 and still be under
the SB jurisdiction?
o Yes, if there is an express provision.
o Serrano: UP Student Reagent is a public officer under the
SB’s jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the first
part of 4a only covers officials SG27 and above, the second
part covers officers whose positions may not be SG27 and
higher, but who are by express provision of law are placed
under the SB.
  Sec 4a(1g) gives the SB jurisdiction over officers in
State-owned universities [Student Reagent is part of
the board]
• What if the public officer is not SG27 but the office was a
constitutive element of the offense? Which court has jurisdiction?
o Regular courts, subject to appeal before the SB.
o Because the SB has both original and appellate jurisdiction.
• What if there is one public officer falling under the SB jurisdiction
and the other is not?
o They can both be charged as co-accused under the SB if at
least one is SG27.
o Esquivel v. OMB: There was a session in Sanggunian
involving both a Municipal Mayor and a Barangay Captain.
The MM was charged in the SB (since he was SG27) and the
Brgy. Captain was charged as co-accused, even if he was not
SG27. HELD: Valid, because at least one of the co-accused
was SG27.
• What if a co-accused is a private party?
o Yes, the SB can have jurisdiction over him.
• Which court has jurisdiction to issue hold departure orders?
o Monejar: An MTC CANNOT. Only an RTC can issue a hold
departure order.
o Circular 39-97 – Hold Departure Orders by RTC only apply to
offenses cognizable by second level courts.
o But there are instances when the DOJ Secretary can issue
a hold departure order, right?
 Yes, but this is not under the law but under the
powers of the Executive.
 There must be probable cause for the DOJ to issue
one.
o What is the difference between a HDO and a watch list?
 HDO prevents you from leaving.
 Watch list – you’re only being watched, but you can
leave.
• What determines jurisdiction of the court?
o It is determined by the allegations in the information
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o And any one of the ingredients of the offense or the offense
itself must be committed within the territorial jurisdiction of the
court.
• What is the concept of a prohibited second MR?
o As a rule, a second MR is a prohibited pleading.
o Padiola: Such motion is prohibited and will not be allowed
except 1) for ordinarily persuasive reasons and 2) only after
express leave has been obtained.
o A wrong mode of appeal under Rule 56 will cause the
dismissal of the case.
o Does dismissal of a criminal charge cover dismissal of an
administrative case?
 No. It does not prevent the continuation of an
administrative action.
 The degree of evidence is different (proof beyond
reasonable doubt and substantial evidence)
• What is the jurisdiction of the OMB?
o Covers any act of malfeasance/misfeasance or omission by a
public officer.
o It does not have to be in related to an office. The mere fact
that you are a public officer means that the OMB has
jurisdiction.
o Is the OMB a court?
 No, it’s an investigative body.
• What is the difference between the powers of investigation of the
OP and the OMB?
o Unlike the Office of the Prosecutor, which can only act upon an
affidavit complaint, while the OMB can investigate upon:
 Own initiative, even without a formal complaint
 Inquiry into acts of government
o Method of filing a complaint before the OMB is direct, informal,
speedy, and inexpensive. Just sufficient information is needed.
• Which has primary jurisdiction to prosecute cases cognizable by
the SB – OP or the OMB?
o The OMB. The OMB has primary jurisdiction over cases
cognizable by the SB. He can take over at whatever stage of
investigation by another prosecutor.
• What is the Office of the Special Prosecutor? o 2. Necessary for orderly administration of justice or to avoid
o The OSP is merely a component of the office of the OMB and oppression/multiplicity of actions
may only act upon authority by the OMB. o 3. Double jeopardy is clearly apparent
o Without authority, the OSP cannot file an information o 4. Charges are manifestly false and motivated by lust for
o The OMB’s power to prosecute carries with it the power to file vengeance
an information o 5. When there is clearly no prima facie case against the
• How do you review the actions of the OMB? accused and a motion to quash on that ground was denied
o Ordinarily, it can be reviewed by the CA under Rule 43 (for
QJAs). Rule 110 – institution of criminal actions
o If it involves a criminal case and there is GADALEJ, you go to
• When does distinguishing between offenses committed in and
the SC.
outside of MM matter?
o Which decisions of the OMB in administrative cases are
o If for purposes of jurisdiction of courts, there is no need to
unappeallable?
distinguish between MM and Outside MM (OMM), for purposes
 1. Public censure, reprimand,
of institution of the criminal complaint, you will have to
 2. Suspension of not more than 1 month
distinguish between MM/Chartered City (CC) and OMM.
 3. Fine of not more than 1 month salary
• Can a case be dismissed outright by the OMB?
MM/CC OMM/OCC
o Yes, for want of palpable merit. Requiring PI Office of the Prosecutor Office of the Prosecutor
• Can the OMB prosecute cases within the jurisdiction of regular Not requiring PI Office of the Prosecutor Provincial
courts? Prosecutor/MTC
o The powers granted to the OMB are very broad, so it can. Falling under Rule Office of the Prosecutor Provincial
• Who represents the people during trial? on summary proc. Prosecutor/MTC
o Office of the Prosecutor. (ex. BP22)
• Who represents the people during appeals?
o Solicitor general
• So who can conduct a preliminary investigation?
• What is controlling in determining the age of a child in conflict with
o 1. Prosecutor.
the law?
 The old rule which includes an MTC judge was
o Remember, below 15 years of age, he is exempt
already amended.
o 15 to below 18, exempt if without discernment
o 2. Ombudsman.
 If with discernment, go through juvenile law
• Can there be direct filing in a Metropolitan TC (Met. C)?
o What controls is NOT the age at the time of promulgation of
o No. Just a MTC (Municipal Trial Court).
judgment, but the age at the time of commission of the offense.
o Because only MM/CCs have Metropolitan TCs.
• What exceptional circumstances call justify an injunction to
• What is the procedure in MM, requiring PI?
restrain criminal prosecution? (IMPT)
o The entire Rule 112, Sec. 3:
o 1. To afford adequate protection to the constitutional rights of
 1. File complaint
the accused
 2. Investigating officer dismisses it or issues
subpoena to respondent

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

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 o C. Not more than 6m, falling under the rule on SP
 The court cannot issue a warrant of arrest. Instead,
the court requires you to file a counter affidavit
 So when does the court issue a warrant of arrest?
• Only when there is failure by the accused to
appear in court despite repeated notice
 What is an example of a crime involving summary
procedure?
• BP 22
• When can you file a motion for determination of probable cause?
o After filing of information, but before the judge has acted on it
o Can you file after issuance of a warrant of arrest?
 No.
• Will the filing of a petition for review suspend the issuance of a
warrant of arrest?
o No. The mere filing of a petition for review will not suspend the
issuance of a warrant of arrest.
o What it suspends is the arraignment.
o For how long?
 60 days suspension of arraignment.
Rule 113 – Arrest
• Does the arresting officer need to show the warrant of arrest?
o 1. Inform cause of arrest
o 2. And that a warrant had been issued for his arrest
o Exception to this?
 1. Flees/forcible resistance
 2. Informing the accused imperils the arrest
• What is the duty of the arresting officer if the arrest is without a
warrant?
o 1. State authority to arrest
o 2. Cause of the arrest
o Exceptions to this?
 1. Engaged in commission of the offense
 2. Pursued immediately after offense
 3. Flees/forcible resistance
 4. Informing accused imperils arrest
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• What about arrest by a private person?
o 1. State cause of arrest
o 2. And intent to arrest him
• What are the other circumstances where there can be arrest
without warrant?
o 1. Judicial bondsman may arrest him to surrender accused to
court
o 2. Attempt to depart the country
o 3. Person who has been lawfully arrested and has escaped
• After arrest what do you do?
o 1. Bring him to the police station
o 2. He will be incarcerated until he files for bail
 What if he does not apply for bail?
• He will stay in the city jail in the pendency of
the case.
• If it’s a non-bailable offense, it’s a different
procedure.
• Just wait for arraignment.
 What if he applies for bail?
• He is released from the city jail and he has
responsibility to attend arraignment/appear
o 3. Afterwards, there will be an arraignment
• What if a person is arrested without a warrant?
o 1. Brought to the nearest police station
o 2. Inquest proceeding will be done
 Brought to the Prosecutor’s Office
o 3. The inquest prosecutor can either release you or keep you in
detention
 When the inquest prosecutor releases you, does
this mean your case is dismissed?
• No. You are released for preliminary
investigation.
• This just means the affidavit-complaint of the
police officer used as basis for inquest will be
filed with the prosecutor as an ordinary case.
 What if the prosecutor says “detain”?
 • You can either apply for preliminary  What is the most important requirement for a
investigation or not. property bond?
• What if you apply for preliminary • The owner must be resident of the
investigation? Philippines
o You sign a waiver of Art. 125.  Registration of the lien must be done within 10 days
o Can you then apply for bail? from approval of the bond
 Yes. You file it with the  Does the accused need to be the owner of the
executive judge. property?
• After waiver of 125, what is the next • No.
step? o 4. Recognition
o Go to preliminary investigation.  Can you be released on your own recognizance?
• What if you did not ask for a preliminary • Yes.
investigation? • What are the stipulations in a bond?
o An information can be filed o 1. Bond is effective upon approval and unless cancelled
o Afterwards, there is arraignment  Lasts until promulgation of judgment in RTC, whether
case is originally filed or on appeal
Rule 114 – Bail o 2. Accused must appear in court if required
o 3. Failure to appear in trial is deemed a waiver
• When does bail apply?  Trial can proceed in absentia
o Whenever there is deprivation of liberty
o 4. Bondman must surrender accused to the court for final
• When is bail a matter of right? judgment
o Before conviction, whether MTC or RTC
• From when and up until when is a bail in force?
 Except for cases punishable by RP, LI, DP
o From approval, until promulgation of judgment by the RTC
o After conviction, if MTC
o Whether originally filed there or on appeal
• When is it a matter of discretion?  N.B. thus if the case started in the MTC, you filed for
o After conviction, if RTC and were given bail, it can continue up to appeal in
• What are the types of bail? the RTC
o 1. Cash bond
 In a cash bond, how much is deposited in court? < Kira notes follow >
• The full amount Rule 113
 Who receives it?
• Municipal, city, or provincial treasurer or the People v. Laguio – requisites inflagrante delicto; a 2007 case
CIR 1. Person to be arrested must execute an overt act that he has
• Clerk of court where the case is pending committed, actually committing, or attempting to commit
o 2. Corporate surety 2. Overt act is done within the presence or within the view of the
 Just pay the premium arresting person or officer
o 3. Property bond

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Presentation of the informer/informant is not indispensable in the prosecution
of a criminal case.
Hot pursuit only applies:
1. Offense has just been committed (If there is just an attempt, or the
person is just committing, hot pursuit will not apply)
2. No requirement that it be done in the presence of the officer. It is
only required that the arresting officer with an independent and
personal assessment has probably cause to believe that a crime
has been committed.
Rule 114
Issues with grant of bail:
1. The General Garcia issue – He was charged of plunder with the
Sandiganbayan, which is a non-bailable offense. He is not entitled
to bail. He has no right to bail, as a rule. But they can file a petition
for bail. Then he entered into a plea bargain. (When can you enter
into plea bargain? ANS: At any time before trial. You can enter into
plea of guilt to lesser offense during arraignment, or even after
arraignment but before trial, or during pre-trial.) Here the plea
bargain to a lesser offense of corruption was entered into after trial.
Is he now entitled to bail?
a. When there is conviction, are you still entitled to bail? – As
a rule, no. But when you appeal the conviction, you can
still apply for bail, as long as the decision is not final and
executory, assuming that it is a bailable offense. In this
case, the bail is a matter of discretion to the court.
b. When the judgment has become final and executory, can
you still apply for bail? – As a rule, no.
c. What are the requirements for a plea of guilty to a lesser
offense?
i. Notice to prosecutor
ii. Consent of offended party
d. If the trial court convicted you of an offense which is
bailable (original charge was non bailable offense), the bail
should be applied with the appellate court.
Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail
for Non-Bailable Offenses
1. Petition for Bail:
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a. Case: Governor Leviste shot his aid. On advice of counsel,
he surrendered and was charged only with homicide. It is
a bailable offense. He can avail of bail, as a matter of right.
It was in the RTC, before conviction, the offense is
punishable not by reclusion perpetua, death, or life
imprisonment. Homicide is punishable with reclusion
perpetua. But then the information was withdrawn, and he
is now charged with murder – a non bailable offense. He
will be arrested. Is he now entitled to bail? ANS. NO. But
he can file a petition for bail. Here, the court granted his
petition for bail. The court was convinced the evidence of
guilt against him was not strong. Trial proceeded and there
was promulgation of judgment, that he was guilty not of
murder, but of homicide. Can Leviste apply for bail now?
ANS: He is entitled to bail as a matter of discretion.
b. Lets say you were charged with offense where bail is a
matter of right (e.g. estafa), but then convicted. You can
apply for bail, but it is a matter of discretion.
c. What is the nature of a hearing for the petition for bail?
ANS: Summary.
d. Can we dispense with a hearing for bail? (When the judge
thinks malakas un kaso ng prosecution)? ANS: NO. You
cannot dispense with and ignore hearing for bail.
e. Can there be joint summary hearing of petitions for bail?
YES.
f. Is an arraignment a prerequisite to a petition for bail? NO.
Although the judge in the Ampatuan case required the
accused to be arraigned before allowing the petition for
bail. There is nothing irregular here though, the counsel for
the accused allowed it. The very moment there is a
deprivation of liberty, you can apply for bail.
2. Bail as a Matter of Right
a. Basta nasa MTC, bailable as a matter of right.
b. In RTC, bailable as matter of right if:
i. Before conviction
ii. And not punishable by reclusion perpetua, death,
or life imprisonment.
c. The judge cannot deny bail that is matter of right; he can
only increase amount of bail. – Maceda case
3. Bail as a Matter of Discretion
a. In RTC
i. Conviction
 ii. And not punishable by reclusion perpetua, death, b. When bail is matter of discretion, conduct hearing on
or life imprisonment application, regardless or not whether prosecutor wants to
iii. And not accompanied by the ff instances, if the present evidence that guilt is strong
penalty exceeds 6 years: c. Decide whether evidence of guilt is strong based on
1. Recidivist, habitual delinquent, etc summary evidence of the prosecution
2. Previously escaped from legal d. If guilt is not strong, discharge accused on approval of bail
confinement
3. Committed offense while under What if charged with murder, petition for bail granted, then convicted of
probabtion, parole homicide? – Entitled to bail as matter of discretion. The issue of whether
4. Flight-risk evidence of guilt is strong is not relevant, because that only applies if the
5. Undue risk that he may commit crime offense is non bailable.
during pendency of appeal
b. Where will you apply?
i. If appealed, before transmission of records: to What if charged with murder, petition for bail granted, then conviction of
RTC murder? – Can’t apply for bail; the nature of offense is non bailable.
ii. If appealed, and the RTC conviction changed Obviously having been convicted, the evidence of guilt is strong.
nature of offense from non bailable to bailable: to
appellate court What if convicted of offense not punishable of imprisonment beyond 6 years,
c. Bail as a matter of discretion has an enumeration of is it still a bail as a matter of discretion? (That which is alleged is different
certain disqualifiers. from what is proven. – Rule 120) – It is now bail as matter of right.
i. If convicted, beyond 6 years, and with
disqualifiers – bail denied
For purpose of judge determining if bail if excessive – must consider
ii. If convicted, beyond 6 years, and no disqualifiers
parameters laid down in Section 9
– bail is matter of discretion
iii. If convicted, less than 6 years – bail matter of But for purposes of recommending bail by prosecutor – they have their own
right administrative list
iv. If convicted, less than 6 years, and with
disqualifiers – bail matter of discretion, but court Where to File Bail:
will impose higher bail because of disqualifiers 1. You were arrested in Kamagong (Makati), the case was filed in
Makati. Action pending in same province/city where he was
Mabutas v. Perello – requirements for hearing for applications for bail arrested.
1. Bail as a matter of discretion is different from the exercise of a. Apply in court where case is pending
discretion in petitions for bail b. In absence or unavailability of judge, in any court in the
2. Bail is a matter of judicial discretion that remains with the judge. A area
hearing on application for bail is mandatory, whether bail is matter 2. Person arrested in Marikina, case pending in QC. Can person file
of right or matter of discretion. for bail in QC? NO. Because when you arrested in Marikina, you
3. In case application for bail is filed, judge is entrusted with ff duties: will be taken to nearest police station in Marikina. So you’ll apply
a. In all cases whether bail is matter of right or discretion, there in Marikina.
notify prosecutor of application for bail or allow him to give 3. If you’re in Cavite, but the case is pending in Makati, but you
his recommendation haven’t been arrested, you can’t apply for bail in Cavite.
4. Arrested in Ilocos, case pending in Manila. He applied for bail in
Ilocos and was granted. Later the records were sent to Manila.
a. Should the records be sent to Manila? ANS: Yes.

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 b. Is the judge in Manila obligated to accept the bail? ANS:
He’s not required. He can require a new bail.
Expat is out on bail, he always leave every few weeks, can he do that?
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs
without securing such approval, he can be arrested without a warrant.
If accused is charged with vagrancy and has been in detention for almost 2
years, what should the judge do with the accused?
In a voluntary surrender, you do not need a certificate of arrest, for an
application for bail.
The DNA Rule
1. Can a person who has already been convicted and serving
sentence, apply for DNA examination? ANS: Yes
2. If the court finds after DNA evidence that the person serving
sentence is not guilty, what will the court do? ANS: Person serving
sentence must apply for habeas corpus.
Rule 115 – Rights of the accused
• A. Presumption of innocence
• How did the court apply presumption of innocence in P v.
Dimalanta?
o When circumstances lead to two or more inferences, one or
more leading to innocence and one or more leading to guilt, the
former should prevail.
• B. To be informed of the nature and cause of the accusation against him
• To be informed of the nature and cause of accusation against him:
o Get an authorized interpreter if the accused does not speak
Filipino/English
• When can a counsel de officio be appointed?
o 1. During arraignment
o 2. During trial
o 3. Before records are elevated on appeal (accused informed of
right to counsel by clerk of court at this point)
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o 4. In the CA –
 When the accused signed his appeal by himself
 Or accused is in prison
o 5. In the SC – have their own guidelines
• C. Right against self-incrimination
• What is the concept of chain of custody in the DNA rule?
o Usually it’s a concept that is connected with drugs, as re:
possession of seized item from the scene of the crime
o For purposes of evidence, it is considered for tampering or
authenticity of the sample. If the sample has been tampered
with, you cannot get an accurate result.
• What are the ways by which a laboratory can be accredited?
o See Rules on DNA Evidence 7c
• What is the rule on filiation?
o DNA results that exclude from paternity are conclusive
o If the value of probability of paternity is less than 99.9% -
merely corroborative
o If the value is 99.9% or higher – it is a disputable presumption
o Why is it just a disputable presumption?
 Because you can still argue that it would have been
physically impossible for one to do it, or there is no
access, and that there is someone who could have
similar DNA makeup (twins, for instance).
o Differentiate corroborative from cumulative evidence?
 Corroborative  proving same point, but different kind
and character of evidence
 Cumulative  Same kind and character, proving
same point
• D. Right to be present in the course of the proceedings
o What is the consequence of his absence in the hearing?
 There can be a trial in absentia if there already is
arraignment and the accused is unjustifiably absent
o When is his presence mandatory?
 The general rule is the he must be present at all
stages of the proceeding.
o Can this be waived?
 Yes.
 o Where and when should it be waived? o Entire period of trial?
 There should be a stipulation in the conditions of bail.  180 days
So as a rule, it cannot be waived. o But why are a lot of cases that do not commence in time,
o What if the private complainant is absent? and are not dismissed due to violation of this right?
 It’s fine.  Because of the exclusions.
• E. The right to public trial o What are the exclusions?
o General rule is that the trial is public  1. Other proceedings:
o When can the public be excluded? • Mental/physical examination of accused
 Found in Rule 119, Sec 21. (offensive to • Other criminal charges
decency/public morals) • Extraordinary remedies against interlocutory
o Does public trial include public viewing on TV or radio orders
broadcast? • Pre-trial proceedings, as long as not
 No. It opens room for lawyers to grandstand. exceeding 30 days
o Also recognized in evidence: • Orders of inhibition or change/transfer of
• F. Right to speedy trial venue
o How many kinds of speedy trial? • Prejudicial question
 1. Speedy disposition of the case (constitutional law) • Any period not exceeding 30 days when the
 2. Right to speedy trial (criminal law) accused is actually under advisement
o What is the difference?  [Unavailable, unable]
 In the Crim Pro concept, you can invoke it anytime  2. Absence or unavailability of an essential witness
before or during trial. • Absent  whereabouts unknown
 In Constitution, any time as long as the action is • Unavailability  whereabouts known
pending.  3. There is a co-accused over whom the court has not
o What is the remedy for speedy trial under the acquired jurisdiction or for whom time for trial has not
Constitution? run and no motion for separate trial is granted
 Habeas Corpus  4. Mental incompetence or physical inability of the
 Because your continuous detention has no more legal accused to stand trial
basis  [Upon motions]
o What if it’s in criminal procedure?  5. Prosecution dismissed information upon motion
 Certiorari and then filed another charge for the same case – the
 Prohibition time limit between the dismissal and the subsequent
 Mandamus charge
o Rule 119 has a computation. How long is the maximum  6. Continuance granted by the court motu propio or on
time between the arraignment and trial? motion
 80 days  Memorize this list. Rule 119 Sec 3.
 If you don’t follow number days, you could expect a o Cases:
MTD on ground of violation of right to speedy trial

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  In one case, Pre-trial happened after 7 years. Delay
was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion
• But as a rule, extraordinary remedies must
not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.
 In another case, there were 20 postponements. The
witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o What is “VCO”?
 Vexatious, capricious, oppressive
 VCO delays violate the right to speedy trial
• G. Right to confront witnesses presented against him
o Basically, can cross examine
• H. Right to have compulsory processes to secure attendance of
witnesses and production of evidence
o Can apply for subpoena ad testificandum and duces tecum
o Right to modes of discovery:
 Can apply modes of discovery in criminal cases.
 Rule 119, Secs. 12, 13, 15  Conditional
examination of witnesses for the prosecution/accused.
This is the equivalent of Rule 23 depositions in
criminal trial.
 Purposes for prosecution:
• 1. Sick or infirm, or unavailable
• 2. or the witness is about to depart.
 Purposes for accused:
• 1. Sick or infirm or unavailable
• 2. or more than 100km
 What is the difference if it will be availed of
prosecution or accused?
• Prosecution: ONLY in the court where the
action is pending
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• Accused: Before any judge, member of the
Bar in good standing, and if ordered by a
superior court directing an inferior court
• I. Right to testify on his own behalf
o Can the accused testify for the prosecution?
 Yes, but he can refuse
o Can a party in a criminal case be asked a question that
would raise civil liability but not criminal liability?
 [Answer unclear, but since it’s purely civil, I think the
witness can be compelled]
o What is the effect of silence?
 It should in no manner prejudice him
• J. Right to appeal
o Will be discussed below (Rule 122-125)
Rule 116 – Arraignment and Plea
• When must arraignment take place?
o Within 30 days of obtaining jurisdiction over the person of the
accused
o Take note that pre-trial must happen within this same period,
but after arraignment
o What if the person is preventively detained?
 Follow the 3:10:10 rule. So it’s shorter (max 23 days)
• 1. From filing of information, case is raffled
within 3 days
• 2. Arraignment within 10 days of raffle
• 3. Pre-trial within 10 days of arraignment
• What comes first, plea or arraignment?
o Arraignment, where the information is read against him
o Can the arraignment be dispensed with? (Ex. by an
accused that does not want to hear the information)
 Never. You cannot waive the arraignment.
o Can the arraignment or reading be in a language different
from what the accused knows?
 No. It must be in a language known to the accused.
• What about a belated arraignment? (P v. Trinidad)
 o This happened when they realized that there was no o X pleaded guilty to homicide. He
arraignment. There was a belated arraignment that was didn’t know that if he pleaded
validated because the lawyer had an opportunity to cross guilty, there won’t be any hearing
examine and the lawyer actively participated in the anymore. Can he withdraw the
proceedings. improvident plea?
• What are the kinds of pleas?  Yes.
o 1. Plea of guilty • When can it be withdrawn?
 A. Plea of guilty to lesser offense o Any time before judgment of
• Until when can you do this? conviction becomes final (after
o At very latest, pre-trial appeal)
o At trial, cannot plea guilty to lesser • What are the further actions of the court
offense in case of an improvident plea?
 B. Plea of guilty to capital offense o If the sole basis of conviction is the
• [N.B. this is a moot and academic improvident plea, it is remanded for
discussion] further proceedings in the trial court.
• Punishable by death. (Ex. the SC sends it back to the
• What is required? RTC)
o Conduct searching inquiry to see if o If the conviction is supported by
it is voluntary and if he understands other evidence, the SC will render
the plea judgment
• What does it entail? o 2. Plea of non-guilty
o 1. Background check (age,  A. Conditional plea
education, socio-economic • What is this equivalent to?
conditions) o It’s akin to a plea of not guilty
o 2. Conduct of custodial investigation  B. Refusal to enter a plea
o 3. Explain the nature of the offense • The court assumes it’s not guilty
and extenuating circumstances to • Can a representative enter a plea of not
the accused guilty?
• Hearing after the plea o No. The accused must be the one
 C. Plea of guilt to a non-capital offense to enter the plea.
• Should there be a hearing? • [Should the accused be present during
o It’s not mandatory promulgation of judgment?]
 D. Improvident plea o Yes.
• What is an improvident plea? o Is there an exception to this
o Plea of guilty without fully rule?
understanding consequences of the
plea

