BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
NOTES FOR Annulment of Judgments or Final Orders and Resolutions
2014 BAR EXAMINATIONS IN REMEDIAL LAW
PROCEDURE ON APPEAL:
Basics:
No appeal may be taken from:
- An order denying a motion for new trial or reconsideration;
- An order denying a petition for relief or any similar motion seeking relief from
judgment;
- An interlocutory order;
- An order disallowing or dismissing an appeal;
- An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground
vitiating consent;
- An order of execution;
- A judgment or final order for or against or one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and
- An order dismissing an action without prejudice.
Since remedy of appeal is not available on the judgment or final order, the aggrieved
party may file an appropriate special civil action under Rule 65 (Section 1, Rule 41, Rules of
Civil Procedure).
First Level Courts; Ordinary Appeal
Decision or order of the MTC finally disposing a case is appealable to the RTC (15 days after
notice to the appellant) by filing a notice of appeal.
The decision of the RTC in the exercise of its appellate jurisdiction can be elevated to
the CA by way of Petition for Review under Rule 42, Civil Procedure. The Decision of the CA
can be elevated to the SC by way of appeal by certiorari under Rule 45 on ground of purely
questions of law. (Sections 1 & 2, Rule 40, Rules of Civil Procedure).
Second Level Courts; Ordinary Appeal
Decision or order of the RTC finally disposing a case is appealable to the CA (15 days
after notice to the appellant) by filing a notice of appeal. Decision of the CA in the exercise of its
appellate jurisdiction can be appealed on purely questions of law to the SC by certiorari under
Rule 45 within 15 days. Review is not a matter of right, but of sound judicial discretion.
Record on appeal is not required except in special proceedings and other cases of
multiple or separate appeals, in which case notice of appeal and record on appeal shall be filed
within 30 days from notice of the judgment or final order. (Sections 2 & 3, Rule 41, Rules of
Civil Procedure).
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- May be based only on the grounds of extrinsic fraud and lack of jurisdiction.
- Extrinsic fraud is not a valid ground if it was availed of, or could have been availed of,
in a motion for new trial or petition for relief.
- Action to annul shall be filed within 4 years from its discovery if based on extrinsic
fraud.
- Action to annul shall be filed before it is barred by laches or estoppels if the ground is
based on lack of jurisdiction. (Sections 2 & 4, Rule 47, Rule of Civil Procedure).
- Extrinsic fraud exists when there is a fraudulent act of prevailing party committed
outside of the trial of the case, whereby the defeated party was prevented from
exhibiting fully his side of the case by fraud or deception practiced on him by the
prevailing party. (Cosmic Lumber vs. CA, 265 SCRA 168).
HABEAS CORPUS ON COURT OF APPEALS/SC’s JURISDICTION:
Respondent who was married to petitioner became irresponsibility and continued to be
irresponsible to her life and to their daughter, left the family home with her daughter
without notifying her husband-petitioner, and told her servants that she was bringing her
daughter to Sta. Clara, Lamitan, Basilan Province.
Petitioner filed a petition for HC in the designated Family Court in Makati City but was
dismissed presumably because of the allegation that the child was in Basilan. Petitioner
then went to Basilan to ascertain the whereabouts of respondent and their daughter.
However, he did not find them there and the barangay office of Sta. Clara, Lamitan,
Basilan, issued a certification that respondent was no longer residing there.
Petitioner gave up his search when he got hold of respondent’s cellular phone bills
showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other
provinces. Petitioner then filed another petition for HC , this time in the Court of Appeals
which could issue a writ of HC enforceable in the entire country. The CA dismissed the
case on ground that it did not have jurisdiction over the case, ruling that since 1997
Family Courts Act of 1997 gave family courts exclusive original jurisdiction over
petitions for HC, it impliedly repealed RA 7902-An Act Expanding the Jurisdiction of the
CA and BP 129 of 1980, because according t BP 129, the CA has jurisdiction to issue a
writ of HC whether or not in aid of its appellate jurisdiction. This conferment of
jurisdiction was re-stated in the law expanding the jurisdiction of the CA; that under the
Family Courts Act of 1997, the Family Courts shall have exclusive original jurisdiction to
hear and decide xxx xxx xxx petition for guardianship, custody of children, HC in relation
to the latter.
Is the CA correct?
- No.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Jurisdiction of the Family Courts is not original and exclusive over such petition.
- The Rule on Custody of Minors and Writ of HC may be filed in the Supreme Court,
Court of Appeals, or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines.
- Family Courts Law did not CA’s jurisdiction to issue writs of HC involving the custody
of minors.
- Under Section 2, Rule 102, Rules of Court, CA can issue the same writ
enforceable throughout the Philippines.
- Section 2, Rule 102 of the Revised Rules of Court provides that the Writ of HC may be
granted by the Supreme Court, or any member thereof, on any day and at any time, or
by the Court of Appeals or any member thereof in the instances authorized by law, and
if so granted it shall be enforceable anywhere in the Philippines, and may be made
returnable before the court or any member thereof, or before a Court of First Instance,
or any judge thereof for hearing and decision on the merits. It may also be granted by
a Court of First Instance, or a judge thereof, on any day and at any time, and
returnable before himself, enforceable only within his judicial district.
- The words “exclusive” jurisdiction of the Family Courts in issuing WHC did not
foreclose resort to the regular courts for damages, the SC merely applied the well-
established rule that what is controlling is the spirit and intent, not the letter, of the law:
“Idolatrous reverence” for the law sacrifices the human being. The spirit of the law
insures man’s survival and ennobles him.” This mandate must prevail over legal
technicalities and serve as the guiding principle in construing the provisions of RA
8369.
- The FC have concurrent jurisdiction with the Court of Appeals and the Supreme Court
in petitions for HC where the custody of minors is at issue. (IN RE Application for the
Issuance of a Writ of Habeas Corpus, Thornton vs. Thornton, G.R. No. 154598,
August 16, 2004).
PRELIMINARY INJUNCTION (RULE 58), a provisional remedy
- The main action for injunction is distinct from the provisional or ancillary remedy of
preliminary injunction which cannot exist except only as part or an incident of an
independent action or proceeding. As a matter of course, in an action for injunction,
the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may
issue. Under the law, the main action for injunction seeks a judgment embodying a
final injunction which is distinct from, and should not be confused with, the provisional
remedy of preliminary injunction, the sole object of which is to preserve the status quo
until the merits can be heard (Urbanes, Jr. vs. CA, G.R. No.117964, 355 SCRA 537).
- PI can be granted at any stage of an action or proceedings prior to the judgment or
final order, requiring a party or a court, agency or a person to refrain from a particular
act-(Preliminary Prohibitory Injunction); it may also require the performance of a
particular act or acts-(Preliminary Mandatory Injunction).
- Grounds:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts
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complained of, or in requiring the performance of an act or acts, for a limited
period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the applicant;
or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in violation of
the rights of the applicants respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual.
- Bond is required.
- Hearing and prior notice to the party or person sought to be enjoined is required.
- If it appear from facts shown by affidavits or verified application that great or
irreparable injury would result to the applicant before the matter can be heard on
notice, the court which the application for PI was made, may issue a TRO.
- Twenty (20) days life of the TRO computed from service on the party or person sought
to be enjoined.
- Within that period of twenty (20) days the court must order said party or person to
show cause at a specified time and place (notice of hearing) why the injunction should
not be granted, and within that period of twenty (20) days, the court shall determine
whether or not the PI shall be granted, and accordingly issue the corresponding order.
On matters of extreme urgency:
- On matters of extreme urgency and the applicant suffers grave injustice and
irreparable injury, the EJ of a multiple sala or the PJ in a single sala court may issue ex
parte a TRO.
- Seventy two (72) hours life of the TRO from issuance but the person shall be
immediately served the summons and the documents.
- Within that 72 hours, the judge before whom the case is pending shall conduct a
summary hearing to determine whether the TRO shall be extended until the
application for PI can be heard.
- The life of the TRO shall not exceed 20 days including the original 72 hours.
- Application for PI not resolved within the period- TRO is deemed automatically
vacated.
- If after the hearing of the action it appears that the applicant is entitled to have the acts
complained of be permanently enjoined, the court shall grant a final injunction
perpetually restraining the party or person enjoined from the commission or
continuance of the act or acts or confirming the Preliminary Mandatory Injunction.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Under Rule 58 of the Rules of Court, a judge may issue a TRO with a limited life of
twenty (20) days from date of issue. If before the expiration of the twenty (20)-day
period the application for preliminary injunction is denied, the TRO would be deemed
automatically vacated. If no action is taken by the judge on the application for
preliminary injunction within the said twenty (20) days, the TRO would automatically
expire on the 20th day by the sheer force of law, no judicial declaration to that effect
being necessary (Miriam College Foundation vs. CA, 348 SCRA 265).
- If the court merely ordered the respondent, its agents, representatives or any person
acting in his behalf to stop, desist and refrain from implementing an act complained of
without stating the period for the restraint does not convert the TRO to a preliminary
injunction (Bacolod City Water District vs. Hon. Emma C. Labayen, RTC, Bacolod
City, G.R. No. 157494, December 10, 2004).
- They are intended as a means to compel disclosure of facts resting in the knowledge
of a party or other person which are relevant in some suit or proceeding in court.
- Depositions, and the other modes of discovery (interrogatories to parties; requests for
admission by adverse party; production or inspection of documents or things; physical
and mental examination of persons) are meant to enable a party to learn all the
material and relevant facts, not only known to him and his witnesses but also those
known to the adverse party and the latter's own witnesses.
- In fine, the object of discovery is to make it possible for all the parties to a case to learn
all the material and relevant facts, from whoever may have knowledge thereof, to the
end that their pleadings or motions may not suffer from inadequacy of factual
foundation, and all the relevant facts may be clearly and completely laid before the
Court, without omission or suppression.
- Depositions are principally made available by law to the parties as a means of
informing themselves of all the relevant facts; they are not therefore generally meant to
be a substitute for the actual testimony in open court of a party or witness.
- The evident purpose is to enable the parties, consistent with recognized privileges, to
obtain the fullest possible knowledge of the issues and facts before civil trials and thus
prevent the said trials from being carried out in the dark.
How is deposition made?
- The deponent must as a rule be presented for oral examination in open court at the
trial or hearing. This is a requirement of the rules of evidence.
- Section 1, Rule 132 of the Rules of Court provides that the examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for a
different mode of answer, the answers of the witness shall be given orally.
- Indeed, any deposition offered to prove the facts therein set out during a trial or
hearing, in lieu of the actual oral testimony of the deponent in open court, may be
opposed and excluded on the ground that it is hearsay: the party against whom it is
offered has no opportunity to cross-examine the deponent at the time that his
testimony is offered. It matters not that opportunity for cross-examination was
afforded during the taking of the deposition; for normally, the opportunity for cross-
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examination must be accorded a party at the time that the testimonial evidence is
actually presented against him during the trial or hearing.
Can (deposition) this be used without the deponent being actually called to the witness
stand by the proponent?
- Yes, under certain conditions and for certain limited purposes.
- These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.
- Section 4, Rule 24 (Use of Depositions) provides that at the trial or upon the
hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so
far as admissible under the rules of evidence, may be used against any party who was
present or represented at the taking of the deposition or who had due notice thereof, in
accordance with any of the following provisions:
(a) Any deposition be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness if out of the
province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or
is out of the Philippines, unless it appears that his absence was procured by the party offering
the deposition; or (3) that the witness is unable to attend to testify because of age, sickness,
infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or (5) upon application and notice, that
such exceptional circumstances exist as to make it desirable, in the interest of justice and with
due regard to the importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used;
(d) If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the party introduced, and any party
may introduce any other parts.
- The principle conceding admissibility to a deposition when the deponent is dead, out of
the Philippines, or otherwise unable to come to court to testify, is consistent with
another rule of evidence, found in Section 47, Rule 132 of the Rules of Court.
- Section 47, Rule 132 (Testimony or deposition at a a former proceeding) provides that
the testimony or deposition a witness deceased or unable to testify, given in a former
case or proceeding, judicial or administrative, involving the same parties and subject
matter, may be given in evidence against the adverse party who had the opportunity to
cross-examine him."
Can this (deposition) be taken anywhere?
- It is apparent that deposition of any person may be taken wherever he may be, in the
Philippines or abroad.
- If the party or witness is in the Philippines, his deposition shall be taken before any
judge, municipal or notary public.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- If in a foreign state or country, the deposition shall be taken: (a) on notice before a
secretary or embassy or legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines, or (b) before such person or officer as may be
appointed by commission or under letters rogatory.
Is leave of court is necessary where if the deposition is to be taken before a secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines?
- NO, provided that the defendant's answer has already been served.
- After answer, whether the deposition-taking is to be accomplished within the
Philippines or outside, the law does not authorize or contemplate any intervention by
the court in the process, all that is required being that "reasonable notice" be given "in
writing to every other party to the action stating the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if
the name is not known, a general description sufficient to identify him or the particular
class or group to which he belongs.
So, in what instance can the court intervene in the process as regards taking of
deposition?
- Only if a party moves (1) to "enlarge or shorten the time" stated in the notice, or (2)
"upon notice and for good cause shown," to prevent the deposition-taking, or impose
conditions therefor,
- Example, is that: (1) certain matters shall not be inquired into, (2) or that the taking be
held with no one present except the parties to the action and their officers or counsel
(Section 16, Rule 24), or (3) to terminate the process on motion and upon a showing
that it is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party (Section 18, Rule 24).
The Case:
A foreign corporation with principal office abroad, for purpose maintaining an
action only to enforce its rights by virtue of an isolated transaction with Defendant, the
corporation filed a collection suit against the latter. PTC was terminated, and case was
subsequently set for trial.
Before the scheduled initial presentation of plaintiff’s evidence, plaintiff moved
to authorize deposition-taking through written interrogatories alleging that in the
scheduled initial trial all of its witnesses are Americans who reside or hold office in the
USA, already of advanced age and travel to the Philippines may be extremely difficult if
not dangerous; and there is a perceived danger to them in the aftermath of the hostage
crisis transpired on August 23, 2010; that written interrogatories are ideal in this case
since the factual issues are already very few; that such mode of deposition taking will
save precious judicial and government time and will prevent needless delays in the case.
Defendant objected on the ground if indeed there was an oral contract and petitioner was
liable to private respondent for the amount he received from the latter, the documents
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attached to private respondent's complaint did not support its claim, but rather
supported his position. There is a very strict standard in proving an oral contract; that
taking the deposition through written interrogatories would deprive the court of the
opportunity to observe the general bearing and demeanor of witnesses; that defendant’s
right to cross-examine the witnesses will be prejudiced, since he will be limited to cross-
interrogatories which will severely limit not only the scope but the spontaneity of his
cross-examination; that it is doubtful whether the witnesses will give their deposition
under sanction of the penalties prescribed by Philippine law for perjury; that it will not
necessarily save precious judicial and government time but may in fact lengthen the
trial, as both parties will have the right to review and to object to interrogatories
submitted by the other party; that the claim that travel to the Philippines would be
dangerous for the witnesses who are all Americans is frivolous, since respondent has
not presented evidence that the US government has prohibited its citizens from traveling
to the Philippines; and if ever there was such prohibition, it was not binding on our own
legal system; that old age was not a valid reason. The court granted the motion.
Is the trial court correct?
- Yes, because the witnesses are all Americans residing in the U.S., taking depositions
through written interrogatories is valid.
- The rules on deposition does not limit their use in case of oral contract as alleged by
petitioner.
- This situation is one of the exceptions for its admissibility under Section 4(c) (2), Rule
23 of the Rules of Court, i.e., that the witness resides at a distance of more than one
hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the deposition.
- Unequivocally, the rule does not make any distinction or restriction as to who can avail
of deposition. The fact that private respondent is a non-resident foreign corporation is
immaterial. The rule clearly provides that the testimony of any person may be taken
by deposition upon oral examination or written interrogatories, at the instance of any
party.
- Depositions serve as a device for ascertaining the facts relative to the issues of the
case. The evident purpose is to enable the parties, consistent with recognized
privileges, to obtain the fullest possible knowledge of the issues and facts before civil
trials and thus prevent the said trials from being carried out in the dark. (San Luis vs.
Hon. Pablito M. Rojas (RTC Pasig City) G.R. No. 159127, March 3, 2008).
Modes of Discovery in relation to rule on evidence:
-
While there are limitations to the rules of discovery, even when permitted to be
undertaken without leave and without judicial intervention, such limitations inevitably
arise when it can be shown that the examination is being conducted in bad faith; or in
such a manner as to annoy, embarrass, or oppress the person subject to the inquiry;
or when the inquiry touches upon the irrelevant or encroaches upon the recognized
domains of privilege.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Deposition discovery rules are to be accorded a broad and liberal treatment and
should not be unduly restricted if the matters inquired into are otherwise relevant and
not privileged, and the inquiry is made in good faith and within the bounds of law.
Otherwise, the advantage of a liberal discovery procedure in ascertaining the truth and
expediting the disposal of litigation would be defeated. In fact, nothing in the rules on
deposition that limits their use in case of oral contract.
- In any event, the admissibility of the deposition does not preclude the determination of
its probative value at the appropriate time. The admissibility of evidence should not be
equated with weight of evidence. The admissibility of evidence depends on its
relevance and competence while the weight of evidence pertains to evidence already
admitted and its tendency to convince and persuade. (San Luis vs. Hon. Pablito M.
Rojas (RTC Pasig City) G.R. No. 159127, March 3, 2008).
- Errors and irregularities in depositions as to notice, qualifications of the officer
conducting the deposition, and manner of taking the deposition are deemed waived if
not objected to before or during the taking of the deposition, objections to the
competency of a witness or the competency, relevancy, or materiality of testimony may
be made for the first time at the trial and need not be made at the time of the taking of
the deposition, unless they could be obviated at that point, gist of Section 29, Rule 23
of the Rules of Court (Sales vs. Sabino, G.R. No. 133154, December 9, 2005).
- As a rule, the inadmissibility of testimony taken by deposition is anchored on the
ground that such testimony is hearsay, i.e., the party against whom it is offered has no
opportunity to cross-examine the deponent at the time his testimony is offered. But as
jurisprudence teaches, it matters not that opportunity for cross-examination was
afforded during the taking of the deposition; for normally, the opportunity for cross-
examination must be accorded a party at the time the testimonial evidence is actually
presented against him during the trial or hearing. In fine, the act of cross-examining
the deponent during the taking of the deposition cannot, without more, be considered
a waiver of the right to object to its admissibility as evidence in the trial proper. In
participating, therefore, in the taking of the deposition, but objecting to its admissibility
in court as evidence, petitioner did not assume inconsistent positions. Party is not
estopped from challenging the admissibility of the deposition just because he
participated in the taking thereof. (Sales vs. Sabino, G.R. No. 133154, December 9,
2005).
Is deposition taking a departure from the accepted and usual judicial proceedings of
examining witnesses in open court?
- Yes.
- Depositions are allowed as a departure from the accepted and usual judicial
proceedings of examining witnesses in open court, where their demeanor could be
observed by the trial judge; and the procedure is not on that account rendered illegal
nor is the deposition, thereby taken, inadmissible.
- It precisely falls within one of the exceptions where the law permits such a situation,
that is, the use of a deposition in lieu of the actual appearance and testimony of the
deponent in open court and without being subject to the prying eyes and probing
questions of the Judge.
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- Depositions are consistent with the principle of promoting just, speedy and inexpensive
disposition of every action or proceeding. Depositions are allowed provided the
deposition is taken in accordance with the applicable provisions of the Rules of Court;
that is, with leave of court if the summons have been served, without leave of court if
an answer has been submitted; and provided, further, that a circumstance for their
admissibility exists. (San Luis vs. Hon. Pablito M. Rojas (RTC Pasig City) G.R. No.
159127, March 3, 2008).
Is taking of testimony through deposition a curtailment of the party’s to cross-examine?
- No.
- This does not curtail the parties’ right to cross-examine the witnesses since the party
will be fully accorded the opportunity for cross-examination under Section 25, Rule 23
of the Rules of Court.
- Section 25, Rule 23 (Depositions upon written interrogatories; service of notice
and of interrogatories) provides that a party desiring to take the deposition of any
person upon written interrogatories shall serve them upon every other party with a
notice stating the name and address of the person who is to answer them and the
name or descriptive title and address of the officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so served may serve cross
interrogatories upon the party proposing to take the deposition. Within five (5) days
thereafter, the latter may serve re-direct interrogatories upon a party who has served
cross interrogatories. Within three (3) days after being served with re-direct
interrogatories, a party may serve re-cross interrogatories upon the party proposing to
take the deposition.
- Thus, a party may submit cross-interrogatories upon private respondent with sufficient
fullness and freedom. (San Luis vs. Hon. Pablito M. Rojas (RTC Pasig City) G.R.
No. 159127, March 3, 2008).
Is certiorari against an order admitting or rejecting deposition in evidence proper
remedy?
- No.
- Certiorari will not lie against an order admitting or rejecting a deposition in evidence,
the remedy being an appeal from the final judgment. (Sales vs. Sabino, G.R. No.
133154, December 9, 2005).
ON JURISDICTION:
Your are the counsel of Public Officer with SG 26 who was charged of malversation of
public funds, and was found guilty beyond reasonable doubt by the RTC. His appeal
should be filed where?
A. Before the Sandiganbayan because, he occupied a position lower than SG 27,
therefore, his remedy should be an appeal to the Sandiganbayan, pursuant to PD No.
1606, as amended by R.A. No. 7975 and R.A. No. 8249. R.A. 8294, Section 4,
paragraph 2 specifically provides that the Sandiganbayan shall exercise exclusive
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
appellate jurisdiction over final judgments, resolutions or orders of regional trial courts
whether in the exercise of their own original jurisdiction or of their appellate jurisdiction.
(Quileste vs. People, G.R. No. 180334, February 18, 2009).
B. Before the Court of Appeals because, Sandiganbayan is also a trial court.
C. Before the Sandiganbayan because,
D. Before the Court of Appeals because,
ON WRITS:
What is “writ of continuing mandamus?
- It is a writ of Indian origin.
- A writ commanding any agency or instrumentality of the government or officer thereof
who unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right to do an act or series of acts
until the judgment is fully satisfied.
Where to file?
- With the RTC exercising jurisdiction over the territory where the actionable neglect or
omission occurred, or with the CA, or with the SC.
Who may file?
- Any person aggrieved.
When to file?
- A verified petition may be filed when there is no plain, speedy and adequate remedy in
the ordinary course of law specifying that the petition concerns an environmental law,
rule or regulation.
What is “writ of kalikasan”?
- A remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited
by or registered with any government agency, on behalf of persons (inter-
generational responsibility; inter-generational justice; or inter-generational
equity) whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.
Where to file?
- With the Supreme Court or Court of Appeals only. (Not with the RTC).
ON WORDS AND PHRASES; DOCTRINES:
What is “Consent Decree”?
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- Consent Decree is the same with Compromise Agreement.
What is “Auter Action Pendant”?
- Auter Action Pendant is the same as Litis Pendentia
Is filing a Memorandum part of the procedure (in computing the period)?
- No.
- The purpose of filing is for the convenience of the court or to enlighten the court in
resolving the issue or issues.
LAW OF THE CASE DOCTRINE; DOCTRINE OF IMMUTABILITY OF JUDGMENT OR
FINALITY OF JUDGMENT; RES JUDICATA
When does law of the case doctrine apply?
How is it distinguished from doctrine of immutability of judgment or finality of judgment?
How is it distinguished from res judicata?
Answer:
- Law of the case doctrine- applies in a situation where an appellate court has made a
ruling on a question on appeal and thereafter remands the case to the lower court for
further proceedings; the question settled by the appellate court becomes the law of the
case at the lower court and in any subsequent appeal.
- It means that whatever is irrevocably established as the controlling legal rule or
decision between the same parties in the same case continues to be the law of the
case, whether correct on general principles or not, so long as the facts on which the
legal rule or decision was predicated continue to be the facts of the case before the
court. (Vios vs. Pantangco, G.R. No. 163103, February 6, 2009).
Doctrine of Immutability of Judgment or Finality of Judgment
- Once a judgment has become final and executory, it may no long may no longer be
modified in any respect, even if the modification is meant to correct an erroneous
conclusion of fact or law, and regardless of whether the modification is attempted to be
made by the court rendering it or by the highest court of the land, as what remains to
be done is the purely ministerial enforcement or execution of the judgment.
- This is grounded on fundamental considerations of public policy and sound practice
that at the risk of occasional errors, the judgment of adjudicating bodies must become
final and executory on some definite date fixed by law.
- This doctrine is adhered to by necessity notwithstanding occasional errors that may
result thereby, since litigations must somehow come to an end for otherwise, it would
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"be even more intolerable than the wrong and injustice it is designed to correct." (Vios
vs. Pantangco, G.R. No. 163103, February 6, 2009).
Res Judicata
- It lays the rule that an existing final judgment or decree rendered on the merits, and
without fraud or collusion, by a court of competent jurisdiction, upon any matter within
its jurisdiction, is conclusive of the rights of the parties or their privies, in all other
actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on
the points and matters in issue in the first suit.
- For the preclusive effect of res judicata to be enforced, however, the following
requisites must be present: (1) the judgment or order sought to bar the new action
must be final; (2) the decision must have been rendered by a court having jurisdiction
over the subject matter and the parties; (3) the disposition of the first case must be a
judgment on the merits; and (4) there must be between the first and second action,
identity of parties, subject matter and causes of action. (PNB vs. Sia, G.R. No.
165836, February 18, 2009).
Doctrine on Ejectment and Forcible Entry cases
- Forcible entry and unlawful detainer cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or the right to the
possession of the property involved. It does not admit of a delay in the determination
thereof. It is a "time procedure" designed to remedy the situation. Stated in another
way, the avowed objective of actions for forcible entry and unlawful detainer, which
have purposely been made summary in nature, is to provide a peaceful, speedy and
expeditious means of preventing an alleged illegal possessor of property from unjustly
continuing his possession for a long time, thereby ensuring the maintenance of peace
and order in the community; otherwise, the party illegally deprived of possession might
feel the despair of long waiting and decide as a measure of self-protection to take the
law into his hands and seize the same by force and violence. And since the law
discourages continued wrangling over possession of property for it involves
perturbation of social order which must be restored as promptly as possible,
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technicalities or details of procedure which may cause unnecessary delays should
accordingly and carefully be avoided. (Five Star Marketing Co., Inc. vs. Booc, 535
SCRA 28).
- Actions for ejectment are designed to summarily restore physical possession to one
who has been illegally deprived of such possession. It is primarily a quieting process
intended to provide an expeditious manner for protecting possession or right to
possession without involvement of the title. (Keppel Bank Philippines, Inc. vs. Adao,
473 SCRA 372; Cayabyab vs. De Aquino, 532 SCRA 353).
ON ACTION:
Plaintiffs (PEDRO and JUAN) are co-owners of two parcels of land owned by their
deceased mother. The properties were allegedly encroached upon by defendant Mario.
Can Pedro bring an action either for ejectment or forcible entry against Mario?
- Yes.
- As co-owners of the properties, each of the heirs may properly bring an action for
ejectment, forcible entry or any kind of action for the recovery of possession of the
subject properties.
- Pedro, as co-owner may bring such an action, even without joining all the other co-
owners as co-plaintiffs, because the suit is deemed to be instituted for the benefit of
all.
- However, if the action is for the benefit of the Pedro alone, such that he claims the
possession for himself and not for the co-ownership, the action will not prosper.
- There is no need on the part of Juan to execute an authorization authorizing Pedro to
institute an action. It is sufficient in the verification if Pedro stated therein that he
caused the preparation and the filing of the said pleading as a co-owner of the subject
properties and as a representative of the other plaintiffs (Celino vs. Heirs of Alejo,
Resolution, G.R. No. 161817, July 30, 2004).
Action In Personam vs. Action Quasi In Rem
(can be determined by its nature and purpose)
Action In Personam:
- A proceeding in personam is a proceeding to enforce personal rights and obligations
brought against the person and is based on the jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of, specific property, or seek to
compel him to control or dispose of it in accordance with the mandate of the court.
- The purpose of a proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the defendant.
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- Of this character are suits to compel a defendant to specifically perform some act or
actions to fasten a pecuniary liability on him. (Domagas vs. Jensen, G.R. No.
158407, January 17, 2005).
Action Quasi In Rem:
- Is one brought against persons seeking to subject the property of such persons to the
discharge of the claims assailed.
- An individual is named as defendant and the purpose of the proceeding is to subject
his interests therein to the obligation or loan burdening the property.
- Actions quasi in rem deal with the status, ownership or liability of a particular property
but which are intended to operate on these questions only as between the particular
parties to the proceedings and not to ascertain or cut off the rights or interests of all
possible claimants. The judgments therein are binding only upon the parties who
joined in the action. (Domagas vs. Jensen, G.R. No. 158407, January 17, 2005).
ON REAL ACTION vs. PERSONAL ACTION
- Actions affecting title to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction over the area wherein
the real property involved, or portion thereof, is situated (Section 1, Rule 4, 1997,
Rules of Court).
- If the primary purpose/objective is to recover real property, it is a real action.
- A real action is one in which the plaintiff seeks the recovery of real property; or, as
indicated in what is now Section 1, Rule 4 of the Rules of Court, a real action is an
action affecting title to or recovery of possession of real property, thus, the assessed
value of the property, or if there is none, the estimated value thereof shall be alleged
by the claimant and shall be the basis in computing the fees (Serrano vs. Delica, G.R.
No. 136325, July 29, 2005).
- Civil action denominated Mandamus with Revocation of Title and Damages is a real
action. Its intention is to question and recover ownership over the property, therefore,
the filing fees should computed based on the assessed value of the subject property,
or, if there was none, the estimated value thereof.
- Action to annul a real estate mortgage foreclosure sale is no different from an action to
annul a private sale of real property (Muñoz v. Llamas, 87 Phil. 737).
ON JOINDER OF PARTIES
Plaintiff was ordered by the trial court to implead Co-Defendant as indispensable party,
however, Plaintiff failed to implead Co-Defendant, and the plaintiff rested its case. The
trial court dismissed the case on ground of non-joinder of indispensable parties.
Is the trial court correct?
- No.
- Settled is the rule that the non-joinder of indispensable parties is not a ground for the
dismissal of an action.
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- The remedy therefore, is to implead the non-party claimed to be indispensable.
- Parties may be added by order of the court on motion of the party or on its own
initiative at any stage of the action and/or at such times as are just.
What is the remedy?
- If the party refuses to implead an indispensable party despite the order of the court,
the latter may dismiss the complaint/petition for the party’s failure to comply with the
order. (Plasabas vs. CA, G.R. No. 166519, March 31, 2009).
ON INTERVENTION
- Rule 19, Section 1. Who may intervene. - A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's rights may be fully protected in a separate
proceeding.
- Rule 19, Section 2. Time to intervene. - The motion to intervene may be filed at any
time before rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original parties.
- As a rule, intervention is allowed at any time before rendition of judgment by the trial
court. After the lapse of this period, it will not be warranted anymore because
intervention is not an independent action but is ancillary and supplemental to an
existing litigation. (Manalo vs. CA, 419 Phil. 215).
- The permissive tenor of the provision on intervention shows the intention of the Rules
to give to the court the full measure of discretion in permitting or disallowing the same.
(Yau vs. Manila Banking Corporation, 433 Phil. 701).
- BUT in the case of an ejectment, if the party’s intervention would not result in a
complete adjudication of her rights, as the issue she raised is mainly that of ownership,
claiming that the property in dispute was registered and titled in the name of plaintiff
through the use of fraud, intervention will not prosper. This issue or factor is
considered by the court in determining whether or not to allow intervention. The factors
that should be reckoned are whether intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether the intervenor's rights may
be fully protected in a separate proceeding.
- If the sole issue in the intervention is claiming ownership only without claiming
possession, such issue cannot even be properly threshed out in an action for
ejectment, as Section 18, Rule 70 provides that the judgment rendered in an action for
forcible entry or detainer shall be conclusive with respect to the possession only and
shall in no wise bind the title or affect the ownership of the land or building. It does not
even matter if the party's title to the property is questionable. (Salandanan vs.
Mendez, G.R. No. 160280, March 13, 2009).
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DEMURRER TO EVIDENCE
- A demurrer to evidence is defined as “an objection or exception by one of the parties
in an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the
issue.”
- The demurrer challenges the sufficiency of the plaintiff’s evidence to sustain a verdict.
In passing upon the sufficiency of the evidence raised in a demurrer, the court is
merely required to ascertain whether there is competent or sufficient proof to sustain
the indictment or to support a verdict of guilt.
DEMURRER TO EVIDENCE IN CIVIL CASES
- After the plaintiff has completed the presentation of his evidence, the
defendant may move for dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief. If his motion is denied, he shall
have the right to present evidence. If the motion is granted but on appeal the
order of dismissal is reversed he shall be deemed to have waived the right to
present evidence (Section 1, Rule 33, 1997 Rules of Civil Procedure).
- A demurrer to evidence abbreviates judicial proceedings, it being an
instrument for the expeditious termination of an action.
EFFECTS OF JUDGMENT ON DEMURRER TO EVIDENCE
- If the movant’s plea for the dismissal on demurrer to evidence is granted and
the order of dismissal is reversed on appeal, he loses his right to adduce
evidence.
- If the defendant’s motion for judgment on demurrer to evidence is granted and the
order is subsequently reversed on appeal, judgment is rendered in favor of the
adverse party because the movant loses his right to present evidence.
- The reviewing court cannot remand the case for further proceedings; rather, it should
render judgment on the basis of the evidence presented by the plaintiff.
EFFECT OF DENIAL OF DEMURRER TO EVIDENCE IN CRIMINAL CASES SANS LEAVE
OF COURT
- If the demurrer to evidence is denied, the case is deemed submitted for decision
because filing a demurrer to evidence without first filing a motion for leave of court
constitutes waiver on the part of the accused to present evidence in case his demurrer
to evidence will be denied.
- The rule provides that when the demurer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case for judgment on
the basis of the evidence for the prosecution. (Section 23, Rule 119).
- WITH LEAVE OF COURT: If the court denies the demurrer to evidence BUT filed with
leave of court, the accused may adduce evidence for his defense. (Section 23, Rule
119).
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- TAKE NOTE: The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself IS NOT reviewable by appeal or by certiorari before
judgment (Section 19, Rule 119, 2000 Revised Rules of Criminal Procedure).
- TAKE NOTE FURTHER: It is the order denying the motion for leave of court to file
demurrer to evidence OR the demurrer itself (which IS NOT reviewable by appeal or
by certiorari before judgment).
THE CASE:
As consideration to a legitimate transaction, Accused endorsed and paid to Complainant
a postdated check issued by Co-accused. When presented for payment, the check
bounced. That prompted Complainant to file estafa case against Accused. Accused filed
a demurrer to evidence after the prosecution had rested its case claiming that being an
endorser of the check issued by Co-accused, he cannot be held liable because Article
315, paragraph 2 (d) penalizes only the issuer of the check and not the endorser thereof;
that there is no sufficient evidence to prove that the Accused conspired with the issuer
(Co-accused) of the check in order to defraud Complainant; and that after the first check
was dishonored, the petitioner replaced it with a second one which unfortunately
bounced for reason of DAUD drawn against uncollected deposits. In short, Accused
maintained that the prosecution failed to prove his guilt beyond reasonable doubt. The
trial court granted the demurrer dismissing the case but with the award of civil liability.
Is the trial court correct? If its action is incorrect, what should the trial c√ourt do?
- No.
- The order of the trial court granting accused’ demurrer to evidence and acquitting him,
and holding the accused civilly liable to the private offended party is a nullity for the
reason that the constitutional right of the accused to due process is violated (citing
Alonte v. Savellano, Jr., 287 SCRA 245 [1998]).
- Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides that no
person shall be held to answer for a criminal offense without due process of law, and
in all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is
unjustifiable, respectively.
- The above constitutional provisions are mandatory and indispensable. The principles
find universal acceptance and are tersely expressed in the oft-quoted statement that
procedural due process cannot possibly be met without a “law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial.
- This is so because when the accused files a demurrer to evidence, the accused has
not yet adduced evidence both on the criminal and civil aspects of the case. The only
evidence on record is the evidence for the prosecution. What the trial court should do
is to issue an order or partial judgment granting the demurrer to evidence and
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acquitting the accused; and set the case for continuation of trial for the petitioner to
adduce evidence on the civil aspect of the case, and for the private complainant to
adduce evidence by way of rebuttal after which the parties may adduce their sur-
rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules of
Criminal Procedure (Salazar vs. People, G.R. No. 151931, September 23, 2003).
THE CASE:
Husband filed nullity of marriage against Wife. Upon filing of Husband’s FOE, instead of
filing any objection thereon, Wife filed her demurrer evidence. The trial court denied the
demurrer holding that Husband established a quantum of evidence that Wife must
controvert.
Wife elevated the trial court’s denial to the CA. CA held that denial of the demurrer was
merely interlocutory; hence, Certiorari under Rule 65 of the Rules of Court is not
available. The proper remedy therefor is for the defense to present evidence; and if an
unfavorable decision was handed down later, to take an appeal therefrom. CA also held
that the propriety of granting or denying a demurrer to evidence rests on the sound
exercise of the [trial] court’s discretion.
- GENERAL RULE - interlocutory orders are neither appealable nor subject to certiorari
proceedings.
- Appeal -- not certiorari -- in due time is indeed the proper remedy, provided there is
no grave abuse of discretion or excess of jurisdiction or oppressive exercise of judicial
authority (Tadeo vs. People, 300 SCRA 744, December 29, 1988).
- HOWEVER - order denying a demurrer to evidence, though an interlocutory in
character may be the subject of a certiorari proceeding provided that the petitioner
can show that it was issued with grave abuse of discretion; and that appeal in due
course is not plain, adequate or speedy under the circumstances.
- There exists grave abuse of discretion when the plaintiff’s evidence is utterly and
patently insufficient to prove the complaint, thus, it would be capricious for a trial judge
to deny the demurrer and to require the defendant to present evidence to controvert a
nonexisting case.
- The order denying the demurrer constitutes an unwelcome imposition on the court’s
docket and an assault on the defendant’s resources and peace of mind. In short, such
denial needlessly delays and, thus, effectively denies justice (Choa vs. Choa, G.R.
No. 143376, November 26, 2002).
- True that Rule 41 says that no appeal may be taken from an interlocutory order, but
the last paragraph of it states that where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action of Certiorari under Rule
65, thus Rules 41 and 65 of the Rules of Court expressly recognize this exception and
allow certiorari when the lower court acts with grave abuse of discretion in the
issuance of an interlocutory order.
- When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of
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discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs
as law and justice may require. (Section 1, Rule 65, 1997 Rules of Court).
Thus, a denial of a demurrer that is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction may be assailed through a petition for
certiorari.
The case:
Husband filed nullity of marriage against Wife. Husband claimed in his nullity petition
that Wife’s act of filing criminal charges against him for perjury, false testimony,
concubinage and deportation are manifestations of Wife’s psychological incapacity to
comply with the essential obligations of marriage. Husband also claimed that these
cases clearly showed that wife wanted not only to put him behind bars, but also to
banish him from the country, thus, a very abnormal for a wife who, instead of protecting
the name and integrity of her husband as the father of her children, had acted to the
contrary.
- The case can be disposed by way of demurrer to evidence.
- The documents presented by respondent during the trial do not in any way show the
alleged psychological incapacity of his wife.
- It is the height of absurdity and inequity to condemn her as psychologically
incapacitated to fulfill her marital obligations, simply because she filed cases against
him. The evidence presented, even if taken as true, merely establishes the
prosecution of the cases against him. To rule that the filings are sufficient to establish
her psychological incapacity is not only totally erroneous, but also grave abuse of
discretion bordering on absurdity.
- A demurrer to evidence is defined as an objection or exception by one of the parties
in an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the
issue. The demurrer challenges the sufficiency of the plaintiff’s evidence to sustain a
verdict. In passing upon the sufficiency of the evidence raised in a demurrer, the court
is merely required to ascertain whether there is competent or sufficient proof to sustain
the indictment or to support a verdict of guilt.
- The evidence against Wife is grossly insufficient to support any finding of
psychological incapacity that would warrant a declaration of nullity of the parties’
marriage. Demurrer to evidence must be granted.
- Husband’s evidence is obviously, grossly and clearly insufficient to support a
declaration of nullity of marriage based on psychological incapacity.
- Withal, denying Wife’s demurrer to evidence constitute grave abuse of discretion which
can be the subject of certiorari under Rule 65, as to continue the process of litigation
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would have been a total waste of time and money for the parties and an unwelcome
imposition on the trial court’s docket.
- An appeal would not promptly relieve Wife from the injurious effects of the patently
mistaken Orders maintaining the baseless action of Husband. It would only compel
her to go needlessly through a protracted trial, which would further clog the court
dockets with another futile case (Choa vs. Choa, G.R. No. 143376, November 26,
2002).
THE CASE:
Pedro, for himself and for and in behalf of his co-plaintiff, Juan, filed a complaint for
quieting of title against Mario. After the plaintiff had rested its case, Mario filed a
demurrer to evidence claiming that Pedro had no legal capacity to sue for and in behalf
of his co-plaintiff, Juan. The trial court denied Mario’s demurrer to evidence.
Is the trial court correct?
- No.
- A demurrer to evidence is a motion to dismiss on the ground of insufficiency of
evidence and is presented after the plaintiff rests his case.
- It is an objection by one of the parties in an action, to the effect that the evidence
which his adversary produced is insufficient in point of law, whether true or not, to
make out a case or sustain the issue.
- The evidence contemplated by the rule on demurrer is that which pertains to the merits
of the case.
- Therefore, lack of legal capacity to sue is NOT a proper ground for a demurrer to
evidence, pertaining as it does to a technical aspect, and it having nothing to do with
the evidence on the merits of the complaint (Celino vs. Heirs of Alejo, Resolution,
G.R. No. 161817, July 30, 2004).
DENIAL AND CONTESTING THE GENUINENESS AND DUE EXECTION OF ACTIONABLE
DOCUMENT
How to deny the genuineness and due execution of an actionable document?
- An effective specific denial is required.
- This means that the defendant must declare under oath that he did not sign the
document or that it is otherwise false or fabricated. Neither does the statement of the
answer to the effect that the instrument was procured by fraudulent representation
raise any issue as to its genuineness or due execution. On the contrary such a plea is
an admission both of the genuineness and due execution thereof, since it seeks to
avoid the instrument upon a ground not affecting either (Songco vs. Sellner G.R. No.
11513, December 4, 1917, 37 Phil. 254).
THE CASE:
Plaintiff alleged in the complaint that Defendant is indebted to the former in the amount
of P1.00 attaching in the complaint several annexes including the photocopy of the
promissory note. Filed her Answer, alleging that she has never signed the promissory
note attached to the complaint in his personal and/or individual capacity, thus
ineffective, unenforceable and void for lack of valid consideration, and contained in her
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verification the following: (1) that the defendant, after having been duly sworn to in
accordance with law, hereby depose and declare that she is the named defendant in the
above-entitled case; she has cause the preparation of the foregoing Answer upon facts
and figures supplied by her to her retained counsel; have read each and every
allegations contained therein and hereby certify that the same are true and correct of her
own knowledge and information.
During the trial Plaintiff was able to prove that the defendant received the amount of
P1.00 as loan after signing the Promissory Note (Annex A), that defendant, upon receipt
of the demand letter made a reply seeking an extension to pay her obligation. On the
Formal Offer of Exhibits Plaintiff sought the admission of the duplicate original of the PN
on the ground that the original copy could no longer be found. The trial court initially
admitted into evidence the duplicate original of the PN, and allowed Defendant to amend
her answer to conform with this new evidence. Upon Defendant’s motion for
reconsideration arguing that the duplicate Original PN was not properly identified and
there were markings in the photocopy which were not contained in duplicate original, the
trial court granted the MR and dismissed the case on the ground that Plaintiff had no
longer possessed any proof of Defendant’s alleged indebtedness. The trial court found
that there can be no dispute to the fact that the allegations in the answer of defendant,
she denied generally and specifically under oath the genuineness and due execution of
the promissory note and by way of special and affirmative defenses herein states that
she never signed the promissory note attached to the complaint in his personal and/or
individual capacity. She also deny generally and specifically the rest of the allegations.
It would be considered that there is a sufficient compliance of the requirement of the law
for specific denial.
1. Will this be considered as specific denial?
2. Is there a need to present secondary evidence?
Answer in Number One (1)
- No. An effective specific denial is required.
- Section 8, Rule 8, 1997 Rules of Court provides that when an action or defense is
founded upon a written instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does not appear to be a
party to the instrument or when compliance with an order for an inspection of the
original instrument is refused (Solidbank vs. Del Monte Motor Works, Inc., G.R. No.
143338, July 29, 2005).
Answer in Number Two (2)
- Since Defendant failed to deny specifically the execution of the promissory note,
there was no need for the Plaintiff to present the original of the promissory note in
question. Defendant’s judicial admission with respect to the genuineness and
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execution of the promissory note sufficiently established her liability to Plaintiff
regardless of the fact that Plaintiff failed to present the original of said note.
- No need for proof of execution and authenticity to with respect to the loan
document because of Defendant’s implied admission of loan transaction,
therefore, Section 22, Rule 132 of the Rules of Court requiring that before a
private documents can be received in evidence, presentation and examination of
witnesses to testify to prove its due execution and authenticity.
THE “BEST EVIDENCE RULE”
Best Evidence Rule - when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself (Rule 130, Section 3,
Revised Rules of Court).
- The best proof that the nature of the thing will afford is only required.
- The rule requiring the production of the original writing.
EXCEPTIONS to Best Evidence Rule:
- When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
- When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
- When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
- When the original is a public record in the custody of a public officer or is recorded in a
public office (Rule 130, Section 3, Revised Rules of Court).
THE CASE:
Defendant’s answer contained the following:
1. The allegations in par. 2, Complaint, on the existence of the alleged loan of
P2-Thousand, and the purported documents evidencing the same, only the
signature appearing at the back of the promissory note, Annex “A” seems
to be that of herein defendant. However, as to any liability arising
therefrom, the receipt of the said amount of P2-Thousand shows that the
amount was received by another person, not the herein defendant. Hence,
no liability attaches and as further stated in the special and affirmative
defenses that, assuming the promissory note exists, it does not bind much
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less is there the intention by the parties to bind the herein defendant. In
other words, the documents relative to the loan do not express the true
intention of the parties.
2. (Verification) “I, Defendant, of age, am the defendant in this case, that I
caused the preparation of the complaint and that all the allegations thereat
are true and correct; that the promissory note sued upon, assuming that it
exists and bears the genuine signature of herein defendant, the same does
not bind him and that it did not truly express the real intention of the
parties as stated in the defenses”
Is this an effective specific denial as contemplated by law?
- No. A reading of Defendant’s Answer, shows that he did not specifically deny that he
signed the loan documents. What he merely stated in his Answer was that the
signature appearing at the back of the promissory note seems to be his. Defendant
also denied any liability on the promissory note as he allegedly did not receive the
amount stated therein, and the loan documents do not express the true intention of the
parties. Defendant reiterated these allegations in his “denial under oath,” stating that
“the promissory note sued upon, assuming that it exists and bears the genuine
signature of herein defendant, the same does not bind him and that it did not truly
express the real intention of the parties as stated in the defenses.
- Defendant’s allegations amount to an implied admission of the due execution and
genuineness of the promissory note. The admission of the genuineness and due
execution of a document means that the party whose signature it bears admits that he
voluntarily signed the document or it was signed by another for him and with his
authority; that at the time it was signed it was in words and figures exactly as set out in
the pleading of the party relying upon it; that the document was delivered; and that any
formalities required by law, such as a seal, an acknowledgment, or revenue stamp,
which it lacks, are waived by him. Also, it effectively eliminated any defense relating to
the authenticity and due execution of the document, e.g., that the document was
spurious, counterfeit, or of different import on its face as the one executed by the
parties; or that the signatures appearing thereon were forgeries; or that the signatures
were unauthorized.
- Therefore, Defendant is deemed to have admitted the loan documents and
acknowledged his obligation with Plaintiff; and with Defendant’s implied admission, it
was not necessary for Plaintiff to present further evidence to establish the due
execution and authenticity of the loan documents sued upon (Permanent Savings
and Loan Bank vs. Mariano Velarde, G.R. No. 140608, September 23, 2004).
THE CASE:
Debtor executed a promissory note in favor of Assignor, which later on the same PN, by
virtue of Deed of Assignment was assigned to Assignee. Assignor failed to pay, that
prompted Assignee to file collection case against Assignor. Assignor answered, inter
alia, that her obligation had already been extinguished by virtue of Dacion en Pago over
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real property, and presented a Confirmation Statement stating that Assignor had no
more loan/obligation with the Assignee. After Assignee presented its evidence and
formally offered its exhibits, Assignor moved for Judgment on Demurrer to the Evidence
pointing out that the Assignee’s failure to file a Reply to the Answer which raised the
Dacion and Confirmation Statement constituted an admission of the genuineness and
execution of said documents; and that since the Dacion obliterated Assignor’s obligation
covered by the PN, the Assignee had no right to collect anymore.
Assignee Opposed and claimed that Assignor’s demurrer involved defense and not
insufficiency of evidence; that Dacion and Confirmation Statement had yet to be offered
in evidence and evaluated, and since Assignee failed to file a Reply, then all the new
matters alleged in the Answer were deemed controverted. The trial court granted the
demurrer and dismissed the complaint.
Is the trial court correct?
- No. The trial court should not have granted the demurrer to evidence.
- What should be resolved in a motion to dismiss based on a demurrer to evidence is
whether the plaintiff is entitled to the relief based on the facts and the law.
- The evidence contemplated by the rule on demurrer is that which pertains to the merits
of the case, excluding technical aspects such as capacity to sue.
- The plaintiff’s evidence should NOT BE THE ONLY BASIS in resolving a demurrer to
evidence.
- The “facts” referred to - include all the means sanctioned by the Rules of
Court in ascertaining matters in judicial proceedings. These include judicial
admissions, matters of judicial notice, stipulations made during the pre-trial
and trial, admissions, and presumptions, the only exclusion being the
defendant’s evidence. (Casent Realty vs. Philbanking Corporation, G.R.
No. 150731, September 14, 2007).
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ON APPEAL:
THE CASE:
Plaintiff filed ejectment against Defendant. Plaintiff won ejecting Defendant. Plaintiff’s
motion for issuance of writ of execution was granted by the trial court despite
Defendant motion to quash the writ of execution.
Before the RTC, Defendant petitioned for certiorari and mandamus with prayer for a writ
of preliminary mandatory injunction, assailing both trial court’s decision and the writ.
The RTC ruled in Defendant’s favor annulling the trial court’s decision for being contrary
to evidence, and moved to execute the RTC decision which motion was denied because
of Plaintiff’s motion for reconsideration. Later on, RTC denied Plaintiff’s MR, and
Defendant filed his 2nd motion for execution which was granted by the RTC.
Before the CA, Plaintiff filed a petition for Declaration of Nullity of the RTC Decision.
Is Plaintiff’s remedy under Rule 47 (Annulment of Judgment) correct?
- No.
- The proper remedy from the RTC decision on petition for certiorari is an ordinary
appeal to the CA under Section 2, Rule 41 of the Rules of Court.
- Petition for certiorari with the RTC questioning the trial court’s decision is an original
action whose resulting decision is a final order that completely disposes of the petition.
(Vios vs. Pantangco, G.R. No. 163103, February 6, 2009).
In what instances can this remedy of annulment of judgment (Rule 47) be resorted to by
aggrieved party?
- The remedy of annulment of judgment (based on external fraud and lack of
jurisdiction) can be resorted to only where ordinary and other appropriate remedies,
including appeal, are no longer available through NO fault of the petitioner. (Vios vs.
Pantangco, G.R. No. 163103, February 6, 2009).
ON DOCKET FEE [Notice Of Appeal] (Late Payment; invocation of “in the interest of
substantial justice” phrase)
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A notice of appeal was timely filed but the appeal docket fee was paid after three months
when the notice of appeal because of the messenger’s inadvertence in securing a postal The exceptions are as follows:
money order. The trial court approved the notice of appeal basing the order in the phrase
(1) when the findings are grounded entirely on speculation, surmises or conjectures;
“in the interest of substantial justice.” Is the trial court correct?
- No. (2) when the inference made is manifestly mistaken;
- The bare invocation of the phrase “in the interest of substantial justice” is not a magic
spell that will automatically allow the court to suspend procedural rules, despite (3) when there is grave abuse of discretion;
jurisdictional bar.
- The rule may be relaxed only in exceptionally meritorious cases. (4) when the judgment is based on a misapprehension of facts;
- The messenger’s alleged inadvertence to secure a postal money order for appellate
(5) when the findings of facts are conflicting;
docket fees is not a meritorious reason to justify as exception in our jurisprudence.
(Ilusorio vs. Ilusorio-Yap, G.R. No. 171656, March 17, 2009). (6) when in making its findings the Court of Appeals went beyond the issues of the
- The finality of a decision is a jurisdictional event which cannot be made to depend on case, or its findings are contrary to the admissions of both the appellant and the
the convenience of the parties. (Ocampo vs. CA, G.R. No. 150334, March 20, 2009). appellee;