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  Yes, for light offenses. • Can a case dismissed by a MTQ be re-filed?
The accused can be o As a general rule, yes.
represented. o It depends on the ground.
 C. Direct plea of not guilty o When can it not be re-filed?
 D. Say guilty but present exculpatory evidence  1. Prescription
• When is there suspension of arraignment?  2. Double jeopardy
o 1. Accused suffers from unsound mental condition • Can the prosecution file a MTQ?
o 2. Prejudicial question o No. The applicable remedy is substitution of information.
o 3. Petition for review pending with DOJ • When a case is dismissed provisionally, what is the effect?
 Not exceed 60 days o The case is temporarily dismissed.
o 4. Pending incidents:  Ex. “This case is dismissed for 30 days”
 A. Motion to quash o It can be revived (don’t use “re-file” because the dismissal was
 B. Motion for inhibition just provisional)
 C. Motion for bill of particulars o Who will ask for provisional dismissal?
• Can there be a bill of particulars in a  1. The prosecution
criminal case? • With consent of accused
o Yes. Apply before enter of plea. • If there is no consent of accused, is it a
• What is required? provisional dismissal?
o Identify defects and details desired o No. A dismissal without the
consent of the accused would lead
Rule 117 – Motion to quash to double jeopardy (obtains finality).
 2. Or the accused
• Why do you file motion to quash the information?
• Is the prosecution’s consent required?
o 1. It is defective or
o No. Even without consent, it’s still a
o 2. The court has no jurisdiction.
provisional dismissal. As long as it
• Differentiate from provisional dismissal:
doesn’t pass the time leading to
o In P.D., there is no questioning of the information. In fact, it is
permanence.
valid and charges a proper offense and the court has
o When can you ask for provisional dismissal?
jurisdiction over the SM and the person.
 Any time.
o Provisional dismissal is always with the consent of the
• For a dismissal to take effect in MTQ, do you need to wait for a
accused.
lapse of time?
• What is the effect of a grant of a MTQ?
o There is still a period to seek a remedy after. Ex. You can file
o Dismissal of the case.
an MR.
o Is it always dismissal?
o After this period, it can be re-filed. (Except for the two
 No. The court can order amendment. [No period
exceptional grounds.)
provided.]
• For a provisional dismissal to be permanent, what is the period
 Amendment is a remedy, but it has a narrow
required?
application. It does not apply to all grounds.

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 o Beyond 6 years  2 years
o 6 years or less  1 year
o When will this period begin to run?
 Upon receipt of notice by the accused (given by the
code)
 But this has been supplemented by Lacson: Period
can only start upon receipt of notice by the public
prosecutor
• Rationale: because it is the public
prosecutor’s duty to revive the case
• What are the grounds for a MTQ?
o Problem as to form
o 1. Facts stated do not constitute an offense
 The elements of the offense are not there
 But is it possible that while not constituting an
offense, you can be liable for another offense?
Can this be the proper ground of a MTQ?
• It’s possible. This is not a ground for a MTQ.
• Ex. Charged with qualified theft, but
relationship was not alleged. You file a
MTQ. The court can order an amendment to
show relationship. The court cannot quash
because there is an offense alleged in the
information.
o 2. More than one offense
was charged in the information
 How do you know if
there is more than one offense?
• Ex. murder – can you kill
a person twice? No.
• Ex. rape – you can rape
someone multiple times. For instance X
raped Y five times. How many
informations should you file?
o Five.
• What if ten checks
bounced?
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o Ten informations,
because each is an offense in its
own.
o 3. Does not conform
substantially to prescribed form
o 4. Officer who filed the information had no authority to do so.
 There was a case in the
Sandiganbayan. There was a motion for
reinvestigation and it was granted. The Special
Prosecutor amended it and re-filed it. Can he do
that?
• No. He has no authority;
it is not within his powers.
 Ex. a Prosecutor with
authority only extending to Bulacan cannot file an
information in Makati.
 If a State prosecutor is
appointed as Acting city prosecutor, does he
have authority to approve/file the information
prepared by the asst. prosecutor?
• Yes as long as he is
properly appointed by the DOJ.
o Jurisdictional matters
o 5. Lack of jurisdiction
over the person of the accused
 Accused has not
voluntarily surrendered
 Or Accused not arrested
o 6. Lack of jurisdiction
over the offense charged
o Exculpatory matters
o 7. Criminal liability has
been extinguished by prescription
 Recall that there is
prescription of crimes and prescription of penalties.
 To which does this
ground apply to?
 • Prescription of crimes. In
prescription of penalties, there is already a
judgment.
o 8. Contains averments
that if were true, would constitute a legal excuse or justification
 Ex. Self-defense
o 9. Double jeopardy
 What are the
requisites?
• 1. Court of competent
jurisdiction
• 2. Valid information
• 3. Plea
• 4. Conviction, acquittal, or
dismissal without express consent of the
accused
 What are examples of
dismissal without the express consent of the
accused?
• Ex. failure to prosecute
 What about motion to
dismiss prompted by the accused on the ground
of violation of right to speedy trial?
• It is tantamount to an
acquittal and thus leads to DJ. This is an
exception to the general rule
 What about a demurrer
to evidence which is granted by the court?
• It is also tantamount to an
acquittal and thus leads to DJ. Another
exception.
 What about a motion
for determination of probable cause filed by the
accused and granted by the court?
• No, this is not an
exception. There is no plea yet. There is no
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dismissal without express consent of the
accused.
• Compare motion to
dismiss (civil procedure) from motion to quash (criminal
procedure).
o Re: court actions
o Motion to dismiss:
 The court can grant,
deny, or order an amendment
o Motion to quash:
 The court could only
order amendment if it’s a defect that can be corrected
by such amendment.
• UNLIKE in motion to
dismiss, regardless of the ground, the court
has a free hand: can grant, deny, or order
amendment.
 Whereas here, the court
has to order an amendment before denying/granting,
on some grounds.
o Re: refiling
o Motion to dismiss:
 In general, it can be re-
filed.
 Except:
• 1. Prescription
• 2. Unenforceable under Statute of Frauds
• 3. Res judicata
• 4. Extinguish of claim or demand (PWEA)
o Motion to quash:
 In general, it can be re-
filed.
 Except:
• 1. Prescription
• 2. Double jeopardy
o Re: objections not
raised
 o Motion to dismiss: o 1. Speedy trial
 In general, grounds not o 2. Demurrer to evidence
raised are waived.
 Except for: Rule 118 – Pre-trial
• 1. Lack of jurisdiction
• When must pre-trial
over the SM
happen?
• 2. Prescription
o Within 30 days from the
• 3. Litis pendentia
court acquiring jurisdiction over the person AND after
• 4. Res judicata
arraignment
o Motion to quash:
 N.B. within the same 30
 In general, grounds not
day period as arraignment
raised are waived.
 N.B. but take note of the
 Except for:
exception (3:10:10 rule) if the accused is detained
• 1. Lack of jurisdiction
• Can there be
over the offense
compromise?
• 2. Prescription
o Basic rule: you cannot
• 3. Does not constitute an
compromise criminal action
offense
o But you can compromise
• 4. Double jeopardy
the civil aspect of the case
• When will double
 But when you
jeopardy not set in?
compromise the civil liability, it does not lead to the
o 1. When there is a
dismissal of the criminal case
supervening event.
 What do you need?
o 2. Facts constituting
• Affidavit of desistance by
graver charge only were discovered after a plea was entered
the offended party. This is as to the civil
o 3. Plea of guilty to lesser
aspect.
offense was made without consent of prosecutor and offended
 The prosecution has to
party
move for the dismissal of the case
 Except?
o If the prosecution
• For purpose of plea
moves for dismissal, does double jeopardy set in?
bargaining, the private offended party was
 Check the requisites. If
notified but did not appear during
there is plea, double jeopardy sets in. If there is none,
arraignment
double jeopardy will not.
• And the offense is
• Can the admissions of
necessarily included in the offense charged
the accused be used against him in the proceedings?
• When can there be
o Yes, if it is in writing and
consent of the accused but double jeopardy can set in?
signed by the accused and his counsel.

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• What is the rule for o It is automatically
agreements entered into in the pre-trial conference? cancelled upon acquittal, conviction,
o Same rule – reduced in or dismissal of the case against him
writing and signed by both accused and counsel. without express consent of the
o What are these accused.
agreements? • Forfeiture – failure to
 1. Plea bargaining appear
 2. Stipulation of facts  What is the procedure?
 3. Marking of evidence • The court will order the
 4. Waiver of objections to bondsman to produce the accused within 30
admissibility of evidence days. If he fails to do so, the bail will be
 5. Modification of order of forfeited.
trial (lawful defense)  What is your remedy for
 6. Matters that promote a forfeited bail?
fair and expeditious trial of the civil and criminal • Appeal
aspects of the case • Is it mandatory?
o What is required for o Yes. There is pre-trial
these agreements? before Clerk of Court
 Must be approved by the • Can there be
court stipulations?
• Absences and o Yes
appearances: • Can there be marking
o The rule of absences in of documents?
pre-trial (in civil case) does not apply in criminal cases. o Yes
o The pre-trial will be reset.
 If the witness is absent, Rule 119 – Trial
the court can rely on compulsory processes
 If the accused in absent • When must trial
• 1. There is forfeiture of commence?
bail o Within 30 days from
• 2. There will be a warrant receipt of PTO
of his arrest o What if there is an
 [Distinguish order for new trial?
cancellation from forfeiture of bail]:  Within 30 days from
notice of that order
• Cancellation –
o Voluntary surrender or  But if impractical, it can
death. be extended up to 180 days from the notice of the
order

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• Period to conclude o 5. Not convicted of a
trial? crime involving moral turpitude
o 180 days from first day of • When can an
trial (unless authorized by the SC) application for discharge be made?
• What is the order of o Before the prosecution
trial? rests its case
o 1. Prosecution o What does the
o 2. Defense applicant need to do or submit?
o [optional:]  Submitting sworn affidavit
o 3. Rebuttal o What happens to the
o 4. Surrebuttal statement?
o 5. Submission of  Becomes part of the
memoranda evidence of prosecution
o Are rebuttal and o What happens to the
surrebutal necessary? accused?
 No. This is upon court’s  Becomes acquitted
discretion. o If the application is
 Likewise, with submission denied, what happens to the statement?
of memoranda.  It’s inadmissible
o Can it be reversed? • Compare with
 Yes, when there is self requisites for discharge under Witness Protection Program?
defense and other exculpatory defenses o The requisites are the
• Discharge of the same.
accused as state witness – requisites? o But the mode of
o 1. There is no direct application is different – you file it with the DOJ, not with the
evidence court. (Yu v. RTC of Tagaytay)
 So for this, you have no o Does double jeopardy
one who can point to the perpetrator. set in, if under WPP?
 What is the opposite of  No, because there is no
direct evidence? plea.
• Circumstantial evidence  So he can be prosecuted
o 2. There is absolute afterwards (!)
necessity for the evidence • When do you file a
o 3. Could be corroborated demurrer to evidence?
in its material points o Civil – after plaintiff has
o 4. Not the most guilty completed presentation of evidence

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 o Criminal – after the
prosecution rests
• Do you need leave of
court?
o In criminal: you don’t
need to, but there are serious consequences if you do not
secure leave.
 If you file with leave of
court and it’s denied, the accused can still present
evidence
 If you file without leave of
court and it’s denied, the accused will not be able to
present evidence – there will be a judgment
o In civil: no need for leave
of court
o N.B. demurrer in criminal
case on the court’s own initiative (motu propio) after giving
prosecution chance to be heard is allowed
• When do you file
motion for demurrer in criminal case?
o 1. Non-extendible period
of 5 days from prosecution resting its case
o And then?
 Prosecution can oppose
the motion in non-extendible period of 5 days from
receipt
o And then?
 If leave is granted,
accused has non-extendible period of 10 days from
notice to file the demurrer
 Prosecution can oppose
the demurrer in non-extendible period of 10 days from
receipt
• In criminal cases, if the
demurrer is denied, can you file a petition for certiorari?
o No. You cannot file a
petition for certiorari. You have to wait for judgment.
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• What’s the effect of a
grant of demurrer in a civil case?
o It’s a final disposition of
the case.
o In a criminal case?
 It’s a dismissal. It
amounts to an acquittal.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
 Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
 So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
• Recall: Exclusions to the 180-day rule for trial to finish from its first day.
• When can the court
grant a continuance?
o N.B. correlate with last
ground for exclusions
o 1. Consider w/n it will
lead to a miscarriage of justice
 So this can include the
civil procedure grounds (ex. unavailability of material
evidence or sickness/absence of party or counsel)
o 2. The issues in the case
are so novel, unusual, and complex that it requires more time
to prepare
• NOTE: Check discussion
in Rule 115 for Conditional examination of witnesses
• When can the
testimony of a discharged witness be disregarded?
o ONLY when he
deliberately fails to testify truthfully in court
• Can there be a
reopening of a case?
 o Yes, anytime before
finality of conviction, the court may motu propio or upon motion
(with hearing) reopen the hearing to avoid miscarriage of
justice
o How long before the
proceedings terminate?
 30 days from granting
Rule 120 – Judgments
• What should
judgment contain?
o 1. Offense you have
committed
o 2. Penalty to be imposed
o 3. Participation, whether
principal, accomplice, accessory
o 4. Aggravating
mitigating circumstances
o 5. If acquitted, whether:
 Complete non-liability
 Reasonable doubt
 Or if the facts from which
the civil liability might rise from were not committed
• Does the prosecution
have remedy against an acquittal?
o Note than an acquittal is
immediately executory.
o But if there is GADALEJ
(P v. Hernandez) – you can file for certiorari
 Before you challenge an
acquittal this way, you have to secure consent of the
Solicitor General
 And this is only for
exceptional circumstances
• How do you promulgate
judgment?
"
o The accused should be
present during promulgation
 Except if it is a light
offense
 Or else he forfeits his
remedies
o There is a period – within
15 days from promulgation of judgment – within this period he
has to explain why he was absent
o If he is in jail, to whom
a is the notice served?
 The warden
o If he is out on bail?
 The bondsman
o If he is at large?
 Notice sent to last known
address
or
• Is there promulgation in
appellate courts?
o Yes.
o When duly certified by the
division, and then forwarded to the clerk of court, who will give
notice of promulgation on paper
• Can a judgment be
modified?
o Yes, before it is final and
executory
Rule 121-5 – Remedies (NT/MR/Appeals)
• Is there a record of
appeal on criminal cases?
o No.
• Is there ordinary appeal
(notice of appeal)?
o Yes.
MR/MNT
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• When? o Yes, but just one.
o 15 days
o Is Neypes applicable Ordinary appeal
(fresh period rule)?
• Who may appeal in a criminal case?
 Yes.
o Any party may appeal, unless it would place the accused in
• Grounds for MNT?
double jeopardy
o 1. Errors of
o Parties:
law/irregularities prejudicing substantive rights of accused
 1. Accused
during trial
• A statutory right, and affirmed in the ROC
o 2. Newly discovered
 2. Offended party
evidence
 3. People of the Philippines
 Material
 Could not have been • When may the private offended party appeal?
o Only as regards the civil aspect of the case
discovered with reasonable diligence
 Ex. Did not have a finding of civil liability, did not order
 Would probably change
restoration, etc.
judgment
o This does not place the accused in double jeopardy.
o How long does the
court have to commence a new trial from the order • When may the people appeal?
granting an MNT? o See sample question: A person is charged with rape in the
 30 days from the notice of information. Counsel for accused filed a motion to quash for
such order lack of J over the offense charged. The motion is granted.
 Extendable up to 180 What is the effect?
days from notice, if the period is impractical  Dismissal of the case.
o Can the State appeal?
• Ground for MR?
 Yes. Because double jeopardy has not yet set in.
o 1. Errors of law or fact
You file the MTQ before arraignment.
requiring no further proceedings
• In appeals in civil cases, when a party appeals, only such assignment of
• Can you file MNT in the
errors that he made in the appeal will be taken up by the court. The
CA?
appellate court cannot go beyond this assignment of errors. In criminal
o Yes
cases, when the accused appeals from his conviction, he throws open
o What ground?
the entire case for review. He will not be limited to the assignment of
 Newly discovered
errors in the appeal brief.
evidence only
o Significance: the penalty imposed, instead of being lowered or
o What is the period?
cancelled, it can be increased.
 From perfection of appeal
until the court loses jurisdiction • In the case of several accused, where some appealed and some
didn’t, what is the rule?
• Can you file MR in the
o Appeal made by one party does not affect those who did not
CA?
appeal.

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 o Except if it ends up being beneficial.  File appellee’s brief,
• What happens to the decision? within 30 days
o The decision is stayed until appeal is not yet completed.  Reply brief, within 20
• Criminal: X was days
charged with acts of lasciviousness (within MTC jurisdiction). o Compare/contrast with
MTC renders judgment. Who reviews it? civil cases:
o RTC, through notice of  45/45/20 days
appeal filed with the MTC. (RULE 122)
o Compare/contrast with Petition for review
Civil:
• How does it reach the
 MTC  RTC, through
CA on petition for review?
notice of appeal. (RULE 40)
o If the original case was
 Or MTC  RTC, through
filed in the MTC.
record of appeal (not available in criminal cases)
o MTC  RTC  CA
• What is the procedure
• What about civil cases?
in the RTC for criminal cases, when acting as appellate court?
o Found in Rule 42.
o Parties submit their
o Still MTC  RTC  CA
memoranda (Rule 122, Sec 9)
• Criminal: Review by the
o Compare/contrast with
Supreme Court, if the penalty is not punished by death, life, or
Civil:
reclusion perpetua: from where should it come from?
 Same. Parties submit
o From the CA or the SB
memoranda.
only
• Criminal: Court of
o Use Rule 45, whether
original jurisdiction is the RTC, and he was convicted for
civil or criminal. Again, the general rule is that you cannot go
homicide. Appeal?
up to the SC except through petition for review on certiorari.
o Go to the Court of
o In civil, from where can
Appeals, through Notice of appeal filed with the RTC.
you come from?
o Compare/contrast with
 RTC, CA, SB, CTA en
RTC in civil action:
banc, etc.
 Go to the CA, through
• RTC, penalty is death,
Notice of appeal filed with RTC. OR file a record of
based on the law (although it cannot be implemented). How do
appeal.
you appeal?
 So still the same.
o There is automatic review
o What is the procedure
to the Court of Appeals, even in the absence of a notice of
followed by the CA in criminal cases?
appeal.
 File appellant’s brief
o The case is with the
(Rule 124), within 30 days
CA. What can the CA do?

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  If it finds for death again,
it can render judgment but not enter it.
o What happens after?
 The CA will certify the
case to the SC.
• The penalty is life/RP.
Is it covered by automatic review?
o No. You need notice of
appeal.  CA
o The Court of Appeals
found in favor of life/RP. Can it render and enter a
decision?
 Yes.
o How do you appeal
this?
 This is the singular
instance where you file a NOTICE OF APPEAL with
the Court of Appeals to go up to the SC.
Sandiganbayan
• What if the penalty is
less than death/life/RP, whether original or on appeal?
o Rule 45 to SC
o [Note that the CA and SB
are same level courts]
• What if the penalty is
death?
o Automatic review to SC
• What if the penalty is
life/RP?
o Notice of appeal to SC
(like in the CA)
General provisions
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• Can there be a valid
judgment even if the judge who rendered the judgment was not
the same one who heard the case?
o Yes.
• Logrida v. P: Rule 122,
Sec. 11 provides: even if an accused did not appeal when there are
multiple accused, and there is a favorable judgment, it could benefit the
non-appealing accused.
o However, in this case, the
accused invoking this provision actually filed an appeal, but it
was dismissed due to a technicality.
• When is as appeal
deemed to be abandoned?
o When the accused jumps
bail, escapes, or fails to file an appellant’s brief.
• Counsel-de-officio:
o The general rule is the
accused is given the choice to retain a counsel de parte (of his
choice)
o If he cannot afford one,
the court appoints a counsel de officio
o One can be appointed
during arraignment, or for the rest of the trial.
o Can a counsel de
officio be named in the Court of Appeals?
 Yes, when the accused
signed his own appeal. Also, when he was not
assisted by counsel.
o Can the SC appoint a
counsel de officio for the accused?
 Yes, the SC can, but this
is not provided for in the rules.
Sample scenarios
• Seduction – what court has jurisdiction?
o File in MTC (since MTC cut-off is 6 years)
o Appeal – to RTC which has territorial jurisdiction.
  Notice of appeal • Does the Rule 41 provision which enumerates what cannot be
 Records of MTC elevated to RTC, no new trial. appealed apply suppletorily to criminal appeals?
Parties are required to submit memoranda. o No.
 Rule 42 o Resolution on MTQ is thus appealable regardless of the
o Appeal again – to CA ground availed of (because it is a final order)
 Regardless of the question involved, because RTC o If the basis of MTQ is prescription of the offense or double
was exercising appellate jurisdiction jeopardy  if this is granted by the TC, this means that the
o Appeal again – to SC prosecution cannot simply refile it. There is no problem here,
 Rule 45 only (pure questions of law) so remedy is appeal.
• Estafa o The only issue is when the MTQ is based on grounds like
o File in RTC, performing original jurisdiction alleging multiple offenses or lack of J of the court, which can be
o Appeal – cured by refiling in a different court  the losing party can still
 Questions of fact and mixed questions, go to CA challenge it in an appeal!
 Pure questions of law, go to SC  Because as highlighted above, the Rule 41 prohibition
o If you go to SC, what mode? does not translate to criminal procedure
 Rule 45 • Practitioner-type question: If as prosecutor, your complaint was
o If you go to the CA, what mode? dismissed under Rule 117 Sec 3 (5) – did not comply with proper
 Ordinary appeal, Rule 41 form. What is the better remedy to choose: certiorari or appeal
• RTC sentences accused to RP or LI. What is the remedy? (since this is allowed too)?
o Notice of appeal to CA, Rule 41 o N.B. If this were a civil case, the obvious remedy is re-file or
o What issues can you raise? certiorari under Rule 65, since appeal does not vest.
 Facts, or Mixed o In a criminal case, you have to choose appeal because
o If your questions are just purely legal, are you prevented from certiorari cannot vest if there is a plain, speedy, available
raising it to the SC via Rule 45? remedy.
 No you are not. There is nothing the rules preventing o But sir left this issue hanging. “It’s not yet clear cut.”
you from doing so.
• RTC imposes penalty of RP or LI. The CA affirmed. Your MR is denied. Rule 126 – Searches and seizures
What is your remedy?
• How long is the life of
o Go to the SC, under Notice of Appeal
the search warrant?
o This is the exception
o 10 days from date of
o Purpose: so you raise both questions of law and fact
issue, and then void
• Where appealed cases from Sandiganbayan go?
• What can be the
o SB (= CA)  SC (Rule 45)
personal property subject to search and seizure?
o SB (reclusion perpetua or LI)  SC (notice of appeal)
o 1. Subject of offense
o Note: there can still be certiorari (Rule 65) for instances, such
o 2. Stolen or embezzled,
as when the prosecution was deprived its day in court
or fruits of the offense

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 o 3. Used or intended to be o Can it become one?
used as means to commit offense  No. You need
o The search warrant information because the application for a search
said “an undetermined amount of shabu.” The original warrant will not evolve into one.
case was for marijuana. Will this be enough for the police • Where do you file for
officers to conduct a search? quashal of search warrant?
 Yes, even if the amount o In the court wherein it
was not specified. What is required is that the object was applied for if there is no case yet
of the search be described with particularity. Quantity o If there is a case, in the
is not required. court where the case is pending
o The police officer was • Who determines
armed with a search warrant. But before implement or probable cause for search warrants?
enforcing it, on plain view, he saw illegal firearms. Can o The judge. Not the
there be a valid search? prosecutor.
 Yes. Plain view o Wherelse is probable
exception applies, even if there is a search warrant. cause required, apart from application for search warrant?
• Where could you apply  1. Preliminary
for a search warrant? investigation
o 1. You apply to the court,  2. Rule 113, warrantless
following the rule on territoriality. arrest (personal knowledge that crime has been
o 2. For compelling committed)
reasons, any court within judicial region where the crime was  3. Warrant of arrest
committed or any court within judicial region where warrant  4. Search and seizure
shall be enforced o What is required for the
o What can be a judge to do?
compelling reason?  Personal examination
 It’s a question of fact, but and determination by the judge of the
an example is when he is a public officer of that complainant/applicant and witnesses.
locality and there is doubt that a search warrant can  It does not involve mere
be properly applied for. submission of affidavits.
o N.B. But if there is • Give an example of a
already a criminal action, file it in the court where the action is search based on a warrant, where the place is described with
pending particularity.
o Is application for a o Ex. if it’s an apartment,
search warrant a criminal action? you give the number of the apartment.
 No. It is a special judicial o What if it’s a stretch of
process. apartments, and what was indicated is apartment B, but

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 what was searched was apartment C. Was there a valid
search?
 No.
o But was the search
warrant valid?
 Yes. The search warrant
can be valid, but the implementation was invalid.
o There were illegal items
seized from apartment C. How can you prevent these
goods from being used in a criminal trial?
 Motion to suppress.
o Differentiate motion to
quash from motion to suppress.
 Motion to quash is before
implementation of the search warrant.
 Motion to suppress is
after implementation and before presentation in court.
o What if there is no way
to describe with particularity the place, esp. when it is a
province?
 It’s possible to say
“kilometer 30.” But this can’t apply for cities or
municipalities.
• To whom must a search
warrant be served?
o The lawful occupant.
o In the absence of the
lawful occupant?
 To a relative.
o In the absence of the
occupant or relative?
 To two witnesses of
sufficient age and discretion residing in that locality.
• When the items are
seized, to whom must the receipt be given?
o To the lawful occupant or
relative
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o If there are two
witnesses, the receipt will be left in the premises where they
were seized
• When can it be
conducted?
o The warrant must provide
that search is in day time
o N.B. Unless affidavit
asserts the property is on the person or place ordered to be
searched, in which case, it is day or night
• What is the duty of the
officer after the search?
o He should present an
inventory of the items. Failure to submit inventory makes him
liable for contempt.
• Dangerous Drugs Law:
what are the special rules?
o The inventory must be
made at the scene of the crime. (For normal crimes, it can be
done in court or police station or wherever.)
o The person must make a
physical science report to track the chain of custody.
• What is the rule as to
search and arrest?
o The general rule is that
the arrest must come before the search and seizure.
o Or, the search and
seizure must be contemporaneous to arrest.
• If you apply for a
search warrant in QC, can it be applied outside of the territorial
jurisdiction?
o As a general rule, no.
o But allowed as an
exception for violations of:
 1. DDL,
 2. IP code,
  3. illegal possession of o 4. Accused has
firearms, concealed/removed/disposed his property
 4. illegal gambling,
 5. Heinous crimes, Situation Period Remarks
 6. AML, PRELIMINARY
INVESTIGATION
 7. Violation of tariff and
Filing of complaint *start of criminal
customs code.
procedure*
o You have to apply before Initial action of Within 10 days from Either dismissing or
an executive judge before the City of Manila or Quezon City. prosecutor (no PI) filing of complaint prosper
This will be effective anywhere in the Philippines. Initial action of Within 10 days from Dismiss case or issue
• Re: Seizure of fake prosecutor (with PI) filing of complaint subpoena to
goods (ex. fake Adidas) – What is the role of the private party? respondent
o The private party can Respondent submits Within 10 days from If respondent cannot be
counter-affidavit receipt of subpoena subpoenaed or did not
submit documents and pleadings to support the application of
submit counter-affidavit
the NBI. within 10 days,
• The place of prosecutor resolves
manufacture of the fake goods is in Cavite, and place of sale is in based on complaint
San Juan. Where do you apply? alone
o Either place. Clarificatory hearing Within 10 days from (Optional)
submission of counter-
Rule 127 – Provisional remedies affidavits
Termination of Within 5 days from first
• What is the general clarificatory hearing hearing
Resolution Within 10 days after
rule?
investigation
o Provisional remedies in
Forward record of case Within 5 days from
civil procedure are applicable to criminal procedure. to provincial or city resolution
• What about replevin? prosecutor or
o Does not apply because it OMB/deputy
can only be filed before an answer, but in a criminal case, there Action by the provincial Within 10 days from Can: a) dismiss or b)
is no answer. or city prosecutor or receipt file information
OMB/deputy
• What are the grounds for attachment in
Judge determines Within 10 days from If judge doubts
criminal cases?
probable cause filing of information or existence of probable
o 1. The accused is about complaint cause, he may opt to:
to abscond or depart with intent to defraud Prosecutor to present Within 5 days from The 10 days to
o 2. Claim for money or additional evidence notice determine extends to
property that has been embezzled with abuse of trust (estafa) upon judicial order 30 days
o 3. Accused resides (Post inquest) Filing of Within 5 days from the
outside the Philippines complaint or time he learns of its

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information in court filing for defense (aka modes application of accused) member of bar in good
without preliminary of discovery for criminal issued at least 3 days standing, or inferior
investigation – accused action) before the examination court
may ask for preliminary Leave of court to file Within 5 days after Non-extendible
investigation demurrer to evidence prosecution rests its
case
ARRAIGNMENT) and) Opposition by Within 5 days from Non-extendible
PRE.TRIAL) prosecution to the receipt of the motion
motion
Arraignment of person Within 30 days from This same period must
After being granted Within 10 days from Non-extendible
not under preventive date court acquires cover pre-trial
leave, filing of demurrer notice
detention jurisdiction over him
to evidence
Arraignment of person Raffled within 3 days Remember the 3:10:10
Reopening of trial to Anytime before finality Terminate proceedings
under preventive from filing of rule
avoid miscarriage of of conviction within 30 days from
detention information or
justice order granting it
complaint;
Arraigned within 10
days from date of raffle; JUDGMENT,
Pre-trial within 10 days REMEDIES
from arraignment Surrender of convicted Within 15 days from Surrender and file
Suspension of Maximum 60 days from accused, after initially promulgation of motion to avail of post-
arraignment due to filing of petition failing to appear in judgment judgment remedies
petition for review filed promulgation of (because these will not
with Sec. of DOJ judgment avail anymore)
Filing of motion to Any time before he is Availing of post- Within 15 days from
quash arraigned judgment remedies of notice, after proving
above-stated person justifiable reasons for
non-appearance
TRIAL
Time for accused to At least 15 days from
Appeal from judgment *follow usual periods in
prepare for trial plea of not guilty
appeal
Commencement of trial Within 30 days from
Submission of Within 30 days of
receipt of pre-trial order
appellant’s brief receipt of notice from
Commencement of trial Within 30 days from Allow extension up to
clerk of transmittal of
after MNT granted notice of the order 180 days, by the court
evidence
Entire trial period Maximum 180 days
Submission of
from first day of trial
appellee’s brief
Exclusion from 180 day Maximum 30 days
limit of delay due to
pre-trial proceedings or
period in which
accused is actually PART III: EVIDENCE
under advisement
Examination of witness Order by court (upon Before a judge,

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General provisions Prima facie: that which suffices to Conclusive: incontrovertible
prove a fact, until contradicted by
• When did the Rules on other evidence
Evidence take effect?
o July 1, 1989 • When is evidence
• What is evidence? admissible?
o Evidence is the means, o When it is relevant and
sanctioned by the Rules, of ascertaining in a judicial competent
proceeding the truth respecting a matter of fact. • When is it relevant?
• Not all concepts of o 1. When it is material
evidence will require presentation of evidence. What are these  When is it material?
exceptions? • Has direct relation to the
o 1. Judicial notice fact in issue
o 2. Judicial admissions o 2. When it has probative
• When you’re required value
to present evidence, there are three kinds:  When does it have
o 1. Object probative value?
o 2. Documentary • Can induce belief as to its
o 3. Testimonial existence or non-existence
• Whether it’s object, • When is it competent?
documentary or testimonial, what is required? o Not excluded by law
o They have to pass the o What are not competent
test of admissibility (Rule 128, Sec. 3) – give examples:
 Those excluded by the
Direct: proves fact in dispute without Circumstantial: proof of facts, when Best Evidence Rule
need for inference or presumption taken collectively, existence of  Those seized without
particular fact may be inferred as a valid warrant and without a valid exception
necessary or probable consequence.
 Those violating the Parol
Primary: best evidence; affords Secondary: inferior to primary
Evidence Rule (contents in the written document are
greatest certainty of fact evidence and shows on its face that
better evidence exists. presumed to be the repository of all the matters
Positive: witness affirms that a fact Negative: witness states that he did agreed upon by the parties)
did or did not occur. Positive trumps not see or know the occurrence of a • Differentiate direct from
negative, when witnesses equally fact; only admissible to contradict circumstantial evidence.
credible positive evidence. o Direct: prove a matter
without need for inference or presumption
Corroborative: Different kind and Cumulative: Same kind and
character proving the same point character as that already given,
proving same point

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 o Circumstantial: facts,
from which the existence of another fact may be inferred as a
necessary or probable consequence
o When is testimonial
evidence direct evidence?
 When the witness was
able to perceive the matter being testified upon
o Can circumstantial
evidence be the basis for conviction?
 Yes. As long as there is
more than one circumstance and each is proven.
o Can circumstantial
evidence be basis for identification?
 Yes.
• What are the
characteristics of admissibility?
o 1. Multiple admissibility –
evidence may be admissible for multiple purposes
o 2. Limited admissibility –
it may be admissible for one purpose but not another, or
against one party, but not another
o 3. Conditional
admissibility – if relevancy of a fact is dependent on evidence
not yet submitted, the court may accept the evidence
conditioned on:
 A. statement of supposed
connecting facts
 B. promise to give it in
evidence
o 4. Curative admissibility –
where inadmissible evidence is offered and not objected to, if
the latter party is presenting similarly inadmissible evidence to
counteract the first inadmissible evidence, then it is likewise
admissible
• What is the difference
in relevance of direct and circumstantial evidence?
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o 1. Direct evidence is
always relevant
o 2. Circumstantial
evidence may or may not be relevant
 The more steps there are
in the chain of inference, the less probative value it
has
• What is positive
evidence?
o Evidence that proves
something happened.
o Ex. “I saw him stab
person X” or “I did not see him stab person X”
• What is negative
evidence?
o Evidence where the
witness was there, but he did not perceive anything.
o Ex. “I was there in the
scene, but I did not notice anything happen.”
• What is primary
evidence?
o Best available evidence
to establish the fact in issue
o What is an example of
primary evidence?
 Best Evidence Rule. The
secondary evidence here is photocopy, recital of the
contents, or testimony as to its contents.
• What is weightier,
physical evidence or testimonial evidence?
o Physical evidence.
• Note: exceptions to the
hearsay rule are not absolute. They can be contested or impugned.
o How do you destroy the
exception?
 Destroy the requisites.
  “Ex. ‘was it audible?’ ‘was
he aware that he was going to die?’”
• Is there primary
evidence in object evidence?
o Yes. If you want to
present a car, present the actual thing itself.
o What is the secondary
evidence?
 A car of the same model,
same type, etc. which will aid the court in
understanding the object involved.
• Is there primary
evidence in testimonial evidence?
o Yes. A person who had
personal knowledge.
o What is the secondary
evidence?
 Hearsay.
 N.B. but note that the
codal does not expressly tag hearsay as secondary
evidence although it is. When asked in the bar what
secondary evidence is, give the answer for
documentary evidence to be sure.
• What is prima facie
evidence?
o That which suffices to
prove a fact, until contradicted by other evidence
o What is the difference
between prima facie evidence and disputable
presumption?
 1. Prima facie evidence
arises from a fact that would sufficiently create a
reasonable belief that an act alleged has arisen
 2. Disputable
presumption arises from Rule 131
o N.B. they are the same in
such that these can be controverted
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• What is a conclusive
presumption?
o It cannot be controverted
o But can you attack a
fact that leads to a conclusive presumption?
 Yes.
o Give an example of a
conclusive presumption.
 Tenant cannot deny the
title of his landlord
• Distinguish between
preponderance of evidence and proof BRD:
o Preponderance – Court
determines superior weight of evidence; for civil cases
o Proof BRD – Moral
certainty, conviction will arise from an unprejudiced mind; for
criminal cases
• Are the rules of
evidence uniformly applied in all our courts?
o Yes, in general.
o Trade disputes in DTI?
 No.
o NLRC exercising QJ
functions?
 No. You don’t need best
evidence available here (can use photocopies, that’s
fine)
o What does “except if
otherwise provided by law”?
 If otherwise provided,
then the uniform application will not extend to that.
o Examples:
 1. Agrarian cases
 2. Rule 130, sec. 26/27:
compromise rules are not the same in civil and
criminal cases
  3. Character evidence:
there is also difference in civil and criminal cases
 4. Two witness rule in
treason
• What about collateral
facts?
o General rule, not relevant
o EXCEPT, when the
collateral matters establish probability or improbability of the
fact in issue
o Give an example.
 In rape, the accused can
point to the character of the supposed victim to prove
that there is probability that the intercourse was
consensual.
 N.B. You can only use
character evidence if there is a character trait involved
in the offense charged.
• What is factum
probandum and factum probans?
o Factum probandum is
what must be proved
o Factum probans is what
is used to prove it
Judicial notice and judicial admissions
• When is it mandatory?
o 1. States – existence,
territorial extent, political history, forms of government, symbols
of nationality
o 2. Law of nations,
admiralty, maritime courts of the world, and their seals
o 3. Political constitution
and history of the Philippines, official acts of legislative,
executive, judicial departments of Philippines
o 4. Laws of nature,
measure of time, geographical divisions
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• Why are these
mandatory?
o Because they have
already been established. They cannot be disputed anymore.
No need to introduce evidence anymore.
• Can the court take
judicial notice of rentals?
o No. The court cannot
take judicial notice of factual matters.
• Is the court bound to
take judicial notice of municipal orders?
o MTC judge  required, if ordinance came from municipality or
city where they sit
o RTC judge  No. Except when a) required by statute; b)
inferior court took judicial notice of an ordinance in the case
being appealed before RTC
o What about
memorandum circulars issued by departments?
 No. The court is not
expected to take notice of these less important
matters.
o What about customs
and foreign laws?
 No, these must be proved
in court
• Are courts bound to
take judicial notice of cases pending in the same court or decided
in that court?
o No. The courts will not
and cannot, even if it came from the same court.
o What are the requisites
for the exceptional circumstance when a marked but
unoffered piece of evidence referencing a prior decided
case fell under judicial notice (note, if it were offered, no
need to resort to judicial notice)? (Basis: Tabuena v. CA)
 1. Without objection by
the other party
  2. With knowledge of the
other party
 3. At the request or with
consent of the parties
 4. The case is clearly
referred to
 5. It is actually withdrawn
from the archives
 6. It is admitted as part of
the record of the case
• What is covered by
discretionary judicial notice?
o 1. Matters of public
knowledge
 Example: Death of
Corazon Aquino
o 2. Capable of
unquestionable demonstration
 What is this? If
repeated in a regular manner, it will establish that fact.
 Examples:
• Mathematical
computation
• Statistics
• Effects of poison, etc.
 Do surveys fall under
this?
• No, because methods
change, samples change, etc.
o 3. Ought to be known to
judges due to their judicial function
 Can a judge take
judicial notice of proceedings pending in other
courts?
• No.
• He’s not bound to know
all the cases filed.
 What about pending
cases in his own sala?
• No.
• Unless he takes the
consent of the parties.
• When can there be
taking of judicial notice?
o 1. During trial – on any
matter and with hearing
o 2. After trial and before
judgment – same, but only on matters decisive of a material
issue in a case
o 3. After appeal – same,
but only on matters decisive of a material issue in a case
• Can every matter be
subject of judicial notice?
o Yes, during the hearing.
o You are not limited to the
enumerations provided in law.
o What is the need for a
hearing?
 Check propriety of taking
judicial notice
• There was an insurance
recovery claim, dated September 2009. It was not alleged in the
claim that the loss happened on the day Ondoy struck Manila. Can
the other party request the court to take judicial notice (or can the
court motu propio take judicial notice) of this fact?
o Yes.
• Differentiate between
legislative facts and adjudicative facts:
o Legislative facts: general
facts of political, social, or economic nature
o Adjudicative facts: those
applicable to the facts in the present case
• Judicial admissions:

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 o Statement made as to a Rule 130
fact in issue made in a pleading or in utterances in a trial
o Do you need proof as to • N.B. The rules on
judicial admissions? admissibility are applicable to object, documentary, and testimonial
 No. evidence alike.
• When is there a judicial
Object evidence
admission?
o Made in the same
• What is object
pending proceedings
evidence?
o What if made in prior
o Those addressed to the
proceedings?
senses of the court
 These already become
o An object is presented so
extrajudicial admissions, which are by nature
that the court can perceive it.
disputable
• What is the difference
• What are covered?
between object and testimonial evidence?
o 1. Statements in
o Object – addressed to
pleadings (ex. complaint or answer)
court’s senses and courts can actually observe it
o 2. Statements made
 What if it is immobilized
during testimonial presentation
ex. real property or personal properties attached?
o 3. Depositions or other
• Ocular inspection
documents
o Testimonial – recounting,
o 4. Pre-trial
second hand
o 5. Documents submitted
• Differentiate real and
in court
demonstrative evidence:
o Can they be
o Real – tangible object
withdrawn?
that played an actual role in the issue in trial
 Yes.
o Demonstrative –
 When?
evidence in the form of a representation of an object
• 1. There was no intent to
• When is object
make such an admission
evidence admissible?
• 2. Or there was palpable
o 1. Object is relevant
mistake
o 2. Object is authenticated
• What is the nature of
 What is authentication?
admissions made in amended pleadings?
• That it actually is what
o They are mere extra-
you claim it to be
judicial admissions. Thus, they have to be offered in evidence
 Does authentication
first.
apply to demonstrative evidence?

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 • No. Because it does not  No. Demonstration is
purport to be the actual thing. when you ask for a re-enactment or display of how an
• What is chain of custody? act was done or re: facts.
o Before an object can be received in evidence, one must: A)
present all the persons who handled the object and show what Documentary evidence
they did to it; B) and that during the time they had it in their
• What is documentary
possession, no other person had access to that thing.
evidence?
o The purpose is to show that evidence was not tampered with.
o Writings on any material
• Does non-production of object evidence render testimonial
containing, letters, words, numbers, figures, symbols, or other
evidence re: the object inadmissible?
modes of written expression AND it is offered as proof of its
o No. This just goes into weight.
contents
• Are experiments admissible?
o If Blitz had a tattoo
o Yes.
saying “I love Jojo” is this documentary evidence?
o When is it not?
 Yes.
 1. Too complicated to
o If Blitz wrote on a shirt,
afford any fair inference,
saying “Good luck!” is this documentary evidence?
 2. Cannot be performed
 Yes.
in manner to fairly illustrate the fact
o Why are these
 3. More likely to confuse
documentary evidence?
than shed light.
 It can be in any material,
• What is a paraffin test?
as long as it is a writing or inscription.
o Test for gunshot residue
 What about text
o Are the results
mesage?
conclusive?
• Yes.
 No. It’s not 100%
• It is ephemeral evidence
reliable.
o When is a piece of
• Is a lie detector test
writing NOT considered documentary evidence?
100% reliable?
 When you not focused on
o No. You can cheat it.
establishing its contents
• What is demonstrative
 For instance, you are
evidence?
establishing its existence or its condition, and not its
o Evidence that adds to or
contents
explains.
• What is required for
o Maps, charts, graphs,
photographic evidence?
etc.
o It must be relevant and
o Is it the same as
verified
demonstration?
o Who must verify it?

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  Some qualified witness • Is the copy made an
 In general, must be the original just because the contents thereof
photographer, who establishes the production thereof are the subject of inquiry?
and the circumstances under which it was produced o No. You still have to go
 But other witnesses can to the original.
also establish its exactness and accuracy (for • Do you need to
instance, someone who was there too) authenticate an original document even if
o What must be proved? it appears to be an original?
 That it is an accurate o Yes, even if it appears to
representation of what happened. be an original.
 As to production and  2. Document is in two or
circumstances under which they were produced. more copies executed at or about the same time with
 Prove who operated the identical contents
camera, the ability of the camera to capture the • Usual examples:
scene, etc. o Carbon copies
o Prove all of this first o Computers that shoot
before going into the contents of the photograph. straight through to the Xerox
• What about videos? machine, and then sign all
o Similarly, lay down the o Or printing 5 copies of the
basis, before presenting the contents same document, and then sign all
• What is the Best • What if I print and sign
Evidence Rule? one, then make my secretary produce
o When the subject of four copies?
inquiry is the contents of a document, no evidence is o The four copies are not
admissible other than the original document itself originals
o What if all you want to • I executed a document
establish is the existence of a document, do you need to by 8 counterparts (ex. bills in set), signed
present the original? four here in Manila on Feb. 28 and
 No. Because it’s not the shipped four to HK, which were signed
contents of the document that are in issue. You can on Mar. 1. Are they all original, even if
present a copy. executed in different dates?
 N.B. However in practice, o Yes, they can be
try to always present the original. regarded as originals.
o What is the original? o N.B. You have to
 1. The one the contents stipulate in the contract (“execution
of which are the subject of inquiry by counterparts”) that even if not

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 executed on or about the same • The actual presentation
time, they are all originals. of secondary evidence will only come after
 3. Entry is repeated in the laying the basis.
regular course of business, one copied from another  What are the types of
at or near the time of the transaction secondary evidence that you can present?
• N.B. this refers to “entry” • 1. Copy of the document
not “execution,” but you do not sign the • 2. Recital of its contents
books in an authentic document
o Does “execution” in o Ex. Secretary’s
number 2 include formalities like notarization and affixing certificate, in case of loss of the
signature? minutes
 It depends on what form o Ex. There is a mother
is required from the contract. contract, and there is a
• What are the Memorandum of Agreement
exceptions to the Best Evidence Rule? containing the basic terms
o 1. The original has been o Ex. A demand letter
lost, destroyed, or cannot be produced in court o Must it be a verbatim
 Not through the fault or copy or is paraphrasing fine?
bad faith of the offeror  Verbatim copy
 Must there be exercise • 3. Testimony of a witness
of diligence?  Must it be in this order?
• Yes, the offeror must • Yes. Follow this order.
attempt to procure the original o 2. Original is in the
 In cases of loss or adverse party’s custody or control
destruction, can you present secondary  What are the
evidence? requisites?
• Yes. You need to lay the • 1. Document exists
basis first. • 2. There is reasonable
• What do you need to notice to produce it given to the other party
do? • 3. There is failure to
o 1. Prove that the produce
document exists and it was duly  Does this lead to
executed presentation of secondary evidence?
o 2. Prove cause of • Yes
unavailability o 3. Original constitutes
voluminous documents
 Requisites?