ON RULE 45
Question:The Supreme Court is not a trier of facts. It is not its function to examine and
evaluate the probative value of the evidence presented before the concerned tribunal
upon which its impugned decision or resolution is based. In general, only questions of
law may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court.
What are the exceptions?
(7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which
they are based;
(9) when the facts set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and

(11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion. (Gabatan vs. CA, G.R. No. 150206, March 13, 2009).

ON MOTION FOR RECONSIDERATION IN RELATION TO PETITION FOR CERTIORARI

UNDER RULE 65

GENERAL RULE:

- Petition for certiorari before a higher court will not prosper unless the inferior court has
been given, through a motion for reconsideration, a chance to correct the errors
imputed to it.

EXCEPTION:

- When the issue raised is purely of law;

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- Temporary restraining order required the posting of a bond.
- When public interest is involved, or - Status Quo Ante (usually given by the SC instead of TRO), no bond is required.

- In case of urgency (Philippine International Trading Corporation vs. COA, 461 Phil
737).

ON REVIVAL OF JUDGMENT (Take Note of this)

- First: observe the 10 year prescription period counted from the date said judgment
became final or from the date of its entry.

- Second: observe the five (5) year period mentioned in Section 6, Rule 39 of the Rules
of Court – final and executory judgment or order may be executed on motion within
five (5) years from the date of its entry.

(may be enforced by motion or by action)

- If the action for revival of judgment is filed after the five (5) year period provided for in
the Rules of Court, but beyond the ten (10) year period provided for in the Civil Code,
your action barred by the statute of limitations. A judgment can no longer be enforced
by action.

- This is applicable to unlawful detainer and forcible entry cases.

- A writ of execution was issued on September 15, 1976, but was not enforced. An
action for revival of judgment was filed on August 26, 1985 (was well within the 10 year
period). The CA ruled that the action was already barred by prescription. The Supreme
Court ruled that the action to revived judgment was not barred by prescription.
(Quesada vs. CA, G.R. No. 177516, March 13, 2009).

- An action for revival of judgment is no more than a procedural means of securing the
execution of a previous judgment which has become dormant after the passage of five
years without it being executed upon motion of the prevailing party. It is not intended to
re-open any issue affecting the merits of the judgment debtor’s case nor the propriety
or correctness of the first judgment. (Saligumba vs. Palanog, G.R. No. 143365,
December 4, 2008).

- Revival of judgment is premised on the assumption that the decision to be revived,

either by motion or by independent action, is already final and executory. (Saligumba
vs. Palanog, G.R. No. 143365, December 4, 2008)

ON RESTRAINING ORDER:
As to requirement, distinguish TRO from Status Quo Ante?

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ON SPECIAL PROCEEDINGS
Question:
Can the trial court exercising general jurisdiction over an action for Recovery of Property
and Ownership and Possession determine the issue of who are the legal heirs of the
deceased (the owner of the property during his lifetime) who are insisting to be the legal
heirs of the decedent?
Answer:
(GENERAL RULE)
- No. Jurisprudence dictates that the determination of who are the legal heirs of the
deceased must be made in the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of property. This must take
precedence over the action for recovery of possession and ownership. (Gabatan vs.
CA, G.R. No. 150206, March 13, 2009).
- Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is then decisively clear
that the declaration of heirship can be made only in a special proceeding inasmuch as
the petitioners here are seeking the establishment of a status or right. (Gabatan vs.
CA, G.R. No. 150206, March 13, 2009).
- The declaration of heirship must be made in a special proceeding, and not in an
independent civil action (Solivio vs. CA, 182 SCRA 119).
- The matters relating to the rights of filiation and heirship must be ventilated in the
proper probate court in a special proceeding instituted precisely for the purpose of
determining such rights. (Joaquino vs. Reyes, 434 SCRA 260).
- The status of an illegitimate child who claimed to be an heir to a decedent's estate
could not be adjudicated in an ordinary civil action which, as in this case, was for the
recovery of property. (Agapay vs. Palang, 342 Phil. 302).
- (EXCEPTION): The rule can be relaxed and allow the trial court in a proceeding for
annulment of title to determine the status of the party therein as heirs if it appears that
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the subject matter of the case is the only property of the intestate estate of the
deceased, because to still subject it to a special proceeding which could be long, not
expeditious, just to establish the status of parties as heirs is not only impractical; it is
burdensome to the estate with the costs and expenses of an administration
proceeding. And it is superfluous in light of the fact that the parties to the civil case -
subject of the present case, could and had already in fact presented evidence before
the trial court which assumed jurisdiction over the case upon the issues it defined
during pre-trial. (Gabatan vs. CA, G.R. No. 150206, March 13, 2009; Portugal vS.
Portugal-Beltran, 467 SCRA 184), citing Vide Pereira vs. CA, 174 SCRA 154;
Intestate Estate of Mercado vs. Magtibay, 96 Phil. 383).
ON CRIMINAL PROCEDURE
ON STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION or SLAPP:
What is Strategic Lawsuit Against Public Participation or SLAPP all about?
- It is a criminal action.
- A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse
that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of
environmental rights.
Can this (SLAPP) be a subject to motion to dismiss? If yes, when?
- Yes.
- Upon filing of the information in court and before arraignment, the accused may file a
motion to dismiss on ground that the criminal action is a SLAPP.
Supposing the case is dismissed by the trial court, and considering the inapplicability of
double jeopardy as it was dismissed by the court before arraignment, can the public
prosecutor re-file the criminal case?
- No more.
- Order of Dismissal becomes the law of the case – meaning that whatever is
irrevocably established as the controlling legal rule or decision between the same
parties in the same case continues to be the law of the case.
Supposing the case is not dismissed by the trial court, can the accused file a motion to
quash information?
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Yes, at any time before entering his plea.
- On grounds provided under Section 2, Rule 117 of the 2000 Revised Rules of Criminal
Procedure.
Supposing the accused did not file a motion to quash and entered a plea of not guilty,
can he still file a motion to quash?
- Yes, provided that the grounds relied upon by him are not waivable under the Rules.
(See Rule 117, Section 3 in relation to Section 9, 2000 Rules of Criminal
Procedure).
ON MOTION TO QUASH:
The Case:
Corrupt was charged of violation of RA 3019 and was arraigned. At the pre-trial, the
parties entered into some stipulations of facts. After the termination of the pre-trial,
Corrupt filed a motion to dismiss/quash on the ground that the facts charged do not
constitute an offense. The trial court granted the motion and dismissed the case on the
ground that the prosecution has no cause of action against Corrupt. Is the trial court
correct in dismissing the case after the pre-trial and before the prosecution present its
witness and formally offer its documentary exhibits?
- No.
- From the reasoning given by the trial court (Sandiganbayan), it is clear that it
dismissed the case because of insufficiency of evidence.
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- Insufficiency of evidence is not one of the grounds of a Motion to Quash.1
- Insufficiency of evidence is a ground for dismissal of an action only after the
prosecution rests its case.2
- The trial court deprived the prosecution of its opportunity to prosecute its case and to
prove Corrupt's culpability. The dismissal was thus without basis and untimely.
(People vs. Dumlao, G.R. No. 168918, March 2, 2009).
ON EVIDENCE (on admission by silence):
- An act or declaration made in the presence and within the hearing observation of a
party who does or says nothing when the act or declaration is such as naturally to call
for action or comment if not true, and when proper and possible for him to do so, may
be given in evidence against him. (Rule 130, Section 32, Rules of Court -
Admission by Silence).
1
Section 3, Rule 117 of the Revised Rules of Criminal Procedure: (a) That the facts
charged do not constitute an offense; (b) That the court trying the case has no
jurisdiction over the offense charged; (c) That the court trying the case has no
jurisdiction over the person of the accused; (d) That the officer who filed the
information had no authority to do so;
(e) That it does not conform substantially to the prescribed form; (f) That more than
one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished; (h) That it contains
averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent.
2 Rule 119, Sec. 23. Demurrer to evidence. - After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1) on its own
initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without leave of court.
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- Accused‘ silence when his wife's nephew asked him why he killed his wife. His silence
on this accusation is deemed an admission. (People vs. Español, G.R. No. 175603,
February 13, 2009).
- Accused' act of pleading for his sister-in-law's forgiveness may be considered as
analogous to an attempt to compromise, which in turn can be received as an implied
admission of guilt under Section 27, Rule 130: (People vs. Español, G.R. No.
175603, February 13, 2009).
- Criminal cases, (except those involving quasi-offenses criminal negligence) or those
allowed by law to be compromised, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt. (Section 27, Rule 130).
ON EVIDENCE (on precautionary principle):
- This has in relation to constitutional rights of the people to a balanced and healthful
ecology, and to give the benefit of the doubt in resolving the case, the court where the
case is pending shall apply this principle.
- This applies when there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect.
- In applying this principle, the: (1) threats to human life or health; (2) inequity to present
or future generations; or (3) prejudice to the environment without legal consideration of
the environmental rights of those affected shall be considered.
Fisherman was caught and charged of illegal fishing. Being perishable and cannot be
preserved for purposes of presenting the same during the trial, photographs of the
fishes confiscated were taken. Are these photographs admissible in evidence?
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- Yes.
- Photographs, videos and similar evidence of events, acts, transactions of wildlife,
wildlife by-products or derivatives, forest products or mineral resources subject of a
case is admissible in evidence provided they are properly authenticated by the person
who took the same, by some other person present when the said evidence was taken,
or by any other person competent to testify on the accuracy thereof.
On Jurisdiction
Question:
Which court or tribunal (regular court or the DARAB) has jurisdiction over complaint for
recovery of possession where the defendant raises the defense of tenancy relationship? Or
when can the regular court divested of its jurisdiction to hear the same case?
Answer:
In order for a tenancy relation to take serious hold over the dispute, it would be
essential to first establish all its indispensable elements:
1. that the parties are the landowner and the tenant or agricultural lessee;
2. that the subject matter of the relationship is an agricultural land;
3. that there is consent between the parties to the relationship;
4. that the purpose of the relationship is to bring about agricultural
production;
5. that there is personal cultivation on the part of the tenant or agricultural
lessee, and
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
6. that the harvest is shared between the landowner and the tenant or
agricultural lessee.
It is not enough that these requisites are alleged; these requisites must be shown in
order to divest the regular court of its jurisdiction in proceedings lawfully begun before it.
On provisions of RA 7691 (expanding the jurisdiction of the first level courts):
– After five (5) years from the effectivity of this Act, the jurisdictional amounts
mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended
by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years
thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand
pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the
abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity
of this Act to Four hundred thousand pesos (P400,000.00)
– The provisions of this Act shall apply to all civil cases that have not yet reached
the pretrial stage. However, by agreement of all the parties, civil cases cognizable by municipal
and metropolitan courts by the provisions of this Act may be transferred from the Regional Trial
Courts to the latter. The executive judge of the appropriate Regional Trial Court shall define the
administrative procedure of transferring the cases affected by the redefinition of jurisdiction to
the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.
– RA 7691 took effect on April 15, 1994 according to Section 1 of Supreme Court
Administrative Circular No. 09-94 dated June 14, 1994.
The Case:
For failure of Crisostomo to pay De Guzman the amount of P277,121.00 a collection
suit before the MTC was filed by the latter against the former on March 24, 2004. Crisostomo
moved to dismiss the case on ground of lack of jurisdiction as the MTC’s jurisdiction over claims
exceeding P200,000.00 took effect only on April 12, 2004. The court denied the motion, thus
prompted Crisostomo to file certiorari case with the RTC claiming that the MTC has committed
grave abuse of discretion. The RTC denied the petition. Petition for certiorari under Rule 45 was
filed with the SC and contented that the OCA made an erroneous computation of the five (5)
year period.
The Ruling:
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Pursuant to Section 5 above, the OCA declared in Circular No. 21-99 dated March 20,
1999 that the first adjustment in jurisdictional amount of first level courts outside of Metro Manila
from P100,000.00 to P200,000.00 took effect on March 20, 1999. Meanwhile, the second
adjustment from P200,000.00 to P300,000.00 became effective on February 22, 2004 in
accordance with Circular No. 65-2004 issued by the OCA on May 13, 2004.
– However, applying the provisions of Article 13 of the New Civil Code and Section
31, Chapter 8, Book I of Executive Order No. 292, otherwise known as the Revised
Administrative Code of 1987 (EO 292), the first adjustment in the jurisdictional amount from
P100,000.00 to P200,000.00 took effect on April 14, 1999, while the final adjustment from
P200,000.00 to P300,000.00 five (5) years thereafter took effect on April 12, 2004.
– Citing only Section 31 of EO 292, the Office of the Court Administrator (OCA),
however, issued Circular No. 21-99 dated April 15, 1999 declaring that the first adjustment took
effect on March 20, 1999. For the second adjustment, OCA issued OCA Circular No. 65-2004
dated May 13, 2004 declaring that the same took effect on February 22, 2004. Herein
defendant submits that such effectivity dates are erroneous and not in accord with Article 13 of
the New Civil Code and Section 31 of EO 292.
– Pursuant to Section 5 above, the OCA declared in Circular No. 21-99 dated March
20, 1999 that the first adjustment in jurisdictional amount of first level courts outside of Metro
Manila from P100,000.00 to P200,000.00 took effect on March 20, 1999, and the second
adjustment from P200,000.00 to P300,000.00 became effective on February 22, 2004 in
accordance with Circular No. 65-2004 issued by the OCA on May 13, 2004.
– A collection suit involving the amount of P277,000.00 was filed with the MTC on
March 24, 2004.
Ruling:
The issuance of OCA Circulars relative to RA 7691 were purely administrative and
procedural purposes and were not meant to affect the jurisdiction of first level courts in any
substantive sense.
On Motion to Dismiss; payment of Docket Fees
Question:
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When an action asking for damages in the amount of P2.1M was filed plaintiff only
paid P1,500.00 instead of P12,100.00. On ground lack of jurisdiction for non-payment of correct
docket fees, the defendant moved to dismiss the case. Decide.
Answer:
The case should not be dismissed.
Jurisdiction was validly acquired over the complaint. In Sun Insurance Office, Ltd.,
(SIOL) v. Asuncion, this Court ruled that the filing of the complaint or appropriate initiatory
pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the
subject matter or nature of the action. If the amount of docket fees paid is insufficient
considering the amount of the claim, the clerk of court of the lower court involved or his duly
authorized deputy has the responsibility of making a deficiency assessment. The party filing the
case will be required to pay the deficiency, but jurisdiction is not automatically lost
The ruling in Manchester that the court acquires jurisdiction over any case only upon
payment of the prescribed docket fees does not apply to cases where insufficient filing fees
were paid based on the assessment made by the clerk of court, and there was no intention to
defraud the government.
On Intervention; third party claimant:
NOTE: if the person has:
1. legal interest in the matter in litigation; or
2. in the success of either of the parties, or
3. an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action, which motion can be filed at
any time before the rendition of judgment by the trial court.
Motion to release property from attachment is not sufficient. This does not be treated
as motion to intervene. The exception is the case of Rural Bank of Sta. Barbara, Pangasinan
case where the claimant of the property subject of attachment was advised by the sheriff (who
is not a lawyer) just to file a motion to release property from attachment, the court granted it
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observing the principle of equity, and the motion to release property from attachment was
treated by the SC as motion to intervene.
Supposing X is not a party to the case, and there is already a judgment over his
property which became the subject of an attachment in litigation, he may file a petition for relief
from judgment, or file a separate action to vindicate his claim. If there was already a writ of
execution file a third party claim and file a separate action to vindicate his claim.
Question:
What is judicial courtesy?
Answer:
Where certain issue or issues in the case is elevated to the higher court questioning
the ruling of the trial court, the latter court even if the higher court does not issue a writ of
preliminary injunction or temporary restraining order may suspend its proceedings for the
purpose of giving the higher court to rule on the issue elevated therein.
This is also happened when there is a strong probability that the issue before the
higher court would be rendered moot and moribund as a result of the continuation of the
proceedings in the lower court or court of origin.
Question:
True or False:
Procedural rule may be given retroactive effect.
Answer:
True: Rules of procedure may be given retroactive effect to actions pending and
undetermined at the time of their passage so and this will not violate any right of a person who
may feel that he is adversely affected, inasmuch as there is no vested rights in rules of
procedure
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On death of party; substitution of party
Question:
True or False:
Failure to substitute the representative or heir of the deceased in an action for
recovery of possession (quieting of title and damages) of a parcel of land invalidates the
proceedings.
Answer:
False: Failure of the counsel to comply with his duty to inform the court of the death of
his client, such that no substitution is effected does not invalidate the proceedings and the
judgment rendered thereon, because the action survives the death of the defendant. Mere
failure to substitute a deceased party is not sufficient ground to nullify a trial court’s decision.
NOTE: do not be misled of the ___ case,. Whether or not there was proper
substitution of parties was the issue involved in these cases, wherein the Supreme Court held
that non-compliance with the rule on substitution would render the proceedings and judgment of
the trial court infirm because the court acquires no jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial and the judgment would be binding. Proper
substitution must be effected for the trial court to acquire jurisdiction over the persons of the
representative.
Question:
True or False:
Substitution of representative or heir of the deceased is a jurisdictional requirement.
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Answer:
False: Rule on substitution by heirs is not a matter of jurisdiction, but to satisfy the
requirement of due process.
Question:
If it is not a jurisdictional, what is the purpose of substitution of representative or heir of
the deceased?
Answer:
The rule on substitution was crafted to protect every party’s right to due process. It
was designed to ensure that the deceased party would continue to be properly represented in
the suit through his heirs or the duly appointed legal representative of his estate. The non-
compliance with the rules results in the denial of the right to due process for the heirs who,
though not duly notified of the proceedings, would be substantially affected by the decision
rendered therein. Thus, it is only when there is denial of due process, as when the deceased is
not represented by any legal representative or heir, that the court nullifies the trial proceedings
and the resulting judgment therein.
Question:
When does formal substitution by heirs not necessary?
Answer:
It is not necessary when they themselves voluntarily appear, participate in the case,
and present evidence in defense of the deceased. In such case, there is really no violation of
due process, and when due process is not violated, as when the right of the representative or
heir is recognized and protected, noncompliance or belated formal compliance with the Rules
cannot affect the validity of a promulgated decision.
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Question:

Can the court allow the plaintiff to amend his complaint after the case was ordered
dismissed by the court? Question:

Define res judicata.

Answer:

Yes. It is settled that an amendment of a complaint may be allowed even if an order for
its dismissal has been issued, as long as the motion to amend is filed before the dismissal order
becomes final. The reason for allowing the amendment on this condition is that, upon finality of
the dismissal, the court loses jurisdiction and control over the complaint. Thus, it can no longer
make any disposition on the complaint in a manner inconsistent with the dismissal. After the
order of dismissal without prejudice becomes final, and therefore falls outside the court’s power
to modify, a party who wishes to reinstate the case has no remedy other than to file a new
complaint.
Answer:
This refers to the rule that a final judgment rendered by a court of competent
jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to
them, constitutes an absolute bar to a subsequent action involving the same demand or cause
of action.
This is also known as “bar by prior judgment”.
Res judicata is, in fine, a rule of preclusion to the end that facts or issues settled by
final judgment should not be tried anew.

On Motion to Dismiss; Res Judicata Question:

Question: What are the two (2) aspects of res judicata?

Plaintiff filed two complaints separately filed for one action. What remedy, pleading or Answer:
motion will you file?
1. the effect of a judgment as a bar to the prosecution of a second action upon the
Answer: same claim, demand or cause of action; this is designated as “bar by former judgment”; and

1. Motion to dismiss on ground of litis pendentia, if the first complaint is still pending 2. it precludes the relitigation of a particular fact or issues in another action between
the same parties on a different claim or cause of action. This is the rule on “conclusiveness of
2. Motion to dismiss on ground of res judicata, if first complaint is terminated by final judgment.”
judgment

3. An Answer averring either of the above grounds as affirmative defenses.

Question:
Since, these grounds are waivable, I will timely raise the above-mentioned ground.
Is absolute identity of parties a condition sine qua non for res judicata to apply?
Splitting of cause of action must be questioned in the trial court, and the same cannot be raised
for the first time on appeal.
Answer:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
No. Substantial identity of parties is sufficient. Privity or a shared identity of interest
between a party in the first case and the party in the second case is sufficient to invoke the
coverage of the principle.
The case
In March 2001, Dino and Jose acting as Manager and member of the Board of
Governors of the DBP, respectively, were charged of violation of Anti-Graft Law for the alleged
granting of behest loan to Phil-Asia Food Industries Corporation (PACIFICO) without any
collateral to finance the latter’s soybeans processing plant with the Sandiganbayan.
Accordingly, the DBP was undercapitalized and the transaction resulted to causing undue injury
to the government (TBP Case No. 1).
In March of 2003, in relation to the alleged granting of behest loan to said corporation,
a resolution was issued by the Ombudsman finding probable cause against them for violation of
Anti-Graft Law (OMB Case No. 2).
Submitting the case to battle relying on res judicata principle, Dino and Jose claimed
that the alleged transaction subject matter of TBP Case No. 1 which was previously passed
upon by the Ombudsman resolved the issue whether the subject loan partakes of a behest
loan, and that the case in OMB Case No. 1 is identical with TBP Case No. 1. They likewise
alleged that their liability was extinguished by the compromise agreement entered into by and
between PCGG and PACIFICO ceding the latter’s complex to the former through the Asset
Privatization Trust for P330M.
On the other hand, the Ombudsman contended that TBP Case No. 1 does not
constitute res judicata as the resolutions involved were not rendered by the courts. The
complainant in TBP Case No. 1 is DBP, while in OMB Case No. 1 is the committee on behest
loans, thus, no identity of parties.
Question:
Is OMB Case No. 2 barred by res judicata?
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Answer:
Yes, because the Dino and Jose, being then officers of the DBP who had key
participation in the processing or approval of the subject PAFICO loan, had a community of
interest in the parties in TBP Case No. 1. The grant of alleged behest loan constitutes identity of
cause of action between Case No. 1 and Case No. 2. They are in a real sense privy to DBP and
PAFICO respecting to the alleged subject loan transaction
Absolute identity of parties is not a condition sine qua non for res judicata to apply.
Substantial identity of parties is sufficient. Privity or a shared identity of interest between a party
in the first case and the party in the second case is sufficient to invoke the coverage of the
principle.
The application cannot be evaded by merely varying the form of the action or engaging
a different method of presenting the issue..
Question:
Is the contention of the Ombudsman tenable that res judicata principle applies only to
decisions rendered by the courts?
Answer:
No. The rule of non quieta movere which prescribes that what was already terminated
should not be disturbed or altered at every step applies. It applies as well to the judicial and
quasi-judicial acts of public, executive, or administrative officers and boards acting within their
jurisdiction.
Public policy demands that, even at the risk of occasional errors, judgments of courts
as well as administrative decisions should become final at some definite time fixed by law and
that parties should not be permitted to litigate the same issues over again.
Question:
Does legal theory operate to constitute a cause of action to defeat the purpose of res
judicata principle?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 24
No. Legal theories do not operate to constitute a cause of action. New legal theories
do not amount to a new cause of action so as to defeat the application of the principle of res The distinction lies on the elements and requisites:
judicata..
In res judicata, the following elements are:

(1) the former judgment must be final;

(b) the court which rendered it had jurisdiction over the subject matter and the parties;
Question:
(c) it must be a judgment on the merits; and
Hyatt filed a complaint for sum of money against Asia Dynamic alleging that the latter
purchased from the former various electrical supplies and that the checks she issued were (d) there must be, between the first and second actions, identity of parties, subject
matter, and causes of action..
dishonored. Defendants failed to pay the plaintiff despite demand.
Defendants moved to dismiss the complaint claiming that: (1) the civil action was
deemed included in the criminal actions for violation of Batas Pambansa Blg. 22 (B.P. 22) In litis pendentia, the following are the requisites:
previously filed by Hyatt against the officers of Asia Dynamic; (2) Section 1(b) of Rule 111 of the
Revised Rules of Criminal Procedure prohibits the filing of a separate civil action in B.P. 22 (1) the identity of parties, or at least such as representing the same interests in both
cases. actions;
The trial court denied the motion and held that the civil action could proceed
(2) the identity of rights asserted and relief prayed for, the relief being founded on the
independently of the criminal actions since the act complained of arose from the alleged non-
same facts; and
payment of contractual debt and not the issuance of a bounced checks, in accordance with
Article 31 of the Civil Code, Accordingly, Section 1(b) of Rule 111 of the Revised Rules of (3) the identity of the two cases such that judgment in one, regardless of which party is
Criminal Procedure does not apply to the obligation, it being ex-contractu and not ex-delicto. successful, would amount to res judicata in the other.

Question: Is the trial court correct?

Answer: Question:

No. There is no identity of interests, causes of action, and reliefs in Civil Case No. MC What is the purpose of non-splitting a single cause of action?
01-1493 before the Regional Trial Court of Mandaluyong City and the criminal complaints for
violation of BP Blg. 22 filed against Gil Santillan and Juanito Pamatmat before the Metropolitan Answer:
Trial Court of Pasig City docketed as I.S. No. 00-01-00304 and I.S. No. 00-01-00300.
On Forum Shopping operates in Res judicata and Litis pendentia The purpose of which is to: (1) avoid multiplicity of suits; (2) minimize expenses; and
(3) avoid inconvenience and harassment.

Question:
Question:
Distinguish res judicata from litis pendencia. Can an ordinary civil action be consolidated with a Land Registration Case in the
nature of a petition for the issuance of a writ of possession?
Answer:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Answer:
Yes. While a petition for a writ of possession is an ex parte proceeding, being made on a
presumed right of ownership, when such presumed right of ownership is contested and is made
the basis of another action, then the proceedings for writ of possession would also become
groundless. The entire case must be litigated and if need be must be consolidated with a
related case so as to thresh out thoroughly all related issues.
Question:
What is the doctrine of non-interference, and give one example?
Answer:
A trial court has no authority to interfere with the proceedings of a court of equal
jurisdiction, much less to annul the final judgment of a co-equal court
An example of which is that a court has no jurisdiction to restrain the execution
proceedings in another court with concurrent jurisdiction
On Venue; Forum Shopping
Refresher:
Venue of Real Actions – (Rule 4, Section 1, 1997 Rules of Civil Procedure):
“Actions affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved, or a portion
thereof, is situated”.
THE CASE:
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Because of the loan contracted with Bank X, Ros Co and its President executed a PN
and a Real Estate Mortgagee covering eight (8) parcels of land, six (6) of which are located in
Bulacan and registered in the name of Ros Co, and the other two (2) (registered in the name of
the President) are situated in Nueva Ecija. Ros Co defaulted payment that prompted the Bank
to foreclose the REM. The Certificate of Sale over Nueva Ecija properties was annotated on the
title, and same is through the Bulacan properties, thus prompted Ros Co to file two (2) separate
actions against Bank X, one in Manila and the other is in Bulacan.
Ros Co filed complaint for Accounting, Specific Performance and Damages in Manila
RTC. Bank X moved to dismiss the case based on improper venue.
After the complaint with the Manila RTC had been filed, Ros Co and President filed
another action against Bank X before RTC Malolos, this time seeking to nullify the foreclosure
of the REM with Petition for Injunction with Damages, with Urgent Prayer for Temporary
Restraining Order and/or Preliminary Injunction. Bank X motion to dismiss on ground that
President has no cause of action as his properties are located in Nueva Ecija, and forum
shopping was denied. MR was denied and Bank X declared in default.
Question:
(1) Was there forum shopping?
(2) RTC of Bulacan has no jurisdiction over the properties situated in Nueva Ecija, has
it?
Answer:
(1). There’s no forum shopping.
The Bulacan case is an action to annul the foreclosure sale that is necessarily an
action affecting the title of the property sold. This is a real action which should be commenced
and tried in the province where the property or part thereof lies.
The Manila case is a personal action involving the enforcement of a contract between
Ros Co whose principal office is in Manila. Therefore, personal actions may be commenced and
tried where the plaintiff or any of the principal plaintiffs resides, or where the defendants or any
of the principal defendants resides, at the election of the plaintiff.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
(2) The venue of the action for the nullification of the foreclosure sale is properly laid
with the Bulacan RTC although two of the properties together with the Bulacan properties are
situated in Nueva Ecija. Following Section 1, Rule 4 of the Rules of Court, the venue of real
actions affecting properties found in different provinces is determined by the singularity or
plurality of the transactions involving said parcels of land. Where said parcels are the object of
one and the same transaction, the venue is in the court of any of the provinces wherein a parcel
of land is situated
On Prejudicial Question; Forum Shopping
Question:
26
Debtor availed a loan from Creditor offered by the latter at a daily interest rate of 1% to
2%. The said interest rate was increased to 5%. As payment thereof, Debtor issued checks in
favor of Creditor with 5% daily interest.
Not satisfied with the new interest rate, Debtor sought the declaration of nullity of the
5% daily interest for being iniquitous and unconscionable, and prayed for the issuance of writ of
preliminary injunction restraining the Creditor from enforcing the checks she issued and from
filing violation of BP 22 cases against her. In turn, Creditor filed several cases of BP 22 against
Debtor.
Can Debtor file a motion to suspend criminal proceedings by reason of prejudicial
question pending in the civil case?

(a) What is the concept of prejudicial question?

(b) What are the elements of prejudicial question?
(c) What is the rationale behind that principle?
Answer:
(a) Prejudicial question generally comes into play in a situation where a civil action and
a criminal action are both pending and there exists in the former an issue which must be
preemptively resolved before the latter may proceed, because howsoever the issue raised in
the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the
accused in the criminal case.
Answer:
No, because the validity or invalidity of the interest rate is not determinative of the guilt
of Debtor in the criminal cases. Violation of BP 22 cases punishes the issuance of a bounced
check and not the purpose for which it was issued or the terms and conditions relating to its
issuance.
As to whether or not the interest rate imposed by Creditor is eventually declared void
for being contra bonus mores will not affect the outcome of the BP 22 cases because what will
ultimately be penalized is the mere issuance of the worthless check.
In short, there is no prejudicial question

(b) The two essential elements are as follows: (1) the civil action involves an issue Question:
similar or intimately related to the issue raised in the criminal action; and (2) the
resolution of such issue determines whether or not the criminal action may proceed. Because of the pending civil case seeking declaration of nullity of the 5% daily interest
rate, the accused moved to suspend the proceedings in BP 22 cases on ground of prejudicial
(c) The rationale behind the principle of prejudicial question is to avoid two conflicting question. Supposing the motion is denied, and a motion for the issuance of a writ of preliminary
decisions injunction with TRO was thereafter filed seeking to restrain the MTC from further proceeding in
the BP 22 cases.

(a) Is she guilty of forum shopping?

Question:
(b) What is forum shopping? When does forum shopping exist?

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Answer:
(a) Yes, because she sought a possibly favorable opinion from one court after
another has issued an order unfavorable to her.
(b) Forum shopping is the act of one party against another, when an adverse
judgment has been rendered in one forum, of seeking another and possibly favorable opinion in
another forum other than by appeal or by special civil action of certiorari; or the institution of two
or more acts or proceedings grounded on the same cause on the supposition that one or the
other court would make a favorable disposition.
There is forum shopping when a party seeks to obtain remedies in an action in one
court, which had already been solicited, and in other courts and other proceedings in other
tribunal
On Barangay Conciliation
Question:
Can the court dismiss the case motu proprio on ground of lack of barangay
conciliation?
Answer:
No, the court cannot dismiss the action, because there are only three (3) instances
wherein the court may motu proprio dismiss a claim, and that is, when the pleadings or
evidence on record shows that: (1) the court has no jurisdiction over the subject matter; (2)
there is another action pending between the same parties for the same cause, and (3) where
the action or barred by a prior judgment or by statute of limitations, and this is provided for
under Section 1, Rule 9 of the 1997 Revised Rules of Civil Procedure. Failure to comply with
the requirement for barangay conciliation as ground for dismissal is not being among those
mentioned in the Rules for the trial court to dismiss the case on its own initiative
On Service of Summons
Refresher:
Rule 14, Section 11, 1997 Revised Rules of Civil Procedure:
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“Service upon domestic private juridical entity. –When the defendant is a
corporation, partnership or association organized under the laws of the Philippines
with a juridical personality service may be made on the president, managing
partner, general manager, corporate secretary, treasurer or in-house counsel.”
Question:
Is service of summons to Branch Manager of a Banking Corporation valid for the court
to acquire jurisdiction over the corporation?
Answer:
No. Basic is the rule that a strict compliance with the mode of service is necessary to
confer jurisdiction of the court over a corporation. The officer upon whom service is made must
be one who is named in the statute; otherwise, the service is insufficient. The purpose is to
render it reasonably certain that the corporation will receive prompt and proper notice in an
action against it or to insure that the summons be serve on a representative so integrated with
the corporation that such person will know what to do with the legal papers serve on him. Since
the branch manager is not included as persons in the enumeration contained in Section 11,
Rule 14 of the 1997 Revised Rules of Civil Procedure upon whom service of summons can be
validly made in behalf of the corporation, service to the branch manager is void and ineffectual
On Civil forfeiture; summons
Question:
In conjunction with the criminal case filed for violation of AMLA of 2001, Republic filed
a complaint for civil forfeiture of asset against bank deposit of X Corporation.
Summons against X Corporation was returned unserved as it could no longer be found
at its last known address. Can X Corporation be validly served with summons by publication?
Answer:
Yes. Well entrenched is the rule that forfeiture proceedings are action in rem. Though,
the case involved forfeiture proceedings under RA 1379, the same principle applies in civil case
for civil forfeiture under RA 9160. as amended, since both cases do not terminate in the
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
imposition of a penalty but merely in the forfeiture of the properties either acquired illegally or
related to unlawful activities in favor of the State. Since this action is in rem, it is a proceeding
against the thing itself instead of against the person. Jurisdiction over the person of the
defendant is not a prerequisite for the court to acquire jurisdiction. What is required is for the
court to acquire jurisdiction over the res. Therefore, service of summons may be made by
publication, and service of summons upon the person of the defendant is made only to satisfy
due process requirement
On Modes of Discovery
Question:
An action for specific performance and damages was filed by plaintiffs against the
defendant. After defendant filed her answer, plaintiff filed a motion for authority to ligitate in
forma pauperis.
Defendant sent written interrogatories to plaintiffs consisting of several questions to
determine their eligibility as pauper. Plaintiffs did not answer the written interrogatories.
Defendant moved to dismiss the case for failure of the plaintiffs to answer the interrogatories.
You are the judge, how will resolve the motion?
Answer:
I will deny the motion, because the written interrogatories served by defendant to
plaintiffs dealt with ancillary matters which, although may be inquired into through the proper
modes of discovery provided in the Rules of Court, are not directly related to the main issues in
the suit (
Also on Modes of Discovery
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Before a party may compel the other party to produce or allow the inspection of
documents or things, the following requisites must concur:
1. The party must file a motion for the production or inspection of
documents or things, showing good cause therefor;
2. Notice of the motion must be served to all other parties of the case;
3. The motion must designate the documents, papers, books, accounts,
letters, photographs, objects or tangible things which the party wishes to
be produced and inspected;
4. Such documents, etc., are not privileged;
5. Such documents, etc., constitute or contain evidence material to any
matter involved in the action; and
6. Such documents, etc, are in the possession, custody or control of the
other party
On Demurrer to Evidence
What is the concept and purpose of demurrer to evidence?
A demurrer is a motion to dismiss on the ground of insufficiency of evidence and is
filed after the plaintiff rests its case. It is an objection by one of the parties in an action, to the
effect that the evidence which his adversely produced, is insufficient in point of law, whether
true or not, to make out a case or sustain the issue. The question in demurrer to evidence is
whether the plaintiff, by his evidence-in-chief, has been able to establish a prima facie case
The purpose of a demurrer to evidence is precisely to expeditiously terminate the case
without need of the defendant’s evidence. It authorizes a judgment on the merits of the case
without the defendant having to submit evidence on his part as he would ordinarily have to do, if
it is shown by plaintiff’s evidence that the latter is not entitled to the relief sought
Question:
In civil cases, what are the guidelines for the trial court to grant demurrer to evidence?
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Answer:
A demurrer to evidence may be granted when:
1. upon facts and the law, the plaintiff has shown no right to relief; or
2. where the plaintiff’s evidence together with such inferences and
conclusions as may reasonably be drawn therefrom does not warrant
recovery against the defendant; or
3. when admitting every proven fact favorable to the plaintiff and indulging
in his favor all conclusions fairly and reasonably inferable therefrom, the
plaintiff has failed to make out one or more of the material elements of
his case; or
4. when there is no evidence to support an allegation necessary to his claim
Question:
After the plaintiff rested its case, defendant filed a demurrer to evidence. The trial court
granted the demurrer and dismissed the case. On Appeal, the appellate court reversed the
order of dismissal. Can the appellate court order the remand of the case to the court a quo for
further proceedings?
Answer:
No more. The appellate court must decide the case on the merits and consider all the
evidence presented therein.
In ___ The Supreme Court had made to emphasize that the defendant is permitted,
without waiving his right to offer evidence in the event that his motion is not granted, to move for
a dismissal on the ground that upon the facts as thus established and the applicable law, the
plaintiff has shown no right to relief. If the trial court denies the dismissal motion, the case still
remains before the trial court which should then proceed to hear and receive the defendant’s
evidence so that all the facts and evidence of the contending parties may be properly placed
before it for adjudication as well as before the appellate courts, in case of appeal. Nothing is
lost. The rule, however, imposes the condition by the same token that if his demurrer is granted
by the trial court, and the order of dismissal is reversed on appeal, the movant losses his right
to present evidence in his behalf and he shall have been deemed to have elected to stand on
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the insufficiency of plaintiff’s case and evidence. In such event, the appellate court which
reverses the order of dismissal shall proceed to render judgment on the merits on the basis of
plaintiff’s evidence.
On judgment on the pleading
Question:
Can a party to a case moved that the case be decided based pleading, i.e., judgment
on the pleading? If yes, when, and what is the essential question?
How about summary judgment, when is it proper? When an issue be considered
genuine?
Answer:
Yes. A judgment on the pleading may be sought only by a claimant, who is the party
seeking to recover upon a claim, counterclaim or cross claim; or to obtain a declaratory relief. It
is proper when an answer fails to tender an issue or otherwise admits the material allegation of
the adverse party’s pleading.
The essential question is whether there are issues generated by the pleading
As regards summary judgment, it is proper when there must be no genuine issue or
any material fact, except for the amount of damages, and the moving party must be entitled to a
judgment as a matter of law. If the pleadings tender a genuine issue, summary judgment is
improper.
An issue is genuine if it requires the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or
undisputed, then there is no real or genuine issue or question as to the facts, and summary
judgment is called for. The party who moves for summary judgment has the burden of
demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to constitute a genuine issue for trial.
On execution of judgment; garnishment
Refresher:
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Garnishment under Section 9 (c ) Rule 39, 1997 Revised Rules of Civil Procedure Question:

“Garnishment of debts and credits. – The officer and may levy on debts
due the judgment obligor and other credits, including bank deposits, financial
interests, royalties, commissions and other personal property not capable of manual
delivery in the possession or control of third parties. Levy shall be made by serving
notice upon the person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled. The garnishment shall cover only
such amount as will satisfy the judgment as all lawful fees.”
Question:
Prohibition defined.
Answer:
Prohibition is an extraordinary writ directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said
entity or person to desist from further proceedings when said proceedings are without or in
excess of said entity’s or person’s jurisdiction, or are accompanied with grave abuse of
discretion, and there is no appeal or any plain, speedy and adequate remedy in the ordinary
course of law.

The petition for the payment of rice, meal and medical allowances, and longevity pay Question:
filed by Employee against NEA was granted by trial court and thereafter, issued a writ of
execution, and notice of garnishment was issued against NEA funds with the Development Is prohibition lies against legislative or quasi-legislative functions?
Bank of the Philippines.
Answer:
Is the issuance of notice of garnishment proper?
No. Prohibition lies against judicial or ministerial functions, but not against legislative
Answer: or quasi-legislative functions.

No, because the judgment does not require NEA to pay a certain sum of money to
Employee. The Judgment is only for the performance of an act other than payment of money.
Garnishment is proper only when the judgment to be enforced is one for payment of a sum of
money. Applying
NOTES IN REMEDIAL LAW
2014 Bar Examinations
Where the principal relief is to invalidate an Internal Rules and Regulations, petitioner’s
remedy is an ordinary action for its nullification, an action which properly falls under the
jurisdiction of the Regional Trial Court.
Allegation that respondents are performing or threatening to perform functions without
or in excess of their jurisdiction, the respondents’ act may appropriately be enjoined by the trial
court through a writ of injunction or a temporary restraining order (Holy Spirit Homeowners
Association, Inc., v. Defensor).

On Prohibition On Jurisdiction


Question:
*** Subject matter that utmost preferential attention. Do not this take for
granted.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 31
Which court or tribunal (regular court or the DARAB) has jurisdiction over complaint for This is also happened when there is a strong probability that the issue before the
recovery of possession where the defendant raises the defense of tenancy relationship? Or higher court would be rendered moot and moribund as a result of the continuation of the
when can the regular court divested of its jurisdiction to hear the same case? proceedings in the lower court or court of origin.

Answer:

In order for a tenancy relation to take serious hold over the dispute, it would be On Foreign Judgment
essential to first establish all its indispensable elements:

7. that the parties are the landowner and the tenant or agricultural lessee; Question:

8. that the subject matter of the relationship is an agricultural land; Can a foreign judgment be enforced in the Philippines? If yes, what is the rule?

9. that there is consent between the parties to the relationship; Answer:

10. that the purpose of the relationship is to bring about agricultural

Section 48, Rule 39, 1997 Revised Rules of Civil Procedure, as amended, thus:
production;

11. that there is personal cultivation on the part of the tenant or agricultural “Sec.48. Effect of foreign judgments. – The effect of a judgment or final
lessee, and order of a tribunal of a foreign country, having jurisdiction to render the judgment
or final order is as follows:
12. that the harvest is shared between the landowner and the tenant or
agricultural lessee. (a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title of the thing;
It is not enough that these requisites are alleged; these requisites must be shown in and
order to divest the regular court of its jurisdiction in proceedings lawfully begun before it
(Monsanto v. Zerna, 2001 Decision). (b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successor-in-interest by a
Question: *****************
subsequent title;

What is judicial courtesy? In either case, the judgment or final order may be repelled by evidence of
a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake
Answer: of law or fact.”

Where certain issue or issues in the case is elevated to the higher court questioning Under the Rule, a foreign judgment or order against a person is merely presumptive of
the ruling of the trial court, the latter court even if the higher court does not issue a writ of a right as between the parties. It may be repelled, among others, by want of jurisdiction of the
preliminary injunction or temporary restraining order may suspend its proceedings for the issuing authority or by want of notice to the party against whom it is enforced. Therefore, the
purpose of giving the higher court to rule on the issue elevated therein. party attacking a foreign judgment has the burden of overcoming the presumption of its validity.

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Question:
Pilipinas Corporation failed to comply with the terms of the Contract Agreement with
the Singapore Corporation, thus, the latter filed collection case with the Singaporean Court. Writ
of summons was served extraterritorially or outside Singapore, and despite receipt of summons
in the Philippines, Pilipinas Corporation failed to answer the claim. Singapore court rendered
judgment by default, and thereafter, a petition for enforcement of judgment was filed with the
Pasay RTC. Pilipinas moved to dismiss the petition on the ground that the summons is void;
that the Singapore court did not acquire jurisdiction over its person; and that the foreign
judgment sought to be enforced is void for having been rendered in violation of its right to due
process.
You are the judge, how will you resolve the motion to dismiss?
Answer:
I will deny the motion to dismiss. Since the Writ of Summons served upon Pilipinas
Corporation was in accordance with our Rules, jurisdiction was acquired by the Singaporean
Court over its person. Clearly, the judgment of default rendered by that court against Pilipinas
Corporation is valid. Therefore, such foreign judgment can be validly enforced in this jurisdiction
(ST. Aviation Services Co., PTE, LTD., v. Grand International Airways, Inc).
On Rule 45 vs. Rule 65
Question:
Can a party file petitions both under Rules 45 and 65 in one pleading?
Answer:
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No, because said procedural rules pertain to different remedies and have distinct
applications. Remedy of Appeal under Rule 45 and an original action for certiorari under Rule
65 are mutually exclusive and not alternative or cumulative. If a party adopts an improper
remedy, his petition may be dismissed outright (PICOP Resources v. CA,).
On provisions of RA 7691 (expanding the jurisdiction of the first level courts):
– After five (5) years from the effectivity of this Act, the jurisdictional amounts
mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended
by this Act, shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years
thereafter, such jurisdictional amounts shall be adjusted further to Three hundred thousand
pesos (P300,000.00): Provided, however, That in the case of Metro Manila, the
abovementioned jurisdictional amounts shall be adjusted after five (5) years from the effectivity
of this Act to Four hundred thousand pesos (P400,000.00) (Section 5, RA 7691).
– The provisions of this Act shall apply to all civil cases that have not yet reached
the pretrial stage. However, by agreement of all the parties, civil cases cognizable by municipal
and metropolitan courts by the provisions of this Act may be transferred from the Regional Trial
Courts to the latter. The executive judge of the appropriate Regional Trial Court shall define the
administrative procedure of transferring the cases affected by the redefinition of jurisdiction to
the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts (Section
7, RA 7691).
– RA 7691 took effect on April 15, 1994 according to Section 1 of Supreme Court
Administrative Circular No. 09-94 dated June 14, 1994.
The Case: (Crisostomo vs. De Guzman, G.R. No. 171503, June 8, 2008)
For failure of Crisostomo to pay De Guzman the amount of P277,121.00 a collection
suit before the MTC was filed by the latter against the former on March 24, 2004. Crisostomo
moved to dismiss the case on ground of lack of jurisdiction as the MTC’s jurisdiction over claims
exceeding P200,000.00 took effect only on April 12, 2004. The court denied the motion, thus
prompted Crisostomo to file certiorari case with the RTC claiming that the MTC has committed
grave abuse of discretion. The RTC denied the petition. Petition for certiorari under Rule 45 was
filed with the SC and contented that the OCA made an erroneous computation of the five (5)
year period.
The Ruling:
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Pursuant to Section 5 above, the OCA declared in Circular No. 21-99 dated March 20,
1999 that the first adjustment in jurisdictional amount of first level courts outside of Metro Manila
from P100,000.00 to P200,000.00 took effect on March 20, 1999. Meanwhile, the second Question:
adjustment from P200,000.00 to P300,000.00 became effective on February 22, 2004 in
accordance with Circular No. 65-2004 issued by the OCA on May 13, 2004.
May the offended party be represented by the public prosecutor in an appeal
– However, applying the provisions of Article 13 of the New Civil Code and Section pertaining to the civil aspect of the judgment despite the acquittal of the accused?
31, Chapter 8, Book I of Executive Order No. 292, otherwise known as the Revised
Administrative Code of 1987 (EO 292), the first adjustment in the jurisdictional amount from Who can file an appeal?
P100,000.00 to P200,000.00 took effect on April 14, 1999, while the final adjustment from
P200,000.00 to P300,000.00 five (5) years thereafter took effect on April 12, 2004.
Answer:
– Citing only Section 31 of EO 292, the Office of the Court Administrator (OCA),
however, issued Circular No. 21-99 dated April 15, 1999 declaring that the first adjustment took As a rule, a judgment of acquittal is immediately final and executory and the
effect on March 20, 1999. For the second adjustment, OCA issued OCA Circular No. 65-2004 prosecution cannot appeal the acquittal because of the constitutional prohibition against double
dated May 13, 2004 declaring that the same took effect on February 22, 2004. Herein jeopardy.
defendant submits that such effectivity dates are erroneous and not in accord with Article 13 of
the New Civil Code and Section 31 of EO 292. Either the offended party or the accused may, however, appeal the civil aspect of the
judgment despite the acquittal of the accused. But the public prosecutor cannot represent the
– Pursuant to Section 5 above, the OCA declared in Circular No. 21-99 dated March
offended party in the appeal because generally, he has no interest in appealing the civil aspect
20, 1999 that the first adjustment in jurisdictional amount of first level courts outside of Metro
of a decision acquitting the accused. The acquittal ends his work. The case is terminated as
Manila from P100,000.00 to P200,000.00 took effect on March 20, 1999, and the second
far as he is concerned. (Hun Hyung Park vs. Eung Won Choi, G.R. No. 165496, February
adjustment from P200,000.00 to P300,000.00 became effective on February 22, 2004 in
12, 2007, citing Cruz vs. CA, G.R. No. 123340, August 29, 2002).
accordance with Circular No. 65-2004 issued by the OCA on May 13, 2004.