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 • 1. Prove voluminous
nature of the documents, which cannot be
examined in court without great loss of time
• 2. Provide access to the
other party to the original documents
 What must be proved
by these documents?
• The fact sought to be
established must be the general result of the
whole
 What if the voluminous
documents are financial documents for the past
20 years, and the fact sought to proved is the
profit/gain for this period?
• You can present a
summary because you are proving the
general result of a whole.
 What do you need to
present?
• You just need to present
a summary of the documents
 When do you need to
present the original?
• When the contents
thereof are the subject of the inquiry – no
matter how voluminous they are.
o 4. Original which is in the
custody of a public officer or recorded in a public office
 Can you present the
original?
• No, because it’s in the
custody of that officer or office.
 What do you present?
• A certified true copy given
by the public officer in custody thereof.
 Give an example.
• NSO Birth Certificate.
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• Just the Xerox copy of
buy-bust money is presented in court. Admissible?
o Yes, because you are just
proving the money exists, and not the contents of the money.
o Test: What is being
proved?
 That the money exists.
 Not the content of the
money as a document.
• If you want to prove
payment, can you just present the witness who was there at the
time payment was made, and not the receipt?
o Yes. The BER does not
apply because what is being proved is the fact of payment,
even when there is a receipt.
o Test: What is being
proved?
 That there was payment.
 Not the content of the
specific receipt.
• How does the BER
apply to Electronic evidence?
o An electronic document is
regarded as the equivalent of the original under the BER if:
 1. It is a printout or output
readable by sight or other means
 2. It is shown to reflect
the data accurately
• What is the rule on
electronic documents?
o In general, they are the
functional equivalent of original documents
• When is a photocopy
inadmissible under the Rules on Electronic Evidence?
o 1. There is genuine
dispute as to the authenticity of the original
 o 2. Unfair or inequitable • What are the
under the circumstances to admit it exceptions?
• When a document is o 1. Intrinsic ambiguity,
altered or amended by the parties, what is the original? mistake, or imperfection in the written agreement
o The amended or altered  Must it be ambiguous
document on its face?
• X was ejected from his seat in ABC airline. Protesting, he told the • No. The ambiguity must
purser about the incident. The purser recorded in his notebook that X be intrinsic.
was ejected from his seat. Does BER prohibit testimony re: the  Give an example.
purser’s act because the notebook was not presented? • In a will, the testator said
o No. The fact at issue is “I give half my property to my son Buboy.”
the ouster, not the contents of the notebook. When the will was being probated, it turns
• X was being investigated out there were two sons with the nickname
for alleged perjury in a senatorial investigation for malversation charges. Buboy.
The chief counsel in the investigation testified as X’s statements in the  What mistake is
investigation. X objected, claiming the transcript is the best evidence contemplated?
and the chief counsel’s investigation is barred by BER. Correct? • Mistake of fact, and the
o No. The issue here is not mistake was mutual
the contents of the transcript but what X said in the • What are the
investigation. The issue is not re: contents of a document. requisites?
• X claimed that a movie o 1. Mistake is of fact
infringed on his copyright over original designs for a vehicle. X was o 2. Mistake is mutual
unable to present his original designs, and instead presented a o 3. Mistake must be
reconstruction made after the film was released. Barred by BER? alleged and proved by clear and
o Yes. The fact at issue is convincing evidence
the content of the drawings, so the original must have been • What do you do with
presented. X could not properly prove in this case, moreover, the contract?
that the original drawings were lost without his fault. o Reform.
• What is the Parole o When do you not
Evidence Rule? reform?
o When the contents of a  When there was no
document are reduced to writing, it is considered as containing meeting of the minds.
all the terms agreed upon – as between the parties and their Example, X thought it was
successors in interest. the property in Batangas,
o No other evidence of Y thought it was the
such terms can be presented. property in Cavite.
• Give an example.

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 o Contract of sale of
property. X thought it was
Batangas, Y thought it was
Batangas. But it was actually in
Cavite.
 Give an example of
imperfection in the written agreement?
• The provision says that
the offended party must pay damages, when
it fact, the offender must pay.
• Another: X and Y entered
into a contract of sale of property, over a
Batangas property. But the technical
specifications provided were those of the
Cavite property.
o 2. The failure of the
written agreement to express the true intent and agreement of
the parties
 Give an example.
• X approached Y, asking
for money for tuition fee of his son. X said
he intended to mortgage his property. Y
asked him to sign a document, but that
contract provided for an absolute sale
o 3. Validity of the written
agreement is at issue
 Can a contract void on
its face be made valid by presentation of
extraneous evidence?
• No. This provision does
not contemplate contracts that are by nature
void, to make them legal.
 What situations are
covered under this?
• 1. No contract ever
existed
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• 2. Minds of the parties
never met on the terms of the contract
• 3. No consideration upon
which an agreement was formed
o 4. Existence of other
terms agreed to by the parties/their successors-in-interest after
execution of the written agreement
 Give an example.
• There is an original
contract and it was amended from a 20-year
agreement to a 10-year agreement
 What is the rule?
• 1. The separate oral
agreement must be A) collateral and B) it
must relate to a subject distinct from that to
which the contract applies
• 2. Or if there is a new
contract
 What if the document
expressly states that all the rights and obligations
of the parties are written therein?
• Even when there are
collateral agreements, they cannot be
presented
• What is required?
o The party questioning it
must put it in issue in his pleadings
• What if a party fails to
object, invoking the PER?
o It will be deemed a
waiver.
• If the party presenting
parol evidence is not a party to the contract, will the PER apply?
o No. The PER only binds
the parties to the contract.
• What if there is a
suspensive condition in the contract?
 o When the operation of a o 1. Document is in 2 or
contract is made to depend on the occurrence of the event as a more copies executed at or about the same time with identical
condition precedent, it may be proved by parol evidence. contents OR
o This is not varying the o 2. Counterpart produced
terms of the agreement, because there is legally no contract in from same impression or matrix as the original, or through
existence. mechanical/electronic re-recording, or chemical reproduction
• To what kind of o When are the copies
documentary evidence does PER apply? not admissible to the same extent as an original?
o Written agreement. A  1. There is genuine
receipt is not a written agreement. question as to authenticity of the original OR
 2. It is unjust or
Rules on Electronic Evidence inequitable to admit a copy in lieu of the original
• What are the means by
• To what cases does which an electronic document authenticated?
REE apply?
o 1. Evidence that it had
o 1. Civil actions and
been digitally signed by the person purported to have signed it
proceedings
o 2. Evidence that other
o 2. Quasi-judicial and
appropriate security procedures or devices as may be
administrative cases
authorized by the SC/law were applied to the document
o N.B. NOT criminal
o 3. Other evidence
• What is the functional showing integrity/reliability to the judge’s satisfaction
equivalence rule?
• What is the equivalent
o When a rule of evidence
of a notarized document under the ROC?
refers to a document, it shall be deemed to include electronic
o Documents that are
evidence
electronically notarized
• When is it admissible?
• What is an electronic
o If it complies with rules of
signature?
admissibility in the ROC and authenticated through methods in
o Distinctive mark,
the REE
characteristic, or sound in electronic form representing the
• When is an electronic identity of a person and attached to an electronic document
document the equivalent of an original under the Best Evidence with intent of authenticating, signing, or approving it
Rule?  N.B. electronic signatures
o 1. If it is a printout or include digital signatures
output readable by sight or other means AND o How is an electronic
o 2. It is shown to reflect signature authenticated?
the data accurately
• When are copies
treated as equivalents of originals?

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  1. Evidence that a
method or process was utilized to establish a digital
signature and verify the same
 2. Other means provided
by law
 3. Other means
satisfactory to the judge
o What are the disputable
presumptions relating to the electronic signature?
 1. It is that of the person
to whom it correlates
 2.it was affixed by that
person with intent to authenticate or approve the
electronic document, or indicate consent
 3. Methods or processes
utilized to affix or verify the electronic signature
operated without error or fault
• What is a digital
signature?
o Electronic signature
consisting of a transformation of an electronic document using
asymmetric or public cryptosystem such that a person having
the initial untransformed electronic document and the signer’s
public key can determine:
 1. whether the
transformation was created using the private key
(corresponding to the public key) and
 2. whether the electronic
document has been altered
o What are the disputable
presumptions re: a digital signature?
 1. Information in the
certificate is correct
 2. Digital signature was
created during operation period of a certificate
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 3. Message associated
with a digital signature has not been altered from the
time it was signed
 4. Certificate had been
issued by the certification authority
• What is the additional
exception to the hearsay rule added by the REE?
o Business records are an
exception to the hearsay rule.
o These are data made by
electronic, optical, or similar means at or near the time of
transmission of information, kept in regular course of business,
and it was regular practice to get such data.
o Who testifies as to
these circumstances?
 By the custodian of the
information or other qualified witness
o How is the presumption
overcome?
 Evidence of
untrustworthiness of the source of information or the
method for preparation, transmission, or storage of
data
• See discussion on audio,
photographic, video, and ephemeral evidence
Testimonial evidence
• Who can become
witnesses?
o Those who can perceive,
and in perceiving, can make their perceptions known to others
o Two steps:
 1. Perceiving
 2. Making known this
perception to others
• How can you make your
perception known to another?
 o You must be able to • Every child is presumed
communicate it qualified to be a witness.
o Can a deaf-mute  Under the Child
testify? A blind person? Witness Rule (CWR), who determines the
 Yes, as long as they can competency of the child to testify?
communicate. • The judge, who conducts
• Who are disqualified? a competency examination – ONLY when
o 1. Those whose mental there is challenge of a child’s competency
condition, at the time of presentation, is such that they cannot • Parties can only submit
intelligently make known their perception to others questions, but the judge has discretion
 X perceived. Then X  When is there a
became insane. Then X had a lucid interval competency examination?
during presentation of witness. Can X testify? • Upon motion of a party or
• Yes. The requirement is there is substantial doubt regarding the
during his/her presentation. child’s ability as witness
 What is the • Who are present in the
presumption? competency examination?
• That a witness is of o Judge and court
sound mind. personnel, counsels, guardian ad
• What is the exception? litem, support persons for child,
o He was publicly known as defendant (unless court deems it
insane or committed in a mental determinable even without the
institution. defendant present)
 When must objections  Is competency dictated
to competency of witnesses be made? by the age of the child?
• 1. If incapacity is known • No. Mental maturity
before trial, before he takes the witness dictates, even prior to the Child Witness
stand Rule.
• 2. If it becomes apparent  Who is a child witness
during trial, as soon as incompetency under the CWR?
becomes apparent • Accused
o 2. Children whose mental • Victim
maturity makes them incapable of perceiving the facts and • Witness
relating them truthfully  To what type of cases
 What is the does it apply to?
presumption? • “Criminal and non-
criminal proceedings”

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  What is a comfort
object/person?
• One that puts the child at
ease, like a doll or a pillow
 Can you ask leading
questions to a child?
• YES.
• What is the special
requirement?
o Give notice to the other
party
o And the judge must
approve it first
 Can you use live-link
TV?
• Yes, so the child will not
be able to see the accused.
• Ex. The child is in
another room from the judge/accused, etc.
 When can there be a
videotaped deposition of the child?
• 1. Upon application of
prosecutor, counsel, or guardian ad litem
• 2. If the court finds that
the child will not be able to testify in open
court at trial
• When is it admissible in
lieu of live testimony?
o 1. As said, if the child for
justifiable reason cannot testify in
open court
o 2. Usual exceptions in
Rule 23
 Who is a facilitator?
• Appointed by the court to
ask the questions to the child as to not
pressure/harass the child
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 How are the documents
in these proceedings treated?
• Considered confidential,
not open to the public
 What is the sexual
abuse shield rule?
• The following evidence
are inadmissible in child sexual abuse cases:
o 1. Evidence offered to
prove that the alleged victim
engaged in other sexual behavior
o 2. Evidence offered to
prove the sexual predisposition of
the alleged victim
• What is the exception?
o Other sexual conduct of
the child to prove that another
person, and not the accused, was
the source of the semen, injury, or
other physical evidence
o N.B. before offering this
kind of evidence, there must be a
written motion at least 15 days
before trial. This motion is served
on all parties and the guardian ad
litem at least 3 days before hearing.
N.N.B. this is different from the
usual 10/3 rule.
 What is a protective
order?
• One that states that any
videotape or audiotape of a child part of the
court record may only be viewed by the
parties, counsel, expert witness, or guardian
ad litem.
• No such party may view it
without written affirmation that he has read
 the P.O. and that in case of violation, he is
subject to contempt.
• Within 30 days from
receipt, it must be returned to the clerk of
court, unless extended.
 What are the other
protective orders?
• 1. Publication of child’s
identity is contemptuous
• 2. Child can refuse to
testify on personal identifying information
that can endanger his physical safety or his
family’s
o Except if the court
requires it
• 3. Destruction
videotapes and audiotapes after 5 years
from entry of judgment
• 4. All records of a
youthful offender charged, after the charges
are dropped, are considered confidential
information
o 3. DQ by marriage (sec.
22)
 What is prohibited
here? What does it cover?
• Any testimony, for or
against the spouse, during marriage
• The other spouse must
be a party
 What matters are
covered?
• All matters
• Even confidential
matters?
o Yes.
"
o After dissolution of the
marriage, it can fall under sec. 24
(privileged communication)
 What are exempted?
• 1. Civil case between the
parties
o Does this extend to
ascendants and descendants?
 No.
• 2. Criminal case of one
spouse against the other
o Does this extend to
ascendants and descendants?
 Yes.
• 3. When the marriage is
of beyond repair, and there is no more marital
harmony to preserve
 Does it survive even
after termination of the marriage?
• No. The DQ only lasts
during marriage.
 Are these DQs
waivable?
• Yes, by the affected
spouse
 What if both spouses
are co-defendants to the case?
• As an exception,
prosecution can call one spouse as a hostile
witness but his/her testimony will only bind
him or herself, and not the other spouse who
was not called.
• When does this rule not
apply?
o When there is charge of
collusive fraud between the parties
because inevitably, evidence
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 against the hostile witness-spouse • Yes, because they are
will be used against the other mere employees of the party, and not parties
spouse or assignors, or beneficiaries
o 4. “Dead man’s statute”  What if the
 What is the DMS? representative of the deceased was the one who
• Party/assignors of brought suit?
parties/beneficiaries cannot testify as to • DMS does not apply
matters of fact occurring before the death or because this case is a suit by the estate and
insanity of the other party not against it
 What must be the  Are negative facts
nature of the action? barred by DMS?
• Claim against the estate • No, because negative
of the deceased person or a person of facts are those not occurring before the
unsound mind death of the decedent
 What about  Can DMS be waived?
documentary evidence that will prove the claim? • Yes.
• Not covered by DMS. o 5. Privileged
This prohibition only extends to oral communication:
testimony.  See below
 What is the rationale for • A. Marital privilege
this? o What are the requisites
• To avoid self-interested for marital privilege?
perjury  1. Spouses legally
• If death has sealed the married
lips of one party, then it must also seal the  2. Communication is
lips of the other confidential and was made during marriage
 Does DMS apply if the o What is the duration of
heirs are sued? the privilege?
• If in their representative  During or even after the
capacity, then it applies marriage
• If in their personal  So it applies even after
capacity, it does not death or divorce
 If a corporation is a o What about dying
party suing against the estate of the deceased, declarations?
can the officers testify as to matters of fact  They are not covered,
occurring before the death of the person? because they were communicated with intent to be
disclosed

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 o If a third party chanced
upon the conversation, is it covered by the privilege?
 Classic rule: no, the
privilege is lost
 Modern rule: if the parties
took proper precautions but a third person still
eavesdropped, the privilege is NOT lost
 When else is the
privilege NOT lost?
• 1. The spouse him or
herself colluded with the third party
• 2. The spouse
deliberately let the information leak out
o If a child of sufficient
age was present during communication, is the
communication privileged between H and W?
 No. The child is a
strange to the marriage.
o Distinguish from
marital disqualification:
 DQ: covers adverse
testimony; Privilege – covers privileged
communication
 DQ: only during marriage;
Privilege – during or after marriage
 DQ: one of the spouses is
a party to the case; Privilege – even if neither spouse
is a party
 DQ: enjoyed by the
affected spouse; Privilege – either spouse has it
• B. Attorney-client
o What does it cover?
 Any advice or
communication in the course of or in view to
professional employment
o Differentiate in the
course of and in view to?
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 In the course of – already
retained
 In view to – preparatory
o What is covered?
 Communication by lawyer
to client, and client to lawyer
 It does not suppress
underlying facts to the communication
o X asked advice from
Atty. Y, asking what the requirements are to form a
corporation. Is this covered by the privilege?
 No.
o X said that he had
problems with his corporation, giving particular details,
names of incorporators, reasons, details, and what are the
requirements. Is this covered?
 Yes, even if the lawyer
are not eventually retained.
o Does it recognize
agency and what does it imply?
 Yes. The privilege
extends to secretary, clerk, or stenographer. That the
information falls into their hands does not affect the
privileged nature of the information.
o Does attorney-client
extend to third parties?
 Yes, it can extend to the
secretary, stenographer, or clerk.
 BUT not other third
parties, where the privilege is lost upon having the
information fall into their hands.
o Can it be waived?
 Yes.
o Note: if the relationship of
the lawyer with the person is a business relationship, you
cannot invoke the privilege.
 o X communicates
confidential information to Y, believing the latter to be a
licensed lawyer when he in fact is not. It is covered by the
privilege?
 Yes, as long as the belief
is reasonable
o Does the privilege
cover pre-existing documents not prepared by the client
turned over to the lawyer?
 No, because they already
were not privileged in the hands of the client. Turning
them over to the lawyer does not clothe these
documents with privilege.
 What if the documents
are prepared by the client and then turned over to
the lawyer?
• Covered by the privilege.
o The client showed to
the lawyer the place where he buried one of his victims.
The lawyer checked the body and saw it, but did not touch
it or report it to the authorities. The lawyer refused to
disclose where the body is. Is this covered?
 Yes. Covered.
o X disclosed to his
lawyer that he plans to commit a crime. Is this covered by
the privilege?
 No. The privilege does
not cover communication as to a future crime. It only
attaches to past crime.
o Does the privilege
cover identity of the client?
 No, it’s not privileged
communication.
 What are the
exceptions?
• 1. Disclosure of identity
would be tantamount to implicating the client
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• 2. Disclosure exposes
him to civil liability
• 3. Identity of the client is
the last remaining link in the chain of
testimony
o What is the work
product doctrine?
 One party cannot inquire
into the memoranda and files of the opposing client
unless there is necessity or justification.
• C. Doctor-patient
o What are the
requisites?
 1. Claimed in a civil case
 2. Person is authorized to
practice medicine
 3. Person acquired the
info in his professional capacity
 4. Info is necessary for
him to act in that capacity
 5. Disclosure of the
information would tend to blacken the client’s
reputation
o Can you invoke this
privilege in a criminal case?
 No, even if it would
blacken your reputation. The privilege only covers
civil cases.
o Who is covered?
 Person must be a doctor
of medicine, surgeon, or obstetrician
 What if he is an
optometrist?
• No, because he/she is
not a doctor of medicine
 What if he is an
ophthalmologist?
 • Covered
 What about
neurologist?
• Covered
 What about
psychologist?
• No, he must pursue
further studies to be a doctor
 What about
psychiatrist?
• Covered
 Who is an obstetrician?
• For pregnancy
 Alternative medicine
practitioners and iridologists?
• No.
o What is the key?
 You must be a doctor of
medicine.
o The husband wanted to
present the findings of the doctor on his spouse. Is the
information covered by the privilege?
 No. The husband is not
authorized to practice medicine.
o Can the privilege be
waived?
 Yes.
o What if the doctor is
merely presenting hypothetical facts and is acting as an
expert witness, is this covered?
 No.
• D. Priest-Penitent
o Requisites?
 1. Confession made to
minister or priest in his professional character, and in
the course of discipline enjoined by the practice of
denomination
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 2. Confession is of
penitentiary character
o A protestant religion
does not require confession through a priest. If a
protestant approaches her pastor and asks for a
confession and discloses information in the course
thereof, can the pastor invoke the privilege?
 No. It should be enjoined
by the religious institution to which he/she belongs.
 Just like a Catholic
confessing to a nun – not covered by the privilege.
o What if a group
requires a public confession before a crowd?
 Not covered by the
privilege.
o If “confession” was to
simply ask for guidance from a minister, is it covered?
 No.
o Should the penitent be
a member of that religious institution to which the priest
belongs to?
 No. The priest will not
ask anyway.
• E. State Secrets
o What are the
requisites?
 1. Communication to
public officer
 2. Made to him in official
confidence
 3. When the court finds
public interest would suffer by disclosure
o Who is the subject of
the privilege?
 The public office, as
regards State secrets
o Is this waivable?
  Yes. It should be done by o The act, declaration, or
the court, after application. confession of a relevant fact of a party may be given in
• E. Executive privilege evidence against him
o See Neri case. o What does this cover?
o Is this waivable?  Extra-judicial admissions,
 Yes, by the president. because judicial admissions are already covered by
• F. Other privileges the prior rule (“what need not be proved”)
o 1. Secrecy of bank • Differentiate an
deposits admission from a declaration against interest:
o 2. Non-disclosure of trade
secrets Admission Declaration against interest
o 3. Non-disclosure of who Primary evidence – receivable even Secondary evidence – only when the
if defendant is a witness declarant is unavailable as a witness
you voted for
Competent only when declarant is a Competent in any action to which it
o 4. Newsman’s privilege
party to the action, or someone is relevant (although the declarant is
 As to sources identified in legal interest with him not a party to the action)
o 5. Informer’s privilege Need not have been considered The declarant knew, when it was
 As to identity against his interest when made made to be against his interest
 You don’t need to bring to
the stand an informer • What is the rule on self-
• G. Parental and Filial serving admissions?
privilege o In general, they are
o What is this? inadmissible. This extends even to agents and diaries of the
 Nobody may be party.
compelled to testify against a direct ascendant or o Exceptions?
descendant  1. Part of res gestae
o Is this waivable?  2. In the form of a
 Yes. complaint or exclamations of pain and suffering
o In a criminal case, no  3. Part of the confession
descendant may be compelled to testify against parents and offered by prosecution
grandparents, except:  4. When the credibility of
 When the testimony is the party has been assailed
indispensable in a crime against the descendant or by  5. When offered by the
one parent against the other opponent
 6. Waiver
Admissions and confessions • What is the general rule
on a third party (“res alios inter actas” rule)?
• What is section 26?