– A collection suit involving the amount of P277,000.00 was filed with the MTC on
March 24, 2004.
Question:

For this purpose, who can file an appeal?

Ruling:
Answer:
The issuance of OCA Circulars relative to RA 7691 were purely administrative and
procedural purposes and were not meant to affect the jurisdiction of first level courts in any Being the real parties in interest in the civil aspect of a decision, an appeal may be
substantive sense. filed by the offended party and the accused. (Hun Hyung Park vs. Eung Won Choi, G.R. No.
165496, February 12, 2007, citing Cruz vs. CA, G.R. No. 123340, August 29, 2002).

Question:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Supposing the offended party appeals or moves to reconsider the civil aspect of the
decision in a criminal case, who is entitled to receive the pleading?
Answer:
Since one of the real parties in interest in the civil aspect of a decision is the accused,
when an appeal or motion for reconsideration is filed, necessarily, copy of the same should be
served through the accused counsel. (Cruz vs. CA, G.R. No. 123340, August 29, 2002).
To avoid any technical issue, serve to accused.
Question:
Supposing the one who files the appeals or moves to reconsider the civil aspect of the
decision in a criminal case is the accused, and the offended party is not represented by a
private counsel, to whom the pleading be served?
Answer:
Copy of the pleading should be served on the offended party himself. This is in
addition to service on the public prosecutor who is the counsel of record of the State. (Cruz vs.
CA, G.R. No. 123340, August 29, 2002).
TAKE NOTE OF THE COURT’S OBSERVATION: If the accused appeals or moves
for reconsideration, a lacuna arises if the offended party is not represented by a private counsel.
In such a situation, under the present Rules only the public prosecutor is served the notice of
appeal or a copy of the motion for reconsideration. To fill in this lacuna in the present Rules, we
require that henceforth if the accused appeals or moves for reconsideration, he should serve a
copy of his pleading on the offended party himself if the latter is not represented by a private
counsel. This is in addition to service on the public prosecutor who is the counsel of record of
the State.
On Motion to Dismiss; payment of Docket Fees
Question:
When an action asking for damages in the amount of P2.1M was filed plaintiff only
paid P1,500.00 instead of P12,100.00. On ground lack of jurisdiction for non-payment of correct
docket fees, the defendant moved to dismiss the case. Decide.
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Answer:
The case should not be dismissed.
Jurisdiction was validly acquired over the complaint. In Sun Insurance Office, Ltd.,
(SIOL) v. Asuncion, this Court ruled that the filing of the complaint or appropriate initiatory
pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the
subject matter or nature of the action. If the amount of docket fees paid is insufficient
considering the amount of the claim, the clerk of court of the lower court involved or his duly
authorized deputy has the responsibility of making a deficiency assessment. The party filing the
case will be required to pay the deficiency, but jurisdiction is not automatically lost (Fil-Estate
Golf and Development Corporation vs. Navarro, G.R. No. 152575, June 29, 2007; Rivera
vs. Del Rosario, 464 Phil. 783 [2004]).
The ruling in Manchester that the court acquires jurisdiction over any case only upon
payment of the prescribed docket fees does not apply to cases where insufficient filing fees
were paid based on the assessment made by the clerk of court, and there was no intention to
defraud the government (Fil-Estate Golf and Development Corporation vs. Navarro, supra,
citing Soriano vs. Court of Appeals, 416 Phil. 226 [2001]).
On Intervention; third party claimant:
NOTE: if the person has:
4. legal interest in the matter in litigation; or
5. in the success of either of the parties, or
6. an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action, which motion can be filed at
any time before the rendition of judgment by the trial court.
Motion to release property from attachment is not sufficient. This does not be treated
as motion to intervene.
The exception is the case of Rural Bank of Sta. Barbara, Pangasinan case where the claimant
of the property subject of attachment was advised by the sheriff (who is not a lawyer) just to file
a motion to release property from attachment, the court granted it observing the principle of
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equity, and the motion to release property from attachment was treated by the SC as motion to
intervene.
Supposing X is not a party to the case, and there is already a judgment over his
property which became the subject of an attachment in litigation, he may file a petition for relief
from judgment, or file a separate action to vindicate his claim. If there was already a writ of
execution file a third party claim and file a separate action to vindicate his claim.
On Motion to Dismiss; Res Judicata
Question:
Define res judicata.
Answer:
This refers to the rule that a final judgment rendered by a court of competent
jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to
them, constitutes an absolute bar to a subsequent action involving the same demand or cause
of action. (Gutierrez v. CA, 193 SCRA 437, Black’s Dictionary, 6th Ed., p. 1305; Crucillo vs.
Ombudsman, G.R. No. 159876, June 26, 2007).
This is also known as “bar by prior judgment”.
Res judicata is, in fine, a rule of preclusion to the end that facts or issues settled by
final judgment should not be tried anew. (Allied Bank v. CA, G.R. No. 108089, January 10,
1994, 229 SCRA 252; also in Crucillo vs. Ombudsman, G.R. No. 159876, June 26, 2007).
Question:
What are the two (2) aspects of res judicata?
Answer:
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1. the effect of a judgment as a bar to the prosecution of a second action upon the
same claim, demand or cause of action; this is designated as “bar by former judgment”; and
2. it precludes the relitigation of a particular fact or issues in another action between
the same parties on a different claim or cause of action. This is the rule on “conclusiveness of
judgment.” (Calalang vs. Register of Deeds, G.R. No. 76265, March 11, 1994, 231 SCRA 88;
Crucillo vs. Ombudsman, G.R. No. 159876, June 26, 2007).
Question:
Is absolute identity of parties a condition sine qua non for res judicata to apply?
Answer:
No. Substantial identity of parties is sufficient. Privity or a shared identity of interest
between a party in the first case and the party in the second case is sufficient to invoke the
coverage of the principle. (Lanuza vs. Court of Appeals, G.R. No. 131394, March 28, 2005,
454 SCRA 54).
The case
In March 2001, Dino and Jose acting as Manager and member of the Board of
Governors of the DBP, respectively, were charged of violation of Anti-Graft Law for the alleged
granting of behest loan to Phil-Asia Food Industries Corporation (PACIFICO) without any
collateral to finance the latter’s soybeans processing plant with the Sandiganbayan.
Accordingly, the DBP was undercapitalized and the transaction resulted to causing undue injury
to the government (TBP Case No. 1).
In March of 2003, in relation to the alleged granting of behest loan to said corporation,
a resolution was issued by the Ombudsman finding probable cause against them for violation of
Anti-Graft Law (OMB Case No. 2).
Submitting the case to battle relying on res judicata principle, Dino and Jose claimed
that the alleged transaction subject matter of TBP Case No. 1 which was previously passed
upon by the Ombudsman resolved the issue whether the subject loan partakes of a behest
loan, and that the case in OMB Case No. 1 is identical with TBP Case No. 1. They likewise
alleged that their liability was extinguished by the compromise agreement entered into by and
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between PCGG and PACIFICO ceding the latter’s complex to the former through the Asset
Privatization Trust for P330M.
On the other hand, the Ombudsman contended that TBP Case No. 1 does not
constitute res judicata as the resolutions involved were not rendered by the courts. The
complainant in TBP Case No. 1 is DBP, while in OMB Case No. 1 is the committee on behest
loans, thus, no identity of parties.
Question:
Is OMB Case No. 2 barred by res judicata?
Answer:
Yes, because the Dino and Jose, being then officers of the DBP who had key
participation in the processing or approval of the subject PAFICO loan, had a community of
interest in the parties in TBP Case No. 1. The grant of alleged behest loan constitutes identity of
cause of action between Case No. 1 and Case No. 2. They are in a real sense privy to DBP and
PAFICO respecting to the alleged subject loan transaction (Crucillo vs. Ombudsman, G.R.
No. 159876, June 26, 2007).
Absolute identity of parties is not a condition sine qua non for res judicata to apply.
Substantial identity of parties is sufficient. Privity or a shared identity of interest between a party
in the first case and the party in the second case is sufficient to invoke the coverage of the
principle. (Lanuza vs. Court of Appeals, G.R. No. 131394, March 28, 2005, 454 SCRA 54).
The application cannot be evaded by merely varying the form of the action or engaging
a different method of presenting the issue. (Esperas vs. CA, G.R. No. 121182, October 2,
2000, 341 SCRA 583).
Question:
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Is the contention of the Ombudsman tenable that res judicata principle applies only to
decisions rendered by the courts?
Answer:
No. The rule of non quieta movere which prescribes that what was already terminated
should not be disturbed or altered at every step applies. It applies as well to the judicial and
quasi-judicial acts of public, executive, or administrative officers and boards acting within their
jurisdiction. (Macailing vs. Andrada, G.R. No. L-21607, January 30, 1970, 31 SCRA 126).
Public policy demands that, even at the risk of occasional errors, judgments of courts
as well as administrative decisions should become final at some definite time fixed by law and
that parties should not be permitted to litigate the same issues over again. (Antique Sawmills,
Inc. vs. Zayco, G.R. No. L-20051, May 30, 1966, 17 SCRA 316, citing Meralco vs. PSC, 61
Phil. 456).
Question:
Does legal theory operate to constitute a cause of action to defeat the purpose of res
judicata principle?
Answer:
No. Legal theories do not operate to constitute a cause of action. New legal theories
do not amount to a new cause of action so as to defeat the application of the principle of res
judicata. (Perez vs. CA, G.R. No. 157616, July 22, 2005, 464 SCRA 89).
Question:
Hyatt filed a complaint for sum of money against Asia Dynamic alleging that the latter
purchased from the former various electrical supplies and that the checks she issued were
dishonored. Defendants failed to pay the plaintiff despite demand.
Defendants moved to dismiss the complaint claiming that: (1) the civil action was
deemed included in the criminal actions for violation of Batas Pambansa Blg. 22 (B.P. 22)
previously filed by Hyatt against the officers of Asia Dynamic; (2) Section 1(b) of Rule 111 of the
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Revised Rules of Criminal Procedure prohibits the filing of a separate civil action in B.P. 22
cases.
The trial court denied the motion and held that the civil action could proceed
independently of the criminal actions since the act complained of arose from the alleged non-
payment of contractual debt and not the issuance of a bounced checks, in accordance with
Article 31 of the Civil Code, Accordingly, Section 1(b) of Rule 111 of the Revised Rules of
Criminal Procedure does not apply to the obligation, it being ex-contractu and not ex-delicto.
Question: Is the trial court correct?
Answer:
No. There is no identity of interests, causes of action, and reliefs in Civil Case No. MC
01-1493 before the Regional Trial Court of Mandaluyong City and the criminal complaints for
violation of BP Blg. 22 filed against Gil Santillan and Juanito Pamatmat before the Metropolitan
Trial Court of Pasig City docketed as I.S. No. 00-01-00304 and I.S. No. 00-01-00300.
On Forum Shopping operates in Res judicata and Litis pendentia
Question:
Distinguish res judicata from litis pendencia.
Answer:
The distinction lies on the elements and requisites:
In res judicata, the following elements are:
(1) the former judgment must be final;
(b) the court which rendered it had jurisdiction over the subject matter and the parties;
(c) it must be a judgment on the merits; and
(d) there must be, between the first and second actions, identity of parties, subject
matter, and causes of action. (Lugayan vs. Tizon, G.R. No. 147958, March 31, 2005, 454
SCRA 488).
In litis pendentia, the following are the requisites:
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(1) the identity of parties, or at least such as representing the same interests in both
actions;
(2) the identity of rights asserted and relief prayed for, the relief being founded on the
same facts; and
(3) the identity of the two cases such that judgment in one, regardless of which party is
successful, would amount to res judicata in the other. (Panganiban vs. Pilipinas Shell
Petroleum Corporation, 443 Phil. 753, [2003]).
On Rule 45 (Petition for Certiorari)
Question:
Supposing a petition for review on certiorari is filed with the Supreme Court, can the
petitioner include his application for a writ of preliminary injunction?
Yes. Application for a writ of preliminary injunction may be included in a Petition for
Review or Certiorari under Rule 45 and shall raise only question of law, which must be distinctly
set forth. (see: Amendments to sections 1 to 10, Rule 45)
Observation:::::: “since the issue involved is question of law, and the court in the
issuance of PI needs to conduct hearing, and the SC is not a trier of fact, can the SC hold
hearing for the purpose of issuance of writ of PI???????????”
On petition to annul judgment, final orders and resolutions (Rule 47)
Question:
What are the grounds to annul the judgment, final orders and resolution?
Answer:
The annulment may be based only on the grounds of extrinsic fraud and lack
jurisdiction. However, extrinsic fraud shall not be a valid ground if it was availed of, or could
have availed of, in a motion for new trial or petition for relief (Section 2, Rule 47, 1997 Revised
Rules of Civil Procedure).
This remedy is a remedy in equity so exceptional in nature that it may be availed of
only when other remedies are wanting, and only if the judgment sought to be annulled was
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rendered by a court lacking jurisdiction or through proceedings attended by extrinsic fraud. What is Extrinsic or collateral fraud?
(People vs. Bitanga, G.R. No. 159222, June 26, 2007, citing the case of Orbeta vs.
Sendiong, G.R. No. 155236, July 8, 2005, 463 SCRA 180).
Answer:
Question:

Will professional negligence of counsel committed on his client be equated as extrinsic Extrinsic or collateral fraud is trickery practiced by the prevailing party upon the
fraud, and therefore, adverse judgment to his client will constitute ground to annul the unsuccessful party, which prevents the latter from fully proving his case. It affects not the
judgment? judgment itself but the manner in which said judgment is obtained. (Republic vs. “G”
Holdings, G.R. No. 141241, November 22, 2005, 475 SCRA 6).

Answer:
This also refers to any fraudulent act of the prevailing party in the litigation which is
committed outside of the trial of the case, whereby the unsuccessful party has been prevented
General rule: Counsel’s ineptitude is not a ground to annul the judgment, for the
from exhibiting fully his case, by fraud or deception practiced on him by his opponent. (Tan vs.
latter's management of the case binds his client, because, once retained, counsel holds the
Court of Appeals, G.R. No. 157194, June 20, 2006, 491 SCRA 452).
implied authority to do all acts which are necessary or, at least, incidental to the prosecution
and management of the suit in behalf of his client, and any act performed by said counsel
The extrinsic fraud must be employed against it by the adverse party, who, because of
within the scope of such authority is, in the eyes of the law, regarded as the act of the client
some trick, artifice, or device, naturally prevails in the suit. The fraud or deceit cannot be of the
himself. (People vs. Bitanga, G.R. No. 159222, June 26, 2007, citing the cases of Dela
losing party’s own doing, nor must it contribute to it. (Tan vs. Court of Appeals, G.R. No.
Cruz vs. Sison, G.R. No. 142464, September 26, 2005, 471 SCRA 35; Republic vs. “G”
157194, June 20, 2006, 491 SCRA 452).
Holdings, G.R. No. 141241, November 22, 2005, 475 SCRA 6; Also citing the cases of
Juani vs. Alarcon, G.R. No.166849, September 5, 2006, 501 SCRA 135; Grande vs.
University of the Philippines, G.R. No. 148456, September 15, 2006, 502 SCRA 67).
Question:
Exception: When the negligence of counsel had been so egregious that it prejudiced
his client’s interest and denied him his day in court. (People vs. Bitanga, G.R. No. 159222,
What is the prescriptive period within which to file petition to annul judgment based on
June 26, 2007, citing the case of APEX Mining, Inc. vs. Court of Appeals, 377 Phil. 482,
extrinsic fraud?
citing Salonga vs. Court of Appeals, 336 Phil. 514, (1997); Legarda vs. Court of Appeals,
G.R. No. 94457, March 18, 1991, 195 SCRA 418).
Answer:

For the exception to apply, the gross negligence of counsel should not be
accompanied by his client’s own negligence or malice. It is the duty of the client to be vigilant of
their interests by keeping themselves up to date on the status of his case, otherwise, he shall
suffer whatever adverse judgment is rendered against them. (People vs. Bitanga, G.R. No.
159222, June 26, 2007, citing the cases of Tan vs. Court of Appeals, G.R. No. 157194,
June 20, 2006, 491 SCRA 452. Mercado vs Security Bank Corporation, G.R.No. 160445,
February 16, 2006, 482 SCRA 501).
Question:
Annulment of judgment must be sought within four years from discovery of the fraud,
which fact should be alleged and proven. (Section 3, Rule 47, 1997 Revised Rules of Civil
Procedure; Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 08, 2006, 490 SCRA
140).
The particular acts or omissions constituting extrinsic fraud must be clearly
established. (Espinosa v. Court of Appeals, G.R. No. 128686, May 28, 2004, 430 SCRA 96,
103).

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On Provisional Remedies Answer:

1. Preliminary Attachment (under Rule 57)

Question 2. Preliminary Injunction (under Rule 58)
3. Receivership (under Rule 59)
4. Replevin (under Rule 60)
Enumerate the five (5) provisional remedies under the 1997 Revised Rules of Civil
5. Support Pendente Lite (under Rule 61), in so far as it is applicable.
Procedure?

Answer:
Question:
1. Preliminary Attachment
2. Preliminary Injunction
X was charged for estafa for issuing a bounced check. Can the private complainant
3. Receivership
4. Replevin seek the issuance of provisional remedy of preliminary attachment?
5. Support Pendente Lite
Answer:

Question Yes. Fraud is a ground for the issuance of PA. That is fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof is a
What is preliminary attachment? ground for the issuance of PA.

Answer: Since fraud is one of the elements of the crime, and there is fraud in the performance
of an obligation, PA can be applied and can be issued by the Court.
This is a remedy to secure a contingent lien on defendant’s property until plaintiff can,
by appropriate proceedings, obtain a judgment and have such property applied to its
satisfaction.
Question:

Supposing, X was not charged for estafa but for violation of BP 22 (Anti-Bouncing
On Provisional remedies in Criminal cases Check Law). Can the private complainant seek the issuance of provisional remedy of
preliminary attachment?

Question: Answer:

What are the provisional remedies that can be availed of even in the prosecution of No. Fraud is a ground for the issuance of PA.
criminal cases?
Since fraud is not an element at all of BP 22. PA could not be applied. Violation of BP
22 is malum prohibitum. What the law punishes is the mere issuance of a bounced check.

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Question:
Supposing, X was charged for murder but because the private complainant could not
be able to support the daily sustenance of the family because of her husband’s death, private
complainant, in the prosecution of murder asked the Court for provisional remedy of support
pendent lite.
You are the judge, how would you rule on the application?
Answer:
I will deny the application. The provisional remedy applied for should be the offspring
of the crime. Since, support pendent lite is not an offspring of the crime charged, the application
should be denied.
Question:
Supposing, X was charged for rape, can private offended party seek for provisional
remedy of support pendent lite.
Answer:
It depends. If she got pregnant and the baby was delivered and alive, she can apply
for provisional remedy of support pendent lite. In short, the crime should be productive. If
there’s none, she cannot apply.
On preliminary attachments in civil cases
Question:
What are the distinctions between preliminary attachment and replevin?
Answer:
Preliminary attachment – personal property belongs to defendant, while replevin,
personal property belongs to plaintiffs or plaintiff is entitled thereto.
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Question: (do not take this topic for granted)
Can the court issues writ of preliminary attachment in recovering of possession of
personal property (replevin)?
Answer:
Yes. The court may issue a writ of attachment in replevin cases under Rule 60 for the
purpose of recovering possession of personal property unjustly detained and property
concealed, removed or disposed of to prevent its being found.
Question:
Can the court issues writ of attachment in an action against a defendant who does not
reside and is not found in the Philippines?
Answer:
Yes. Attachment is available.
However, this does not include foreign corporations duly licensed to do business in the
Philippines. This refers only to natural persons. For this purpose, foreign corporations
authorized to do business in the Philippines is considered as residing in the Philippines.
Question:
Supposing, ABC Corporation who does not reside and is not found in the Philippines is
sued for sum of money, with prayer for the issuance of writ of preliminary attachment, is it
necessary for the court to acquire jurisdiction over the person of the defendant?
Answer:
No. Jurisdiction over the person of the defendant is not essential. The court acquires
jurisdiction over the object or res by virtue of the writ of attachment (Mabanag v. Gallenmore)
Question:
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What is the Doctrine of Prior or Contemporaneous Service of Summons? On TRO and Preliminary Injunction

Answer: Question:

Preliminary attachment may be issued ex-parte. However, jurisdiction of the court Distinguish Temporary restraining Order from Preliminary Injunction?
must first be acquired over the person of the defendant before the implementation or
enforcement of the writ of preliminary attachment. Answer:

The writ of attachment should be reserved with the summons, or after the service of
summons. Because, the service of summons after the implementation of the levy on attachment
does not cure the irregularities attendant to such implementation (Onate vs. Abrogar).
Question:
Supposing the defendant cannot be served personally or by substituted service of
summons despite diligent efforts and a issuance of the writ of attachment is prayed, is the court
still require to comply with prior or contemporaneous service of summons?
Temporary Restraining Order or TRO is issued by the Court to preserve the status quo
until the hearing of the application for preliminary injunction, which generally cannot be issued
ex-parte. However, by extreme urgency, the Executive Judge may issue the TRO ex-parte with
a lifetime of seventy-two (72) hours, while preliminary injunction is issued by the Court to
preserve and protect certain rights and interests during the pendency of an action; to preserve
the status quo ante the last actual, peaceful and uncontroverted status that preceded the actual
controversy.
Question:

Answer: Has the MeTC, MTCC, MTC and MCTC the authority to issue writs of preliminary
injunction?
No. the principle of prior or contemporaneous service of summons is only applicable to
action in personam that requires service of summons only personally or by substituted service Answer:
of summons. Henceforth, the doctrine shall not be applied in cases of (1) summons could not
be served personally or by substituted service despite diligent efforts, or (2) defendant is a Yes, in ejectment (unlawful detainer) and forcible entry cases.
resident of the Philippines temporarily absent therefrom, or (3) defendant is a non-resident of
the Philippines, or (4) the action is one in rem or quasi in rem.

Therefore, the PA issued ex-parte may be implemented or enforced without the Court
having as yet acquired jurisdiction over the person of the defendant, because when the property
is attached, service of summons may be made by publication, by virtue of which, the Court
acquires jurisdiction over the property attached. Question:

(For me, this converts the action from in personam to quasi in rem, in which case, summons by Can the Courts issue writ of preliminary injunction in agrarian cases?
publication can be made)
Answer:

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No. Trial Courts are proscribed from issuing this writ in cases involving (1) government Answer:
financial institution, which includes taxes collections; (2) labor cases; restraining the prosecution
of criminal cases; (3) agrarian reform, and (4) innfrastracture and public involving (1) utilities PI cannot be issued ex-parte, while PA may be issued ex-parte. PI cannot be issued
and natural resources cases under PD 1818. without prior notice, while PA may be issued either ex-parte or upon motion with notice and
hearing by the court where the case is pending.

Question:
Question:
What is the lifetime of the trial courts’ TRO?
Is the Doctrine of prior or contemporaneous jurisdiction also applied to preliminary
Answer: injunction? If yes, when? If not, why not?

If before the expiration of the 20 days period the application for preliminary injunction is Answer:
denied, the TRO would be deemed automatically vacated.
Yes, but before the raffle and issuance of the writs of preliminary injunction or TRO.
If no action is taken by the judge on the application for preliminary injunction within the
20 days, TRO automatically expires. In PI summons plus notice of hearing is necessary.

Question: Question:

Supposing before the expiration of the 20 days, the Trial Judge extends the TRO. What is the effect of dismissal of the case with respect to writ of PI?
After the 20 days, the party restrained committed again an act sought subject of the TRO, can
he be cited for contempt? Answer:

Answer: If the main case is dismissed, the writ of preliminary injunction is dissolved.

No, because the 20 day period is non-extendible. The issue of propriety of obtaining a preliminary injunction dies with the main case are
from which it logically sprang.

Therefore, PI, like any other interlocutory order, cannot survive the main case of which
it is but an incident (G & S Transport Corp. vs. CA).

Question:
Question:
Supposing, the case is revived, is the writ of PI which has been dissolved will
Distinguish preliminary injunction from preliminary attachment? automatically reinstated?

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 43
Answer: Is the charge in the complaint or information containing to offenses valid?

No. Another judicial determination for the issuance is necessary. Answer:

Yes, provided that the law prescribed a single punishment for various offenses.
(Section 13, Rule 110).
ON CRIMINAL PROCEDURE
If not, the remedy is to move to quash the complaint or information before the accused
entering his plea. (Section 3(f), Rule 117).
Place of commission of the offense

Question:
Question:
When does the complaint or information be considered sufficient?
When to amend the complaint or information?
Answer: Answer:

It is sufficient if it states the name of the accused; the designation of the offense given
by the statute; the acts or omission complained of as constituting the offense; the name of the
offended party; the approximate date of the commission of the offense; and the place where the
offense was committed. (Section 6, Rule 110).
As to date of the commission of the offense, the complaint or information is sufficient if
it can be understood from its allegation that the offense was committed or some of its essential
ingredients occurred at some place within the jurisdiction of the court, unless the particular
place where it was committed constitutes an essential element of the offense charged or is
necessary for its identification. (Section 10, Rule 110).
1. Amendment before arraignment.
a. With leave of court, if the purpose is downgrade the nature of the offense charged
in or excludes any accused from the complaint or information can be made only upon
motion by the prosecutor, with notice to the offended party.
b. Without leave of court, in form and in substance.
2. Amendment, after arraignment and during the trial but limited only to formal
amendment, with leave of court, provided that it should not prejudice the rights of the
accused. (Section 14, Rule 110).

Question:

Supposing a motion to quash is filed based on the alleged defect of the complaint or
information, can the court order the amendment to cure the defect?

Duplicity of the offense

Question: Answer:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Yes. And if it is based on the ground that the facts charged do not constitute an
offense, the prosecution shall be given by the court an opportunity to correct the defect by
amendment, and the motion to quash shall be if the prosecution fails to make the amendment,
or the complaint or information still suffers from the same defect despite the amendment.
(Section 4, Rule 117).
Substitution in relation to Section 19, Rule 119
Question:
Can the court dismiss the complaint or information if there has been a mistake made in
charging the proper offense, if yes, when, and what is the rule?
Answer:
If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing of a
new one charging the proper offense in accordance with Section 19, Rule 119, 2000 Rules of
Criminal Procedure, provided that the accused shall not be placed in double jeopardy.
(Section 14, Rule 110).
Question:
Can the court require the witness to post a bail?
Yes, this is allowed only when there has been a mistake in charging the proper offense
and a new one is filed charging the accused the proper offense in which case in order the
secure the appearance of the witness at the trial, the court may require the witnesses to post
their bail. (Section 14, Rule 110).
This a case where the court can require the witness to post bail not for the purpose of
acquiring jurisdiction of his person but only to require his presence during the trial for testifying
purposes, as contradistinguished from bail posted by the accused for provisional liberty
purposes.
Question:
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MV Salceda while navigating the Batangas City waters from Cebu to Manila, X, her
passenger, stab Y and killed the latter. You are the lawyer of Y’s heir, where will you file the
complaint? What rule will you follow in filing the complaint? Why?
Answer:
In Batangas City or in Manila courts.
Where an offense is committed on board a vessel in the course of its voyage, the
criminal action shall be instituted and tried in the court of the first port of entry or of any
municipality or territory where the vessel passed during such voyage. (Section 15(c), Rule
110).
Question:
X is an account holder of PNB Batangas City branch. While X and Y were taking
snacks at Jollibee crossing, Calamba City, X issued to Y a PNB check. Y deposited X’s check in
Tagaytay City where his depositary bank is located. The check bounced. Y filed the BP 22 case
in MTC Calamba City. The judge dismissed the case claiming improper venue hence,
jurisdictional. Is the judge correct?
Answer:
No. The case can be filed either in Batangas City, or in Tagaytay City or in Calamba
City. The criminal action shall be instituted and tried in the court of the municipality or territory
where the offense was committed or where any of its essential ingredients occurred. (Section
15(a), Rule 110).
Question:
In filing a criminal action, what is the rule if the offense is committed in a train, aircraft,
or other public or private vehicle in the course of its trip?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
The criminal action shall be instituted and tried in the court of any municipality or
territory where such train, aircraft, or other vehicle passed during its trip, including the place of
its departure and arrival. (Section 15(b), Rule 110).
On Prosecution of Civil Action
Question:
May the offended party intervene by counsel where the civil action for recovery of civil
liability is instituted in the criminal action?
45
evidence. (Section 1 (a), paragraphs 1 and 2, Rule 111, 2000 Revised Rules of Criminal
Procedure).
However, in criminal action where the civil action is deemed instituted and (1) he wants
to recover damages like moral, nominal, temperate or exemplary damages which amount of
damages is not specified in the complaint or information), in case he wins, the filing fees shall
constitute a first lien on the judgment awarding such damages, and (2) in criminal action where
the civil action is deemed instituted and he wants to recover damages, other than actual, and
the amount of such damages are specified in the complaint or information, the required filing
fees upon filing shall be paid in court. (Section 1 (a), paragraphs 3 and 4, Rule 111, 2000
Revised Rules of Criminal Procedure).

Answer: NOTE:

Yes. (Section 16, Rule 110). The rules are:

Filing fees are:

Question: 1. (a) not required for actual and compensatory
damages;
Biktima, the owner and driver of a brand new car wants to file a case against
Nakabangga of a crime of Reckless Imprudence Resulting in Damage to Property. Biktima is (b) required in moral, temperate or exemplary
now entertaining a second thought of whether to forego his claim against Nakabangga for damages;
damages. Biktima engaged you as his lawyer. He wants to know from you how to institute his
civil claim from Nakabangga. What pieces of advice will you give?
Filing fees:
Answer: 2. (a) shall be paid upon filing of the complaint or information if the moral, nominal,
temperate or exemplary damages are alleged in the complaint or information;
If he wants to file a criminal case, his claim for damages is impliedly or is deemed
instituted unless he (1) waives the civil action, (2) reserves the right to institute it separately or (b) need not be paid upon filing of the complaint or information if the amount of
(3) institute the civil action prior to the criminal action. moral, nominal, temperate or exemplary damages are not alleged in the
complaint or information because the filing fees therefore shall constitute as a
If he wants to file a separate (or an independent civil) action, he may institute it before first lien on the judgment awarding such damages. (Francisco, Criminal
the filing of criminal action. Procedure, 3rd ed., 1996, @ pages 128 and 129).

If he wants to file a separate (or an independent civil) action, after the criminal case is
filed and within a reasonable opportunity, he should make the reservation by way of
manifestation informing the court of such intention before the prosecution starts presenting its Question:

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X is charged of reckless imprudence resulting in serious physical injuries and damage
to property. The claim for civil action is deemed instituted in the criminal action.
After the prosecution had rested its case, the defense presented X as witness belying
the charge against him, and because of the baseless prosecution, he was constrained to
engaged the service of counsel de parte to protect his case and thus incurred an expenses of
P50,000.00 in attorney’s fees. Supposing the court finds for the accused, can the trial court
incorporate in the decision ordering the private complainant to reimburse X the P50,000.00
representing attorney’s fees.
Answer:
Yes, because what Section 1 (a), Rule 111, last paragraph prohibits is the filing of
counterclaim. Giving testimony in open court is not covered. What is covered by the prohibition
is the filing (For better analysis, see last paragraph of Section 1 (a), Rule 111, 2000
Revised Rules of Criminal Procedure).
Question:
Again Biktima, who probably has some other cases to be filed later also against
Nakabangga and wants to know from you what other civil actions can proceed independently
with the criminal case because he is afraid that he might not prove the guilt of Nakabangga
beyond reasonable doubt. How will you answer this question?
Answer:
In the cases provided in Article 32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of evidence.
(Section 3, Rule 111, 2000 Revised Rules of Criminal Procedure).
Question:
An independent civil case is also filed, and in the criminal case the Biktima testified
without any objection from the defense regarding the damages he sustained. The court in civil
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case ruled in Biktima’s favor awarding him P1M, and the court in criminal case rendered its
decision holding also Nakabangga liable for damages in the amount of P1M. Can Biktima
recover the P2M?
Answer:
No, because he can not recover damages twice for the same act or omission charged
in the criminal action. (Section 3, Rule 111, 2000 Revised Rules of Criminal Procedure).
Question:
Mamang Sugatan was seen by Mamang Police while patrolling bathing with his own
blood lying on the dark alley. The latter did not pay any attention, and instead he continued
patrolling in the vicinity. Can Mamang Sagutan after filing a criminal case against Mamang
Police validly files an independent civil action?
Supposing Mamang Police, instead of helping Sugatan, violated the latter’s
constitutional rights; was defamed and boxed, will your answer be the same?
Answer:
Yes, because these involve cases provided in Articles 32, 33, 34 and 2176 of the Civil
Code, which according to Section 3, Rule 111, 2000 Revised Rules on Criminal Procedure,
these can proceed independently. (Better see Sections 32, 33 and 34 of the Civil Code -
Section 3, Rule 111, 2000 Revised Rules of Criminal Procedure; Articles 33 and 34, Civil
Code).
Question:
In cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, which according to
Section 3, Rule 111, 2000 Revised Rules on Criminal Procedure, can proceed independently, is
reservation necessary?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Yes. While it is true that no reservation to file separate civil action for independent civil
actions under the Civil Code is needed because substantive law (the Civil Code) should hold
sway over a procedural rule as held in Abellana vs. Marave (1974 Ruling. 57 SCRA 106),
however, this doctrine had already been abandoned by Maniago vs. CA (253 SCRA 674) and
San Ildefonso Lines, Inc. vs. CA (289 SCRA 568) requiring reservation even for
independent civil actions to be eventually filed by the offended party.
Question:
Jose is the owner of the bus driven by Pedro that figured in a vehicular accident with
the jeepney owned by Mario. Jose sought for the suspension of the civil case for damages
filed against him in view of the pendency of the criminal case for reckless imprudence resulting
in damage to property and multiple physical injuries filed against his driver Pedro.
The complainant in the criminal case did not reserve the right to bring the separate civil
action against Jose or Pedro. The criminal case was later dismissed for the failure of the
prosecution to prosecute its case.
Can the complainant in the criminal case file a civil action for damages despite the
absence of reservation?
What is the effect of dismissal of the criminal case with respect to civil action?
Is the reservation requirement substantive in character and beyond the rule-making
power of the Court?
What is the purpose of reservation?
Answer:
The rule clearly requires that a reservation must be made to institute separately all civil
actions for the recovery of civil liability, otherwise they will de deemed to have been instituted
with the criminal case.
In other words the right of the injured party to sue separately for the recovery of the
civil liability whether arising from crimes (ex delicto) or from quasi-delict under Article 2176 of
the Civil Code must be reserved otherwise they will de deemed instituted with the criminal
action.
The requirement that before a separate civil action may be brought it must be reserved
does not impair, diminish or defeat substantive rights, but only regulates their exercise in the
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general interest of procedure. The requirement is merely procedural in nature (Maniago vs.
CA).
Prior reservation is a condition sine qua non before any of the independent civil actions
can be instituted and thereafter have a continuous determination apart from or simultaneous
with the criminal action. The purpose of which is to avoid multiplicity of suits, to guard against
oppression and abuse, to prevent delays, to clear congested dockets, to simplify the work of the
trial court; in short, the attainment of justice with the least expense and vexation to the parties-
litigants (San Ildefonso Lines, Inc. vs. CA) citing Caños vs. Peralta,).
Question:
What is the governing rule regarding prosecution of violation of BP 22 in relation
to civil liability?
Answer:
The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation to file such civil action separately shall be
allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay
in full the filing fees based on the amount of the check involved, which shall be considered as
the actual damages claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay
additional filing fees based on the amounts alleged therein. If the amounts are not so alleged
but any of these damages are subsequently awarded by the court, the filing fees based on the
amount awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application with the court
trying the latter case. If the application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of the civil and criminal actions
(Section 1 (b), Rule 111, 2000 Revised Rules of Criminal Procedure).
Question:
What is the purpose of the rule?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
As discussed by the Supreme Court in Hyatt Industrial Manufacturing Corporation
vs. Asia Dynamic Electrix Corporation, citing Regalado, Remedial Law Compendium Vol.
II [9th Revised Edition, pp. 293-294], is to help declog court dockets which are filled with B.P.
22 cases as creditors actually use the courts as collectors. Because ordinarily no filing fee is
charged in criminal cases for actual damages, the payee uses the intimidating effect of a
criminal charge to collect his credit gratis and sometimes, upon being paid, the trial court is not
even informed thereof. The inclusion of the civil action in the criminal case is expected to
significantly lower the number of cases filed before the courts for collection based on
dishonored checks. It is also expected to expedite the disposition of these cases. Instead of
instituting two separate cases, one for criminal and another for civil, only a single suit shall be
filed and tried. It should be stressed that the policy laid down by the Rules is to discourage the
separate filing of the civil action. The Rules even prohibit the reservation of a separate civil
action, which means that one can no longer file a separate civil case after the criminal complaint
is filed in court. The only instance when separate proceedings are allowed is when the civil
action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of
the civil and criminal cases.
The High Court added:
“We previously observed that a separate civil action for the purpose of
recovering the amount of the dishonored checks would only prove to be costly,
burdensome and time-consuming for both parties and would further delay the final
disposition of the case. This multiplicity of suits must be avoided. Where
petitioners’ rights may be fully adjudicated in the proceedings before the trial
court, resort to a separate action to recover civil liability is clearly unwarranted”
(Hyatt Industrial Manufacturing Corporation vs. Asia Dynamic Electrix
Corporation, supra, citing Banal vs. Tadeo, Jr.) .
Question:
Hyatt filed a complaint for sum of money against Asia Dynamic alleging that the latter
purchased from the former various electrical supplies and that the checks she issued were
dishonored. Defendants failed to pay the plaintiff despite demand.
Defendants moved to dismiss the complaint claiming that: (1) the civil action was deemed
included in the criminal actions for violation of Batas Pambansa Blg. 22 (B.P. 22) previously
filed by Hyatt against the officers of Asia Dynamic; (2) Section 1(b) of Rule 111 of the Revised
Rules of Criminal Procedure prohibits the filing of a separate civil action in B.P. 22 cases.
The trial court denied the motion and held that the civil action could proceed
independently of the criminal actions since the act complained of arose from the alleged non-
payment of contractual debt and not the issuance of a bounced checks, in accordance with
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Article 31 of the Civil Code, Accordingly, Section 1(b) of Rule 111 of the Revised Rules of
Criminal Procedure does not apply to the obligation, it being ex-contractu and not ex-delicto.
Is the trial court correct?
Answer:
No. Upon filing of the criminal cases for violation of B.P. 22, the civil action for the
recovery of the amount of the checks is impliedly instituted under Section 1(b) of Rule 111 of
the 2000 Rules on Criminal Procedure. Under the present Revised Rules, the criminal action for
violation of B.P. 22 shall be deemed to include the corresponding civil action (Hyatt Industrial
Manufacturing Corporation vs. Asia Dynamic Electrix Corporation, supra).
The reservation to file a separate civil action is no longer needed (Ngo vs. People).
In view of this special rule governing actions for violation of B.P. 22, Article 31 of the
Civil Code will not apply (Hyatt Industrial Manufacturing Corporation vs. Asia Dynamic
Electrix Corporation, supra, citing Banal vs. Tadeo, Jr.).
Question:
What civil action which can not proceed independently with the criminal case?
Answer:
Civil actions arising from crimes ((Francisco, Criminal Procedure, 3rd ed., 1996, @
pages 130 to 131, citing Herrera, Remedial Law, Vol. IV, p. 131).
Question:
What is the importance of knowing what are civil actions which can proceed
independently and what action which cannot proceed independently?
Answer:
Here you can determine when to suspend the proceedings in civil action, because civil
actions which can proceed independently cannot be suspended, while proceedings in civil
action which is dependent with the criminal action can be suspended, and this calls the
application of Section 2, Rule 111, 2000 Revised Rules of Criminal Procedure. In short,
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 49
suspension of the proceedings is applicable only to civil actions which are dependent of the
criminal action. What is the effect of consolidation in the evidence already adduced in the civil action?

Answer:

Question: The evidence already adduced in the civil action shall be deemed automatically
reproduced on the criminal action without prejudice to the right of the prosecution to cross-
What is the rule when the criminal action has been commenced? examine the witness presented by the offended in the criminal case and of the parties to
present additional evidence. (Section 2, Rule 111, 2000 Revised Rules of Criminal
Answer: Procedure).

The separate civil action arising from the criminal action cannot be instituted until final Question:
judgment has been entered in the criminal action. (Section 2, Rule 111, 2000 Revised Rules
of Criminal Procedure). What is the effect of the period of prescription in the civil action which cannot be
instituted separately or proceedings has been suspended during the pendency of the criminal
action?
Question:
Answer:
What is the rule when the criminal action is filed after the civil action has already been
instituted? The period of prescription of the civil action is tolled. (Section 2, Rule 111, 2000
Revised Rules of Criminal Procedure).
Answer:

The civil action shall be suspended in whatever stage it may be found before judgment
on the merits. The suspension shall last until final judgment is rendered in the criminal action.
(Section 2, Rule 111, 2000 Revised Rules of Criminal Procedure).
Question:
Can the offended party moved for the consolidation of the civil action with the
criminal action? If yes, when? and where to consolidate?
Answer:
Question:
Is the extinction of the penal action carries with it the extinction of the civil action?
Answer:
No. However, the civil action based on delict shall be deemed extinguished of there is
a finding in a final judgment on the criminal action that the act or omission from which the civil
liability may arise did not exists. (Section 2, Rule 111, 2000 Revised Rules of Criminal
Procedure).

Yes, before the judgment on the merit in civil action is rendered. The civil action may On demurrer to evidence
be consolidated with the criminal action in the court trying the criminal action. The consolidated
criminal and civil actions shall be tried and decided jointly. Question:

Question:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
If after the prosecution had rested its case, and the demurrer to evidence filed by the
defense had been granted by the court, what will happen to the civil aspect of the case?
Answer:
When a demurrer to evidence is filed without leave of court, the whole case is
submitted for judgment on the basis of the evidence for the prosecution as the accused is
deemed to have waived the right to present evidence. The court is called upon to decide the
case including its civil aspect, unless the enforcement of the civil liability by a separate civil
action has been waived or reserved.
If the filing of a separate civil action has not been reserved or priorly instituted or the
enforcement of civil liability is not waived, the trial court should, in case of conviction, state the
civil liability or damages caused by the wrongful act or omission to be recovered from the
accused by the offended party, if there is any.
In case of acquittal, the accused may still be adjudged civilly liable. The extinction of
the penal action does not carry with it the extinction of the civil action where (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is required; (b) the court
declares that the liability of the accused is only civil; and (c) the civil liability of the accused does
not arise from or is not based upon the crime of which the accused was acquitted. (Sanchez v.
Far East Bank & Trust Co.).
The civil action based on delict may, however, be deemed extinguished if there is a
finding on the final judgment in the criminal action that the act or omission from which the civil
liability may arise did not exist.
In case of a demurrer to evidence filed with leave of court, the accused may adduce
countervailing evidence if the court denies the demurrer. Such denial bears no distinction as to
the two aspects of the case because there is a disparity of evidentiary value between the
quanta of evidence in such aspects of the case. In other words, a court may not deny the
demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil
aspect, for if the evidence so far presented is not insufficient to prove the crime beyond
reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by
mere preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof beyond
reasonable doubt, it does not follow that the same evidence is insufficient to establish a
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preponderance of evidence. For if the court grants the demurrer, proceedings on the civil
aspect of the case generally proceeds. The only recognized instance when an acquittal on
demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or
omission from which the civil liability may arise did not exist. Absent such determination, trial as
to the civil aspect of the case must perforce continue. (Hun Hyung Park vs. Eung Won Choi).
In other words, if demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the case unless the court also
declares that the act or omission from which the civil liability may arise did not exist. (Salazar
vs. People).
This rule however, does not apply in cases involving violation of BP 22 because:
(1) the civil aspect is deemed included (Section 1 [b], Rule 111, 2000 Rules of
Criminal Procedure);
(2) prosecution of violation of BP 22 is covered by the Rules on Summary Procedure,
thus, filing of demurrer to evidence is not allowed.
TAKE NOTE that the case of Parks involves violation of BP 22.
Question:
Supposing the MTC (not for violation of BP 22 but for other criminal cases) on
demurrer to evidence dismissed the prosecution’s case, can the trial court immediately
terminate the proceedings as regards the civil aspect and immediately render a decision, or can
the MTC also dismiss the civil aspect without any basis?
Can the RTC on appeal on the civil aspect in its initial decision adjudicate the merits of
the civil aspect?
Answer:
No. A finding of sufficiency of evidence as to the civil aspect, where a demurrer to
evidence is filed with leave of court, does not authorize the trial court to terminate the
proceedings and immediately render a decision. If the evidence so far presented is insufficient
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 51
as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to
establish a preponderance of evidence. Final judgment rendered in a civil action absolving the defendant from civil liability is
not a bar to a criminal action against the defendant for the same act or omission subject of the
It is not incorrect for the lower court to dismiss the civil aspect of the case without any civil action. (Section 4, Rule 111, 2000 Rules of Criminal Procedure).
basis. And it is too premature for the appellate court, in its initial decision, to adjudicate the
merits of the civil aspect of the case. (Hun Hyung Park vs. Eung Won Choi).

Question:

What is the effect of death of the accused on civil actions? On prejudicial question

Question:

What are the elements of prejudicial question?

Answer:
Answer:
If the civil action arises from cases provided in Articles 32, 33, 34 and 2176 of the Civil
Code is instituted under Section 3 the civil action may be continued against the estate or legal 1. the previously instituted civil action involves an issue similar or intimately
representative of the accused after proper substitution or against the estate, as the case may related to the issue raised in the subsequent criminal action.
be, because what we are referring is the continuation of the proceedings in determining
civil liability against the estate or legal representative of the accused after proper 2. the resolution of such issue determines whether or not the criminal
substitution or against the estate, as the case may be. The extinguishment of the civil liability action may proceed. (Section 7, Rule 111, 2000 Rules of Criminal
is not the prime factor but the determination whether the estate or legal representative of the Procedure).
accused after proper substitution or against the estate, as the case may be, is liable for the civil
damage.
Question:
If the civil action arises from delicts is deemed instituted with the criminal aspect, the
Where and when to file petition to suspend criminal action on ground of prejudicial
death of the accused extinguishes his civil liability provided that his death (1) occurred after his
question?
arraignment and (2) during the pendency of the case. This pertains to actual and outright
extinguishment of the civil liability.

Answer:
It the accused dies before arraignment, the case shall be dismissed without prejudice
to any civil action of the offended party may file against the estate of the deceased.
If the criminal action has been filed in court for trial, the petition shall be filed in the
same court where criminal action is filed, provided that the same be filed before the prosecution
If the civil action arises from delicts is separately filed with the criminal action, upon his
death, the civil action may be continued against the estate or legal representative of the rests. Meaning, it can be filed anytime, provided that it should be done before the prosecution
rests its case.
accused after proper substitution or against the estate, as the case may be. (Section 4, Rule
111, 2000 Rules of Criminal Procedure).

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
If the criminal action is still with the prosecutor’s office for preliminary investigation,
petition should be filed with the said office. (Section 7, Rule 111, 2000 Rules of Criminal
Procedure).
TAKE NOTE:
1. the word used in the rule is petition and not motion.
2. the court has no authority to conduct preliminary investigation.
On civil liability
Question:
What are the three (3) important requisites before a court can acquire criminal
jurisdiction?
Answer:
1. The court must have jurisdiction over the subject matter;
2. The court must have jurisdiction over the territory where the offense was committed,
and
3. The court must have jurisdiction over the person of the accused. (Cruz vs. CA, G.R.
No. 123340, August 29, 2002, citing Oscar M. Herrera, Remedial Law, Volume IV,
1992 Edition, p. 3).
Case:
An Affidavit of Self-Adjudication of a parcel of land stating that she is the sole surviving
heir of the registered owner when in fact she knew there were other surviving heirs was
executed by Lutgarda before a Notary Public in the City of Manila. As a consequence thereof,
she was charged of Estafa thru Falsification of Public Document in the Manila RTC. The
offended party did not reserve the right to file a separate civil action arising from the criminal
offense, hence, the civil action was deemed instituted in the criminal case.
Based on merits, she was acquitted on the ground of reasonable doubt, but with
pronouncement as to civil aspect of the case ordering her to return to the surviving heirs the
parcel of land located in Bulacan.
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She appealed the civil aspect of the decision claiming that the trial court had no
jurisdiction over the parcel of land in Bulacan which is outside the trial court’s territorial
jurisdiction.
Question:
Has the Manila RTC jurisdiction over the parcel of land in Bulacan which is outside the
trial court’s territorial jurisdiction?
Answer:
Yes. Where the court has jurisdiction over the subject matter and over the person of
the accused, and the crime court necessarily exercises jurisdiction over all issues that the law
requires the court to resolve. One of the issues in a criminal case is the civil liability of the
accused arising from the crime. Article 100 of the Revised Penal Code provides that every
person criminally liable for a felony is also civilly liable. Article 104 of the same Code states that
civil liability includes restitution.
The action for recovery of civil liability is deemed instituted in the criminal action unless
reserved by the offended party. Since the offended party did not reserve the filing of
independent civil action, the civil action is deemed instituted in the criminal action. Although the
trial court acquitted Lutgarda of the crime charged, the acquittal, grounded on reasonable
doubt, did not extinguish her civil liability. Thus, the Manila RTC had jurisdiction to decide the
civil aspect of the case, and ordering the restitution of the parcel of land even if the same is
located in Bulacan, is proper. (Cruz vs. CA).
Question:
If after the prosecution had rested its case, and the demurrer to evidence filed by the
defense had been granted by the court, what will happen to the civil aspect of the case?
Answer:
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When a demurrer to evidence is filed without leave of court, the whole case is
submitted for judgment on the basis of the evidence for the prosecution as the accused is
deemed to have waived the right to present evidence. The court is called upon to decide the
case including its civil aspect, unless the enforcement of the civil liability by a separate civil
action has been waived or reserved.
If the filing of a separate civil action has not been reserved or priorly instituted or the
enforcement of civil liability is not waived, the trial court should, in case of conviction, state the
civil liability or damages caused by the wrongful act or omission to be recovered from the
accused by the offended party, if there is any.
In case of acquittal, the accused may still be adjudged civilly liable. The extinction of
the penal action does not carry with it the extinction of the civil action where (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is required; (b) the court
declares that the liability of the accused is only civil; and (c) the civil liability of the accused does
not arise from or is not based upon the crime of which the accused was acquitted. (Sanchez v.
Far East Bank & Trust Co).
The civil action based on delict may, however, be deemed extinguished if there is a
finding on the final judgment in the criminal action that the act or omission from which the civil
liability may arise did not exist.
In case of a demurrer to evidence filed with leave of court, the accused may adduce
countervailing evidence if the court denies the demurrer. Such denial bears no distinction as to
the two aspects of the case because there is a disparity of evidentiary value between the
quanta of evidence in such aspects of the case. In other words, a court may not deny the
demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil
aspect, for if the evidence so far presented is not insufficient to prove the crime beyond
reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by
mere preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof beyond
reasonable doubt, it does not follow that the same evidence is insufficient to establish a
preponderance of evidence. For if the court grants the demurrer, proceedings on the civil
aspect of the case generally proceeds. The only recognized instance when an acquittal on
demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or
omission from which the civil liability may arise did not exist. Absent such determination, trial as
to the civil aspect of the case must perforce continue. (Hun Hyung Park vs. Eung Won Choi).
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In other words, if demurrer is granted and the accused is acquitted by the court, the
accused has the right to adduce evidence on the civil aspect of the case unless the court also
declares that the act or omission from which the civil liability may arise did not exist. (Salazar
vs. People).
This rule however, does not apply in cases involving violation of BP 22 because:
(1) the civil aspect is deemed included (Section 1 [b], Rule 111, 2000 Rules of
Criminal Procedure);
(2) prosecution of violation of BP 22 is covered by the Rules on Summary Procedure,
thus, filing of demurrer to evidence is not allowed
TAKE NOTE that the case of Parks involves violation of BP 22.
Question:
Supposing the MTC (not for violation of BP 22 but for other criminal cases) on
demurrer to evidence dismissed the prosecution’s case, can the trial court immediately
terminate the proceedings as regards the civil aspect and immediately render a decision, or can
the MTC also dismiss the civil aspect without any basis?
Can the RTC on appeal on the civil aspect in its initial decision adjudicate the merits of
the civil aspect?
Answer:
No. A finding of sufficiency of evidence as to the civil aspect, where a demurrer to
evidence is filed with leave of court, does not authorize the trial court to terminate the
proceedings and immediately render a decision. If the evidence so far presented is insufficient
as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to
establish a preponderance of evidence.
It is not incorrect for the lower court to dismiss the civil aspect of the case without any
basis. And it is too premature for the appellate court, in its initial decision, to adjudicate the
merits of the civil aspect of the case. (Hun Hyung Park vs. Eung Won Choi).
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
On Reversed Order of Trial (Rule 119, Section 11 [e])
Question:
The prosecution shall present first its evidence-in- chief, thereafter, followed by the
defense. Can the court modify the order of trial? If yes, when?
Answer:
Yes, when the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, in which case, the defense should be the first to
present evidence.
On Discharged of accused to be state witness (Rule 119, Section 17).
Question:
Exemplify “prosecution’s decision to grant immunity from prosecution”
The decision to grant immunity from prosecution forms a constituent part of the
prosecution process. It is essentially a tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate renunciation of the right of the State
to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the
particular need of the State to obtain the conviction of the more guilty criminals who, otherwise,
will probably elude the long arm of the law. Whether or not the delicate power should be
exercised, who should be extended the privilege, the timing of its grant, are questions
addressed solely to the sound judgment of the prosecution. The power to prosecute includes
the right to determine who shall be prosecuted and the corollary right to decide whom not to
prosecute. (Salvanera vs. People,; Pontejos vs. Ombudsman; Mapa vs. Sandiganbayan).
Question:
What are conditions required before an accused be discharged as state witness?
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Answer:
The following conditions must be present, namely:
(1) Two or more accused are jointly charged with the commission of an offense;
(2) The motion for discharge is filed by the prosecution before it rests its case;
(3) The prosecution is required to present evidence and the sworn statement of
each proposed state witness at a hearing in support of the discharge;
(4) The accused gives his consent to be a state witness; and
(5) The trial court is satisfied that:
a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
b) There is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused;
c) The testimony of said accused can be substantially corroborated in its
material points;
d) Said accused does not appear to be the most guilty; and
e) Said accused has not at any time been convicted of any offense involving
moral turpitude. (Section 17, Rule 119, 2000 Revised Rules of Criminal
Procedure; Salvanera vs. People).
TAKE NOTE: The court shall deny if any one of the requisites is wanting. The
“must” word used in Salvanera exemplified the mandatory presence of all the requisites
required by the rules before a judge can order the discharge of an accused as a state witness.
Simply stated, all the elements required under the rules must be complied with before an
accused may be discharged as a state witness.
Case:
X, Y, Z and V, were charged of murder. Per prosecution’s theory, X was the alleged
mastermind; Y, the hired hitman; Z was the driver of the Y, and V was the one who delivered
the blood money to Y. All of them have been arrested except Y. X applied for bail. The
prosecution moved to discharged Z and V to serve as state witnesses. X’ bail application was
granted and denied the prosecution’s motion to discharge Z and V. Not satisfied, the People
appealed the ruling to the Court of Appeals. The CA discharged Z and V as state witness, and
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
cancelled the bail posted by X. In the SC, X contested the ruling of the CA claiming that the CA
committed grave abuse of discretion when it ruled that the substantial corroboration
requirement was satisfied by the prosecution despite the fact that the “substantial corroboration”
requirement must be satisfied through the testimony of the other prosecution witnesses who are
not an accused sought to be discharged as state witness, not by another accused likewise
sought to be discharged, and despite of the fact that the testimony given by an accused sought
to be discharged as state witness cannot be used to corroborate the testimony given by another
accused likewise sought to be discharged as state witness.
Question:
Is the Court of Appeals correct?
Answer:
Yes. Because the testimonies of the accused Z and V, the proposed state witness can
directly link X to the commission of the crime, and to require other witnesses to corroborate the
testimony of Z and V on the exact same points will renders nugatory the other requisite that
there must be no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of the state witness. (Salvanera vs. People)
Question:
Are Z and V considered acquitted after they are ordered discharged as state
witnesses?
Answer:
Yes, because it is tantamount to an acquittal and shall be a bar to future prosecution
for the same offense, unless the accused fails or refuses to testify against his co-accused in
accordance with his sworn statements constituting the basis for his discharge. (Section 18,
Rule 119, 2000 Revised Rules of Criminal Procedure).
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Question:
Distinguish discharged of an accused to be a state witness under RA 6981 from
Section 17, Rule 119 of 2000 Revised Rules of Criminal Procedure.
Answer:
The immunity provided under Republic Act No. 6981 is granted by the Department of
Justice, while the discharge under Section 17, Rule 119 is granted by the court.
The discharge of an accused to be a state witness under RA 6981 is only one of the
modes for a participant in the commission of a crime to be a state witness, while the discharge
of an accused under Section 17, Rule 119 of the Revised Rules on Criminal Procedure is
another mode of discharge.
The discharge under Section 17, Rule 119 of the Revised Rules on Criminal
Procedure contemplates a situation where the information has been filed and the accused had
been arraigned and the case is undergoing trial. The discharge of an accused under this rule
may be ordered upon motion of the prosecution before resting tis case, that is, at any stage of
the proceedings, from the filing of the information to the time the defense starts offer any
evidence, whereas under RA 6981 what is required is compliance with the requirement if
Section 14, Rule 110 of the Revised Rules of Criminal Procedure, but not the requirement set-
forth in Section 17 of Rule 119. (Eugene Yu vs. Hon. Presiding Judge, RTC, Br. 18,
Tagaytay City,).
Question:
What is the remedy if mistake has been made in charging the proper offense?
Answer:
When it becomes manifest at any time before judgment that a mistake has been made
in charging the proper offense and the accused cannot be convicted of the offense charged or
any other offense necessarily included therein, the accused shall not be discharged if there
appears good cause to detain him. In such case, the court shall commit the accused to answer
for the proper offense and dismissed the original case upon filing of the proper information.
(Section 19, Rule 119, 2000 Revised Rules of Criminal Procedure).
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
On Demurrer to Evidence (Section 23)
Question:
Can the court on its own initiative dismiss the case for insufficiency of without the
accused filing his demurrer to prosecution’s evidence? When?
Answer:
Yes. After the prosecution rests its case, the court after giving the prosecution to be
heard may dismiss the case on grounds of insufficiency of evidence.
Question:
When can the accused, if he so desires, files his demurrer to prosecution’s evidence?
Answer:
After the prosecution rests its case, on ground of insufficiency of evidence the accused
may file demurrer to evidence with or without leave of court.
Question:
Accused wants to file leave of court to file demurrer to evidence, when should the
leave of court be filed?
Answer:
Within a non-exendible period of five (5) five days after the prosecution rests its case,
stating therein the specific grounds supporting the filing of demurrer to evidence.
The prosecution may oppose the motion within a non extendible period of five (5) days
from receipt of the motion.
If the leave of court is granted, the accused shall file his demurrer to evidence within a
non-extendible period of ten (10) days from notice or order granting the leave of court. The
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prosecution may oppose the demurrer to evidence within a non-extendible period of ten (10)
days from receipt of the copy of the demurrer to evidence.
The order denying the motion for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (Section 19,
Rule 119, 2000 Revised Rules of Criminal Procedure).
Question:
What is the effect of filing a demurrer without first a filing a motion of leave of court to
file demurrer to evidence?
Answer:
If the demurrer to evidence is denied, the case is deemed submitted for decision
because filing a demurrer to evidence without first filing a motion for leave of court constitutes
waiver on the part of the accused to present evidence in case his demurrer to evidence will be
denied.
The rule provides that when the demurer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case for judgment on the basis of
the evidence for the prosecution. (Section 23, Rule 119).
On the contrary, if the court denies the demurrer to evidence filed with leave of court,
the accused may adduce evidence in his defense. (Section 23, Rule 119).
On Judgment
Question:
Can the accused be convicted of as many offenses as are charged and proved if he is
charged of two or more offenses in a single complaint or information?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Yes, if the accused fails to object to it before the trial the court may convict him of as
many offenses as are charged and proved, and impose on him the penalty for each offense,
setting out separately the findings of fact and law in each offense. (Section 3, Rule 120).
To avoid this kind of situation, upon learning of the circumstances and before the
arraignment, the accused should avail of the remedy provided for in Section 3 (f) of Rule 117,
2000 Rules of Criminal Procedure, that is, the remedy of filing a motion to quash information.
Question:
You are the judge, how will you decide the case if there is variance between the
allegation and proof? Can you convict the accused of the offense proved which is included in
the offense charged?
Answer:
Yes, provided that the offense as charged is included in or necessarily includes in the
offense proved, or of the offense charged which is included in the offense proved. (Rule 20,
Section 4).
An offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those constituting the
latter. (Rule 20, Section 5).
Question:
In the absence of the accused, can the court promulgate the judgment in the presence
of his counsel or representative?
Answer:
Yes, if the conviction is for a light offense. (Rule 119, Section 23).
Question:
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May the clerk of court validly promulgate the decision?
Answer:
Yes, if the judge is absent or outside the province or city. (Rule 119, Section 23).
Question:
X was convicted of Estafa. While serving his sentence at the National Penitentiary,
Muntinlupa City for estafa, the Batangas MTC where his attempted homicide case is pending
issued an order setting the case for promulgation of the decision. May the RTC of Muntinlupa
City promulgate the decision in the attempted homicide case? If yes, what are the requisites?
Answer:
Yes, provided that a request is made by the MTC court for the Muntinlupa City RTC to
promulgate the judgment. (Rule 120, Section 6).
Here, you should distinguish the word “rendered” from “promulgated”.
Question:
Has the court promulgating the judgment the authority to accept the notice of appeal
and to approve the bail bond pending appeal?
Answer:
Yes, because the crime subject of the decision is bailable in character. (Section 6,
Rule 120).
Question:
Y is charged of murder in the Batangas RTC. Since he is presently confined at
Muntinlupa City Jail for other bailable crime, the decision in the murder case was promulgated
by the Muntinlupa City RTC in ccordance with the request made by the Batangas City RTC. Per
decision, the case of murder was downgraded to homicide. Supposing Y filed a notice of appeal
with the Muntinlupa RTC, can said court accept and approve the bail application for homicide?
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Answer:
No, because the subject matter of the decision is non-bailable, the same became
bailable only when the decision downgraded the crime from murder to homicide, therefore, the
bail application can only be filed and resolved by the appellate court.
The rule provides that if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be filed
and resolved by the appellate court. (Section 6, Rule 120).
Question:
Supposing the accused was tried in absentia, where to serve the notice for
promulgation of judgment purposes?
Answer:
In either case whether the accused jumped bail or escaped from prison, the notice
shall be served to him at his last known address. (Section 6, Rule 120).
Question:
Supposing W is duly notified for today’s promulgation of judgment but fails to appear
without justifiable cause, how the promulgation of judgment be made?
Answer:
By recording the judgment in the criminal docket and serving the accused a copy of
the decision at his last known address or thru his counsel. (Section 6, Rule 120).
Question:
W is duly notified for today’s promulgation of judgment but fails to appear without
justifiable cause, the court promulgated the decision finding him guilty of the crime of homicide.
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Is his failure to appear during the promulgation affects his right to appeal? If yes, what are the
effects?
Answer:
Yes. He loses all the available remedies against the judgment and the court shall order
his arrest. However, he may surrender and file a motion for leave of court to avail the remedies
within fifteen (15) days from promulgation of judgment. Within these periods, he should state
the reasons for his absence at the scheduled promulgation and prove that his absence was for
a justifiable cause. If the court grants the motion for leave of court, then he can avail of the
remedies within fifteen (15) days from receipt of the order granting the same. (Section 6, Rule
120).
On Judgment
Question:
Can the accused be convicted of as many offenses as are charged and proved if he is
charged of two or more offenses in a single complaint or information?
Answer:
Yes, if the accused fails to object to it before the trial the court may convict him of as
many offenses as are charged and proved, and impose on him the penalty for each offense,
setting out separately the findings of fact and law in each offense. (Section 3, Rule 120).
To avoid this kind of situation, upon learning of the circumstances and before the
arraignment, the accused should avail of the remedy provided for in Section 3 (f) of Rule 117,
2000 Rules of Criminal Procedure, that is, the remedy of filing a motion to quash information.
Question:
You are the judge, how will you decide the case if there is variance between the
allegation and proof? Can you convict the accused of the offense proved which is included in
the offense charged?
Answer:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
Yes, provided that the offense as charged is included in or necessarily includes in the
offense proved, or of the offense charged which is included in the offense proved. (Rule 20,
Section 4).
An offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those constituting the
latter. (Rule 20, Section 5).
Question:
In the absence of the accused, can the court promulgate the judgment in the presence
of his counsel or representative?
Answer:
Yes, if the conviction is for a light offense. (Rule 119, Section 23).
Question:
May the clerk of court validly promulgate the decision?
Answer:
Yes, if the judge is absent or outside the province or city. (Rule 119, Section 23).
Question:
X was convicted of Estafa. While serving his sentence at the National Penitentiary,
Muntinlupa City for estafa, the Batangas MTC where his attempted homicide case is pending
issued an order setting the case for promulgation of the decision. May the RTC of Muntinlupa
City promulgate the decision in the attempted homicide case? If yes, what are the requisites?
Answer:
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Yes, provided that a request is made by the MTC court for the Muntinlupa City RTC to
promulgate the judgment. (Rule 120, Section 6).
Here, you should distinguish the word “rendered” from “promulgated”.
Question:
Has the court promulgating the judgment the authority to accept the notice of appeal
and to approve the bail bond pending appeal?
Answer:
Yes, because the crime subject of the decision is bailable in character. (Section 6,
Rule 120).
Question:
Y is charged of murder in the Batangas RTC. Since he is presently confined at
Muntinlupa City Jail for other bailable crime, the decision in the murder case was promulgated
by the Muntinlupa City RTC in ccordance with the request made by the Batangas City RTC. Per
decision, the case of murder was downgraded to homicide. Supposing Y filed a notice of appeal
with the Muntinlupa RTC, can said court accept and approve the bail application for homicide?
Answer:
No, because the subject matter of the decision is non-bailable, the same became
bailable only when the decision downgraded the crime from murder to homicide, therefore, the
bail application can only be filed and resolved by the appellate court.
The rule provides that if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be filed
and resolved by the appellate court. (Section 6, Rule 120).
Question:
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 60
Supposing the accused was tried in absentia, where to serve the notice for On Evidence
promulgation of judgment purposes?