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 o As a general rule, the
acts, declaration, or omission of a third party cannot be used
against you, except when it falls under the exceptions (res alios
inter actas)
• What are exceptions?
o 1. Agent or co-partner
o 2. Co-conspirator
o 3. Privies
o 4. Co-owner, joint debtor,
joint interest
• What are the requisites
for admission of co-partner or agent?
o N.B. these are more or
less the same requisites in a conspiracy
o 1. The admission should
have been made during the existence of the relationship
o 2. Done within the scope
of the authority
 Ex. if agent, it must be
covered by the agency
o 3. Common interest
o 4. The relationship is
established by other evidence other than the admission
 Ex. Special power of
attorney, articles of partnership, etc.
o Vehicular collision – other driver works for company, said
“I’m sorry. I was in a hurry, delivering goods for the
company.” You decide to file a case against the company.
Is the admission admissible?
 Yes, the driver was an agent of the company: a)
declaration, b) during existence of agency, c) within
scope of authority, d) relationship is proven by other
evidence
• Admissions of a co-
conspirator – requisites?
o 1. Act/declaration relates
to the furtherance of the conspiracy
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 This is common design
o 2. During the conspiracy
itself
o 3. The conspiracy is
established by independent evidence
o X is one of the
conspirators and he takes the witness stand. Do these
requisites have to apply?
 No. Remember, this rule
only applies to extra-judicial confessions. If there is a
judicial admission where the co-conspirator takes the
stand, he can make such declarations that bind the
co-conspirators.
o X and Y were planning
to rob a bank. W said, “X tried to recruit me to join in the
robbery by telling me that Y is in the plan and they’ll make
a million pesos.” Admissible against both X and Y?
 Yes. 1) Statement is
made by X, a co-conspirator; 2) it was made during
the course of the conspiracy, 3) it was in furtherance
of the conspiracy
o X and Y already robbed the bank. One year later, W
testified: “Y told me that he and X were the ones who
robbed the bank last year.” Admissible against both X
and Y?
 Only against Y, but not X.
o D was charged with importation of marijuana and
conspiracy to import marijuana. F told W (an undercover
agent) that he just finished marijuana imports with D and
he didn’t like the way D ran things, and that he would
rather do business with W. Admissible?
 No, because it was not in furtherance of the alleged
conspiracy between F and D.
• Admission of joint
owner, joint debtor, or one with joint interest – requisites?
o 1. There is a joint interest
 o 2. The act or declaration
was made during existence of joint interest
o 3. The act relates to the
subject matter of joint interest
o N.B. common interest
(ex. all are devisees in a will) is different from joint interest
• Admission of privies –
requisites?
o 1. Privity between the
parties, where one derives title from the other
o 2. Declaration made the
when the privy held the property
o 3. It must have been
made as to title over the property
o Give an example:
 X sold land to Y. While X
holds the title to the property, he made statements as
regards his title to the land. When Y holds the land,
the statements made by X can be used against her.
o What about statements
made by transferors after the transfer?
 In general, these are
inadmissible against the transferee.
 What are the
exceptions?
• 1. Made in the presence
of the transferee and the latter acquiesces or
does not protest
• 2. Where there has been
a prima facie case of fraud established (e.g.
fraud in the transfer)
• 3. Where the evidence
establishes a continuing conspiracy to
defraud – the conspiracy exists between
vendor and vendee
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• Do admissions of these
third parties extend to court cases? Ex. Y testified against X on
the witness stand that it was X who was in conspiracy with him.
o No, these rules do not
extend to cases already in court, because there is an
opportunity to cross examine.
• Is an offer of
compromise admissible in evidence?
o In civil cases, an offer of
compromise is not an implied admission of liability – it cannot
be admitted as evidence
o In criminal cases, it is
treated as an implied admission of liability
o What is the exception
for criminal cases?
 1. When the law allows
for compromise
 2. Quasi-offenses
• i.e. criminal negligence
o What about a plea of
guilty later withdrawn or an unaccepted plea of guilty to a
lesser offense?
 It is not admissible in
evidence against the accused.
o What about tax
violations with penal sanctions?
 Yes, these can be
compromised.
o Is extending offer for
medical assistance to the victim an implied admission?
 No.
 When is an offer to help
admissible to establish liability?
• When the offer to help is
accompanied by an admission of liability.
o Can offer of
compromise by relatives bind the person?
  Only if the person had
knowledge of it and did not prevent his or her
relatives.
o The JDR rule in criminal
cases allows compromise where (the court here in
mediation offers compromise)?
 Libel
 Theft
 Estafa
 BP 22
 Criminal negligence
o What is covered by the
compromise?
 Only the civil liability
 But in practice, once you
compromise the civil liability, usually the prosecution
is no longer interested
o Compare
admissions of liability:
 An offer to settle when
there is no controversy at the time is not an offer of
compromise but an admission of liability
• Admission by silence
o What are
requisites?
 1. Statement made in the
party’s presence or within his/her observation
 2. Fact would have
naturally called for a reaction if not true
 3. To deny is proper
under the circumstances
• Ex. there were armed 5
men who were speaking ill about X – his
silence may simply mean that he is being
prudent
 4. Matter is within the
party’s knowledge
"
o X was making
statements in the radio against Y, a public official. If Y
does not react to the radio caller, is this an admission by
silence?
 No. See requisite #1
below.
 Same with written letters.
o Does this apply to
those under custodial investigation?
 No. Admission by silence
does not apply in this case because it would violate
the person’s constitutional rights.
Previous conduct as evidence and character as evidence
• What is the general rule
as to prior conduct?
o Generally not admissible.
with
o What are the
exceptions?
 To establish intent,
knowledge, identity, plan, system, scheme, habit,
custom, or usage, and the like.
the • Mr. X and his group
robbed BPI in Makati. X and his group were also suspected of
robbing BPI in Intramuros. He was caught, and a case was filed
against him. If there is a separate criminal case involving the
robbery in BPI Intramuros, can the facts surrounding the Makati
BPI robbery be appreciated?
o No, not to establish a
different robbery. But you can use it to establish any of the
exceptions outlined above.
o Ex. The manner in which
the robbery was conducted is the same, showing a system.
• Examples:
o INTENT – ex. X charged for larceny of ring by substituting a
fake one for a real one: may admit the fact that the same
substitution occurred in two other stores where X was
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 examining as purchaser to negate honest mistake. // X charged • Character evidence:
with larceny of purse: may admit the fact that she asked a o What is the general rule
customer “is this your purse?” to show good intent. as to character evidence?
o GUILTY KNOWLEDGE – ex. X denied knowing the  It is not admissible.
combination of a safe which has been opened and whose o Why is character evidence generally inadmissible?
contents were stolen: may admit fact that X was seen  1. A person does not always act the same way
surreptitiously opening the safe before to show knowledge. // X  2. To prevent prejudice, and
charged with uttering counterfeit money: may admit fact that X  3. To prevent multiplicity of issues
tried to pay the same notes to three other persons to show o N.B. Make sure you
knowledge. distinguish civil and criminal cases
o IDENTITY – Robbery case where 7 robbers had stripes on o When is it applicable?
their faces, making identification difficult. But one had  Only when there is a
pockmarks on his face and a scar on his left eyelid. The fact character trait in the offense charged
that the same marks were found on an individual robbing • Ex. for murder/homicide –
another house that night can be used to establish identity. violence
o PLAN, DESIGN, OR SCHEME – Ex. D on trial for killing C. • Ex. for estafa –
May admit evidence that A and B were similarly killed by D, dishonesty
and an insurance policy named as beneficiary all four of them • Ex. for rape – sexual
in that order (A, B, C, D) so that D killing C would fit the grand perversity of accused
design of receiving insurance proceeds. o For victim, chastity
o HABIT OR CUSTOM – If course of conduct in a prior dealing is o What offenses have no
established as to render its continuance to the point in time in character traits?
the question, then admit evidence to show that he acted in  Those covered by special
accordance with the habit. laws;
• Ms. Y married Mr. A.  Ex. BP 22
She obtained insurance. A died. She married B. She obtained  Ex. illegal possession of
insurance. B died. She married C. She obtained insurance. C firearms
almost died due to poisoning. Are the previous deaths • How to prove character evidence:
admissible? o 1. Personal opinion – inadmissible
o Yes, but only to establish o 2. General community reputation – admissible
intent. o 3. Previous conduct – inadmissible [generally]
• What is the rule on • Exceptions to general rule that character evidence is inadmissible:
unaccepted offer? o Criminal case:
o An offer in writing to pay  1. Character of the accused:
a sum of money or deliver a written instrument/personal • Accused may prove GMC which is pertinent
property, if rejected without valid cause, is equivalent to actual to the moral trait involved in the offense
production and tender charged

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 • Prosecution may only prove BMC of accused  No, it’s not hearsay. The
which is pertinent to the moral trait involved conversation actually happened and he can testify as
in the offense charged in rebuttal to the conversation and what happened.
 2. Character of offended party  But as to the truthfulness
• GMC or BMC of the offended party may be of these statements, they have to be established
proved if it tends to establish in any separately.
reasonable degree the probability or • What are the
improbability of the offense charged exceptions?
o Civil case: o 1. Dying declaration
 Evidence of MC of a party in a civil case is admissible o 2. Declaration against
only when pertinent to the issue of character involved interest
in the case o 3. Act or declaration
• So can there be character evidence when about pedigree
there is no issue of character in the o 4. Family reputation or
case? tradition regarding pedigree
o No. o 5. Common reputation
o 3. For witnesses (regardless): o 6. Part of res gestae
 Evidence of GMC of a witness is not admissible until o 7. Entries in the course of
such character has been impeached. business
o 8. Entries in official
Hearsay rule and exceptions records
o 9. Commercial lists, and
• What is the hearsay the like
rule? o 10. Learned treatises
o A witness may only testify o 11. Prior testimony
as to matters within his personal knowledge
• What is independent Declarations Reputation Entries
relevant statement? Dying declaration As to pedigree Course of business
o When the statement is Declaration against Common reputation Official record
the fact of issue, or when the statement is circumstantial interest
evidence of the facts in issue. Declaration about Commercial lists
pedigree
o During Erap
Res gestae Learned treatises
impeachment, his former Secretary Espiritu was placed
Prior testimony
on the stand and was asked about matters he conversed
about with Estrada. He started talking, and there was an
objection that is was hearsay. Is it hearsay? [Declarations]

• 1. Dying declaration

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 o Requisites
 1. The dying person is
under the consciousness of his impending death
 2. Declaration relates to
the facts/circumstances pertaining to the death
 3. He should eventually
die
 4. The recipient of the
information should be competent to testify
o Does this extend to
civil cases?
 Yes.
 As long as it pertains to
the circumstances regarding his death.
o There is a dying person
on the floor and he calls X. He told X to tell his wife to
handle his bank account, tell his children to manage the
properties, etc. Is this the proper subject of a dying
declaration?
 No. It does not cover
circumstances re: his death.
o What if he doesn’t die?
 It becomes part of res
gestae
o What if the dying
declarant made an ante-mortem statement, in writing, be
presented in evidence?
 Yes, because this
exception covers memoranda.
• 2. Declaration against
interest
o Requisites?
 1. The person is
dead/unavailable
 2. Made statement
against his interest
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"
 3. Would not have made
that statement had it not been true
o Extends to declaration
against pecuniary interest, proprietary interest, criminal acts,
etc.
o Why is this reliable?
 Because by human
nature, nobody will make a prejudicial statement
against himself
• 3. Act or declaration
about pedigree
o What must be in issue?
 The pedigree of a person,
even if not directly – as long as it is relevant
o Requisites?
 1. The declarant is
dead/unavailable
 2. Declarant related by
birth or marriage to the person whose pedigree is in
question
 3. The relationship
between the declarant and the person whose
pedigree is in question is shown by independent
evidence
 4. Declaration was made
prior to the controversy
• So there is no motive to
falsify
o Must the witness be
related to the declarant?
 No. He need not be.
 But the relationship
should be between the declarant and the person
whose pedigree is in question
• 4. Res gestae
o What are the kinds of
res gestae?
  A. Spontaneous a third person who overheard it testified, this is when
statements the exception applies.
 B. Verbal acts • 5. Prior
o Requisites of testimony/deposition of a witness
spontaneous statements? o Requisites?
 1. Startling occurrence  1. Witness is dead/unable
 2. Spontaneous to testify
statements  2. Identity of parties
 3. Relating to the  3. Identity of issues
circumstances of the occurrence  4. Opportunity to cross-
o What is to be testified examine in the prior case
on?
 His spontaneous Dying Against int Pedigree Res Gestae Prior testi
statement Dead/unav Dead/unav Dead/unav Even if alive Dead/unav
o Why is this reliable? Facts re: Statement About Relating to Same issues
death against pedigree of startling testified on
 No time to fabricate
interest person in Q occurrence
 After 24 hours, is it still
Knows he’s Wouldn’t Made prior During or Prior case
a startling occurrence? dying have said it if to near such between
• Depends on how startled not true controversy startling same parties
the person still is. If he was able to go out occurrence
malling already, etc., then there was time to Relationship Identity of
fabricate. by blood or parties
marriage
o What are verbal acts?
Independent
 Statements made
evidence of
contemporaneous to an equivocal act and relationship
characterizing it
 Give an example of an
equivocal act. [Reputation]
• X handed a wad of cash
to Y. This can mean anything. • 1. Family reputation or
 Give an example of a tradition regarding pedigree
contemporaneous act characterizing the o Requisites?
equivocal act.  1. There is controversy
• “I am lending this to you.” re: pedigree of any member of the family
 NOTE: If Y testified, it’s  2. Reputation or tradition
not hearsay because it was told to him personally. If existed prior to the controversy

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  3. Witness testifying must  How do you develop a
be a member of the family of that person, by reputation re: marriage?
consanguinity or affinity • When people perceive
• Or proved by family them to be married. Ex. living in one house,
bibles, rings, etc. with children, etc. Even if this is not true.
o What is reputation? o C. Reputation as to moral
 How other people character
perceive one to be.
o Can reputation be [Entries]
wrong?
 Yes. • 1. Entries made in the
regular course of business
 This is different from
o Requisites?
character – who one really is
o Who will testify?  1. The person is
dead/unavailable
 A member of the family
 2. Made the entry in a
by marriage or consanguinity. This is unlike
position to know the facts, in professional capacity
declaration about pedigree.
 3. Entries made at or
o What else?
near the time of transaction
 Family bibles, charts,
 4. Done in the regular
rings, engravings, etc.
course of business
• 2. Common reputation
o Who is ideally the
o A. Public knowledge of
person testifying?
more than 30 years
 The one who actually
 This has a partner
made the entries. This exception only applies if
provision in documentary evidence (“ancient
he/she is dead or unable to testify.
documents”)
o Who will then testify on
 Give an example of
his/her behalf if this occurs?
public knowledge of more than 30 years.
 Person who is also in a
• There is a marker in the
position to know the facts
barangay disclosing information on the
• 2. Entries in official
founding of the barangay.
records
• Sometimes it can border
o Requisites?
on history, which will then become subject to
 1. Made by public officer
judicial notice
or person enjoined by law to make entry
o B. Reputation about
 2. Made in performance
marriage
of duty

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  3. Had sufficient
knowledge of the facts, personally or through official
information
o Does the official have
to be dead/unavailable?
 No.
o How do you use this
provision?
 Secure a certified true
copy, then you identify it and present it in court
 When do you present
the original only?
• If there is issue as to its
genuineness
o Reason behind this
provision?
 As to not waste the time
of the public official
• 3. Commercial lists
o Requisites?
 1. Contained in published
compilation
 2. Generally relied upon
by these persons
 3. Statements are matters
of interest to these persons engaged in the
occupation
o Why can you use this
listing?
 It is used by the members
of the profession and it is relied upon
o How do you use this?
 Just present the
commercial list, no need to present the writer
o Give examples
 SCRA (which is not an
official publication, but used and relied upon)
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 Buy and Sell paper 
NO. Because it is used, but not reliable.
 Stock Market listings
• 4. Learned treatises
o Covers history, science,
law, and the arts ONLY
o So it won’t cover billiards,
or whatever
o How do you present?
 1. Court takes judicial
notice that the writer is an expert recognized in his
profession
 2. Bring in an expert
witness to testify that the writer is an expert in his
profession
Opinion rule
• What is the opinion
rule?
o It means that only an
expert can give an opinion. An ordinary witness cannot
normally give an opinion.
• What can an expert
testify on?
o Skill, knowledge,
expertise, or training
• Is an academic degree
required?
o No. Just the special skill,
knowledge, expertise, or training. Unless, of course, the
knowledge or skill requires an academic degree.
• There are two kinds of
experts:
o 1. Expert with personal
knowledge of the facts
 Ex. medico-legal officer
who examined a dead body
 o 2. Expert with no • 2. Lack of knowledge in
personal knowledge, only hypothetical facts the other party
• Can an ordinary • 3. Reliance
witness give an opinion?  Similar estoppel:
o General rule: no. • Estoppel by silence
o Exceptions: • Estoppel as to question of
 1. Handwriting of which jurisdiction
he has sufficient familiarity o 2. Estoppel by deed
 2. Identity of which he  What does “deed”
has adequate knowledge mean?
• Not required to know the • It means a written
name, relationships, etc. Just as long as you document
can sufficiently identify the person.  This has a very limited
 3. Mental sanity of person application: only covers a landlord-tenant relationship
with whom you are acquainted with  Upon signing the deed, it
 4. Impressions on is a recognition of the landlord’s title. You can only
emotion, behavior, condition, appearance challenge it after.
• What are common
Burden of proof and presumptions examples of disputable presumptions?
o 1. Presumption of
• Distinguish burden of
innocence
proof from burden of evidence?
 When does this arise?
o Burden of proof sticks
• 1. Only when charged of
with the party from the beginning until the end.
an offense
 Ex. Breach of contract for
• 2. And one is an accused
damages – burden starts with the plaintiff and ends
in that case
with the plaintiff
o 2. Presumption of
o Burden of evidence shifts
regularity
• What is the difference
 When does this arise?
between conclusive and disputable presumptions?
• 1. There is a public officer
o Conclusive presumptions
• 2. Performing his official
cannot be rebutted
function
• What are the
o 3. When a court renders
conclusive presumptions?
a decision:
o 1. Estoppel in pais
 It acted within its
 This is regular estoppel
jurisdiction
 Requisites:
• 1. Representation

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  It passed upon all
questions
o 4. On filiation
 When a child is born
within 300 hundred days of termination of the first
marriage AND before 180 days after the
solemnization of the second marriage it is considered
to be conceived from the first marriage
 When a child is born
within 300 hundred days of termination of the first
marriage AND after 180 days after solemnization of
the second marriage it is considered to be conceived
from the second marriage
 What if the child is born
after 300 days after dissolution of the marriage?
• There is no presumption
• Whoever alleges
legitimacy or illegitimacy must prove it
o 5. Absence
 What does absence for
7 years establish?
• Death, for all purposes
EXCEPT succession
• When does succession
open?
o After 10 years
 What if the person is
over 75-years old?
• After 5 years is enough to
establish death
 What are the
“exceptional circumstances” that establish death
in a shorter period?
• 1. Vessel or aircraft goes
missing and he was not heard of for 4 years
• 2. Person took part in
armed hostilities and missing for 4 years
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• 3. Person under danger
of death in other circumstances and is
missing for 4 years
 What is the rule for
marriage?
• Can contract subsequent
marriage after absence for 4 years
• What if the spouse
disappeared under exceptional
circumstances?
o 2 years of absence is
enough
• Is declaration of
presumptive death of the spouse to
contract subsequent marriage a special
proceeding?
o No.
o This is a summary
procedure under the Family Code
o 6. Survivorship for those
who died due to calamity, wreck, battle, or conflagration
 Follow what rule?
• Strength and age of the
sexes
 For what purpose can
this be used?
• ANY purpose except
succession
 Allowed for:
• Insurance
• Survivorship agreements
Conduct of proceedings in the courts
• What is required before
witnesses testify?
 o Place the witness under  One that establishes
oath or affirmation what the prosecution seeks to prove
o Oath – imploring divine  Evidence-in-chief is what
guidance your witness will testify on in direct examination. So if
o Affirmation – for those you have eight witnesses, you have eight evidences-
who don’t believe in God in-chief
• Whose duty is it to • What is cross
receive evidence? examination?
o The judge o 1. Test the accuracy and
 Can delegate to the clerk truthfulness of witness’ testimony
of court in certain instances o 2. To elicit all information
o How is it recorded? from the witness
 1. By stenographer o What matters can be
 2. By stenotype raised, in general?
 3. By any other means of  “Matters touched upon on
recording found suitable by the court direct examination or connected therewith… and to
• What questions can elicit all important facts bearing upon the issue”
you NOT ask to witnesses?  So this is more on accord
o 1. Immaterial, irrelevant, with the English rule, rather than the American rule.
impertinent questions Thus, matters are not limited to those raised on direct.
o 2. Questions that expose o When does cross
him to criminal liability – violates right against self-incrimination examination become a mere privilege?
 What if it’s only  When the original cross-
exposing him to civil liability? examination has ended and the witness is simply
• You can ask the question recalled
• But not if it exposes him • What is redirect
to criminal penalty examination?
o 3. Degrading or o Allow a witness to explain
humiliating questions or supplement matters raised in cross-examination
• What is direct o May the courts allow
examination? questions on matters not raised on cross?
o Examination-in-chief of  Yes, in their sound
the prosecution presenting to the witness facts relevant to the discretion.
issue • What is re-cross
o What is examination-in- examination?
chief? o To examine matters
raised in re-direct

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 o May the courts still
allow questions on matters not raised on redirect?
 Yes, again in their sound
discretion
• What is the rule on
recalling witnesses?
o It cannot be done without
leave of court, which exercises discretion based on the
interests of justice
• What are leading
questions?
o Questions which suggest
to the witnesses the answer which the examining party desires
• Are leading questions
allowed?
o As a rule, not allowed in
direct examination.
o When else can you ask
leading questions?
 1. Cross examination
 2. On preliminary matters
• Ex. “Mr. X, you said a
while ago you were an employee of the
petitioner corporation. Are you an
employee?”
 3. Witness is ignorant,
child of tender years, feeble-minded, or deaf-mute
• And there is some
difficulty to get direct and intelligible answers
 4. Unwilling or hostile
witness
• N.B. There must be a
court declaration to make a person a hostile
witness
• Who is a hostile
witness?
o 1. Adverse interest
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"
o 2. Unjustified reluctance
to testify
o 3. Misled the party into
calling him
 5. Adverse witness –
adverse party or officer/director/managing agent of
juridical person who is an adverse party
• What are the two ways
to impeach the witness?
o 1. Prior inconsistent
statement
o 2. Contradictory evidence
 N.B. cannot impeach
through contradictory evidence on mere collateral
matters
o 3. Reputation of the
witness for honesty/truth/integrity of the witness is bad
o 4. Producing court record
for conviction for an offense
• May a party impeach
his own witness?
o As a rule, no.
o Except when the witness
is unwilling, hostile, or the adverse party and the examining
party has to have the court declare him as a hostile witness
o What is the only
evidence that cannot be used in impeaching?
 Evidence of bad
character (remember, this only applies on rebuttal)
o May the other party still
cross-examine the hostile witness?
 Yes.
• What are the two kinds
of memorandum?
o 1. Present recollection
revived
  Memorandum written by  It is waived.
him or under his direction:
• A. When the fact Authentication of documents
occurred or immediately after
• N.B. Whether public or
• B. Any other time when it
private, the document must be authenticated.
was still fresh in his memory
• What are the kinds of
o 2. Past recollection
public documents?
recorded
o 1. Written official acts or
 Witness has no
records of sovereign authority
recollection but states that the writing correctly
 Whether Philippines or
reflected the transaction when made
other country
o When do these apply?
o 2. Documents duly
 In both cases he knew,
acknowledged before a notary public except wills
he was in charge, or he prepared it. That’s why he
 Not just notarized, but
can testify. So even if there is no independent
must be acknowledged
recollection, he can testify.
 Except last wills and
o What is the purpose?
testaments
 To refresh his memory
o 3. Private documents
o What is the evidence?
recorded in a public office
 If the witness has
 Ex. affidavit of adverse
independent recollection, then the testimony is the
claim in a R.O.D.
evidence.
 If he has no independent • What are private
documents?
recollection, the memorandum itself is the evidence.
o All other documents not
But it must be taken with caution.
falling under the prior three
• What is the rule of
completeness? • What is the distinction?
o Public documents are
o When a party gives as
admissible without further proof of due execution and
evidence part of an act, writing, declaration, conversation, or
record, the other party may inquire into the whole of that genuineness; private writings must be proved as to authenticity
and due execution
evidence.
o Public documents bind
o What if it is one letter in
even third persons as evidence; private documents only bind
a “chain” of letters?
the parties as evidence
 Admitting one necessarily
allows the other letters in the chain to be admitted • How do you
o What if part is authenticate acts of sovereign authority?
privileged? o Certified true copy or
official publication