Answer: Question

In either case whether the accused jumped bail or escaped from prison, the notice What is the principle of adoptive admission? *********
shall be served to him at his last known address. (Section 6, Rule 120).
Answer:

Question: An adopted admission is a party’s reaction to a statement or action another person

when it is reasonable to treat the party’s reaction as an admission of something stated or
Supposing W is duly notified for today’s promulgation of judgment but fails to appear implied by the other person. By adoptive admission, a third person’s statement becomes the
without justifiable cause, how the promulgation of judgment be made? admission of the party embracing or spousing it.

Answer:
By recording the judgment in the criminal docket and serving the accused a copy of
the decision at his last known address or thru his counsel. (Section 6, Rule 120).
Therefore, a party may, by his own words or conduct, voluntarily adopt or ratify
another’s statement. Where it appears that a party clearly and unambiguously assented to or
adopted the statements of another, evidence of those statements is admissible against him.
Adoptive admission may occur when a party:

Question:
1. expressly agrees to or concurs in an oral statement made by another;
W is duly notified for today’s promulgation of judgment but fails to appear without
justifiable cause, the court promulgated the decision finding him guilty of the crime of homicide. 2. hears a statement and later on essentially repeats it;
Is his failure to appear during the promulgation affects his right to appeal? If yes, what are the
effects? 3. utters an acceptance or builds upon the assertion of another;

4. replies by way of rebuttal to some specific points raised by another but ignores
Answer:
further points which he or she has heard the other make, or
5. reads and signs a written statement made by another (Republic v. Kenrick
Yes. He loses all the available remedies against the judgment and the court shall order Development Corporation, 2006 Decision).
his arrest. However, he may surrender and file a motion for leave of court to avail the remedies
within fifteen (15) days from promulgation of judgment. Within these periods, he should state
the reasons for his absence at the scheduled promulgation and prove that his absence was for
a justifiable cause. If the court grants the motion for leave of court, then he can avail of the Question: *********
remedies within fifteen (15) days from receipt of the order granting the same. (Section 6, Rule
120). What is the so-called chain of custody rule? What is its concept?

Answer:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in
question is what the proponent claims to be. It would include testimony about every link in the
chain, from the moment the items was picked up to the time it is offered into evidence, in such
away that every person who touched the exhibit would describe how and from who it was
received, where it was and what happened to it while in the witness’ possession, the condition
in which it was received and the condition in which it was delivered to the next link in the chain.
The witnesses would then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same.
61
evidence was seized or in which similar evidence was submitted for laboratory testing. Hence,
in authenticating the same, a standard more stringent than that applied to cases involving
objects which are readily identifiable must be applied, a more exacting standard that entails a
chain of custody of the item with sufficient completeness of only to render it improbable that the
original items has either been exchanged with another or been contaminated or tampered with
(Lopez v. People, 2008 Decision).

While testimony about a perfect chain is not always the standard because it is almost
always impossible to obtain, an unbroken chain of custody becomes indispensable and
essential when the item of real evidence is not distinctive and is not readily identifiable, or when
its condition at the time of testing or trial is critical, or when a witness has failed to observe its
uniqueness. The same standard likewise obtains in case the evidence is susceptible to
alteration, tampering, contamination and even substitution and exchange. In other words, the
exhibit’s level of susceptibility to fungibility, alteration or tampering – without regard to whether NOTE:
the same is advertent or otherwise not – dictates the level of strictness on the application of the
chain of custody rule. On Best Evidence Rule

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is Refresher:
greatest when the exhibit is small and is one that has physical characteristics fungible in nature
and similar form to substances familiar to people in their daily lives. Graham v. State positively Rule 130, Revised Rules of Court:
acknowledged this danger. In that case where a substance later analyzed as heroin - was
handled by two police officers prior to examination who however did not testify in court on the “Sec. 3. Original document must be produced; exception. – When the subject of the
condition and whereabouts of the exhibit at the time it was in their possession – was excluded inquiry is the contents of a document, no evidence shall be admissible other than the original
from the prosecution evidence, the court pointing out that the white powdered seized could document itself, except un the following cases:
have indeed heroin or it could have been sugar or baking powder. It ruled that unless the state
can show by records or testimony, the continuous whereabouts of the exhibit at least between (a) when the original has been lost or destroyed, or cannot be produced in
the time it case into the possession of police officers until it was tested in the laboratory to court, without bad faith on the part of the offeror;
determine its composition, the testimony of the state as to the laboratory’s findings is
inadmissible. (b) when the original is in the custody or under the control of the party
against whom the evidence is offered, and the later fails to produce it
after reasonable notice;
A unique characteristic of narcotic substance is that they are not readily identifiable as
in fact they are subject to scientific analysis to determine their composition and nature. The (c) when the original consists if numerous accounts or other documents
Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of which cannot be examined in court without great loss of time and the
the links in the chain of custody over the same there could have been tampering, alteration or fact sought to be established from then is only the general result of the
substitution of substances from other cases – by accident or otherwise – in which similar whole; and

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One having opposing parties; contested, as distinguished from an ex parte application,
(d) when the original is a public record is in the custody of a public officer one of which the party seeking relief has given legal warning to the other party, and afforded the
or is recorded in a public office. latter an opportunity to contest it.

NOTE: On Correction of Entries in the Local Civil Registrar

On Modes of Discovery (Justice Nachura’s ponencia) **** CASE:

Before a party may compel the other party to produce or allow the inspection of
documents or things, the following requisites must concur:
7. The party must file a motion for the production or inspection of
documents or things, showing good cause therefor;
8. Notice of the motion must be served to all other parties of the case;
9. The motion must designate the documents, papers, books, accounts,
letters, photographs, objects or tangible things which the party wishes to
be produced and inspected;
10. Such documents, etc., are not privileged;
11. Such documents, etc., constitute or contain evidence material to any
matter involved in the action; and
12. Such documents, etc, are in the possession, custody or control of the
other party (Solid Bank v. Gateway Corporation).
On Special Proceedings
A verified petition for correction of entries in the Civil Registry of Batangas City was
filed by Carlito Kho and siblings to effect the changes in their respective birth certificates.
Carlito, in behalf of his minor children also prayed for the correction of entries in their birth
records.
In his BC, Carlito sought to correct the citizenship of his mother from Filipino to
Chinese, and to delete the married civil status of his parents in his BC.
With respect to his children’s birth records, he sought to correct his date of marriage
with his wife. The petition was later amended, this time praying that his second name “John” be
deleted from his birth record, and the name and citizenship of Carlito’s father be corrected from
John Kho to Juan Kho, and from Filipino to Chinese, respectively, which petition was favourably
granted by the trial court.
Supposing an appeal was seasonably filed by the Solicitor General faulting the trial
court; (1) in granting the petition despite the failure of respondents to implead the minors’
mother, Marivel, as an indispensable party and to offer sufficient evidence to warrant the
corrections with regard to the questioned “married” status of Carlito and his siblings’ parents,
and the latter’s citizenship, and (2) for ordering the change of the name “Carlito John Kho” to
“Carlito Kho” for non-compliance with jurisdictional requirements for a change of name under
Rule 103 of the Rules of Court. You are the CA Justice, how will you resolve the case?

Answer:
Question:
I will dismiss the appeal.
What do you mean by “appropriate adversary proceeding”?
On the issue of failure to implead Marivel as party, such failure does not render the
trial court’s judgment void. The publication of the order of hearing under Section 4 of Rule 108
Answer: has cured such failure to implead an indispensable party because the purpose of said section
is to bind the whole word to the subsequent judgment on the petition.

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
As regards the second assigned error, it can not be gainsaid that the petition, insofar
as it sought to change the citizenship of Carlito’s mother as it appeared in his birth certificate
and delete the “married” status of Carlito’s parents in his and his siblings’ respective birth
certificates, as well as change the date of marriage of Carlito and Marivel involves the
correction of not just clerical errors of a harmless and innocuous nature. Rather, the changes
entail substantial and controversial amendments.
For the change involving the nationality of Carlito’s mother as reflected in his birth
certificate is a grave and important matter that has a bearing and effect on the citizenship and
nationality not only of the parents, but also of the offspring, and the deletion of the entry that
Carlito’s and his siblings’ parents were “married” alters their filiation from “legitimate” to
“illegitimate,” with significant implications on their successional and other rights. Clearly, the
changes sought can only be granted in an adversary proceeding.
Since all persons who might be affected by the correction were made parties to the
proceedings, and the petition complies with the notice and publication requirements, and the
fact that no opposition was raised by the civil registrar or any person having or claiming any
interest thereon, the required adversary proceedings is thus satisfied.
Question:
Is the correction of the name Maribel to Marivel substantial?
Answer:
No. The mistake is clearly clerical or typographical, which is not only visible to the
eyes, but is also obvious to the understanding considering that the name reflected in the
marriage certificate of Carlito and his wife is Marivel.
Question:
Is correction of the name from Carlito John to Carlito proper?
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Answer:
Yes. Because the cancellation or correction of entries involving changes of name is
allowed by Section 2 letter “o” of Rule 108. While it is true that the jurisdictional requirements of
Rule 103 which governs petition for change of name were not complied with, but observance of
the provisions of Rule 108 suffices to effect the correction sought for. (Republic vs. Kho).
NOTE: If the effect of the of the correction sought involves the citizenship of the
mother and it has a bearing and effect on the citizenship and nationality not only of the parents,
but also of the offspring, the changes sought can only be granted after an adversarial
proceedings had been conducted. Same is true if the subject of the correction sought is the civil
status and the correction will alter the filiation from legitimate to illegitimate, with significant
implication on their successional and other rights (Republic vs. Kho), therefore, any changes
sought can only be granted in an adversary proceedings. It follows the REASON that if the
entries in the civil register could be corrected or changed through mere summary proceedings
and not through appropriate action wherein all parties who may be affected by the entries are
notified or represented, the door to fraud or other mischief would be set open, the consequence
of which might be detrimental and far reaching ((Republic vs. Kho; Labayo-Rowe vs.
Republic).
Question: ***
True or False:
Procedural rule may be given retroactive effect.
Answer:
True: Rules of procedure may be given retroactive effect to actions pending and
undetermined at the time of their passage so and this will not violate any right of a person who
may feel that he is adversely affected, inasmuch as there is no vested rights in rules of
procedure (Sumaway v. Urban Bank, G.R. No. 142534, June 27, 2006 citing Republic v.
CA, 447 Phil. 385). (TAKE NOTE OF THE NEYPES DOCTRINE)
Question: *****
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Can the court allow the plaintiff to amend his complaint after the case was ordered What is the purpose of non-splitting a single cause of action?
dismissed by the court?

Answer:
Answer:
The purpose of which is to:
Yes. It is settled that an amendment of a complaint may be allowed even if an order for
its dismissal has been issued, as long as the motion to amend is filed before the dismissal order 1. avoid multiplicity of suits;
becomes final. The reason for allowing the amendment on this condition is that, upon finality of 2. minimize expenses;
the dismissal, the court loses jurisdiction and control over the complaint. Thus, it can no longer 3. avoid inconvenience and harassment
make any disposition on the complaint in a manner inconsistent with the dismissal. After the
order of dismissal without prejudice becomes final, and therefore falls outside the court’s power
to modify, a party who wishes to reinstate the case has no remedy other than to file a new
complaint (Rodriguez, S., v. Aguilar, G.R. No. 159482, August 30, 2005).

Question: (***)

Can an ordinary civil action be consolidated with a Land Registration Case in the
Question: (******)
nature of a petition for the issuance of a writ of possession?
Plaintiff filed two complaints separately filed for one action. What remedy, pleading or
motion will you file?
Answer:
Answer:
Yes. While a petition for a writ of possession is an ex parte proceeding, being made on a
4. Motion to dismiss on ground of litis pendentia, if the first complaint is still pending presumed right of ownership, when such presumed right of ownership is contested and is made
the basis of another action, then the proceedings for writ of possession would also become
5. Motion to dismiss on ground of res judicata, if first complaint is terminated by final groundless. The entire case must be litigated and if need be must be consolidated with a
judgment related case so as to thresh out thoroughly all related issues (Philippine Savings Bank v.
Mañalac, G.R. No. 145411, April 26, 2005 citing Active Wood Products Co., Inc. v. Court of
6. An Answer averring either of the above grounds as affirmative defenses. Appeals, G.R. No. 86603, 5 February 1990).

Since, these grounds are waivable, I will timely raise the above-mentioned ground.
Splitting of cause of action must be questioned in the trial court, and the same cannot be raised
for the first time on appeal. Question:

What is the doctrine of non-interference, and give one example?

Question: (****)
Answer:

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A trial court has no authority to interfere with the proceedings of a court of equal
jurisdiction, much less to annul the final judgment of a co-equal court (Clark Development Question:
Corporation v. Mondragon Leizure and Resorts Corporation, G.R. No. 150986, March 2,
2007). True or False:

An example of which is that a court has no jurisdiction to restrain the execution Substitution of representative or heir of the deceased is a jurisdictional requirement.
proceedings in another court with concurrent jurisdiction (Paper Industries Corporation of the
Philippines v. IAC,_). Answer:

False: Rule on substitution by heirs is not a matter of jurisdiction, but to satisfy the
requirement of due process.
Question: ******

On death of party; substitution of party

Question: ***************
True or False:
Failure to substitute the representative or heir of the deceased in an action for
recovery of possession (quieting of title and damages) of a parcel of land invalidates the
proceedings.
Answer:
False: Failure of the counsel to comply with his duty to inform the court of the death of
his client, such that no substitution is effected does not invalidate the proceedings and the
judgment rendered thereon, because the action survives the death of the defendant. Mere
failure to substitute a deceased party is not sufficient ground to nullify a trial court’s decision
(Napere v. Barbarona, G.R. No. 160426, January 31, 2008).
NOTE: do not be misled of the Hinog v. Melicor case, G.R. No. 140954, April 12,
2005 and Brioso v. Rili-Mariano, G.R. No. 132765, January 31, 2003. Whether or not there
was proper substitution of parties was the issue involved in these cases, wherein the Supreme
Court held that non-compliance with the rule on substitution would render the proceedings and
judgment of the trial court infirm because the court acquires no jurisdiction over the persons of
the legal representatives or of the heirs on whom the trial and the judgment would be binding.
Proper substitution must be effected for the trial court to acquire jurisdiction over the persons of
the representative.
Question: (Your Bar Chairman’s ponencia) ******
If it is not a jurisdictional, what is the purpose of substitution of representative or heir of
the deceased?
Answer:
The rule on substitution was crafted to protect every party’s right to due process. It
was designed to ensure that the deceased party would continue to be properly represented in
the suit through his heirs or the duly appointed legal representative of his estate. The non-
compliance with the rules results in the denial of the right to due process for the heirs who,
though not duly notified of the proceedings, would be substantially affected by the decision
rendered therein. Thus, it is only when there is denial of due process, as when the deceased is
not represented by any legal representative or heir, that the court nullifies the trial proceedings
and the resulting judgment therein (Napere v. Barbarona, G.R. No. 160426, January 31,
2008).
Question: (Bar Chairman’s ponencia) ******
When does formal substitution by heirs not necessary?
Answer:

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
It is not necessary when they themselves voluntarily appear, participate in the case,
and present evidence in defense of the deceased. In such case, there is really no violation of
due process, and when due process is not violated, as when the right of the representative or
heir is recognized and protected, noncompliance or belated formal compliance with the Rules
cannot affect the validity of a promulgated decision (Napere v. Barbarona, G.R. No. 160426,
January 31, 2008).
On Venue; forum shopping
Refresher:
Venue of Real Actions – (Rule 4, Section 1, 1997 Rules of Civil Procedure):
“Actions affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved, or a portion
thereof, is situated”.
Case: *************
Because of the loan contracted with Bank X, Ros Co and its President executed a PN
and a Real Estate Mortgagee covering eight (8) parcels of land, six (6) of which are located in
Bulacan and registered in the name of Ros Co, and the other two (2) (registered in the name of
the President) are situated in Nueva Ecija. Ros Co defaulted payment that prompted the Bank
to foreclose the REM. The Certificate of Sale over Nueva Ecija properties was annotated on the
title, and same is through the Bulacan properties, thus prompted Ros Co to file two (2) separate
actions against Bank X, one in Manila and the other is in Bulacan.
Ros Co filed complaint for Accounting, Specific Performance and Damages in Manila
RTC. Bank X moved to dismiss the case based on improper venue.
After the complaint with the Manila RTC had been filed, Ros Co and President filed
another action against Bank X before RTC Malolos, this time seeking to nullify the foreclosure
of the REM with Petition for Injunction with Damages, with Urgent Prayer for Temporary
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Restraining Order and/or Preliminary Injunction. Bank X motion to dismiss on ground that
President has no cause of action as his properties are located in Nueva Ecija, and forum
shopping was denied. MR was denied and Bank X declared in default.
Question:
(1) Was there forum shopping?
(2) RTC of Bulacan has no jurisdiction over the properties situated in Nueva Ecija, has
it?
Answer:
(a). There’s no forum shopping.
The Bulacan case is an action to annul the foreclosure sale that is necessarily an
action affecting the title of the property sold. This is a real action which should be commenced
and tried in the province where the property or part thereof lies.
The Manila case is a personal action involving the enforcement of a contract between
Ros Co whose principal office is in Manila. Therefore, personal actions may be commenced and
tried where the plaintiff or any of the principal plaintiffs resides, or where the defendants or any
of the principal defendants resides, at the election of the plaintiff.
(b) The venue of the action for the nullification of the foreclosure sale is properly laid
with the Bulacan RTC although two of the properties together with the Bulacan properties are
situated in Nueva Ecija. Following Section 1, Rule 4 of the Rules of Court, the venue of real
actions affecting properties found in different provinces is determined by the singularity or
plurality of the transactions involving said parcels of land. Where said parcels are the object of
one and the same transaction, the venue is in the court of any of the provinces wherein a parcel
of land is situated (United Overseas Bank Phils (formerly Westmont Bank) v. Rosemoore
Mining & Development Corp., G.R. Nos. 159669 & 163521, March 12, 2007).
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On Prejudicial Question; forum shopping
Question:
(a) What is the concept of prejudicial question?
(b) What are the elements of prejudicial question?
(c) What is the rationale behind that principle?
Debtor availed a loan from Creditor offered by the latter at a daily interest rate of 1% to
2%. The said interest rate was increased to 5%. As payment thereof, Debtor issued checks in
favor of Creditor with 5% daily interest.
Not satisfied with the new interest rate, Debtor sought the declaration of nullity of the
5% daily interest for being iniquitous and unconscionable, and prayed for the issuance of writ of
preliminary injunction restraining the Creditor from enforcing the checks she issued and from
filing violation of BP 22 cases against her. In turn, Creditor filed several cases of BP 22 against
Debtor.
Can Debtor file a motion to suspend criminal proceedings by reason of prejudicial
question pending in the civil case?

Answer: Answer:

(a) Prejudicial question generally comes into play in a situation where a civil action and No, because the validity or invalidity of the interest rate is not determinative of the guilt
a criminal action are both pending and there exists in the former an issue which must be of Debtor in the criminal cases. Violation of BP 22 cases punishes the issuance of a bounced
preemptively resolved before the latter may proceed, because howsoever the issue raised in check and not the purpose for which it was issued or the terms and conditions relating to its
the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the issuance.
accused in the criminal case.
As to whether or not the interest rate imposed by Creditor is eventually declared void
(b) The two essential elements are as follows: for being contra bonus mores will not affect the outcome of the BP 22 cases because what will
ultimately be penalized is the mere issuance of the worthless check.
1. the civil action involves an issue similar or
intimately related to the issue raised in the In short, there is no prejudicial question (Jose v. Suarez, G.R. No. 176795, June 30,
criminal action; 2008).

2. the resolution of such issue determines

whether or not the criminal action may
proceed. Question:

(c) The rationale behind the principle of prejudicial question is to avoid two conflicting
decisions (Jose v. Suarez, G.R. No. 176795, June 30, 2008).
Question:
Because of the pending civil case seeking declaration of nullity of the 5% daily interest
rate, the accused moved to suspend the proceedings in BP 22 cases on ground of prejudicial
question. Supposing the motion is denied, and a motion for the issuance of a writ of preliminary
injunction with TRO was thereafter filed seeking to restrain the MTC from further proceeding in
the BP 22 cases.

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS) 68
(b) Is she guilty of forum shopping?
On Service of Summons
(b) What is forum shopping? When does forum shopping exist?
Refresher:
Answer:
Rule 14, Section 11, 1997 Revised Rules of Civil Procedure:
(c) Yes, because she sought a possibly favorable opinion from one court after
another has issued an order unfavorable to her. “Service upon domestic private juridical entity. –When the defendant is a
corporation, partnership or association organized under the laws of the Philippines
(d) Forum shopping is the act of one party against another, when an adverse
with a juridical personality service may be made on the president, managing
judgment has been rendered in one forum, of seeking another and possibly favorable opinion in
another forum other than by appeal or by special civil action of certiorari; or the institution of two partner, general manager, corporate secretary, treasurer or in-house counsel.”
or more acts or proceedings grounded on the same cause on the supposition that one or the
other court would make a favorable disposition.
Question:
There is forum shopping when a party seeks to obtain remedies in an action in one
court, which had already been solicited, and in other courts and other proceedings in other Is service of summons to Branch Manager of a Banking Corporation valid for the court
tribunal (Jose v. Suarez, G.R. No. 176795, June 30, 2008). to acquire jurisdiction over the corporation?

On Barangay Conciliation (*****)
Question:
Can the court dismiss the case motu proprio on ground of lack of barangay
conciliation?
Answer:
No, the court cannot dismiss the action, because there are only three (3) instances
wherein the court may motu proprio dismiss a claim, and that is, when the pleadings or
evidence on record shows that: (1) the court has no jurisdiction over the subject matter; (2)
there is another action pending between the same parties for the same cause, and (3) where
the action or barred by a prior judgment or by statute of limitations, and this is provided for
under Section 1, Rule 9 of the 1997 Revised Rules of Civil Procedure. Failure to comply with
the requirement for barangay conciliation as ground for dismissal is not being among those
mentioned in the Rules for the trial court to dismiss the case on its own initiative (Aquino vs.
Aure, G.R. No. 153567, February 18, 2008).
Answer:
No. Basic is the rule that a strict compliance with the mode of service is necessary to
confer jurisdiction of the court over a corporation. The officer upon whom service is made must
be one who is named in the statute; otherwise, the service is insufficient. The purpose is to
render it reasonably certain that the corporation will receive prompt and proper notice in an
action against it or to insure that the summons be serve on a representative so integrated with
the corporation that such person will know what to do with the legal papers serve on him. Since
the branch manager is not included as persons in the enumeration contained in Section 11,
Rule 14 of the 1997 Revised Rules of Civil Procedure upon whom service of summons can be
validly made in behalf of the corporation, service to the branch manager is void and ineffectual
(BPI v. Santiago, G.R. No. 169116, March 28, 2007).
On Civil forfeiture; summons

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Question:
In conjunction with the criminal case filed for violation of AMLA of 2001, Republic filed
a complaint for civil forfeiture of asset against bank deposit of X Corporation.
Summons against X Corporation was returned unserved as it could no longer be found
at its last known address. Can X Corporation be validly served with summons by publication?
Answer:
Yes. Well entrenched is the rule that forfeiture proceedings are action in rem. Though,
the case involved forfeiture proceedings under RA 1379, the same principle applies in civil case
for civil forfeiture under RA 9160. as amended, since both cases do not terminate in the
imposition of a penalty but merely in the forfeiture of the properties either acquired illegally or
related to unlawful activities in favor of the State. Since this action is in rem, it is a proceeding
against the thing itself instead of against the person. Jurisdiction over the person of the
defendant is not a prerequisite for the court to acquire jurisdiction. What is required is for the
court to acquire jurisdiction over the res. Therefore, service of summons may be made by
publication, and service of summons upon the person of the defendant is made only to satisfy
due process requirement (Republic v. Glasgow Credit and Collection Services, Inc., G.R.
No. 170281, January 18, 2008).
On Modes of Discovery
Question:
An action for specific performance and damages was filed by plaintiffs against the
defendant. After defendant filed her answer, plaintiff filed a motion for authority to ligitate in
forma pauperis.
Defendant sent written interrogatories to plaintiffs consisting of several questions to
determine their eligibility as pauper. Plaintiffs did not answer the written interrogatories.
Defendant moved to dismiss the case for failure of the plaintiffs to answer the interrogatories.
You are the judge, how will resolve the motion?
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Answer:
I will deny the motion, because the written interrogatories served by defendant to
plaintiffs dealt with ancillary matters which, although may be inquired into through the proper
modes of discovery provided in the Rules of Court, are not directly related to the main issues in
the suit (Dela Torre v. Pepsi Cola, G.R. No. 130243, October 30, 1998).
On Demurrer to Evidence
What is the concept and purpose of demurrer to evidence?
A demurrer is a motion to dismiss on the ground of insufficiency of evidence and is
filed after the plaintiff rests its case. It is an objection by one of the parties in an action, to the
effect that the evidence which his adversely produced, is insufficient in point of law, whether
true or not, to make out a case or sustain the issue. The question in demurrer to evidence is
whether the plaintiff, by his evidence-in-chief, has been able to establish a prima facie case
(Condes v. CA, G.R No. 161304, July 27, 2007).
The purpose of a demurrer to evidence is precisely to expeditiously terminate the case
without need of the defendant’s evidence. It authorizes a judgment on the merits of the case
without the defendant having to submit evidence on his part as he would ordinarily have to do, if
it is shown by plaintiff’s evidence that the latter is not entitled to the relief sought (ibid).
Question:
In civil cases, what are the guidelines for the trial court to grant demurrer to evidence?
Answer:
A demurrer to evidence may be granted when:
5. upon facts and the law, the plaintiff has shown no right to relief; or
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6. where the plaintiff’s evidence together with such inferences and
conclusions as may reasonably be drawn therefrom does not warrant
recovery against the defendant; or
7. when admitting every proven fact favorable to the plaintiff and indulging
in his favor all conclusions fairly and reasonably inferable therefrom, the
plaintiff has failed to make out one or more of the material elements of
his case; or
8. when there is no evidence to support an allegation necessary to his claim
(Condes v. CA, G.R No. 161304, July 27, 2007).
Question:
After the plaintiff rested its case, defendant filed a demurrer to evidence. The trial court
granted the demurrer and dismissed the case. On Appeal, the appellate court reversed the
order of dismissal. Can the appellate court order the remand of the case to the court a quo for
further proceedings?
Answer:
No more. The appellate court must decide the case on the merits and consider all the
evidence presented therein.
In Radiowealth Finance Company v. Del Rosario, G.R. No. 138739, July 6, 2000
citing Villanueva Transit vs. Javellana, 33 SCRA 755 (June 30, 1970), The Supreme Court
had made to emphasize that the defendant is permitted, without waiving his right to offer
evidence in the event that his motion is not granted, to move for a dismissal on the ground that
upon the facts as thus established and the applicable law, the plaintiff has shown no right to
relief. If the trial court denies the dismissal motion, the case still remains before the trial court
which should then proceed to hear and receive the defendant’s evidence so that all the facts
and evidence of the contending parties may be properly placed before it for adjudication as well
as before the appellate courts, in case of appeal. Nothing is lost. The rule, however, imposes
the condition by the same token that if his demurrer is granted by the trial court, and the order of
dismissal is reversed on appeal, the movant losses his right to present evidence in his behalf
and he shall have been deemed to have elected to stand on the insufficiency of plaintiff’s case
and evidence. In such event, the appellate court which reverses the order of dismissal shall
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proceed to render judgment on the merits on the basis of plaintiff’s evidence.
On judgment on the pleading
Question: ***
Can a party to a case moved that the case be decided based pleading, i.e., judgment
on the pleading? If yes, when, and what is the essential question?
How about summary judgment, when is it proper? When an issue be considered
genuine?
Answer:
Yes. A judgment on the pleading may be sought only by a claimant, who is the party
seeking to recover upon a claim, counterclaim or cross claim; or to obtain a declaratory relief. It
is proper when an answer fails to tender an issue or otherwise admits the material allegation of
the adverse party’s pleading.
The essential question is whether there are issues generated by the pleading
(Meneses v. Secretary of Agrarian Reform, G.R. No. 156304, October 23, 2006).
As regards summary judgment, it is proper when there must be no genuine issue or
any material fact, except for the amount of damages, and the moving party must be entitled to a
judgment as a matter of law. If the pleadings tender a genuine issue, summary judgment is
improper.
An issue is genuine if it requires the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or
undisputed, then there is no real or genuine issue or question as to the facts, and summary
judgment is called for. The party who moves for summary judgment has the burden of
demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to constitute a genuine issue for trial.
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On execution of judgment; garnishment
Refresher:
Garnishment under Section 9 (c ) Rule 39, 1997 Revised Rules of Civil Procedure
“Garnishment of debts and credits. – The officer and may levy on debts
due the judgment obligor and other credits, including bank deposits, financial
interests, royalties, commissions and other personal property not capable of manual
delivery in the possession or control of third parties. Levy shall be made by serving
notice upon the person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled. The garnishment shall cover only
such amount as will satisfy the judgment as all lawful fees.”
Question:
The petition for the payment of rice, meal and medical allowances, and longevity pay
filed by Employee against NEA was granted by trial court and thereafter, issued a writ of
execution, and notice of garnishment was issued against NEA funds with the Development
Bank of the Philippines.
Is the issuance of notice of garnishment proper?
Answer:
No, because the judgment does not require NEA to pay a certain sum of money to
Employee. The Judgment is only for the performance of an act other than payment of money.
Garnishment is proper only when the judgment to be enforced is one for payment of a sum of
money. Applying this rule, garnishment in the case at bar cannot be employed to implement
such form of judgment (National Electrification Administration v. Morales, G.R. No. 154200,
July 24, 2007).
Question:
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How can a party attack the validity of a final and executory judgment? Or what are the
three (3) ways for the party to attack the validity of a final and executory judgment?
Answer:
THE FIRST is by petition for relief from judgment under Rule 38 of the 1997 Revised
Rules of Civil Procedure, when judgment has been taken against a party through fraud,
accident, mistake or excusable negligence, in which case the petition must be filed within sixty
(60) days after the petitioner learns of the judgment, but not more than six (6) months after such
judgment was entered.
THE SECOND is by direct action to annul and enjoin the enforcement of the
judgment. This remedy presupposes that the challenged judgment is not void upon its face, but
is entirely regular in inform, and the alleged facts is one which is not apparent upon its fact of
from the recitals contained in the judgment. Under accepted principles of law and practice, long
recognized in American courts, the proper remedy in such case, after the time for appeal or
review has passed, is for the aggrieved party to bring an action enjoining the judgment, if not
already carried into effect; or if the property has already been disposed of, he may institute suit
to recover it.
THE THIRD is either a direct action, as certiorari, or by a collateral attack against the
challenged judgment which is void upon its face, or that the nullity of the judgment is apparent
by virtue of its own recitals. A judgment which is void upon its face, and which requires only an
inspection of the judgment roll to demonstrate its want of vitality is a dead limb upon the judicial
tree, which should be lopped off, if the power so to do exists (Chong v. CA, G.R. No. 148280,
July 10, 2007).
On Rule 45 (Certiorari)
Question:
Because of the ruling of the trial court which was affirmed by the Court of Appeals
dismissing the case of the plaintiffs for their failure to answer the defendant’s written
interrogatories for the purpose of determining the plaintiffs’ eligibility as pauper, plaintiff filed a
Certiorari petition under Rule 45. Respondent advanced that issue involved is a question of fact
and not of law.
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(a) Will this be treated as question of law?
(b) Distinguish question of law from question of fact.
Answer:
(a) Yes, it is a question of law, because the resolution of the issue as to the sufficiency
of the reason for the dismissal of the complaint for failure of the petitioners to answer written
interrogatories does not depend on the evaluation of proof but on a consideration of the
applicable legal provisions and case law.
The written interrogatories served by respondents dealt with ancillary matters which,
although may be inquired into through the proper modes of discovery provided in the Rules of
Court, are not directly related to the main issues in the suit, thus, a question of law (Dela Torre
v. Pepsi Cola, G.R. No. 130243, October 30, 1998).
(b) There is a question of law in a given case when the doubt or difference arises as to
what the law is on a certain set of facts. There is a question of fact when the doubt or difference
arises as to the truth or falsehood of the alleged facts (Macawiwili Gold Mining and
Development Co., Inc. v. CA, G.R. No. 115104, October 12, 1998).
On Provisional Remedies; forum shopping; attachment; attachment bond
Question:
What is attachment bond?
Answer:
It is a bond which is contingent on and answerable for all costs which be adjudged to
the adverse party and all damages which he may sustain by reason of attachment should the
court finally rule that the applicant is not entitled to the writ of attachment. It is a security for the
payment of the costs and damages which the adverse party may be entitled in case there is a
subsequent finding that the applicant is not entitled to the writ (Republic v. Garcia, G.R. No.
167741, July 12, 2007).
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Question:
Because of the bounced checks issued by Debtor, Creditor filed violation of BP 22
cases against the former. Basing on the same checks, Creditor also filed a civil suit for sum of
money with the RTC, and a preliminary attachment was issued. Debtor moved to dismiss the
civil case on the ground that the filing of a civil case constitutes forum shopping, and the
discharge of the writ of preliminary attachment.
You are the judge, how will you resolve the motion to dismiss and discharge of writ of
preliminary attachment?
Answer:
I will grant the motion to dismiss. The subsequent filing of the civil case for sum of
money basing on the same checks constitutes forum shopping. There is forum shopping when
the elements of litis pendentia are present, or when a final judgment in one case will amount to
res judicata in another. In the case at bar, the identity of the parties who represent the same
interest as the parties in the criminal case; the identity of the rights asserted and relief prayed
for, as the latter is founded on the same set of facts; and the identity of the two preceding
particulars are present.
In addition, Rule 111 (b) of the 2000 Revised Rules of Criminal Procedure provides
that the criminal action for violation of BP 22 shall be deemed to include the corresponding civil
action, No reservation to file such civil action separately shall be allowed.
Anent provisional remedy of attachment, the same shall be discharged. Since
attachment is an ancillary remedy, it is permitted only in connection with a regular action, and
as one of the incidents; one of which is provided for the present need, or for the occasion; that
is, one adopted to meet a particular exigency. Considering the dismissal of the civil case, the
writ of preliminary attachment must perforce be lifted (Silangan Textile Manufacturing
Corporation v. Demetria, G.R. No. 166719, March 12, 2007).
Question:
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The Republic of the Philippines filed a criminal case against Pedro and prayed for the 3. that there is an urgent and permanent act and urgent necessity for the
issuance of a writ of preliminary attachment. The Republic was required by the trial court to post writ to prevent serious damage (BPI v. Santiago, G.R. No. 169116,
attachment bond. Is the trial court correct? March 28, 2007).
SPECIAL PROCEEDINGS
Answer:

Question:
No. The Republic of the Philippines need not give this security as it is presumed to be
always solvent and able to meet its obligation. In other words, the filing of the attachment bond
True or False:
is excused if the State is the one filing the application (Republic v. Garcia, G.R. No. 167741,
July 12, 2007).
The executor of an executor shall not, as such, administer the estate of the first
testator.