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 o If it is from a foreign
country?
 Certification from foreign
service officer
• How do you
authenticate a duly acknowledged document before a Notary
Public?
o Certificate of
acknowledgement of the document itself
o If by chance, your copy
is lost, where do you go?
 You could get a certified
true copy from the RTC who commissioned him to
notarize documents (he submits the books to the
RTC)
• How do you
authenticate private documents recorded in a public office?
o Can be proved by original
record or a certified true copy
o Can there be a o
certificate of no record?
 Yes.
• How do you
authenticate a private document?
o 1. Genuineness of the
handwriting by anyone who saw the document executed or
written
o 2. Evidence of
genuineness of the signature/handwriting of the maker
• How is genuineness of
handwriting proved?
o 1. Witness believes it to
be the handwriting of such person because:
 A. he saw the person
write it or
 B. he has seen writing
purporting to be his, upon which the witness has
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acted upon or was charged, thus acquiring knowledge
of such
o 2. Comparison by the
witness or the court with:
 A. other writing admitted
or treated as genuine by the party against whom the
evidence is offered or
 B. proved to be genuine
by the judge
• What private
documents need not be authenticated?
o 1. Ancient document
o 2. Admitted by the
adverse party
o 3. Immaterial
o 4. Document need only
be identified
• What is an ancient
document – requisites?
1. Document existing for
at least 30 years
o 2. Unblemished
o 3. In the custody of one
who must be with possession over it
• What is alteration?
o When there is one, you
have to account for it
 1. There is consent
 2. There is knowledge
 3. Did not change the
meaning
 4. Properly or innocently
made
• Can you impugn
judicial records?
o Yes.
o How?
  1. Want of jurisdiction
 2. Collusion
 3. Fraud
Offer of evidence
• What is the rule on
formal offer?
o Evidence must
offered, or else the court will not consider it as evidence
• When is it made?
o After the documents as
marked, and all the witnesses are presented
• Is offer of testimonial
evidence the same?
o It’s not, because it’s
made before you present the witness
• When is objection
made?
o Evidence offered orally:
made immediately after offer is made
o Evidence offered
writing: within 3 days after notice of offer, unless court allows
different period
o Question propounded in
oral examination: as soon as ground becomes reasonably
apparent
o FOR ALL: must specify
grounds for objection
• What is a continuing
objection?
o Objection of the same
character after the grant or denial of the same objection
o A one-time statement
covering objections of the same character
o Does it have to be ruled
upon by the court?
 No.
"
• When does the court
rule on the objection?
o Immediately after it was
made. No need to state the reason for overruling or sustaining
it.
 Except if the objection
was on two grounds; court must state which ground
was sustained.
be
o What is the exception?
 If the court needs
reasonable time to decide. But the ruling must still be
given during trial to give the party who posed the
objection to meet the situation
o What if the evidence is
erroneously rejected?
 Can be ground for new
trial.
 UNLESS it would not
have changed the decision.
• What is the rule on
striking out answers?
in o It applies when the
witness answered the question even before the adverse party
had the chance to object
 And the objection is
meritorious
o Upon motion, what
answers can the court strike out?
 1. Incompetent
 2. Irrelevant
 3. improprer
• What is proffer of
evidence?
o This is tender of excluded
evidence
o So for instance an
excluded witness can still be presented through an affidavit
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 showing her qualifications and the substance of her testimony o Can it be the basis of
– so it can be considered on appeal identification?
 Yes
Weight and sufficiency of evidence • Can the judge stop the
presentation of evidence?
• What is the equipoise
o Yes, if the judge feels
rule for preponderance of evidence?
there is no more need for additional evidence;
o When there is equipoise,
the party with the burden of proof fails
• When the evidence of
one side is stronger than the other, does it mean there is already
preponderance of evidence? PART IV: SPECIAL PROCEEDINGS
o No. One must still rely on
the strength of one’s case rather than weakness of the other.
• Is an extra-judicial In general
confession sufficient ground to convict a person BRD?
o No. It must be • Distinguish between an ordinary civil action and a special
corroborated by evidence of corpus delicti. proceeding:
o But plea of guilty in open
Civil action Spec pro
court is sufficient.
Enforce/protect right or Establish right, status, or particular
• What is needed for prevent/redress wrong fact
administrative cases in QJAs? Private interests There’s public interest – also binds
o Substantive evidence the world (generally). So it must be
o Where else does this published.
standard apply? Formal pleadings Motions/application
 Investigations in the Single appeal Multiple appeals
workplace Notice of appeal (usually one page) Record of appeal (voluminous)
15 days 30 days
 QJAs that proceed like
the NLRC
• Does the prior requirement of earnest efforts to compromise
• Circumstantial
between relatives apply to settlement of estate?
evidence
o No. “Earnest efforts to compromise” does not apply here,
o Can it be a basis of
because that only applies to civil actions. Settlement of estate
conviction?
is a special proceeding.
 Yes
• Can the court in an ordinary action settle issues relating to special
 There should be more
proceedings?
than one circumstance
o No. For instance, the complaint filed in the RTC was an
 And when taken together,
ordinary civil action for annulment of sale. An ordinary action
they form proof beyond reasonable doubt

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 cannot settle issues relating to special and limited jurisdiction o 1. Extrajudicial settlement through public document filed in
of special court (ex. settlement of estate). ROD
• Subject matters of special proceedings: o 2. Ordinary action for partition (Rule 69)
o 1. Settlement of estate o 3. Affidavit adjudicating estate to sole heir
o 2. Escheat • A judge reopened settlement proceedings for intervening
o 3. Guardianship illegitimate children. Is this proper?
o 4. Trustees o Yes, but he should have made them present evidence first to
o 5. Adoption establish their right, prima facie.
o 6. Revocation of Adoption • Can there be EJS even if there is an administrator already?
o 7. Hospitalization of insane persons o Yes. The State’s underlying reason for favoring extrajudicial
o 8. Habeas corpus settlement – cheaper, faster, simpler
o 9. Change of name o Two requisites:
o 10. Voluntary dissolution of corporations  now with the SEC  1. Move for appointment of another administrator
o 11. Judicial approval of voluntary recognition of minor natural (because it is a new estate already)
children  no more natural children  2. 2 year period
o 12. Constitution of family home  operation of law under FC • Requirements for summary settlement?
o 13. Declaration of absence and death o 1. Gross value of estate = 10K or less
o 14. Cancellation/correction of entries in civil registry o 2. Whether the decedent left a will or not, DOES NOT MATTER
• What other cases are considered special proceedings? o 3. Hearing from 1-3 months after last publication – 3
o 1. Liquidation consecutive weeks in newspaper of GC in province + notice to
o 2. Arbitration interested persons
o 3. Alternative Dispute Resolution (ADR) o Why is it summary?
o 4. Corporate rehabilitation  No administrator or executor
o 5. Writ of Amparo o What must the court do?
o 6. Writ of Habeas data  Determine if there are creditors
• What is the exception to the general rule that declaration of • Difference between summary settlement and usual judicial
absence and presumptive death is a special proceeding? probate/admin proceedings:
o Declaration of presumptive death for purpose of remarriage – o No more portion where the court appoints an administrator
applied FC rules on summary proceedings. • Requisites for EJS?
• What is the nature of special proceedings? o 1. No will
o Special proceedings are non contentious proceedings. o 2. All heirs of legal age, or minors duly represented
o 3. No debts
SETTLEMENT OF ESTATES • What are the procedural matters?
o Record in public document, submitted to ROD
Extrajudicial settlement
o Publication of fact of EJS (so it’s post hoc) in newspaper of
GC – 3 consecutive weeks in province
• What are the modes of extra-judicially settling estate?
o Bond for personal property

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  Can easily be disposed of
 Unlike real property which you can annotate
• What if there is an adverse claim?
o In summary settlement of estate (for small estates), whatever
adverse claim can be protected by annotation lis pendens.
This should not bar the distribution of the estate
• Procedure?
o Real property:
 Public instrument
 Registration (notice to the world)
  annotate/lien
o Personal property:
 File bond
• When is the decedent presumed to have left no debts?
o When no creditor files a petition for letters of administration
within 2 years of the death of the decedent
• Is it mandatory for heirs to have an EJ partition?
o No.
o General rule: settlement is judicial. If no will, no debts, all heirs
of legal age – EJ. But can still do judicial, if there are good
reasons. But a mere spat is not a good reason.
o The heirs can pray for:
 1. Dismissal of judicial case, if they’re happy with the
partition
 2. Conversion of the action to an ordinary action for
partition
• What if it’s in a private instrument?
o Still valid.
o Note though, that for lack of registration, it will only bind the
heirs. In a case, the ones that donated the land post-
settlement were heirs so they should have been bound to the
EJ settlement.
• Does posting of a bond terminate the annotation of adverse
interest?
o No. The two year period has to lapse first.
o Could not substitute annotation with bond. The bond only
applies to personal properties.
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• What if the heirs could not actually physically divide the property?
o Continued co-ownership could be allowed, by the parties’
agreement. No need for spec pro in this case.
• X left a will and died. Can the heirs enter into an EJ settlement of
the estate?
o Yes, as long as they submit the will for probate and the terms
of the EJ settlement do not vary the terms of the will. Probate
of a will is compulsory.
• What if an heir or creditor is excluded?
o Can go against bond (personal property) or the real property
within 2 years after settlement and distribution of estate by
petitioning for settlement of estate
o What if the person is a minor, incapacitated, is in prison,
or outside the Philippines?
 May present claim within 1 year from disappearance
of disability
• What are the remedies against EJS when a creditor or heir is
excluded?
o Excluded creditor
 1. If personal, go against the bond
 2. If real, annotation
o Excluded heir
 1. Letters for administration
 2. Petition for probate of estate – 2 years
 3. Rescission/partition – 4 years
 4. Annulment on ground of fraud – 4 years
• From discovery of fraud
 5. Action reivindicatoria – 10 years
• Count from registration: when implied trust is
renounced (already claiming ownership)
Judicial settlement
• Which court has jurisdiction in probate/admin proceedings?
o JURISDICTION:
 MTC
• 300,000 and below (outside MM)
 • 400,000 and below (MM)
 RTC
• Above 300,000 (outside MM)
• Above 400,000 (MM)
o VENUE
 Resident
• Where the person resided
 Non-resident
• Any place where estate is
• Differentiate residence from domicile:
o “Resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat.
o Domicile requires bodily presence in that place and also an
intention to make it one's domicile. For residence, no particular
length of time is required though; however, the residence must
be more than temporary.
• Is venue waivable?
o Yes. As this issue is only a matter of VENUE, it is not
jurisdictional. Implication: it can be waived.
• What is the exclusion rule?
o When a probate court has taken cognizance of the proceeding,
it excludes all other courts.
• What is the meaning of “taking cognizance” in the exclusion rule?
o The court has to do something. So not where you first filed,
but the court that first acted.
• What is the “limited and special jurisdiction” of the probate court?
o General rule: probate court cannot pass upon issues of
ownership; can only pass judgment on jurisdiction or probate
of a will
o EXCEPTIONS:
 1. For purposes of inclusion in inventory
• If all of the parties are heirs and they submit
the issue of ownership to the probate court
and there is no third party prejudiced
• Question of collation or advancement
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 2. All the heirs consent
o What are the implications of this rule?
 The court cannot include in the estate property
registered in another’s name
 The court cannot include in the inventory property
which belong to a third person
o But the court may:
 1. Issue warrants and compulsory processes to carry
into effect orders and judgments
 2. All other powers granted by law
• What issues can be resolved by the probate court?
o 1. Identity of the will
o 2. Due execution of the will
o 3. Capacity of the testator
• Maloles II v. Phillips: In the lifetime of the testator, he filed an
admission for probate. So when the nephew filed a motion to intervene,
the proceedings have already terminated. That’s why when the deemed
executrix filed for letters of administration in another court, that court
said that the first court having jurisdiction over the first probate
proceedings must have jurisdiction.
• Alipio: Creditor collecting from CPG for a debt cannot sue the surviving
spouse; must file a claim in the settlement of the estate of the decedent.
• Reyes: An adoption decree cannot be subject to collateral attack in a
probate proceeding.
• Settlement of estate of a person presumed dead – how is the
estate dealt with?
o He is entitled to the balance of his estate after payment of
debts
o Balance may be recovered by mere motion in the same case
where he was declared presumptively dead
Production of will as necessary
• Why is probate mandatory?
o Policy of law is to allow a person to freely dispose his property
after death. Respect the wishes of the decedent.
• Why is probate necessary?
o A will that is not probated does not pass property.
 o To prove due execution of the will Allowance or disallowance of the will
• What are the issues of due execution included in probate?
o 1. Compliance with formalities • Procedure for probate:
o 2. Mental capacity o 1. Application
• What are the issues excluded from probate? o 2. Court to set hearing date and time
o Intrinsic aspect of the will (ex. preterition) o 3. Publication (if testator is the one who petitioned, no need)
• What is the implication of allowance of the will in probate? o 4. Notices sent
o Once a will has been probated, no more questions re: validity o 5. Hearing
of the will may be raised • Who may file the application for petition?
o An order admitting the will to probate is considered final and o Executor, legatee, devisee, any person with interest
appealable. o Testator himself
 So it can be appealed • Distinguish probate of a will post-mortem and ante-mortem.
o “Probate” and “authentication” are the same: court really just o Post-mortem –
rules upon the extrinsic validity of the will.  A. Executor, heir, administrator, or any interested
o What is the rule on extrinsic validity as to probate? person can apply
 Conclusive as to due execution.  B. Notice given to compulsory heirs
o What about intrinsic validity? • Notice given to all heirs too by publication
 Cannot raise these issues as a general rule. o Ante-mortem –
 Exception: when seen on the face of the will, or for  A. The testator himself applies
practical purposes.  B. Notice given to compulsory heirs
• Does prescription apply in the probate of wills? • No notice to other heirs by publication
o No. Prescription does not apply in the probate of wills. It is not • When can it be filed?
a right but a duty. o Any time
o Court’s duty is to admit to probate unless one of the grounds to • May the testator himself file?
oppose applies. o Yes.
• Exception to probate? • What are the contents?
o Summary settlement of estates – less than P10K (even if there o 1. Jurisdictional facts
is a will) o 2. Names, addresses, ages of heirs, devisees, legatees
• Because probate is mandatory, what are the responsibilities of the o 3. Probable value and character of property
custodian of the will or the executor? o 4. Name of person for whom letters are prayed
o 1. Custodian of the will must within 20 days of learning of death o 5. If will not delivered to court, the name of the person with
of testator’s death, deliver to court or to named executor custody thereof
o 2. Executor – to court • What are the jurisdictional facts?
 Within 20 days of learning of death o 1. The person executed a will
 OR if appointed after death, then within 20 days o 2. Died in province of RTC or if non-resident, owned property
• What happens if they fail to comply with the duties? there
o Subjected to fine or detention o 4. Submit will to court

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• Three ways of consolidating cases?
o 1. Recast and conduct one hearing only and one decision
o 2. Consolidate all cases into one hearing, one decision
o 3. Principal one heard and suspend others
• Who must the applicant be?
o Applicant must be executor of the will, or must have custody
over the will
• What must be submitted?
o Must submit original of the will; if mere copy, explain why.
• A will was submitted for probate. Can the heirs then decide to just
file a separate case for partition of property?
o Cannot file subsequent separate case for partition of property,
because everyone is bound through publication (notice to
whole world) of the probate proceedings
o Contrast this with situation where the heirs first prayed for the
dismissal of the settlement proceedings and converted it to
partition proceedings
• What is the nature of the probate proceeding?
o Probate of will is in rem; court acquires jurisdiction over all
interested persons and any order binds the whole world
o Mandamus to undergo publication is not the proper remedy –
must appeal in due time and manner
• What is the rule on publication?
o Newspaper of general circulation: published regularly, appeals
to general interest, bona fide subscription list
o Need not wait full three weeks before the day set for hearing
st
(can publish for three consecutive weeks for 15 days – 1 day,
th th
8 day, 15 day)
• How do you serve notices?
o 1. To place of residence
o 2. Prepaid
o 3. Through mail (20 days prior to hearing)
o 4. Personally (10 days prior to hearing)
• What is the implication of failure to send personal notice?
o If the addresses of the legatees and devisees are known, then
failure to send personal notice is fatal.
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o Exception: if there was no notice sent because the address
indicated was wrong.
• What if non-compulsory heirs are not given notice?
o In a case, two heirs were not given notice (grandchild and
niece) but since they are not compulsory heirs, this was not
fatal.
• What if it is the testator himself that submits the will for probate?
o No need for publication
o Notices only to compulsory heirs
• What happens first during hearing?
o First, present jurisdictional facts (death certificate, barangay
certificate, will, publication and notice, etc.):
 1. Attach three weeks publication
 2. Affidavit of publication
• What happens when there is an opponent for a holographic will?
o At least 3 witnesses who know the handwriting and signature
of the testator must attest.
o May resort to expert witnesses
• If notarial will?
o All the subscribing witnesses and the notary must attest
o If some are not there, explain
o Cabang: If probate of will is opposed, all subscribing witnesses
of a notarial will must be presented. Here, just 1 – invalid.
o What are exceptions to the rule that for opposed wills, one
must present all the subscribing witnesses?
 Avera: if the issue was raised for the first time on
appeal
• What if all the witnesses are outside the province of RTC?
o Take one witness’s deposition
• What if the witnesses are dead?
o May admit other witnesses to prove due execution of will.
(Prove handwriting, etc.)
• What are the recourses of excluded heirs against a decree of
probate?
o 1. Relief from judgment
 (60 days from knowledge + 6 months from decree)
o 2. Certiorari (Rule 65)
 o 3. Independent civil action (NCC, Art. 1114), assuming o Administration only extends to property within State or country
decision is obtained through fraud where letter was granted
• What if the alterations on a holographic will were not dated and o No power beyond that.
signed? • What does the court issue thereafter?
o This non compliance with Arts 813 and 814 does not affect o Certificate of allowance
extrinsic validity of the holographic will (which only requires that
it be written, dated, and signed) Letters testamentary and of administration
• What if the original proponent of the will died?
• When are letters testamentary issued?
o Substitute proponent’s amended petition already deemed to
o 1. Will has been proved
have fulfilled publication and notice.
o 2. Person is competent
• If the will is lost or destroyed, how can it be proved?
o 3. Accept trust
o 1. Establish its existence
o 4. Give bond
o 2. It was fraudulently or accidentally lost/destroyed
• When is an administrator appointed?
o 3. Two credible witnesses prove its contents
o 1. When no executor in named or
• What are the rules for probate before foreign courts?
o 2. The executor is disqualified, he refuses the trust, or fails to
o The fact that a foreign court is a probate court must be proved,
give a bond or
in the absence of which, procedure assumed to be the same
o 3. A person dies intestate
as here in the Philippines
o What is the procedure for the issuance of letters of
o Proof of foreign laws must be submitted
administration?
Allowance of will proved outside the Philippines and Administration of estate  1. File petition
thereunder  2. Court sets hearing
 3. Issue order granting letters
• What is the proceeding for a will allowed outside the country? o What are the jurisdictional facts?
o 1. Upon due authentication of  1. Death
 Will  2. Place of death (residence)
 AND order or decree of allowance  3. Nonresident
o 2. Set hearing • To whom is the letter of administration granted?
o 3. Give notice as in the case of the original will presented for o 1. Surviving spouse, next of kin, or both, or person appointed
allowance by the SS or next of kin
o 4. ALSO publication, not just notice (jurisprudence) o 2. One or more of the principal creditors
• Difference between principal and ancillary administration?  If the ones in #1 are incompetent or unwilling
o Ancillary administration is administration of the decedent’s  Or if they neglect to apply for administration within 30
estate other than the one in which she lived, to dispose the days of death of decedent
property she owns there. This is subordinate to, and in aid of,  What is the nature of this 30 day disqualification?
principal administration. • The 30-day rule disqualifying SS and next of
o Duty of ancillary administrator is to present evidence to support kin must only apply when there is good
• To which properties does administration extend for these cases? reason to exclude them. (Gabriel)

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 • But some cases applied the 30 day rule • What if the administrator has some conflict of interest with part of
strictly the properties being administered?
o 3. Any other person the court selects o Exclude the property in which the administrator had conflicting
o Must this order be followed? interests as appellant and appellee
 Yes. o Do not remove him as administrator, but just exclude him from
o Who has discretion to appoint an administrator? the property in question
 The Court has discretion to appoint administrator.
Must show proof of filiation. Opposing issuance of Letters
o Can the court pass upon issue of filiation?
 Yes, the court can pass upon filiation issue in • Can petitions for administration be opposed?
o Yes.
determining order of interested person as
o On what grounds?
administrators
 1. Incompetency of the person prayed for
• Who may not serve as administrators?
 2. Contestant’s own right to be administrator
o 1. Minor
o To whom?
o 2. Non-resident
 To contestant or another person prayed for
o 3. Unfit to perform (DILM)
 Drunkenness • Sec 1 of Rule 79 – what does “A petition may at the same time be
filed for LOA with the will annexed”?
 Improvidence
o When there is no executor or the one appointed is
 Lack of understanding or integrity
incapacitated. Or when you are questioning the will.
 Moral turpitude conviction
o What if there is a claim of incapacity? • Who are the ones who can file an opposition to the issuance of
 Hold a hearing if there is claim of incapacity or letters?
disqualification o Interested persons. Interest must be direct, not just indirect or
contingent
• What are the grounds to appoint a co-administrator?
o 1. To represent different interests • What if there is an heir who assigns his share during the pendency
o 2. Justice and equity demands opposing factions to be of the proceeding?
represented o If assignment of share occurs in the pendency of the case, still
o 3. large or perplexing estate entitled to notice because the court retains jurisdiction over the
o 4. To satisfy all persons person and that person is still interested. The court must
o 5. When person appointed entitled to have another competent approve assignment.
person assist him • What if the assignment occurs before settlement of estate?
• Up until when does the court have the power to appoint an o If assignment of share occurs before settlement of estate, no
administrator or a co-administrator? interest anymore.
o Probate court may re-open the administration issue as long as • Is the fact that an administrator lacks capacity a jurisdictional
it retains J over spec pro. issue?
o Ex. Appoint co-admin which knew details of estate. o No. If the administrator is not an interested party, the motion to
dismiss filed by the opponent must not be based on lack of J
by the court, but lack of legal capacity of the administration.