Answer:
On Preliminary Injunction

True.
Question:
Section 2, Rule 78 provides that the executor of an executor shall not, as such,
administer the estate of the first testator.
(a) What is an injunction, and what is its purpose?

(b)What are the requisites before the court can issue this kind of writ?
Question:

True or False:
Answer:

A married woman may serve as executrix or administratrix, and the marriage of a

(a) An Injunction is a preservative remedy for the protection of one’s substantive right
single woman shall affect her authority so to serve under a previous appointment.
or interest; it is not a cause of action by itself but merely a provisional remedy, an adjunct to the
main suit.
Answer:
Its purpose is to prevent threatened or continuous irremediable injury to some of the
False, because the marriage of a single woman shall not affect her authority so as to
parties before their claims can be thoroughly studied and educated. Its sole aim is to preserve
serve under previous appointment (Section 3, Rule 78).
status quo until the merits of the case is heard fully.

(b) Before a writ of PI may be issued, the following requisites must be complied with:

On re-probate of wills
1. a right in esse or a clear or unmistakable right to be protected:

2. violation of that right; Question:

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X, a foreigner executed his will in Germany, and was proved and allowed in that
country. His heirs filed a petition in the RTC for the allowance of X will.
You are the judge will you act on the petition? If yes, when?
Answer:
Yes, because will proved and allowed in a foreign country, according to the laws of
such country, may be allowed, filed, and recorded by the proper RTC in the Philippines.
If during the hearing it appears that the will can be allowed in the Philippines, I shall so
allow it, and I will issue a certificate of its allowance, and attested by the seal of the court.
Question:
What are the pieces of evidence that must be established by the petitioner at the
hearing for the probate of a will allowed in a foreign country?
Answer:
If these facts are proved, the foreign will may be admitted to probate in the Philippines:
a. the due execution of the will in accordance with the foreign laws;
b. that the testator has his domicile in the foreign country and not in the
Philippines;
c. that the will has been admitted to probate in such country;
d. the fact that the foreign tribunal is a probate court, and
e. the laws of the foreign country on procedure and allowance of wills.
Question:
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X’s will was reprobated and allowed in the Philippines, what is the rule as regards the
administration of his property?
Answer:
When a will is thus allowed, the court shall grant letters testamentary, or letters of
administration with the will annexed, and such letter testamentary or of administration, shall
extend to all the estate of the testator in the Philippines. Such estate, after the payment of just
debts and expenses of administration, shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law
in cases of estates in the Philippines belonging to persons who are inhabitants of another state
or country.
Question:
Has X administrator appointed by the German court the power to administer the
property located in the Philippines?
Answer:
None. The general universally recognized is that administration extends only to the
assets of a decedent found within the state or country where it was granted, so that an
administrator appointed in one state or country has no power over property in another state or
country.
On allowance of will
Question:
A, B and C are the heirs named by Y in the will entitled to inherit from the latter. Upon
Y death, A, B and C want to adjudicate the properties in their favor pursuant to the provisions of
the will. Can they validly do that?
Answer:
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No, because no will shall pass either real or personal estate unless it is proved and death of the testator
allowed in the proper court. The allowance thereof conclusive as to its due execution, subject TO WHOM:
to the right of appeal. (1) to the court having jurisdiction,
Even if the decedent left no debts and nobody raises any question as to the OR
authenticity and due execution of the will, none of the heirs may sue for the partition of the (2) to the executor named in the will.
estate in accordance with a will without first securing its allowance or probate by the court,
because (1) the law expressly so provides, and (2) because the probate of a will, which is
proceeding in rem, cannot be dispensed with and substituted by any other proceedings, judicial
or extrajudicial. Question:

EX is the executor named in the will what will be his duty as executor named therein?

Question: Answer:

Can the heirs or other persons interested in the properties of the testator invoke the
statute of limitations or prescription so as to avoid the allowance requirement of the will?
Answer:
No. Statute of limitations and prescription has no place in order to defeat the purpose
of the rule, because the rules are established not exclusively in the interest of the heirs, but
primarily for the protection of the testator’s expressed wishes, which are entitled to respect as a
consequence of his ownership and right of disposition. Probate of a will is required by public
policy.
Within 20 days after knowing the death of the testator, or within 20 days after knowing
that he is named executor if he obtained such knowledge after the death of the testator, present
the will to the court having jurisdiction, unless the will has reached the court in any other
manner, and shall, within such period, signify to the court in writing his acceptance of the trust
or his refusal to accept it.
Special Proceedings; evidence
Question:

Question: In probate proceedings, how can you prove a lost or destroyed will?

What is the duty of the custodian of the will after the death of the testator?
Answer:
Answer:
No will shall be proved as a lost or destroyed will unless the execution and validity of
The person who has in custody of a will shall, within 20 days after he knows of the the same be established, and the will is proved to have been in existence at the time of the
death of the testator, deliver the will to the court having jurisdiction, or to the executor named in death of the testator; or is shown to have been fraudulently or accidentally destroyed in the
the will. lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least 2 credible witnesses.
NOTE: WHO: custodian
WHAT: duty is to deliver the will
WHEN: within 20 days after he knows of the

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The facts regarding the existence of the will has been duly executed by the testator,
and that the provisions of the will are clearly and distinctly proved by at least 2 credible
witnesses constitute secondary evidence in lieu of the original of the will.
The fact that the will was in existence at the time of the death of the testator; or if it
was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge is required to prove to preclude the inference that the testator
destroyed his own will. In other words, if the will was not in existence at the time of the
testator’s death and there is no proof that it has been destroyed by another without the
testator’s knowledge or consent, the inference shall be that the testator himself destroyed his
own will, thus revoking it.
Question:
In probate proceedings of a notarial will, witnesses who are supposed to be presented
are already dead, one is insane and the other one is abroad. You are the lawyer for the
petitioner, how can you now prove the due execution and authenticity of the will?
Answer:
If it appears during the hearing that the subscribing witnesses are dead or insane, or
that none of them resides in the Philippines, the petitioner may present the testimony of other
witnesses to prove the sanity of the testator, and the due execution of the will, and as evidence
of execution, present proof of the handwriting of the testator and of the subscribing witnesses,
or any of them, in which case the court may admit the testimony of the witness who gave
testimony proving the same.
Question:
Supposing the will subject of probate proceedings is contested, how can you the
existence and due execution of the will?
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Answer:
All the subscribing witnesses, and the notary public in the case of wills executed under
our Civil Code, if present in the Philippines and not insane, must be produced and examined,
and the death, absence, or insanity of any of them must be satisfactorily shown to the court.
If all or some of such witnesses are present in the Philippines but outside the province
where the will has been filed, their deposition must be taken.
If any or all of them testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubt credibility, the will may, nevertheless, be allowed
iof the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law.
If it is a holographic will, the same shall be allowed if at least 3 witnesses who know
the handwriting of the testator explicitly declare that the will and the signature are in the
handwriting of the testator; in the absence of competent witness, and if the court deem it
necessary, expert testimony may be resorted to.
Question:
You are the testator in a holographic will, and somebody contested it during probate of
the same, who has the burden of disproving the genuineness and due execution of your own
will?
Answer:
The burden of disproving the genuineness and due execution of the will shall be on the
contestant. And the testator may, in turn, present additional proof as may be necessary to rebut
the evidence for the contestant.
Criminal Procedure
On Preliminary Investigation
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(NOTE: These case laws have relaxed the application of Section 34 of Rule 132 of the Rules of
Question: Court and allowed evidence not formally offered to be admitted and considered by the trial
court.)
(a) Have Regional State Prosecutors the authority to file information?

(b) Can the information filed by the RSP be quashed?

On Best evidence rule; secondary evidence

Answer: Question:

Regional State Prosecutor has no authority to file criminal information. Section 4, (3) of (a) What does the term “best evidence” denotes?
Rule 112 of 2000 Revised Rules of Criminal Procedure, as amended requires that no
information should be filed with the Court without the prior written authority or approval of the (b) What is the rule?
Provincial or City Prosecutor or Chief State Prosecutor.

Since the RSP is not among the law officers mentioned in the rule authorized to Answer:
approve the filing the information of the investigating prosecutor, the RSP has no authority to
file criminal information. It necessarily follows that the information filed and approved by him (a) This is a rule requiring that the original of a writing must, as a general
may be seasonably quashed (SSS v. Paqueo, Jr., G.R. No. 150606, June 7, 2007). proposition, be produced and secondary evidence of its contents is not admissible except
where the original cannot be had.

(b) When the subject of the inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, except in the following cases:
On Rule on Evidence
1. when the original has been lost or destroyed, or cannot be produced in court,
Question: without bad faith on the part of the offeror;

Atty. A rested his case without formally offering his documentary exhibits, Exh. “A”; “B”; 2. when the original is in the custody or under the control of the party against whom
“C’ and “D”. Can the judge consider these exhibits in the preparation of the decision? the evidence is offered, and the latter fails to produce it after reasonable notice
(Section 3, Rule 130, Revised Rules of Court).

Answer:

Yes, provided that the same had been duly identified by testimony duly recorded; that Question:
the same had been incorporated in the records of the case, and that the un-offered exhibits
were marked during the pre-trial (People v. Mate, 103 SCRA 484; People vs. Napat-a, 179 What is the rule if the original document is in the possession, custody or control of the
SCRA 403; Vda. De Oñate vs. Court of Appeals, G.R. No. 116149, November 23, 1995; adverse party?
Ramos vs. Dizon, G.R. No. 137247, August 7, 2006). Answer:

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If the document is in the custody or under control of the adverse party, he must have
reasonable notice and after satisfactory proof of its existence, he fails to produce the document,
secondary evidence may be presented as in the case of loss (Section 6, Rule 130, Revised
Rules of Court).
When such party has the original of the writing and does not voluntarily offer to
produce it or refuses to produce it, secondary evidence may be admitted (Edsa Shangri-la
Hotel and Resort, Inc. v. BF Corporation, G. R. No. 145873, June 27, 2008, citing
Magdayao v. People).
Question:
X is presenting photocopies of original official receipts as exhibits, what are the
conditions sine qua non for the presentation and reception of said photocopies as secondary
evidence?
Answer:
The conditions are as follows:
1. there is proof of the original document’s execution or existence;
2. there is proof of the cause of the original document’s
unavailability;
3. the offeror is in good faith.
The mere fact that the original of the writing is in the custody or control of the party
against whom it is offered does not warrant the admission of secondary evidence. The offeror
must prove that he had done all in his power to secure the best evidence by giving notice to
said party to produce the document. The notice may be in the form of a motion for the
production of the original or made in open court in the presence of the adverse party or via
subpoena duces tecum, provided that the party in custody if the original ahs sufficient time to
produce the same (Edsa Shangri-la Hotel and Resort, Inc. v. BF Corporation, G. R. No.
145873, June 27, 2008, citing Magdayao v. People).
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2014 BAR EXAMINATIONS IN REMEDIAL LAW
ON WRITS:
What is “writ of continuing mandamus?
- It is a writ of Indian origin.
- A writ commanding any agency or instrumentality of the government or officer thereof
who unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right to do an act or series of acts
until the judgment is fully satisfied.
Where to file?
- With the RTC exercising jurisdiction over the territory where the actionable neglect or
omission occurred, or with the CA, or with the SC.
Who may file?
- Any person aggrieved.
When to file?
- A verified petition may be filed when there is no plain, speedy and adequate remedy in
the ordinary course of law specifying that the petition concerns an environmental law,
rule or regulation.
What is “writ of kalikasan”?
- A remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited
by or registered with any government agency, on behalf of persons (inter-
generational responsibility; inter-generational justice; or inter-generational
equity) whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.
Where to file?
- With the Supreme Court or Court of Appeals only. (Not with the RTC).
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conclusion of fact or law, and regardless of whether the modification is attempted to be
ON WORDS AND PHRASES; DOCTRINES:
What is “Consent Decree”? made by the court rendering it or by the highest court of the land, as what remains to
- Consent Decree is the same with Compromise Agreement. be done is the purely ministerial enforcement or execution of the judgment.

What is “Auter Action Pendant”?

- This is grounded on fundamental considerations of public policy and sound practice
- Auter Action Pendant is the same as Litis Pendentia
that at the risk of occasional errors, the judgment of adjudicating bodies must become
Is filing a Memorandum part of the procedure (in computing the period)? final and executory on some definite date fixed by law.
- No.
- The purpose of filing is for the convenience of the court or to enlighten the court in
- This doctrine is adhered to by necessity notwithstanding occasional errors that may
resolving the issue or issues.
result thereby, since litigations must somehow come to an end for otherwise, it would
"be even more intolerable than the wrong and injustice it is designed to correct." (Vios
vs. Pantangco, G.R. No. 163103, February 6, 2009).

LAW OF THE CASE DOCTRINE; DOCTRINE OF IMMUTABILITY OF JUDGMENT OR

Res Judicata
FINALITY OF JUDGMENT; RES JUDICATA
When does law of the case doctrine apply?
How is it distinguished from doctrine of immutability of judgment or finality of judgment? - It lays the rule that an existing final judgment or decree rendered on the merits, and
How is it distinguished from res judicata? without fraud or collusion, by a court of competent jurisdiction, upon any matter within
its jurisdiction, is conclusive of the rights of the parties or their privies, in all other
actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on
Answer: the points and matters in issue in the first suit.

- Law of the case doctrine- applies in a situation where an appellate court has made a
ruling on a question on appeal and thereafter remands the case to the lower court for
further proceedings; the question settled by the appellate court becomes the law of the
case at the lower court and in any subsequent appeal.
- It means that whatever is irrevocably established as the controlling legal rule or
decision between the same parties in the same case continues to be the law of the
case, whether correct on general principles or not, so long as the facts on which the
legal rule or decision was predicated continue to be the facts of the case before the
court. (Vios vs. Pantangco, G.R. No. 163103, February 6, 2009).
- For the preclusive effect of res judicata to be enforced, however, the following
requisites must be present: (1) the judgment or order sought to bar the new action
must be final; (2) the decision must have been rendered by a court having jurisdiction
over the subject matter and the parties; (3) the disposition of the first case must be a
judgment on the merits; and (4) there must be between the first and second action,
identity of parties, subject matter and causes of action. (PNB vs. Sia, G.R. No.
165836, February 18, 2009).

Doctrine of Immutability of Judgment or Finality of Judgment

- Once a judgment has become final and executory, it may no long may no longer be
modified in any respect, even if the modification is meant to correct an erroneous

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Doctrine on Ejectment and Forcible Entry cases
- Forcible entry and unlawful detainer cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or the right to the
possession of the property involved. It does not admit of a delay in the determination
thereof. It is a "time procedure" designed to remedy the situation. Stated in another
way, the avowed objective of actions for forcible entry and unlawful detainer, which
have purposely been made summary in nature, is to provide a peaceful, speedy and
expeditious means of preventing an alleged illegal possessor of property from unjustly
continuing his possession for a long time, thereby ensuring the maintenance of peace
and order in the community; otherwise, the party illegally deprived of possession might
feel the despair of long waiting and decide as a measure of self-protection to take the
law into his hands and seize the same by force and violence. And since the law
discourages continued wrangling over possession of property for it involves
perturbation of social order which must be restored as promptly as possible,
technicalities or details of procedure which may cause unnecessary delays should
accordingly and carefully be avoided. (Five Star Marketing Co., Inc. vs. Booc, 535
SCRA 28).
- Actions for ejectment are designed to summarily restore physical possession to one
who has been illegally deprived of such possession. It is primarily a quieting process
intended to provide an expeditious manner for protecting possession or right to
possession without involvement of the title. (Keppel Bank Philippines, Inc. vs. Adao,
473 SCRA 372; Cayabyab vs. De Aquino, 532 SCRA 353).
ON ACTION:
Plaintiffs (PEDRO and JUAN) are co-owners of two parcels of land owned by their
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deceased mother. The properties were allegedly encroached upon by defendant Mario.
Can Pedro bring an action either for ejectment or forcible entry against Mario?
- Yes.
- As co-owners of the properties, each of the heirs may properly bring an action for
ejectment, forcible entry or any kind of action for the recovery of possession of the
subject properties.
- Pedro, as co-owner may bring such an action, even without joining all the other co-
owners as co-plaintiffs, because the suit is deemed to be instituted for the benefit of
all.
- However, if the action is for the benefit of the Pedro alone, such that he claims the
possession for himself and not for the co-ownership, the action will not prosper.
- There is no need on the part of Juan to execute an authorization authorizing Pedro to
institute an action. It is sufficient in the verification if Pedro stated therein that he
caused the preparation and the filing of the said pleading as a co-owner of the subject
properties and as a representative of the other plaintiffs (Celino vs. Heirs of Alejo,
Resolution, G.R. No. 161817, July 30, 2004).
Action In Personam vs. Action Quasi In Rem
(can be determined by its nature and purpose)
Action In Personam:
- A proceeding in personam is a proceeding to enforce personal rights and obligations
brought against the person and is based on the jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of, specific property, or seek to
compel him to control or dispose of it in accordance with the mandate of the court.
- The purpose of a proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the defendant.
- Of this character are suits to compel a defendant to specifically perform some act or
actions to fasten a pecuniary liability on him. . (Domagas vs. Jensen, G.R. No.
158407, January 17, 2005).
Action Quasi In Rem:
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- Is one brought against persons seeking to subject the property of such persons to the
discharge of the claims assailed.
- An individual is named as defendant and the purpose of the proceeding is to subject
his interests therein to the obligation or loan burdening the property.
- Actions quasi in rem deal with the status, ownership or liability of a particular property
but which are intended to operate on these questions only as between the particular
parties to the proceedings and not to ascertain or cut off the rights or interests of all
possible claimants. The judgments therein are binding only upon the parties who
joined in the action. (Domagas vs. Jensen, G.R. No. 158407, January 17, 2005).
ON REAL ACTION vs. PERSONAL ACTION
81
- Actions affecting title to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction over the area wherein
the real property involved, or portion thereof, is situated (Section 1, Rule 4, 1997,
Rules of Court).
- If the primary purpose/objective is to recover real property, it is a real action.
.
- A real action is one in which the plaintiff seeks the recovery of real property; or, as
indicated in what is now Section 1, Rule 4 of the Rules of Court, a real action is an
action affecting title to or recovery of possession of real property, thus, the assessed
value of the property, or if there is none, the estimated value thereof shall be alleged
by the claimant and shall be the basis in computing the fees (Serrano vs. Delica, G.R.
No. 136325, July 29, 2005).

- An action denominated as one for "specific performance and damages" but the relief
sought was the conveyance or transfer of real property, or ultimately, the execution of
deeds of conveyance in favor of the plaintiff real properties enumerated in the
provisional memorandum of agreement is a real action as it affects the title or
possession of real property, therefore the assessed value of the real property must be
alleged in the complaint for purposes of determining which court has jurisdiction over
it.

- Civil action denominated Mandamus with Revocation of Title and Damages is a real
action. Its intention is to question and recover ownership over the property, therefore,
the filing fees should computed based on the assessed value of the subject property,
or, if there was none, the estimated value thereof.

- Action for the annulment or rescission of a sale of real property is a real action. Its
prime objective is to recover said real property (Gavieres vs. Sanchez, 94 Phil. 760).

- Action to annul a real estate mortgage foreclosure sale is no different from an action to
annul a private sale of real property (Muñoz v. Llamas, 87 Phil. 737).

ON JOINDER OF PARTIES
Plaintiff was ordered by the trial court to implead Co-Defendant as indispensable party,
however, Plaintiff failed to implead Co-Defendant, and the plaintiff rested its case. The
trial court dismissed the case on ground of non-joinder of indispensable parties.
Is the trial court correct?
- No.
- Settled is the rule that the non-joinder of indispensable parties is not a ground for the
dismissal of an action.
- The remedy therefore, is to implead the non-party claimed to be indispensable.

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- Parties may be added by order of the court on motion of the party or on its own
initiative at any stage of the actionand/or at such times as are just.
What is the remedy?
- If the party refuses to implead an indispensable party despite the order of the court,
the latter may dismiss the complaint/petition for the party’s failure to comply with the
order. (Plasabas vs. CA, G.R. No. 166519, March 31, 2009).
ON INTERVENTION
- Rule 19, Section 1. Who may intervene. - A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's rights may be fully protected in a separate
proceeding.
- Rule 19, Section 2. Time to intervene. - The motion to intervene may be filed at any
time before rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original parties.
- As a rule, intervention is allowed at any time before rendition of judgment by the trial
court. After the lapse of this period, it will not be warranted anymore because
intervention is not an independent action but is ancillary and supplemental to an
existing litigation. (Manalo vs. CA, 419 Phil. 215).
- The permissive tenor of the provision on intervention shows the intention of the Rules
to give to the court the full measure of discretion in permitting or disallowing the same.
(Yau vs. Manila Banking Corporation, 433 Phil. 701).
- BUT in the case of an ejectment, if the party’s intervention would not result in a
complete adjudication of her rights, as the issue she raised is mainly that of ownership,
claiming that the property in dispute was registered and titled in the name of plaintiff
through the use of fraud, intervention will not prosper. This issue or factor is
considered by the court in determining whether or not to allow intervention. The factors
that should be reckoned are whether intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether the intervenor's rights may
be fully protected in a separate proceeding.
- If the sole issue in the intervention is claiming ownership only without claiming
possession, such issue cannot even be properly threshed out in an action for
ejectment, as Section 18, Rule 70 provides that the judgment rendered in an action for
forcible entry or detainer shall be conclusive with respect to the possession only and
shall in no wise bind the title or affect the ownership of the land or building. It does not
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even matter if the party's title to the property is questionable. (Salandanan vs.
Mendez, G.R. No. 160280, March 13, 2009).
DEMURRER TO EVIDENCE
- A demurrer to evidence is defined as “an objection or exception by one of the parties
in an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the
issue.”
- The demurrer challenges the sufficiency of the plaintiff’s evidence to
sustain a verdict. In passing upon the sufficiency of the evidence raised in a
demurrer, the court is merely required to ascertain whether there is
competent or sufficient proof to sustain the indictment or to support a verdict
of guilt.
DEMURRER TO EVIDENCE IN CIVIL CASES
- After the plaintiff has completed the presentation of his evidence, the
defendant may move for dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief. If his motion is denied, he shall
have the right to present evidence. If the motion is granted but on appeal the
order of dismissal is reversed he shall be deemed to have waived the right to
present evidence (Section 1, Rule 33, 1997 Rules of Civil Procedure).
- A demurrer to evidence abbreviates judicial proceedings, it being an
instrument for the expeditious termination of an action.
EFFECTS OF JUDGMENT ON DEMURRER TO EVIDENCE
- If the movant’s plea for the dismissal on demurrer to evidence is granted and
the order of dismissal is reversed on appeal, he loses his right to adduce
evidence.
- If the defendant’s motion for judgment on demurrer to evidence is granted and the
order is subsequently reversed on appeal, judgment is rendered in favor of the
adverse party because the movant loses his right to present evidence.
- The reviewing court cannot remand the case for further proceedings; rather, it should
render judgment on the basis of the evidence presented by the plaintiff.
EFFECT OF DENIAL OF DEMURRER TO EVIDENCE IN CRIMINAL CASES SANS LEAVE
OF COURT
- If the demurrer to evidence is denied, the case is deemed submitted for decision
because filing a demurrer to evidence without first filing a motion for leave of court
constitutes waiver on the part of the accused to present evidence in case his demurrer
to evidence will be denied.
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- The rule provides that when the demurer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case for judgment on
the basis of the evidence for the prosecution. (Section 23, Rule 119).
- WITH LEAVE OF COURT: If the court denies the demurrer to evidence BUT filed with
leave of court, the accused may adduce evidence for his defense. (Section 23, Rule
119).
- TAKE NOTE: The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself IS NOT reviewable by appeal or by certiorari before
judgment (Section 19, Rule 119, 2000 Revised Rules of Criminal Procedure).
- TAKE NOTE FURTHER: It is the order denying the motion for leave of court to file
demurrer to evidence OR the demurrer itself (which IS NOT reviewable by appeal or
by certiorari before judgment).
THE CASE:
As consideration to a legitimate transaction, Accused endorsed and paid to Complainant
a postdated check issued by Co-accused. When presented for payment, the check
bounced. That prompted Complainant to file estafa case against Accused. Accused filed
a demurrer to evidence after the prosecution had rested its case claiming that being an
endorser of the check issued by Co-accused, he cannot be held liable because Article
315, paragraph 2 (d) penalizes only the issuer of the check and not the endorser thereof;
that there is no sufficient evidence to prove that the Accused conspired with the issuer
(Co-accused) of the check in order to defraud Complainant; and that after the first check
was dishonored, the petitioner replaced it with a second one which unfortunately
bounced for reason of DAUD drawn against uncollected deposits. In short, Accused
maintained that the prosecution failed to prove his guilt beyond reasonable doubt. The
trial court granted the demurrer dismissing the case but with the award of civil liability.
Is the trial court correct? If its action is incorrect, what should the trial court do?
- No.
- The order of the trial court granting accused’ demurrer to evidence and acquitting him,
and holding the accused civilly liable to the private offended party is a nullity for the
reason that the constitutional right of the accused to due process is violated (citing
Alonte v. Savellano, Jr., 287 SCRA 245 [1998]).
- Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides that no
person shall be held to answer for a criminal offense without due process of law, and
in all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is
unjustifiable, respectively.
- The above constitutional provisions are mandatory and indispensable. The principles
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find universal acceptance and are tersely expressed in the oft-quoted statement that
procedural due process cannot possibly be met without a “law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial.
- This is so because when the accused files a demurrer to evidence, the accused has
not yet adduced evidence both on the criminal and civil aspects of the case. The only
evidence on record is the evidence for the prosecution. What the trial court should do
is to issue an order or partial judgment granting the demurrer to evidence and
acquitting the accused; and set the case for continuation of trial for the petitioner to
adduce evidence on the civil aspect of the case, and for the private complainant to
adduce evidence by way of rebuttal after which the parties may adduce their sur-
rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules of
Criminal Procedure (Salazar vs. People, G.R. No. 151931, September 23, 2003).
THE CASE:
Husband filed nullity of marriage against Wife. Upon filing of Husband’s FOE, instead of
filing any objection thereon, Wife filed her demurrer evidence. The trial court denied the
demurrer holding that Husband established a quantum of evidence that Wife must
controvert.
Wife elevated the trial court’s denial to the CA. CA held that denial of the demurrer was
merely interlocutory; hence, Certiorari under Rule 65 of the Rules of Court is not
available. The proper remedy therefor is for the defense to present evidence; and if an
unfavorable decision was handed down later, to take an appeal therefrom. CA also held
that the propriety of granting or denying a demurrer to evidence rests on the sound
exercise of the [trial] court’s discretion.
- GENERAL RULE - interlocutory orders are neither appealable nor subject to certiorari
proceedings.
- Appeal -- not certiorari -- in due time is indeed the proper remedy, provided there is
no grave abuse of discretion or excess of jurisdiction or oppressive exercise of judicial
authority (Tadeo vs. People, 300 SCRA 744, December 29, 1988).
- HOWEVER - order denying a demurrer to evidence, though an interlocutory in
character may be the subject of a certiorari proceeding provided that the petitioner
can show that it was issued with grave abuse of discretion; and that appeal in due
course is not plain, adequate or speedy under the circumstances.
- There exists grave abuse of discretion when the plaintiff’s evidence is utterly and
patently insufficient to prove the complaint, thus, it would be capricious for a trial judge
to deny the demurrer and to require the defendant to present evidence to controvert a
nonexisting case.
- The order denying the demurrer constitutes an unwelcome imposition on the court’s
docket and an assault on the defendant’s resources and peace of mind. In short, such
denial needlessly delays and, thus, effectively denies justice (Choa vs. Choa, G.R.
No. 143376, November 26, 2002).
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- True that Rule 41 says that no appeal may be taken from an interlocutory order, but
the last paragraph of it states that where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action of Certiorari under Rule
65, thus Rules 41 and 65 of the Rules of Court expressly recognize this exception and
allow certiorari when the lower court acts with grave abuse of discretion in the
issuance of an interlocutory order.
- When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs
as law and justice may require. (Section 1, Rule 65, 1997 Rules of Court).
Thus, a denial of a demurrer that is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction may be assailed through a petition for
certiorari.
The case:
Husband filed nullity of marriage against Wife. Husband claimed in his nullity petition
that Wife’s act of filing criminal charges against him for perjury, false testimony,
concubinage and deportation are manifestations of Wife’s psychological incapacity to
comply with the essential obligations of marriage. Husband also claimed that these
cases clearly showed that wife wanted not only to put him behind bars, but also to
banish him from the country, thus, a very abnormal for a wife who, instead of protecting
the name and integrity of her husband as the father of her children, had acted to the
contrary.
- The case can be disposed by way of demurrer to evidence.
- The documents presented by respondent during the trial do not in any way show the
alleged psychological incapacity of his wife.
- It is the height of absurdity and inequity to condemn her as psychologically
incapacitated to fulfill her marital obligations, simply because she filed cases against
him. The evidence presented, even if taken as true, merely establishes the
prosecution of the cases against him. To rule that the filings are sufficient to establish
her psychological incapacity is not only totally erroneous, but also grave abuse of
discretion bordering on absurdity.
- A demurrer to evidence is defined as an objection or exception by one of the parties
in an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the
issue. The demurrer challenges the sufficiency of the plaintiff’s evidence to sustain a
verdict. In passing upon the sufficiency of the evidence raised in a demurrer, the court
is merely required to ascertain whether there is competent or sufficient proof to sustain
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the indictment or to support a verdict of guilt.
- The evidence against Wife is grossly insufficient to support any finding of
psychological incapacity that would warrant a declaration of nullity of the parties’
marriage. Demurrer to evidence must be granted.
- Husband’s evidence is obviously, grossly and clearly insufficient to support a
declaration of nullity of marriage based on psychological incapacity.
- Withal, denying Wife’s demurrer to evidence constitute grave abuse of discretion which
can be the subject of certiorari under Rule 65, as to continue the process of litigation
would have been a total waste of time and money for the parties and an unwelcome
imposition on the trial court’s docket.
- An appeal would not promptly relieve Wife from the injurious effects of the patently
mistaken Orders maintaining the baseless action of Husband. It would only compel
her to go needlessly through a protracted trial, which would further clog the court
dockets with another futile case (Choa vs. Choa, G.R. No. 143376, November 26,
2002).
THE CASE:
Pedro, for himself and for and in behalf of his co-plaintiff, Juan, filed a complaint for
quieting of title against Mario. After the plaintiff had rested its case, Mario filed a
demurrer to evidence claiming that Pedro had no legal capacity to sue for and in behalf
of his co-plaintiff, Juan. The trial court denied Mario’s demurrer to evidence.
Is the trial court correct?
- No.
- A demurrer to evidence is a motion to dismiss on the ground of insufficiency of
evidence and is presented after the plaintiff rests his case.
- It is an objection by one of the parties in an action, to the effect that the evidence
which his adversary produced is insufficient in point of law, whether true or not, to
make out a case or sustain the issue.
- The evidence contemplated by the rule on demurrer is that which pertains to the merits
of the case.
- Therefore, lack of legal capacity to sue is NOT a proper ground for a demurrer to
evidence, pertaining as it does to a technical aspect, and it having nothing to do with
the evidence on the merits of the complaint (Celino vs. Heirs of Alejo, Resolution,
G.R. No. 161817, July 30, 2004).
DENIAL AND CONTESTING THE GENUINENESS AND DUE EXECTION OF ACTIONABLE
DOCUMENT
How to deny the genuineness and due execution of an actionable document?
- An effective specific denial is required.
- This means that the defendant must declare under oath that he did not sign the
document or that it is otherwise false or fabricated. Neither does the statement of the
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answer to the effect that the instrument was procured by fraudulent representation
raise any issue as to its genuineness or due execution. On the contrary such a plea is
an admission both of the genuineness and due execution thereof, since it seeks to
avoid the instrument upon a ground not affecting either (Songco vs. Sellner G.R. No.
11513, December 4, 1917, 37 Phil. 254).
THE CASE:
Plaintiff alleged in the complaint that Defendant is indebted to the former in the amount
of P1.00 attaching in the complaint several annexes including the photocopy of the
promissory note. Filed her Answer, alleging that she has never signed the promissory
note attached to the complaint in his personal and/or individual capacity, thus
ineffective, unenforceable and void for lack of valid consideration, and contained in her
verification the following: (1 )that the defendant, after having been duly sworn to in
accordance with law, hereby depose and declare that she is the named defendant in the
above-entitled case; she has cause the preparation of the foregoing Answer upon facts
and figures supplied by her to her retained counsel; have read each and every
allegations contained therein and hereby certify that the same are true and correct of her
own knowledge and information.
During the trial Plaintiff was able to prove that the defendant received the amount of
P1.00 as loan after signing the Promissory Note (Annex A), that defendant, upon receipt
of the demand letter made a reply seeking an extension to pay her obligation. On the
Formal Offer of Exhibits Plaintiff sought the admission of the duplicate original of the PN
on the ground that the original copy could no longer be found. The trial court initially
admitted into evidence the duplicate original of the PN, and allowed Defendant to amend
her answer to conform with this new evidence. Upon Defendant’s motion for
reconsideration arguing that the duplicate Original PN was not properly identified and
there were markings in the photocopy which were not contained in duplicate original, the
trial court granted the MR and dismissed the case on the ground that Plaintiff had no
longer possessed any proof of Defendant’s alleged indebtedness. The trial court found
that there can be no dispute to the fact that the allegations in the answer of defendant,
she denied generally and specifically under oath the genuineness and due execution of
the promissory note and by way of special and affirmative defenses herein states that
she never signed the promissory note attached to the complaint in his personal and/or
individual capacity. She also deny generally and specifically the rest of the allegations.
It would be considered that there is a sufficient compliance of the requirement of the law
for specific denial.
3. Will this be considered as specific denial?
4. Is there a need to present secondary evidence?
Answer in Number One (1)
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- No. An effective specific denial is required.
- Section 8, Rule 8, 1997 Rules of Court provides that when an action or defense is
founded upon a written instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does not appear to be a
party to the instrument or when compliance with an order for an inspection of the
original instrument is refused (Solidbank vs. Del Monte Motor Works, Inc., G.R. No.
143338, July 29, 2005).
Answer in Number Two (2)
- Since Defendant failed to deny specifically the execution of the promissory note,
there was no need for the Plaintiff to present the original of the promissory note in
question. Defendant’s judicial admission with respect to the genuineness and
execution of the promissory note sufficiently established her liability to Plaintiff
regardless of the fact that Plaintiff failed to present the original of said note.
- No need for proof of execution and authenticity to with respect to the loan
document because of Defendant’s implied admission of loan transaction,
therefore, Section 22, Rule 132 of the Rules of Court requiring that before a
private documents can be received in evidence, presentation and examination of
witnesses to testify to prove its due execution and authenticity.
THE “BEST EVIDENCE RULE”
- Best Evidence Rule - when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself (Rule 130,
Section 3, Revised Rules of Court).
- The best proof that the nature of the thing will afford is only required.
- The rule requiring the production of the original writing.
EXCEPTIONS to Best Evidence Rule:
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- When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
- When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
- When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
- When the original is a public record in the custody of a public officer or is recorded in a
public office (Rule 130, Section 3, Revised Rules of Court).
THE CASE:
Defendant’s answer contained the following:
3. The allegations in par. 2, Complaint, on the existence of the alleged loan of
P2-Thousand, and the purported documents evidencing the same, only the
signature appearing at the back of the promissory note, Annex “A” seems
to be that of herein defendant. However, as to any liability arising
therefrom, the receipt of the said amount of P2-Thousand shows that the
amount was received by another person, not the herein defendant. Hence,
no liability attaches and as further stated in the special and affirmative
defenses that, assuming the promissory note exists, it does not bind much
less is there the intention by the parties to bind the herein defendant. In
other words, the documents relative to the loan do not express the true
intention of the parties.
4. (Verification) “I, Defendant, of age, am the defendant in this case, that I
caused the preparation of the complaint and that all the allegations thereat
are true and correct; that the promissory note sued upon, assuming that it
exists and bears the genuine signature of herein defendant, the same does
not bind him and that it did not truly express the real intention of the
parties as stated in the defenses”
Is this an effective specific denial as contemplated by law?
- No. A reading of Defendant’s Answer, shows that he did not specifically deny that he
signed the loan documents. What he merely stated in his Answer was that the
signature appearing at the back of the promissory note seems to be his. Defendant
also denied any liability on the promissory note as he allegedly did not receive the
amount stated therein, and the loan documents do not express the true intention of the
parties. Defendant reiterated these allegations in his “denial under oath,” stating that
“the promissory note sued upon, assuming that it exists and bears the genuine
signature of herein defendant, the same does not bind him and that it did not truly
express the real intention of the parties as stated in the defenses.
- Defendant’s allegations amount to an implied admission of the due execution and
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genuineness of the promissory note. The admission of the genuineness and due
execution of a document means that the party whose signature it bears admits that he
voluntarily signed the document or it was signed by another for him and with his
authority; that at the time it was signed it was in words and figures exactly as set out in
the pleading of the party relying upon it; that the document was delivered; and that any
formalities required by law, such as a seal, an acknowledgment, or revenue stamp,
which it lacks, are waived by him. Also, it effectively eliminated any defense relating to
the authenticity and due execution of the document, e.g., that the document was
spurious, counterfeit, or of different import on its face as the one executed by the
parties; or that the signatures appearing thereon were forgeries; or that the signatures
were unauthorized.
- Therefore, Defendant is deemed to have admitted the loan documents and
acknowledged his obligation with Plaintiff; and with Defendant’s implied admission, it
was not necessary for Plaintiff to present further evidence to establish the due
execution and authenticity of the loan documents sued upon (Permanent Savings
and Loan Bank vs. Mariano Velarde, G.R. No. 140608, September 23, 2004).
THE CASE:
Debtor executed a promissory note in favor of Assignor, which later on the same PN, by
virtue of Deed of Assignment was assigned to Assignee. Assignor failed to pay, that
prompted Assignee to file collection case against Assignor. Assignor answered, inter
alia, that her obligation had already been extinguished by virtue of Dacion en Pago over
real property, and presented a Confirmation Statement stating that Assignor had no
more loan/obligation with the Assignee. After Assignee presented its evidence and
formally offered its exhibits, Assignor moved for Judgment on Demurrer to the Evidence
pointing out that the Assignee’s failure to file a Reply to the Answer which raised the
Dacion and Confirmation Statement constituted an admission of the genuineness and
execution of said documents; and that since the Dacion obliterated Assignor’s obligation
covered by the PN, the Assignee had no right to collect anymore.
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Assignee Opposed and claimed that Assignor’s demurrer involved defense and not
insufficiency of evidence; that Dacion and Confirmation Statement had yet to be offered
in evidence and evaluated, and since Assignee failed to file a Reply, then all the new
matters alleged in the Answer were deemed controverted. The trial court granted the
demurrer and dismissed the complaint.
Is the trial court correct?
- No. The trial court should not have granted the demurrer to evidence.
- What should be resolved in a motion to dismiss based on a demurrer to evidence is
whether the plaintiff is entitled to the relief based on the facts and the law.
- The evidence contemplated by the rule on demurrer is that which pertains to the merits
of the case, excluding technical aspects such as capacity to sue.
- The plaintiff’s evidence should NOT BE THE ONLY BASIS in resolving a demurrer to
evidence.
- The “facts” referred to - include all the means sanctioned by the Rules of
Court in ascertaining matters in judicial proceedings. These include judicial
admissions, matters of judicial notice, stipulations made during the pre-trial
and trial, admissions, and presumptions, the only exclusion being the
defendant’s evidence. (Casent Realty vs. Philbanking Corporation, G.R.
No. 150731, September 14, 2007).
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ON APPEAL:
THE CASE:
Plaintiff filed ejectment against Defendant. Plaintiff won ejecting Defendant. Plaintiff’s
motion for issuance of writ of execution was granted by the trial court despite
Defendant motion to quash the writ of execution.
Before the RTC, Defendant petitioned for certiorari and mandamus with prayer for a writ
of preliminary mandatory injunction, assailing both trial court’s decision and the writ.
The RTC ruled in Defendant’s favor annulling the trial court’s decision for being contrary
to evidence, and moved to execute the RTC decision which motion was denied because
of Plaintiff’s motion for reconsideration. Later on, RTC denied Plaintiff’s MR, and
Defendant filed his 2nd motion for execution which was granted by the RTC.
Before the CA, Plaintiff filed a petition for Declaration of Nullity of the RTC Decision.
Is Plaintiff’s remedy under Rule 47 (Annulment of Judgment) correct?
- No.
- The proper remedy from the RTC decision on petition for certiorari is an ordinary
appeal to the CA under Section 2, Rule 41 of the Rules of Court.
- Petition for certiorari with the RTC questioning the trial court’s decision is an original
action whose resulting decision is a final order that completely disposes of the petition.
(Vios vs. Pantangco, G.R. No. 163103, February 6, 2009).
In what instances can this remedy of annulment of judgment (Rule 47) be resorted to by
aggrieved party?
- The remedy of annulment of judgment (based on external fraud and lack of
jurisdiction) can be resorted to only where ordinary and other appropriate remedies,
including appeal, are no longer available through NO fault of the petitioner. (Vios vs.
Pantangco, G.R. No. 163103, February 6, 2009).
ON DOCKET FEE [Notice Of Appeal] (Late Payment; invocation of “in the interest of
substantial justice” phrase)
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A notice of appeal was timely filed but the appeal docket fee was paid after three months
when the notice of appeal because of the messenger’s inadvertence in securing a postal The exceptions are as follows:
money order. The trial court approved the notice of appeal basing the order in the phrase
(2) when the findings are grounded entirely on speculation, surmises or conjectures;
“in the interest of substantial justice.” Is the trial court correct?
- No. (2) when the inference made is manifestly mistaken;
- The bare invocation of the phrase “in the interest of substantial justice” is not a magic
spell that will automatically allow the court to suspend procedural rules, despite (3) when there is grave abuse of discretion;
jurisdictional bar.
- The rule may be relaxed only in exceptionally meritorious cases. (4) when the judgment is based on a misapprehension of facts;
- The messenger’s alleged inadvertence to secure a postal money order for appellate
(5) when the findings of facts are conflicting;
docket fees is not a meritorious reason to justify as exception in our jurisprudence.
(Ilusorio vs. Ilusorio-Yap, G.R. No. 171656, March 17, 2009). (6) when in making its findings the Court of Appeals went beyond the issues of the
- The finality of a decision is a jurisdictional event which cannot be made to depend on case, or its findings are contrary to the admissions of both the appellant and the
the convenience of the parties. (Ocampo vs. CA, G.R. No. 150334, March 20, 2009). appellee;