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 o Administrator’s capacity is not jurisdictional fact.
Special Administrators
• When do you appoint a special administrator?
o 1. When there is a delay in granting letters testamentary or of
administration by any cause (including appeal from allowance
or disallowance of the will)
o 2. If the executor or administrator himself has a claim against
the estate (but the SA is only for that limited purpose – for the
claim)
• What can an SA do?
o 1. Preserve property, rights, credits for future E/A
o 2. Maintain and commence suits as SA
o 3. Sell only perishable property and those ordered sold
o N.B. not liable to pay debts of the deceased
• Can there be two SAs?
o Yes. There can be two special administrators to represent
interests fairly and equitably.
• Can the court allow the SA to dispose of other property, and not
just perishables?
o Yes, but must liquidate first and prove ownership.
• De Guzman:
o Delay caused on probate due to analysis of validity of a prior
deed of donation covering the estate property is “any cause”
contemplated in provision re: delay and appointment of SA.
o The partisan possession by respondents cannot replace the
neutral possession of SA.
• After appeal, may the court still appoint administrators?
o Yes.
o Nature of appeal in spec pro is record of appeal, so after the
appeal, the court only loses jurisdiction over the subject of
appeal, but not the spec pro. So it may continue to make
decisions re: appointment of administrators.
• Does the order of preference apply to SAs?
o No. Order of preference does not apply in appointment of SA.
Bonds of executors and administrators
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• Can the probate court execute bonds too?
o Yes. Given that the probate court has the jurisdiction and
power to require bonds, then execution of bond is also within
jurisdiction of court.
• What are the two most important conditions in the bond?
o 1. Inventory within 3 months
o 2. Accounting within 1 year
Revocation of administration, death, resignation, removal
• Generally, when may the court remove executor OR
administrator?
o 1. Neglects to render account and settle estate according to
law
o 2. Failure to perform order or judgment of court or duty under
ROC
o 3. Absconding
o 4. Becomes insane or incapable to discharge the trust
• When is another ground where the court may revoke letters of
administration?
o If a will has been proved and allowed by the probate court
• Who has discretion to remove the administrator?
o Removal of administrator lies within discretion of court
appointing him. BUT give that administrator his day in court
prior to removal.
o General rule: never interfere with discretion of the court.
• What if the administrator fails to render accounting?
o Rendering of accounting after 1 year is mandatory; negligence
is a ground for removal from appointment
• What is required to remove an administrator or executor?
o Sufficient evidence of failure to pay real estate tax and to
render proper accounting.
Inventory and appraisal
• What should be included in the inventory?
o All real and personal properties in estate
 o In possession OR within knowledge
• What are not included?
o Provisions to be consumed or for family’s subsistence
• When is the administrator supposed to submit the inventory?
o Within 3 months after appointment
o 3 month period to submit inventory is not a mandatory period
(Sebial)
• If the administrator fails to submit the inventory within 3 month
period, and the interested parties file a motion to remove him as
administrator, can the administrator invoke the Sebial case?
o No, he can still be removed. The Sebial doctrine is only with
re: the court being able to approve inventory filed beyond 3
month period. (THUS, Sebial is a jurisdictional issue.)
• Is the inventory conclusive on the issue of ownership?
o Inventory is merely provisional and is not determinative of the
issue of ownership. Separate action necessary to determine
issue of ownership and recover of possession.
• Who gets provisional support?
o 1. Widow, 2. Children (minor or incapacitated)
o That children are all of age, gainfully employed, or married
does not affect whether they should receive right to allowance
under Art. 188. The Civil Code makes no distinction; the ROC
cannot limit it. The wife that would get support is the
“legitimate spouse.”
o Grandchildren not entitled to provisional support from the funds
of the decedent’s estate. The law limits allowance to widow
and children, and does not extend it to the grandchildren.
General powers and duties of executors and administrators
• Can an executor/administrator have access over partnership
books?
o Yes. It only extends to a partnership but not a corporation,
because there is succession in corporation.
o Failure to comply with order of a court – what is the
consequence?
 Partner can be held in contempt
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• What is the power of the executor or administrator of the estate of
a deceased partner?
o Can access records, books, and papers of the partnership and
demand the production of such from the other partners
• Is court approval needed to lease property of estate?
o No. Court approval not required prior to an administrator
leasing a property in the estate, because this is not an act of
ownership.
• What is the prohibition as regards this lease?
o The administrator cannot lease the property for himself, directly
or indirectly (ex. acting as agent for the partnership leasing the
property)
• What is the remedy to annul a contract?
o Separate action to annul.
• What is the extent of the rights of the A/E over the property?
o Exercise of rights of A/E over property is for payment of debt or
for administration expenses. It is not absolute.
Accountability and compensation of executors and administrators
• What is the rule on increase or loss of value?
o The E/A cannot profit on sale for amount greater than value –
must account profits to the estate
o The E/A is not liable for losses without his fault
• Until when does the duty to account apply?
o Until the final order for closure and termination of
administration. It lasts until the estate is wholly settled.
o Even after final accounting, as long as there is administration.
• What if the executor or administrator resigns?
o The duty applies notwithstanding the existence of compromise
agreement confirming his resignation as co-executor.
o Duty cannot be waived or disregarded.
• What if the administrator uses the property of the decedent (ex.
occupying it)?
o He must account for it as may be agreed upon between him
and the interested parties (akin to rentals)
• When does the administrator have to render account?
 o Within one year from receipt of Letters.
o Punongbayan: Exceptional circumstance
 In this case, the co-administrator cannot be compelled
to account because he had only been co-
administrator for one day when it was filed. But the
denial of the motion to render account does not
preclude the co-administrator from rendering account,
but within 1 year from receipt of letters of
administration.
• What is the rule for attorney’s fees?
o Rule with respect to claiming fees: if lawyer and administrator
at the same time – cannot claim from estate, but from the
executor/administrator.
o If you are an administrator and engaged services from a
lawyer, then you can claim from the estate as expenses that
benefited the estate.
• What if the executor or administrator refuses to pay the attorney’s
fees, what are the modes of recourse of the lawyer?
o 1. File an action against admin but in his personal capacity and
not as admin.
o 2. File petition in the testate/intestate proceedings asking court
to direct payment of fees as an expense of administration.
 In this option, essential to give notice to all heirs and
interested parties.
• May the law firm of the lawyer-admin claim attorney’s fees?
o Appointment of individual lawyer from a firm is separate from
that of his law firm – separate persons. The Law Office cannot
claim attorney’s fees when it was not appointed co-
administrator. Instead, claim from the heirs that it helped, as
legal fees (but not as admin.)
• What is the nature of compensation?
o Compensation is in the nature of commissions, and not
attorney’s fees.
o A greater sum than that provided in the rule is allowed in
special cases where the estate is large, and the settlement
was difficult, and required high degree of capacity (extent of
care) on the part of the E/A. – Sound discretion of court.
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• Can the E/A demand from the estate the expenses for his bond?
o Bond filed is not necessary expenses demandable from estate.
o Claiming bond from estate is not allowed; that would defeat the
purpose of the bond, as one filed by him with fiduciary
capacity.
• De Borja: examples of which expenses are allowed and necessary
o Compensation to wife as private secretary:
 Not allowed
o Repairs of the house where administrator and family stayed:
 Not necessary. In fact, must have paid rent.
o *See which expenses are necessary/allowed
• How to determine whether the expenses can be charged to the
estate?
o 1. Beneficial
o 2. Must be reasonable
• What is the notice requirement upon accounting by the E/A?
o Notice given personally or by publication to all interested
persons
o The surety on the bond filed by the admin can be a party to the
accounting
Claims against the estate
• What is the requirement in terms of notice for money claims
against the estate?
o Court issues order to all persons with money claims against the
estate to file it with the clerk of court
o What is the period?
 Not less than 6 months to not more than 12 months
from date of first publication
o General rule: All claims must be filed within the time limit, or
else it is forever barred.
 Exception?
• Except as counterclaim to any action an
administrator or executor may bring
• What are the requirements of notice?
o Notice to creditors by the court after granting Letters
  Instructs all creditors with money claims against the • What if there is a debt subject to a mortgage – what are the
decedent to file them with the clerk of court options?
o Published in newspaper of GC (3 weeks) o 1. Waive the mortgage and just completely claim from the
o What is the period for filing claims? estate
 Court sets a period not less than 6 months from first o 2. Judicially foreclose the mortgage
notice but not more than 12 months  You can recover the balance
 If there is a creditor who fails to claim, with just o 3. Extra-judicially foreclose the mortgage
reason, the court may grant at most a 1 month  You cannot recover the deficit/balance
extension; but this must be before order of distribution • What is the nature of a lease contract?
• What claims are covered? o A lease contract is transmissible. So when the wife took over
o 1. Money claims – (Rule 85, Sec 5) the business of her dead husband, renting certain property,
 Arising from contract, express or implied then there was transfer of interest to her. When she failed to
 Whether due, not due, contingent pay the rents, no need to go after deceased’s husband’s
o 2. Claims for funeral expenses and expenses in last sickness estate; can go after wife.
o 3. Judgment for money • What if the will provided that the heirs should pay the money
• Procedure: debts of the estate?
o 1. Filing of claims o Even if the will stated that the heirs should religiously pay the
o 2. Answer (15 days) debt, the creditors must still file claims within the settlement
 1. Admit proceedings. There is no getting around Rule 86.
 2. Oppose • X was the administrator of an estate. X hired Atty. Y. X died. Does
o 3. Goes to trial the claim of Atty. Y for fees survive notwithstanding X’s death?
• What is the statute of non-claims? o Yes. The claim of the attorney survives because it is against
o Time period when a person may file claims against the estate estate, not the administrator.
o After which, barred forever. o A claim against a person, in her capacity as administrator, can
o Exception: be filed at the court where a special proceeding for settlement
 Counter claims against the estate of the estate is pending.
• How do you file a claim? • What if the decedent is one of many solidarily liable persons?
o Present to clerk of court o Creditor can sue the living surety alone. This is allowed; death
o Together with: of one creditor does not extinguish the surety’s liability.
 Contract • What is the rule on lease rentals being assessed after the death of
 Vouchers the person? i.e. There were unpaid rentals accrued from April
 Affidavit explaining particulars 1993 to December 1998, but the decedent passed away in 1989. Do
• What if solidary? these claims pass to the estate?
o Can file complete amount against the estate. o No, because the rentals accrued after his death.
• What if joint? o The general rule is that heirs are bound by the contracts
o Only the share. entered into by the predecessor-in-interest.
o Except if non-transmissible by:

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  1. Nature  4. Commit to prison
 2. Stipulation • An heir and an administrator are in conflict as to whether a certain
 3. Provision of law property must be included in the estate. What may the court do?
o It may pass upon the issue for inventory purposes.
Actions by and against executors and administrators o BUT if there is third person who asserts right to property
contrary to decedent’s, court has no authority to resolve the
• What are the claims filed against the executor or administrator by
issue. Separate action instituted to recover the property.
name?
• Obando:
o 1. Recovery of real/personal property
o Co-administrator was removed for presenting forged will.
o 2. Claim for damages caused by the deceased
Removal was still on appeal.
o 3. All other actions/claims that survive
o Other guy became the sole administrator. Co-admin sued to
• What is the right of the E/A to bring or defend actions?
nullify sale he made.
o 1. Recovery or protection of property or rights of the deceased
o Dismissed for lacking legal standing, but without prejudice. If
 As long as the action survives
his case gets reversed, and his appointment restored, then
o 2. May foreclose mortgages
case may be re-filed without being barred by res judicata.
• When are heirs barred from suing?
• Villegas:
o When an E/A assumes the trust, heirs cannot file actions to
o The civil liability that completely arose from criminal liability
recover title or possession of property, or for damages until
was extinguished upon death. Cannot file claim against estate.
there is an order by the court assigning the properties to such
o Remember which claims survive and which don’t (culpa
heirs or the time for payment of debts has expired
criminal doesn’t, for instance, but culpa contractual does)
o What if there is no E/A appointed yet?
• What if there is embezzlement before the letters are issued?
 Heirs can sue even no administrator has been
o The fraudulent person is liable for double the value of the
appointed yet. (Here, cancellation of extrajudicial
property sold, embezzled, alienated, etc., for the benefit of the
settlement by other heirs)
estate
• What are the inequitable situations remedied under Sec. 6 that
o The E/A files the action
may be filed by the E/A, heir, creditor, or any individual with
• Who may file an action to recover property transferred in fraud of
interest?
creditors?
o 1. Property of deceased was concealed, embezzled, conveyed
o The E/A, with the prompting of the creditors (who pay for
away by another person
expenses or give security)
o 2. Person knows deed, bond, contract, conveyance, etc which
o If the E/A refuses to do it, the creditors can do it, if they:
contains evidence or discloses the right, title, interest, or claim
 1. Pay expenses of the suit
of the deceased to real or personal estate
 2. Give bond
o 3. Person has deceased’s last will and testament:
• When is the bond not necessary?
o What may the court do in these situations?
o When the property was fraudulently
 1. Examine the person on oath on such complaint
conveyed in favor of the E/A
 2. May use interrogatories
o What is the effect?
• In writing and filed with clerk’s office
 3. Punish for contempt

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  The creditors obtain a lien over the properties • How can an interested person stop the court order granting
recovered authority to sell?
o Issue a bond to cover for claims of the creditors
Payment of debts of the estate • When can there be sale of real or personal property upon
application of the E/A, even when it is not for the payment of
• The estate sometimes has debts. In this case, how must they be
debts, legacies, or expenses?
paid?
o 1. When it is shown that it would be beneficial to the heirs,
o First, from the personal estate.
devisees, legatees, and other interested persons
o Second, from real property not disposed of by will.
o 2. To pay debts or legacies in another country where it shown
o Third, retention to meet contingent claims
that the estate in the other country is not sufficient – in a
 Kept for within 2 years after the expiration of period of
probate proceeding in another country
claims by creditors
• What is the procedure involved?
 After 2 years, distribute property to heirs. But the
o 1. E/A files petition to court setting forth debts due, legacies, or
creditor, if the action ripens, may still go against the
expenses, character of property, plus facts showing sale is
heirs (not the estate anymore)
beneficial
• What is the time to pay the debts?
o 2. Court fixes time and place for hearing
o Not exceeding one year in the first instance
 With notice to interested persons
• Can it be extended?
 Optional: publication or otherwise
o Yes, for not more than six months
o 3. Court may require E/A to give additional bond conditioned
• What if the estate is insolvent?
on accounting of proceeds of sale
o Follow concurrence and preference of credits o 4. Court authorizes sale, mortgage, or encumbrance – either
• When the estate of partner has become insolvent, how must private or public
claims against his separate property be prioritized? o 5. Record in ROP
o 1. Those owing to separate creditors
• Court, upon claim, may authorize conveyance of property to:
o 2. Those owing to partnership creditors
o 1. A person who contracted with deceased
o 3. Those owing to partners by way of contribution
o 2. Beneficiary where the deceased was a trustee
• Sale of real property – must it be with consent of court?
Sales, mortgages, other encumbrances
o Any disposition of estate property by an administration or
• Can the court authorize sale/mortgage/encumbrance of real prospective heir pending final adjudication needs court
property? approval
o Yes. o Unauthorized disposition can be annulled by the probate court
o When? without need for separate action
 1. Personal estate is not sufficient to pay the debts. o Can the intestate/probate court execute its order annulling
 2. Sale of personal property may injure business or the sale?
estate  It can. No need for separate court.
 …and the testator did not make provision for payment
Distribution and partition
of the debt (for both)

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• When is there distribution? issued an order stating those in the Motion for Collation are
o No distribution shall be allowed until payment of debt, funeral subject to inclusion. Order was challenged, by Petitioners
expenses, giving of allowance to widow, admin expenses, stating that these properties were already titled in their name
estate tax, etc. and could not collaterally be attacked. CA: cannot challenge
• Pay debts and expenses of administration Order for Collation because it has become final. HELD: CA
• Court doesn’t motu propio order distribution erred. The order is merely for inclusion in inventory which is
o Heirs/person requesting for distribution may file a bond provisional. It is interlocutory. To talk about collation is
• Palicte – premature since there was no indication that debts have been
o Heir can redeem properties that were sold to cover debts of the paid and the estate is ready for distribution.
decedent.
o But she cannot register them in her name yet, because this Escheat
would be tantamount to distribution.
• Who can institute actions for escheats?
• Who will pay expenses of administration?
o The Sol-gen on behalf of the Republic.
o E/A from the leftover of the property
• Where does the solicitor general file the action?
o OR heirs/distributees, from their shares
o In court of province of last residence
• Reyes
o Or if outside Phils., where he has property
o Barretto by will, left fishpond to wife Maria and who he thought
o What court?
was his daughter, Salud. They executed project of partition,
 The provision says “CFI,” so now it’s the RTC
which divided the fishpond between them. Therefore, when
• When will the hearing be held?
Maria died, the probate court made a judgment that Salud was
o Hearing scheduled not more than 6 months from petition
not a legitimate daughter. Now, project of partition is
• What is the publication notice?
challenged; claim is that it is an illegal compromise on her civil
o Publish 6 consecutive weeks
status. Held: Valid. Not a compromise, because there was no
• What is proved in the hearing?
litigation to be prevented. The distribution was also based on
o Prove that there is no heir
will, and not the partition per se. And the will prevails here.
• Where does the property go?
o When the court approved the project of partition, can it still be
o Personal property  to municipality or city where he last
contested?
resided
 No.
o Real property  municipality or city where it is located
 Normally, can be challenged before the order of
o What if the deceased never resided in the Philippines?
distribution
 Whole estate assigned to municipality or city where it
• Crucillo v. IAC
is located
o Oral partition amongst heirs is valid.
o Purpose of escheated estate:
 But just see the rules on w/n it binds third parties
 1. Public school in city/municipality
o Proof: heirs exercised ownership over their shares
 2. Charitable institutions and centers in
• De Leon
city/municipality
o Question is over inclusion of certain properties decedent
• What is the other option?
purportedly gave to his children inter vivos in inventory. RTC
o Can establish permanent trust

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• If you are an heir up until when can you still recover an escheated
property?
o Five years from the date of such judgment
o Can a donee (but not an heir) recover the property?
 Yes, he is an interested party, because he claims a
right to the escheated property. He may appear or
oppose petition for escheat.
• What is the effect of a judgment in escheat?
o Conclusive against all persons with actual or constructive
notice
• Tan:
o Solicitor General is now the one that files the complaint – but
then, allow City (old Rules)
o 39 years of absence without hearing of that person: enough –
can presume death
Guardianship
• Where do you institute petition for guardianship?
o Where the minor or incompetent is found
o Ex. Judge from La Union cannot take cognizance of case over
incompetent living in Pampanga
• In what particular court, if the person is a minor (over person or
property)?
o Family courts
• For incompetent (not a minor) – as regards property:
o Follow 300K/400K usual rule
o This shows if MTC or RTC
• If over person of incompetent (not a minor) regardless of amount
of property:
o Always RTC
• Who can petition?
o Relative, friend, other person, or DSWD
o Can the minor himself do so?
 Yes, as long as he is at least 14 years old
• What are the grounds?
o 1. Death, continued absence, incapacity of parents
o 2. suspension, termination, deprivation of parental authority
o 3. remarriage of surviving parent, if latter is unsuitable to
exercise parental authority
o 4. best interest of minor
• Must a parent still apply for guardianship?
o If the property of the child exceeds P50K you need to petition
for guardianship over the property
• When can the guardian sell or encumber the property of the ward?
o 1. The property of the estate is insufficient to maintain the ward
and his family
o 2. For education of the ward
o 3. For the benefit of the ward
 Need not explicitly state that the alienation is for the
benefit of the ward, but one can show it by implication
– by establishing that it is for the wards’ benefit
o How long does the order of sale’s effectivity last?
 1 year from the order
o What else can the proceeds of the sale be approved for?
 Investment of the same
• Who is preferred to become the guardian?
o The natural parent of the ward
 Parent is preferred over other guardians unless there
is good reason shown. Mere allegation of moral
unfitness is not valid per se
o In default –
 1. Surviving GP; if several, court chooses
 2. Older brother or sister over 21 unless unfit/DQ
 3. Actual custodian over 21 unless unfit/DQ
 4. Any other person, in court’s sound discretion
• Procedure:
o 1. Petition
o 2. Time and place of hearing set
o 3. Give notice to all interested persons
o 4. Hearing conducted
o Is publication needed?
 No. This is not an affair that the public should be
apprised of.

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• What happens before hearing?  May compound or discharge, on receiving fair and just
o Social worker does case study on child dividend of the estate and effects
• Who are incompetents? o 3. Appear and represent the ward in actions and special
o 1. Suffering from civil interdiction proceedings
o 2. Hospitalized lepers • Can the guardian join in partition proceedings of property held by
o 3. Prodigals the ward as a joint or co-owner?
o 4. Illiterate deaf and dumb o Yes, but after hearing only, with notice to the relatives of the
 Ex. Grade 3, mind of 6 year old, illiterate – shows ward and upon establishing necessity and propriety of the
incompetence action.
o 5. Unsound mind • When is the guardianship required to render an inventory to
o 6. Those who cannot without outside care take care of their court?
property o 1. 3 months from appointment
• To what situation can a spouse apply for guardianship over o 2. 3 months from discovery of property not included in the
property of the other spouse? original inventory
o Family Code article where the spouse automatically assumes o 3. Inventory and account from application of an interested
administration over his/her spouse’s property only applies to person
absent, separated-in-fact, abandoned spouse • Grounds to terminate guardianship?
o DOES NOT apply to incapacitated spouses (here, stroke) o 1. Became insane or otherwise incapable of discharging his
• What is the extent of guardianship powers? trust
o Power of guardianship does not include alienation o 2. Wasted or mismanaged the estate
o But heirs’ receipt of proceeds is deemed a ratification o 3. Failed to render account or return for 30 days
• Can the guardianship court pass upon issues of ownership? o 4. Resigned from position
o No. The guardianship court cannot pass upon issues of
ownership. It is the duty of the guardian to bring the proper Trustees
action.
• Who is a trustee?
• What are the conditions of the bond of the guardian?
o Can be made to carry in effect the provisions of a will or a
o 1. Inventory within 3 months of appointment or discovery of
written instrument
property
o Appointed/confirmed in the probate court (if carrying out a will)
o 2. Faithfully execute duties of trust for ward’s best interest
or the RTC where the property is located (for written
o 3. Render account: a) upon order of the court or when required
instrument)
by the rules, and b) upon termination of guardianship
• When can the court appoint a new trustee under a will or under a
 Contrast with settlement of estate: in settlement,
written instrument?
account is every one year
o 1. When the testator in aw ill omitted to appoint a trustee in the
o 4. Perform all orders of the court
Philippines, and such appointment is necessary to carry into
• What are the duties of the guardian?
effect the will’s provisions
o 1. Settle accounts of the ward
o 2. Demand, sue for, and receive all debts due

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 o 2. When a trustee under a written instrument declines, resigns,
dies, or is removed before the object of the trust is
accomplished
o What is the power of the new trustee?
 Same as the powers of the original trustee
• What if a trustee for property in the Philippines is appointed by an
instrument abroad?
o Must apply for appointment as trustee before the local courts,
or else, the trust can be declared vacant
• What are the conditions of the bond?
o 1. Make an inventory of all real and personal property
belonging to him as trustee
o 2. Faithfully discharge trust according to law, will, or instrument
o 3. Render account at least once a year, and upon court order
o 4. Upon expiration of trust, settle accounts in court and deliver
property
• What are the requisites for the removal and resignation of the
trustee?
o 1. Petition by party beneficially interested in the trust
o 2. Notice to the trustee
o 3. Hearing
• What are the grounds for removal and resignation of the trustee?
o 1. Essential to interest of petitioners
o 2. Became insane
o 3. Incapable of discharging the trust or is unsuitable therefore
o 4. Resignation
• May the trustee sell the property?
o Yes, but only upon court approval and after proving that it will
best effect the objects of the trust
Adoption
• Distinguish qualifications of a domestic adopter, from an alien
adopter under RA 8552, from an alien adopter under ICAA:
o Common qualifications of the adopter –
 [Capacity]
 1. Legal age
 2. Full civil capacity and legal rights
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"
 3. At least 16 years older than the adoptee, except:
• Adopter is biological parent
• Adopter is spouse of adoptee’s parent
 [Personal characteristics]
 4. GMC and not convicted of crime involving moral
turpitude
 5. Emotionally and psychologically capable of taking
care of child
 6. In a position to provide care/support
o Qualifications of an alien adopter –
 Same as common qualifications, plus:
 1. Country has diplomatic relations with the
Philippines
 2. Must be living at least 3 years in the Philippines
before adoption application and maintains residence
until the adoption decree is entered.
• EXCEPT:
• 1. Former Filipino seeking to adopt relative
th
within 4 degree of consanguinity
• 2. Married to Filipino spouse and seeking to
th
adopt the latter’s relative within 4 degree of
consangunity
• 3. Married to Filipino spouse and seeking to
adopt the latter’s legitimate son/daughter
 3. Certified by diplomatic or consular office that he
has legal capacity to adopt under his laws
 4. At least 27 years old and 16 years older than
adoptee, except:
• Adopter is biological parent
• Adopter is spouse of adoptee’s parent
o Qualifications for adopter under inter-country adoption act:
 Same as common qualifications, plus:
 1. Country has diplomatic relations with the
Philippines
 2. At least 27 years old and 16 years older than
adoptee, except:
• Adopter is biological parent
 • Adopter is spouse of adoptee’s parent • When is inter-country adoption allowed?
 3. If married, the spouse must jointly file for adoption o Only as a last resort, and when it is in the best interest of the
 4. Has capacity to act under national laws and child.
undergone counseling in the Philippines
 5. Agrees to uphold UNCRC, Philippine Law, and Case study: There was a child who was left outside of the house of a
R&R of Inter-country adoption act childless couple and having noticed that no one is claiming the child,
• Where to file application for adoption? the couple adopted the child. But they secured a birth certificate and
o Domestic: RTC where adopter resides filled in the child’s details (simulation of birth), without applying for
o Inter-country: RTC where adoptee resides legal adoption. The child grew up and when she applied for a visa to
• Who must adopt? the US, she was denied because she was found to not be the natural
o Husband and wife, jointly child of the mother (who is sterile). What are implications and what
o What are the exceptions? actions must be taken to correct the situation?
 1. Spouse adopting LC of the other
• 1. Petition for correction/cancellation of entries, because the birth
 2. Spouse adopting own child
certificate is false
• Other spouse must consent
o Where do you file it?
 3. Spouses legally separated
 The place where the entry was made or recorded
• What are the legal effects of adoption?
o Who are the parties; who are impleaded?
o 1. All legal ties between the biological parents and the adoptee
 Only the civil registrar (under the ROC)
are severed
 Under jurisprudence, include the child as well and the
 Except when it is the biological parent that is the
declared parent of the child, and those whose
adopter
hereditary rights are affected (ex. Grandparents)
o 2. The adoptee becomes the LC of the adopter
• 2. Get certification that the child was neglected or abandoned
o 3. Adopter and adoptee obtain reciprocal successional rights
o Do you need a judicial declaration that the child was
(just them)
neglected or abandoned?
• When can adoption be rescinded?
o NO. You just need a certificate from DSWD from an
o 1. Repeated physical or verbal abuse by adopter
administrative proceeding. (Take note of this; new law and
o 2. Attempt on life of adoptee
never asked in the Bar.)
o 3. Sexual assault or violence
• 3. Legal adoption
o 4. Abandonment/failure to comply with obligations
• Who may rescind the adoption? Habeas corpus, Writ of Amparo
o Just the adoptee. The adopter can never rescind the adoption.
• What is the effect of rescission? • When can you file a Petition for Habeas Corpus?
o 1. It restores the parental authority of the biological parents, if o There must be 1. ARREST and 2. DETENTION
the adoptee is still a minor or incapacitated o What if it is mere disappearance?
o 2. The amended birth certificate is cancelled  H.C. does not apply
o 3. Rights to succession are restored, but not as far as there are  File a criminal case
already vested rights • What must be the nature of the arrest/detention?

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"
 o It must be unlawful or illegal. It cannot be pursuant to a valid
arrest/detention.
• Detention in violation of the right to speedy disposition of cases,
and the petition for such is denied by the court, what can you do?
o File petition for Writ of H.C.
• What is post-conviction petition for HC?
o Under rules on DNA evidence, even after conviction, if the
testing shows that there is no basis for the
conviction/detention, you can file petition for HC
• Where can WHC be filed?
o RTC, CA, or SC
• What is WHC on custody of minors?
o Not a regular WHC. Unlike in ordinary WHC where there is no
pre-trial, there is pre-trial here.
o See example below.
o X married Y, but were separated in fact. X requested Y for
some time with their child Z. Y allowed, but X never
returned Z. What is the remedy?
 Habeas corpus on custody of minors.
• What is the difference between preliminary citation and a
peremptory writ of HC?
o Preliminary citation:
 requires respondent to appear and show cause why
the peremptory writ should not be granted
o Peremptory writ:
 unconditionally commands the respondent to have the
body of the detainee produced before the court
• When is a WHC disallowed or discharged?
o 1. Person is lawfully detained or convicted
o 2. Jurisdiction appears after the writ is allowed; cannot use
defect in the process, judgment, or order as reason to
discharge the writ
• What is the Writ of Amparo?
o Also instituted in the RTC, CA, SC
o Can be filed at any time of day or night
o Does not just extend to actual or committed acts, but also to
threatened acts
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"
o Who can file it?
 Not just the victim or family members
 Extends to religious institutions or NGOs
• What is the Writ of Habeas Data?
o Also instituted in RTC, CA, SC
• Contents of petition for HC?
o 1. Person imprisoned on whose behalf petition is filed
o 2. Officer or person under whom he is restrained or
imprisoned; if unknown, officer’s assumed appellation; person
upon whom writ is served is deemed the person intended
o 3. Place where he is detained if known
o 4. Copy of commitment or cause of detention of the person if it
can be produced without impairment of efficiency of the
remedy; if without legal authority – state it
• Return of WHC:
o 1. Whether or not he has the party in his custody or power, or
under restraint
o 2. If he does, the authority and cause thereof – with a copy of
the writ, order, or process
o 3. If the person cannot be produced, the nature or gravity of
sickness or infirmity which is the reason why he cannot be
produced in court without danger
o 4. If transferred to another person: to whom, for what cause,
when, and under what authority
• Contents of petition for amparo?
o 1. Personal circumstances of petitioner
o 2. Name and personal circumstances of respondent, or
description/assumed appellation
o 3. Right to life, liberty, security threatened by respondent
(affidavit detailing how)
o 4. Investigation conducted, and identity of investigator
o 5. Actions and resources taken by petitioner to determine fate
of aggrieved, and identity of respondent
o 6. Relief prayed for
• Return of WOA, within 72 hours:
o 1. Lawful defenses to show no violation
 o 2. Steps or actions taken by the respondent to determine fate any person official, public storing data or
of aggrieved party and persons responsible withheld from the employee, or private information
o 3. All relevant information in respondent’s possession person entitled individual/entity regarding the
o 4. If public official or employee, the actions taken to: thereto person
Petitioner Party for whose Aggrieved party, or In general:
 a) verify identity of aggrieved party
relief it is intended, any qualified person aggrieved party
 b) recover and preserve evidence by some other or entity in the order Except for EJ
 c) identify witnesses person on his in sec. 2: (1. killings and
 d) determine cause, manner, location, time of death or behalf Immediate family enforced
disappearance member, 2. Relative disappearances:
th
 e) indentify and apprehend the person or persons to 4 degree of 1) immediate
involved consanguinity, 3. family, 2) in
Concerned citizen, default, relative
 f) bring suspected offenders to court th
org, assoc, etc.) to 4 degree of
o Is a general denial of allegations allowed in WOA? consanguinity
 No, unlike in Habeas Corpus.
o What is the omnibus waiver rule in WOA? N.B. no
 All the defenses not raised on the return are deemed concerned
waived citizen, etc.
Venue SC, CA, or SB SC, CA, or SB: SC, CA, or SB:
• What is the consequence of failure to file return?
Manila Manila
o Ex parte hearing
RTC:
• Can there be institution of separate civil, criminal, or 1) Plaintiff’s RTC where the RTC: 1) where
administrative action notwithstanding a petition for WOA? residence violation occurred, or petitioner
o Yes. 2) Defendant’s any of its elements resides, 2)
• What is the effect of filing a criminal action? residence where defendant
o The petition for WOA is always consolidated with it, whether 3) Where non- N.B. if the writ is resides, or 3)
resident issued by a higher has J over place
filed ahead or later
defendant is court, the writ is where data is
• What is the quantum of proof required for petition for WOA? found returnable to it or any gathered, etc.
o Substantial evidence of the lower courts
o On the defense? (e.g. for SB, either
 Private persons: ordinary diligence in duties there or RTC. For
 Public officials: extraordinary diligence in duties SC, either CA, SB, or
RTC)
Habeas Corpus Amparo Habeas Data Issuance Immediately once When in its face, Same as
of writ it appears ought to issue Amparo, but
Remedy To all cases of Any person whose …same as
immediately within 3 days
illegal confinement right to life, liberty, amparo, but the
or detention: 1) and security is person must be Summary Upon filing of Not later than 7 days Not later than 10
hearing return from issuance days from
person is deprived violated/threatened engaged in 1)
issuance
of liberty, or 2) by unlawful act or gathering, 2)
Why is it like this?
rightful custody of omission of public collecting, 3)
This way, it’s not

183"
"
 dependent on the without danger
filing of the return Judgment Discharge from Judgment within 10 Same as
Service Served on person If cannot do it Same as WOA confinement days. If proved by Amparo, but in
to whom it is personally, then substantial evidence, addition, the
directed; if cannot substituted service grant reliefs as judgment must
be found or not applicable. be enforced by
with custody, then sheriffs or court
to person with Standard of officers within 5
custody evidence? days
Return Signed and sworn Verified written return Same as WOA • Substantial
to if prisoner not evidence
produced Within 5 days from Diligence required
service, without for defense?
N.B. no period extension • Private person:
specified for return)" ordinary
Penalties Clerk who doesn’t Clerk who doesn’t Same as WOA diligence
issue writ. issue writ. • Public official:
Person fails to Deputized person extraordinary
make return, who doesn’t serve diligence
makes false return, the writ. Appeal Ordinary appeal, Rule 45 – petition for Same as WOA
refuses to deliver Person fails to make 48 hours from review on certioriari
person demanding return, makes false notice of judgment with peculiar
(within 6 hours) the return, or features:
copy of warrant or disobeys/resists 1) Appeal may
order of lawful court order. raise
commitment questions of
law, fact, or
Interim 1) Court may 1) Temporary both
reliefs adjourn for protection order 2) Appeal 5
good cause 2) Inspection order working
and make (5 days) days from
order for safe 3) Production order notice of
keeping of (of documentary judgment
person or object or 3) Same
2) If person electronic priority as
cannot be evidence) habeas
produced due 4) Witness corpus
to grave protection order cases
illness, court
must be N.B. 2 and 3 are Archiving rule:
satisfied that both available to If court cannot
he cannot be respondent as well proceed due to
produced failure of petitioner or

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"
 witnesses to appear • Where to file for change of name?
due to threat to lives, o Surname: always in the courts
it should NOT o First name:
dismiss the petition;
 Local civil registrar:
just archive the case.
• If clerical
Revival rule: • If any of three grounds in section 4 of RA
Court conducts 9048
periodic review of  Courts:
archived cases and • Everything else
revives them if they
• What to file?
can proceed.
o 1. That petitioner is a bona fide resident of province where
Dismiss case with
prejudice if 2 years petition was filed for at least (3) years prior to the date of such
have lapsed from filing
archival. o 2. Cause for which change of petitioner’s name is sought
Separate Allowed Same as WOA o 3. Name asked for
actions • RA 9255 –grounds by which an illegitimate child can use the
When there is
father’s surname:
criminal case, cannot
file for writ. But o 1. Filiation recognized by father in civil register
reliefs allowed. o 2. OR Admission in public document or private writings
o N.B. But the father can institute action for non-recognition
Always consolidate anytime during his lifetime
with the criminal
action Cancellation or correction of entries in the civil registry (108)

• Notice given to:

Change of name (103) o LCR
o All persons interested
• When can you ask for change of name?
• How long is publication?
o 1. Name is ridiculous, dishonorable, extremely hard to
o 3 consecutive weeks (once a week)
pronounce
• Tenor of proceedings: Summary, but not if there are substantial
o 2. Change will avoid confusion
changes: adversarial
o 3. One has been continuously known as that name
o For instance, if it is nullity or annulment, then it must be in
o 4. Surname causes embarrassment and the desire to change it
adversarial proceedings
is not for a fraudulent purpose
o But see RA 9048 –
o 5. Consequence of change of status
 Removed from ambit of 108 typographical and clerical
• Can a person have the child’s Filipino middle name dropped for
errors, and change of first name/nick name under the
the purpose of integration with the Singaporean community?
three stated grounds
o No.

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"
• Differentiate sex change from intersex persons and implications extremely extremely
on change of name: difficult to difficult to
o Cagandahan case: natural change in sex – allowed change of write/pronounce write/pronounce
2) consequence 2) new first
sex and name
of change of name or
o Silverio case: sex change procedure – did not allow
status nickname
3) necessity to habitually and
103 108 RA 9048 avoid confusion continuous used,
Name of law Change of name Correction or Clerical Error Act 4) continuous and publicly
cancellation of used and known known
entries in civil by Filipino name, 3) avoid
registry unaware of alien confusion
Subject matter Change of full Change or Change of first parentage
name corrections in name, nick 5) sincere desire
(substantial civil entries name, and civil to adopt Filipino
correction) (substantial) entries name to erase
(typographical or signs of alienage
clerical errors) Proceeding Judicial Summary (but Administrative
Who may file Person desiring Person Person with adversarial if
to change name interested in any direct and there are
matter personal interest substantial
concerning in correction changes)
recorded civil Notice Once a week for Once a week for Once a week for
status of person 3 consecutive 3 consecutive two consecutive
Venue RTC of province RTC of city or 1) LCR of city or weeks in weeks in weeks (publish
where petitioner province where municipality newspaper newspaper affidavit)
has resided the the registry is where record is (notice of (notice of
past 3 years; located 2) LCR of place hearing) hearing) Posting
City of Manila: where interested
Juvenile and party is residing Not 30 days
Domestic 3) Phil. prior to election;
Relations Court Consulates not within 4
Petition 1) petitioner is SAME as 103 1) facts months of last
contents bona fide necessary to publication of
resident (3 establish merits notice
years) 2) particular Appeal CA CA Civil Registrar
2) cause erroneous entry General
3) name asked
for
Grounds 1) name Good and valid 1) Name Family home
ridiculous, grounds ridiculous,
tainted with tainted with • Do you need a judicial declaration of a family home?
dishonor, dishonor,

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"
 o No more. It’s automatically constituted, under the Family o No.
Code. • What is the mode of appeal?
o Record on appeal
Absentees
Venue Reglementary Publication rule
• What is the purpose of the rule? period
o 1. For the declaration of a representative or Settlement of Resident: where Record on EJ settlement: 3
o 2. Declaration of absence and appointment of a trustee or estate residing; appeal – 30 weeks pub (of
administrator days fact of
Non-resident: settlement)
• Who may file?
where property
o 1. Spouse present
is Summary
o 2. Testate heirs (must present an authentic copy of a will) settlement: 3
o 3. Intestate heirs weeks pub (of
o 4. With interest over absentee’s property hinged on suspensive time and date of
condition of death hearing)
• When can it be filed?
[3 weeks
o 1. Two years from disappearance and without news about
successively for
absentee proving will]
o 2. Five years, in case he left an administrator in charge of his Postal service
property 20 days before
hearing,
Appeal personal service
10 days before
• Appeal can be taken from what orders or judgments in settlement hearing
of estates?
Claims: 3 weeks
o 1. Allowance/disallowance of wills
successively,
o 2. Determines who are the lawful heirs of a deceased person posted: 4 public
or distributive shares places in
o 3. Allows/disallows a claim, or claims presented on behalf of province, 2 in
the estate to offset a claim against it municipality
o 4. Settlement of account of executor/admin/guardian Escheat Court in province Record of appeal Once a week for
o 5. Final determination in lower court of rights of the party of last residence – 60 days 6 weeks
(hearing though
appealing
Non-resident: is at least 6
o 6. Final order or judgment rendered in the case, affecting where estate is months after
substantial rights of appealing person, unless it is an order located order of court)
granting/denying MBT/MR Guardianship Person of minor Record on None
• Can the appointment of a Special Administrator be subject of – in Family court appeal – 30
appeal? where minor days

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"
 resides ; law and fact, and
Plaintiff’s within 5 days
Property of residence
minor – same Defendant’s
residence
Person of OR
incompetent, not RTC with
minor – RTC of jurisdiction
residence where data is
gathered,
Property of collected, stored
incompetent not Change of RTC of plaintiff’s Record on Once a week for
minor – follow name residence for 3 appeal 3 weeks
300k/400k rule years
Adoption Venue: Family Record on None
court of the appeal – 30 Manila: Juvenile
province or city days and Domestic
where the relations court
adoptive parents Correction or RTC with Record on Once a week for
reside cancellation jurisdiction over appeal 3 weeks
Habeas corpus SC, CA, SB Ordinary appeal, None place of registry
48 hours from Clerical or LCR where Civil Registrar Once a week for
Plaintiff’s notice typographical record is, General 2 weeks
residence error – 9048 LCR of (affidavit
Defendant’s residence, or published)
residence Phil. consulate if
nonresident
OR "
Non-resident
defendant,
where property
found ENVIRONMENTAL CASES
Amparo Manila: SC, CA, Rule 45, but can None "
SB raise issues of
law and fact, and • What is the scope and applicability of the rule?
RTC with within 5 days o Involves all civil, criminal, and special proceedings cases
jurisdiction over
pending before courts involving enforcement and violation of all
where violation
or any of its environmental and related laws
elements o Ex. Forestry code, Water code, Sanitation code, LLDA act,
happened Toxic substances and hazardous waste act, IPRA, Mining act,
Habeas data Manila: SC, CA, Rule 45, but can None Fisheries code, Clean Air act, Chainsaw act, etc.
SB raise issues of

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"
Civil Procedure o When can a TEPO be dissolved?
 If it appears after the hearing that its issuance or
• What is the rule on TROs? continuance would cause irreparable damage to the
o Except for the SC, no court can issue a TRO or preliminary party enjoined, and the applicant can be compensated
injunction against lawful acts of government agencies enforcing adequately
environmental laws  How is the applicant compensated?
• What happens in pre-trial? • The enjoined party has to file a bond
o The parties are under oath in all PTCs. • What reliefs can the court grant in a citizen suit?
o The judge must exert best effort to arrive at a settlement of the o 1. Proper reliefs including protection, preservation, or
dispute. rehabilitation of the environment
o What is a consent decree? o 2. Payment of attorney’s fees, costs of suit, litigation expenses
 It approves the agreement made by the parties in o 3. Require violator to submit program for rehab or restoration of
accordance with law, morals, public order, and public the environment
policy to protect right to balanced and healthful  Costs borne by the violator
ecology o 4. Require violator to contribute to a special trust fund for that
• What are the prohibited pleadings and motions? purpose
o 1. Motion to dismiss complaint • What is a PEPO and writ of continuing mandamus?
o 2. Motion for bill of particulars o It is a permanent Environmental Protection order. The court
o 3. Motion for extension of time to file pleadings can convert a TEPO into a PEPO.
 Except to file an answer, where at most 15 days can o The court can also issue a writ of continuing mandamus which
be given requires performance of certain acts effective until judgment is
o 4. Motion to declare defendant in default fully satisfied
o 5. Reply and rejoinder o How can the court monitor this?
o 6. Third party complaint  Can require continuing reports to be filed
• What is a Temporary Environmental Protection Order (TEPO)? • What is a SLAPP?
o It is issued when the matter is of extreme urgency and o It is a Strategic Lawsuit Against Public Participation – a legal
applicant will suffer from grave injustice or irreparable injury action filed to vex, harass, exert undue pressure, or stifle any
o Who may issue it? legal recourse that a person, institution, or the government has
 Executive judge of multi-sala court or presiding judge taken or is taking to enforce environmental laws
of a single-sala court o What is the relevance of this?
o How is it issued?  When a suit is filed against the aforementioned
 Ex-parte persons, they can launch the defense that the suit is a
o How long is it effective? SLAPP and the court will have the plaintiff prove that
 72 hours from date of receipt, unless there is it’s not
summary hearing within the period to determine  5 days for plaintiff to respond, and summary hearing
whether the TEPO should be extended until the end within 15 days from comment or expiration of the 5
of the case day period

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"
Special proceedings
• What is a Writ of Kalikasan?
o Remedy available to natural/juridical person or entity
authorized by law, PO, NGO, or registered public interest
group, on behalf of persons whose right to a balanced and
healthful ecology has been violated or threatened with violation
– involving environmental damage of such magnitude as to
prejudice life, health, or property of inhabitants in two or more
cities or provinces
o Contents of the petition?
 1. Name and personal circumstances of petitioner
 2. Name and personal circumstances of respondent,
or his assumed appellation
 3. A) Environmental law, rule, or regulation violated or
threatened to be violated, and B) the act or omission
complained of, and C) the environmental damage of
such magnitude as to affect life, property, or health of
inhabitants in two or more cities or provinces
 4. Evidence to be presented
 5. CNFS
 6. Reliefs prayed for
o Where filed?
 CA or SC
o What are the prohibited pleadings and motions?
 1. MTD
 2. Motion for extension of time to file a return
 3. Motion for postponements
 4. Motion for BOP
 5. Counterclaim or cross-claim
 6. Third-party complaint
 7. Reply
 8. Motion to declare respondent in default
o What are the discovery measures that a party may file in a
verified motion?
 1. Ocular inspection
 2. Production or inspection of documents and things
 What are these for?
• To establish magnitude of the violation or
threat
• What is a writ of continuing mandamus?
o See above – this can also be a relief under special
proceedings to enjoin a government agency or instrumentality
to perform in connection with a law preserving or protecting the
environment
Criminal procedure
• Who may file?
o Any offended party, peace officer, or public officer charged with
enforcement of environmental law
• Rule on institution of criminal and civil actions?
o Same rule as usual; civil is deemed filed along with the criminal
unless waived, reserved, or filed ahead
• When can there be arrest without warrant?
o 1. In flagrante delicto
o 2. Offense has just been committed and he has probable
cause to believe based on personal knowledge that the person
arrested just committed it
 Does the presumption of regularity apply here?
• Yes, for individuals deputized by government
to enforce environmental laws
• What is the procedure for custody and disposition of seized
items?
o In accordance with laws or rules by the government agency
concerned. If none, follow the default rules:
o 1. Inventory and photograph where seized
o 2. Submit to court within 5 days of issuance of search warrant
or from seizure if warrantless arrest
o 3. Auction sale of seized items upon motion of any interested
party
 Notice to accused, person from whom items were
seized, owner thereof, government agency concerned
 Posted in three conspicuous public places in the city
or municipality where seized

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  Proceeds held in trust and deposited with authorized
government bank until disposition
• What is the rule on bail?
o 1. Bail filed where case is pending
o 2. If the judge is unavailable, with any RTC or MTC judge in the
province, city, or municipality
o 3. If arrested in any city, province, or municipality other than
where the case is filed – can file bail with any RTC of said
place, or if none, with any MTC judge
• What happens in arraignment?
o It is set within15 days from acquisition of jurisdiction over the
accused, with notice to the public prosecutor and offended
party, or government agency that it will enter into plea-
bargaining on the date of arraignment
o What happens when the prosecution and offended party
agree to the plea bargain of the accused?
 1. Court issues order containing the plea-bargain
 2. It then receives evidence on the civil aspect of the
case, if any
 3. It renders and promulgates judgment of conviction,
including civil liability for damages
• What happens in pre-trial?
o 1. Set within 30 days from arraignment
 May refer to branch COC for preliminary conference
at least 3 days before pre-trial
o 2. During pre-trial, judge:
 Places parties under oath
 Adopts minutes of preliminary conference and
confirms markings of exhibits, admission of
documents, etc.
 Scrutinizes the information and statements in
affidavits to determine:
• Court’s territorial jurisdiction as re offenses
• Qualification of expert witnesses
• Amount of damages
 Defines factual and legal issues
 Asks parties to agree to specific trial dates
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 Requires parties to submit to the COC the witnesses
to be subpoenaed
 Considers modification of trial order if there is a lawful
defense interposed
o What is the rule on questions?
 All questions and statements must be directed to
court
o What is the rule on admissions and agreements, to bind
accused?
 Must be signed by accused and counsel
o When is the PTO issued?
 Within 10 days from termination of pre-trial
• What is the rule on subsidiary liability?
o When the accused is convicted and subsidiary liability is
allowed by law, the court may, upon motion of person entitled
to recover, enforce subsidiary liability against a person or
corporation subsidiarily liable under the RPC
Evidence
• What is the precautionary principle?
o When there is lack of full scientific certainty in establishing a
causal link between human acts and environmental damage,
the burden of proof that it is not harmful falls on those taking
the purportedly harmful action or policy
o What is given the benefit of doubt?
 Constitutional right of people to a balanced and
healthful ecology
o What are considered in applying the precautionary
principle?
 1. Threats to human life or health
 2. Inequity to present or future generations
 3. Prejudice to the environment without legal
consideration of the environmental rights of those
affected
• What is the rule on documentary evidence?
o 1. Photographic, video, or similar evidence of events, acts,
transactions of wildlife, by-products, or derivatives, forest
 products or mineral resources subject of a case are admissible
if authenticated by the person who took the photo, a person
present during its taking, or some other person competent to
authenticate it
o 2. Entries in official records in the performance of duty of a
public officer are prima facie evidence of the facts stated
therein

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