ON RULE 45
Question:The Supreme Court is not a trier of facts. It is not its function to examine and
evaluate the probative value of the evidence presented before the concerned tribunal
upon which its impugned decision or resolution is based. In general, only questions of
law may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court.
What are the exceptions?
(7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on which
they are based;
(9) when the facts set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and

(11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion. (Gabatan vs. CA, G.R. No. 150206, March 13, 2009).

ON MOTION FOR RECONSIDERATION IN RELATION TO PETITION FOR CERTIORARI

UNDER RULE 65

GENERAL RULE:

- Petition for certiorari before a higher court will not prosper unless the inferior court has
been given, through a motion for reconsideration, a chance to correct the errors
imputed to it.

EXCEPTION:

- When the issue raised is purely of law;

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- Temporary restraining order required the posting of a bond.
- When public interest is involved, or - Status Quo Ante (usually given by the SC instead of TRO), no bond is required.

- In case of urgency (Philippine International Trading Corporation vs. COA, 461 Phil
737).

ON REVIVAL OF JUDGMENT (Take Note of this)

- First: observe the 10 year prescription period counted from the date said judgment
became final or from the date of its entry.

- Second: observe the five (5) year period mentioned in Section 6, Rule 39 of the Rules
of Court – final and executory judgment or order may be executed on motion within
five (5) years from the date of its entry.

(may be enforced by motion or by action)

- If the action for revival of judgment is filed after the five (5) year period provided for in
the Rules of Court, but beyond the ten (10) year period provided for in the Civil Code,
your action barred by the statute of limitations. A judgment can no longer be enforced
by action.

- This is applicable to unlawful detainer and forcible entry cases.

- A writ of execution was issued on September 15, 1976, but was not enforced. An
action for revival of judgment was filed on August 26, 1985 (was well within the 10 year
period). The CA ruled that the action was already barred by prescription. The Supreme
Court ruled that the action to revived judgment was not barred by prescription.
(Quesada vs. CA, G.R. No. 177516, March 13, 2009).

- An action for revival of judgment is no more than a procedural means of securing the
execution of a previous judgment which has become dormant after the passage of five
years without it being executed upon motion of the prevailing party. It is not intended to
re-open any issue affecting the merits of the judgment debtor’s case nor the propriety
or correctness of the first judgment. (Saligumba vs. Palanog, G.R. No. 143365,
December 4, 2008).

- Revival of judgment is premised on the assumption that the decision to be revived,

either by motion or by independent action, is already final and executory. (Saligumba
vs. Palanog, G.R. No. 143365, December 4, 2008)

ON RESTRAINING ORDER:
As to requirement, distinguish TRO from Status Quo Ante?

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
ON SPECIAL PROCEEDINGS
Question:
Can the trial court exercising general jurisdiction over an action for Recovery of Property
and Ownership and Possession determine the issue of who are the legal heirs of the
deceased (the owner of the property during his lifetime) who are insisting to be the legal
heirs of the decedent?
Answer:
(GENERAL RULE)
- No. Jurisprudence dictates that the determination of who are the legal heirs of the
deceased must be made in the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of property. This must take
precedence over the action for recovery of possession and ownership. (Gabatan vs.
CA, G.R. No. 150206, March 13, 2009).
- Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is then decisively clear
that the declaration of heirship can be made only in a special proceeding inasmuch as
the petitioners here are seeking the establishment of a status or right. (Gabatan vs.
CA, G.R. No. 150206, March 13, 2009).
- The declaration of heirship must be made in a special proceeding, and not in an
independent civil action (Solivio vs. CA, 182 SCRA 119).
- The matters relating to the rights of filiation and heirship must be ventilated in the
proper probate court in a special proceeding instituted precisely for the purpose of
determining such rights. (Joaquino vs. Reyes, 434 SCRA 260).
- The status of an illegitimate child who claimed to be an heir to a decedent's estate
could not be adjudicated in an ordinary civil action which, as in this case, was for the
recovery of property. (Agapay vs. Palang, 342 Phil. 302).
- (EXCEPTION): The rule can be relaxed and allow the trial court in a proceeding for
annulment of title to determine the status of the party therein as heirs if it appears that
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the subject matter of the case is the only property of the intestate estate of the
deceased, because to still subject it to a special proceeding which could be long, not
expeditious, just to establish the status of parties as heirs is not only impractical; it is
burdensome to the estate with the costs and expenses of an administration
proceeding. And it is superfluous in light of the fact that the parties to the civil case -
subject of the present case, could and had already in fact presented evidence before
the trial court which assumed jurisdiction over the case upon the issues it defined
during pre-trial. (Gabatan vs. CA, G.R. No. 150206, March 13, 2009; Portugal vS.
Portugal-Beltran, 467 SCRA 184), citing Vide Pereira vs. CA, 174 SCRA 154;
Intestate Estate of Mercado vs. Magtibay, 96 Phil. 383).
ON CRIMINAL PROCEDURE
ON STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION or SLAPP:
What is Strategic Lawsuit Against Public Participation or SLAPP all about?
- It is a criminal action.
- A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse
that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of
environmental rights.
Can this (SLAPP) be a subject to motion to dismiss? If yes, when?
- Yes.
- Upon filing of the information in court and before arraignment, the accused may file a
motion to dismiss on ground that the criminal action is a SLAPP.
Supposing the case is dismissed by the trial court, and considering the inapplicability of
double jeopardy as it was dismissed by the court before arraignment, can the public
prosecutor re-file the criminal case?
- No more.
- Order of Dismissal becomes the law of the case – meaning that whatever is
irrevocably established as the controlling legal rule or decision between the same
parties in the same case continues to be the law of the case.
Supposing the case is not dismissed by the trial court, can the accused file a motion to
quash information?
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Yes, at any time before entering his plea.
- On grounds provided under Section 2, Rule 117 of the 2000 Revised Rules of Criminal
Procedure.
Supposing the accused did not file a motion to quash and entered a plea of not guilty,
can he still file a motion to quash?
- Yes, provided that the grounds relied upon by him are not waivable under the Rules.
(See Rule 117, Section 3 in relation to Section 9, 2000 Rules of Criminal
Procedure).
ON MOTION TO QUASH:
The Case:
Corrupt was charged of violation of RA 3019 and was arraigned. At the pre-trial, the
parties entered into some stipulations of facts. After the termination of the pre-trial,
Corrupt filed a motion to dismiss/quash on the ground that the facts charged do not
constitute an offense. The trial court granted the motion and dismissed the case on the
ground that the prosecution has no cause of action against Corrupt. Is the trial court
correct in dismissing the case after the pre-trial and before the prosecution present its
witness and formally offer its documentary exhibits?
- No.
- From the reasoning given by the trial court (Sandiganbayan), it is clear that it
dismissed the case because of insufficiency of evidence.
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- Insufficiency of evidence is not one of the grounds of a Motion to Quash.3
- Insufficiency of evidence is a ground for dismissal of an action only after the
prosecution rests its case.4
- The trial court deprived the prosecution of its opportunity to prosecute its case and to
prove Corrupt's culpability. The dismissal was thus without basis and untimely.
(People vs. Dumlao, G.R. No. 168918, March 2, 2009).
ON EVIDENCE (on admission by silence):
- An act or declaration made in the presence and within the hearing observation of a
party who does or says nothing when the act or declaration is such as naturally to call
for action or comment if not true, and when proper and possible for him to do so, may
be given in evidence against him. (Rule 130, Section 32, Rules of Court -
Admission by Silence).
3
Section 3, Rule 117 of the Revised Rules of Criminal Procedure: (a) That the facts
charged do not constitute an offense; (b) That the court trying the case has no
jurisdiction over the offense charged; (c) That the court trying the case has no
jurisdiction over the person of the accused; (d) That the officer who filed the
information had no authority to do so;
(e) That it does not conform substantially to the prescribed form; (f) That more than
one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished; (h) That it contains
averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent.
4 Rule 119, Sec. 23. Demurrer to evidence. - After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1) on its own
initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without leave of court.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- Accused‘ silence when his wife's nephew asked him why he killed his wife. His silence
on this accusation is deemed an admission. (People vs. Español, G.R. No. 175603,
February 13, 2009).
- Accused' act of pleading for his sister-in-law's forgiveness may be considered as
analogous to an attempt to compromise, which in turn can be received as an implied
admission of guilt under Section 27, Rule 130: (People vs. Español, G.R. No.
175603, February 13, 2009).
- Criminal cases, (except those involving quasi-offenses criminal negligence) or those
allowed by law to be compromised, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt. (Section 27, Rule 130).
ON EVIDENCE (on precautionary principle):
ON SPECIAL PROCEEDINGS:
- This has in relation to constitutional rights of the people to a balanced and healthful
ecology, and to give the benefit of the doubt in resolving the case, the court where the
case is pending shall apply this principle.
- This applies when there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect.
- In applying this principle, the: (1) threats to human life or health; (2) inequity to present
or future generations; or (3) prejudice to the environment without legal consideration of
the environmental rights of those affected shall be considered.
Fisherman was caught and charged of illegal fishing. Being perishable and cannot be
preserved for purposes of presenting the same during the trial, photographs of the
fishes confiscated were taken. Are these photographs admissible in evidence?
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- Yes.
- Photographs, videos and similar evidence of events, acts, transactions of wildlife,
wildlife by-products or derivatives, forest products or mineral resources subject of a
case is admissible in evidence provided they are properly authenticated by the person
who took the same, by some other person present when the said evidence was taken,
or by any other person competent to testify on the accuracy thereof.
REMEDIAL LAW
2014 NOTES BAR EXAMINATIONS
- General default is not applicable in probate of wills:
Habeas Corpus; important matters to remember:
- The high prerogative writ of Habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint. Its object is to inquire the
legality of one’s detention, and if found illegal, to order the release of the detainee. (In
re: Petition for the Privilege of the Writ of Habeas Corpus: Azucena L. Garcia,
G.R. No. 141443, August 30, 2000 citing Velasco vs. CA, 245 SCRA 677 and Umil
vs. Ramos, 202 SCRA 251).
- The WHC extends to all cases of illegal confinement or detention by which any person
is deprived of his liberty or by which the rightful custody of a person is being withheld
from the one entitled thereto. (See Section 1, Rule 102, Rules of Court).
- It is issued when one is either deprived of liberty or is wrongfully being prevented from
exercising legal custody over another person. (See Ilusorio vs. Bildner, 387 Phil. 915
[2000]).
- WHC contemplates two instances: (1) deprivation of a person’s liberty either through
illegal confinement or through detention and (2) withholding of the custody of any
person from someone entitled to such custody.
- The restraint of liberty must be in the nature of an illegal and involuntary deprivation of
freedom of action. (See Sombong vs. Court of Appeals, 322 Phil. 737 [1996]).
- Any restraint which will preclude freedom of action is sufficient to justify issuance of
WHC. (See Villavicencio vs. Lukban, 39 Phil. 778 [1919]).
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- True that habeas corpus is a writ of right, but it will not be issued as a matter of course
or as a mere perfunctory operation on the filing of the petition. (See Eugenio, Sr. vs.
Velez, G.R. Nos. 85140/86470, May 17, 1980).
- Judicial discretion is called for in its issuance and it must be clear to the judge to whom
the petition is presented that, prima facie, the petitioner is entitled to the writ. It is only
if the court is satisfied that a person is being unlawfully restrained of his liberty will the
petition for habeas corpus be granted.
- If the respondents are not detaining or restraining the applicant or the person in whose
behalf the petition is filed, the petition should be dismissed. (See Ngaya-an v. Balweg,
G.R. No. 80591, 05 August 1991).
The case:
July 21, 2011 suspect was arrested by PDEA for illegal drugs, and was subjected for
inquest.
August 15, 2011 the case was DISMISSED by the Fiscal with order of release for
detention. However, four (4) months has already lapsed but PDEA still refused to release
respondent-suspect.
PDEA claimed that Fiscal’s resolution has not attain yet finality because of the so-called
DOJ’s Department Circular No. 46, Series of 2003 dated June 26, 2003 Automatic Review of
fiscal’s drug case dismissal under DOJ Department Circular No. 46, Series of 2003 dated June
26, 2003.
PDEA cited the case of Richard G. Brodett and Joselito I. Tecson vs. Philippine Drug
Enforcement Agency (PDEA), et al., CA-GR SP No. 106830, January 30, 2009, which
according to PDEA the case having similar facts and circumstances with the instant case
wherein the Court of Appeals has held that the continued detention of the petitioners in the said
petition has legal ground to stand on is cited in their Comment as their authority in support of
their position in the present petition.
The mandates of DOJ Department Circular No. 46, Series of 2003 dated June 26,
2003:
“xxx
In the interest of public service and pursuant to existing laws, effective
upon issuance hereof, and until otherwise ordered, the dismissal of all cases,
whether on Inquest/ preliminary investigation or on appeal, filed for violation of
R.A. 9165 and involving the maximum penalty of life imprisonment to death, shall
be subject to automati review, as follows:
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1. For cases dismissed by City and Provincial Prosecutors, by the
regional State Prosecutor having jurisdiction over the Prosecution
Office concerned; and
2. For cases dismissed by the Chief State Prosecutor, Regional
State Prosecutor of cities in Metropolitan Manila, by the Secretary
of Justice.
The entire record of the case shall be elevated to the reviewing authority
concerned within three (3) days from issuance of the resolution dismissing the
complaint or appeal as applicable.
The automatic review shall be summary in nature and shall be completed
within thirty (30) days from receipt of the case record.
This Department Circular shall apply to covered cases which have been
dismissed prior to the issuance hereof if such dismissal has not yet attained
finality as of the date of this Circular.
This Department Circular amends or modifies all prior issuance
inconsistent therewith.
For strict compliance.”
(Sgd.) SIMEON A. DATUMANONG
Secretary”
From the foregoing DOJ Circular, “the entire record of the case shall be elevated to the
reviewing authority concerned within three (3) days from issuance of the resolution dismissing
the complaint or appeal as applicable; the automatic review shall be summary in nature and
shall be completed within thirty (30) days from receipt of the case record”.
THE AUTO REVIEW MUST BE COMPLETED WITHIN 30 DAY PERIOD, IF NOT
COMPLETED, pdea MUST RELEASE.
- The most basic criterion for the issuance of the writ of habeas corpus is that the
individual seeking such relief is illegally deprived of his freedom of movement or
placed under some form of illegal restraint.
- The writ applies “to all cases of illegal confinement or detention by which a person has
been deprived of his liberty, or by which the rightful custody of any person has been
withheld from the person entitled thereto”.
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
- If an individual’s liberty is restrained via some legal process, the writ of habeas corpus
is unavailing.
Habeas Corpus as post-conviction remedy :
- Writ of habeas corpus has very limited availability as a post-conviction remedy.
- It is the nullity of an assailed judgment of conviction which makes it susceptible to
collateral attack through the filing of a petition for the issuance of the writ of habeas
corpus.
- The writ of habeas corpus cannot be used to directly assail a judgment rendered by a
competent court or tribunal which, having duly acquired jurisdiction, was not deprived
or ousted of this jurisdiction through some anomaly in the conduct of the proceedings.
- Review of a judgment of conviction is allowed in a petition for the issuance of the writ
of habeas corpus only in very specific instances, such as when, as a consequence of a
judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in
the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c)
an excessive penalty has been imposed, as such sentence is void as to such excess.
- If the petition for habeas corpus involving detention or prisoner, as the case maybe,
did not allege the deprivation of a constitutional right, the absence of jurisdiction of the
court imposing the sentence, or that an excessive penalty has been imposed upon
him, the same is deniable for lack of merit.
- If the petition invokes the remedy of habeas corpus in order to seek the review of
findings of fact long passed upon with finality, the petition is deniable as it is far outside
the scope of habeas corpus proceedings.
- Writ of habeas corpus being not a writ of error, therefore the same should not be thus
used. (See Abriol vs. Homeres, 84 Phil. 525 [1949]).
- A habeas corpus petition reaches the body, but not the record of the case (See
Velasco vs. Court of Appeals, G.R. No. 118644, 7 July 1995); a record must be
allowed to remain extant, and cannot be revised, modified, altered or amended by the
simple expedient of resort to habeas corpus proceedings.
- The writ of habeas corpus was held to be available where an accused was deprived of
the constitutional right against self-incrimination. (See Chavez vs. Court of Appeals,
G.R. No. 29169, 19 August 1968).
Writ of Amparo vs. Writ of Habeas Data; important matters to remember:
- Writ of Amparo (amparar – means to protect) is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or
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entity. The writ shall cover extra-legal killings and enforced disappearances or
threats thereof.
- A protective remedy aimed at providing judicial relief consisting of the appropriate
remedial measures and directives that may be crafted by the court, in order to address
specific violations or threats of violation of the constitutional rights to life, liberty or
security. (See Separate Opinion of Associate Justice Arturo D. Brion in Rubrico
vs. Arroyo, G.R. No. 183871, 18 February 2010).
- While the principal objective of its proceedings is the initial determination of
whether an enforced disappearance, extralegal killing or threats thereof had
transpired--the writ does not, by so doing, fix liability for such disappearance,
killing or threats, whether that may be criminal, civil or administrative under the
applicable substantive law. (See Secretary of National Defense vs. Manalo, G.R.
No. 180906, October 7, 2008).
Habeas Data:
- Writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.
- The writ operates to protect a person's right to control information regarding himself,
particularly in the instances where such information is being collected through unlawful
means in order to achieve unlawful ends.
- At least by substantial evidence must be established showing actual or threatened
violation of the right to privacy in life, liberty or security of the victim.
ON CRIMINAL PROCEDURE:
In Criminal Cases Venue is jurisdictional:
- The concept of venue of actions in criminal cases, unlike in civil cases, is
jurisdicitional.
- The place where the crime was committed determines not only the venue of the action
but is an essential element of jurisdiction.
- It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases,
the offense should have been committed or any one of its essential ingredients should
have taken place within the territorial jurisdiction of the court.
- Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to
take cognizance or to try the offense allegedly committed therein by the accused, thus,
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
it cannot take jurisdiction over a person charged with an offense allegedly committed
outside of that limited territory.
- The jurisdiction of a court over the criminal case is determined by the allegations in the
complaint or information, and once it is so shown, the court may validly take
cognizance of the case.
- However, if the evidence adduced during the trial shows that the offense was
committed somewhere else, the court should dismiss the action for want of jurisdiction.
Jacinto/rumohr
BAIL: Bail is a matter of right (See Section 4, Rule 114); bail is discretionary (See
Section 7, Rule 114): [Sec. 7. Capital offense or an offense punishable by reclusion perpetua
or life imprisonment, not bailable.—No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence
of guilt is strong, regardless of the stage of the criminal prosecution; Sec. 4. Bail a matter of
right, exception.—All persons in custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and
before conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment.”]. If punishable by death, reclusion perpetua or life imprisonment”
prosecution has the burden of showing that the evidence of guilt is strong; and the evidence
presented during the bail hearing shall be considered automatically reproduced at the trial but,
upon motion of either party, the court may recall any witness for additional examination unless
the latter is dead, outside the Philippines, or otherwise unable to testify. (See Section 8, Rule
114).
Petition for Bail; Motion to Quash; Arraignment;
Ordering the arraignment of accused before proceeding with the hearing of his petition for
bail is unprocedural. (See Consolidated cases of Atty. Edward Serapio vs.
Sandiganbayan and People, G.R. Nos. 148468; 148769; 149116, January 28, 2003).
REASONS:
- The arraignment of an accused is not a prerequisite to the conduct of hearings on his
petition for bail.
- A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue
of his arrest or voluntary surrender.
- An accused need not wait for his arraignment before filing a petition for bail.
- It is not necessary that an accused be first arraigned before the conduct of hearings on
his application for bail.
- Bail is a matter of right, thus, an accused may apply for and be granted bail even prior
to arraignment.
- An application for bail in a case involving an offense punishable by reclusion perpetua
to death may also be heard even before an accused is arraigned.
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- If the court finds in such case that the accused is entitled to bail because the evidence
against him is not strong, he may be granted provisional liberty even prior to
arraignment; for in such a situation, bail would be “authorized” under the
circumstances.
Motion to Quash Information may be filed during the pendency of bail petition. Filing a MQI
does not preclude accused’ right to assail the validity of the Information charging him with such
offense. THE SCENARIO IS THIS: if an MQI on the ground that the same does not charge any
offense is granted and the case is dismissed and the accused is ordered released, the petition
for bail may become moot and academic.
MOTION TO QUASH
- Motion to Quash; At any time before arraignment.
- Grounds (See Section 3, Rule 117, 2000 Criminal Procedure):
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense
charged;
(c) That the court trying the case has no jurisdiction over the person
of the accused;
(d) That the officer who filed the information had no authority to do
so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal
excuse or justification; and
(i) That the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
- The officer who filed the information had no authority to do so (See State Prosecutors
& Special Prosecutors on SSS Region 5 vs. Judge Paqueo, Jr., G.R. No. 150606,
June 7, 2007).
- Section 2, Rule 34, 1993 COMELEC Rules of Procedure: “All Provincial and City
Prosecutors and/or their respective assistants are given continuing authority as its
deputies to conduct preliminary investigation of complaints involving election offenses
under election laws and to prosecute the same”. (See COMELEC vs. Judge Español,
G.R. No. 149164-73. December 10, 2003).
- The continuing authority of the Provincial or City Prosecutors stays until revoked by the
Commission. (See Margarejo vs. Escoses, 365 SCRA 190 [2001]).
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- Mere filing of the information for gun ban violation against him does not necessarily abuse of discretion or a whimsical and capricious exercise of judgment. In such cases,
bars the prosecution for illegal possession of firearm. Accusation is not synonymous the ordinary remedy of appeal cannot be plain and adequate. (See Newsweek, Inc.
with guilt, there is yet no showing that the accused did in fact commit the other crime vs. IAC, 142 SCRA 171).
charged. Consequently, the proviso found in Section 1 of RA 8294 that: “Provided,
however, That no other crime was committed by the person charged” does not
yet apply. (See Celino, Sr., vs. CA, G.R. No. 170562, June 29, 2007).
- Republic Act No. 8294 [amending PD 1866] says that “there can be no separate
offense of illegal possession of firearm if there is another crime committed”. The case:
on top of the table inside X’s house the raiding team found illegal drugs and unlicensed
firearm, thus, he was charged of illegal possession of shabu and illegal possession of
unlicensed firearm. Quashal of information for illegal possession of firearm is
deniable because the firearm was not used in the commission of the crime. The
unlicensed firearm was merely found lying around, together with the prohibited drugs,
and therefore, was not being “used” in the commission of an offense. (See Pp. vs.
Almeida, 418 SCRA 254 [2003]).

- A simple reading of Section 1 of RA 8294 shows that if an unlicensed firearm is used

in the commission of any crime, there can be no separate offense of simple illegal
possession of firearms, thus if the accused inflicts complainant slight physical injuries
using an unlicensed firearm and was charged of two separate crimes: for illegal
possession of unlicensed firearm and slight physical injuries, a light offense.
Quashable is the information for illegal possession of firearm because the unlicensed
firearm was used in the commission of slight physical injuries (See Pp. vs. Ladjaalam,
340 SCRA 617).

REMEDY when Motion to Quash Information is denied.

- GENERAL RULE: Certiorari is not a remedy: REASON: An MQI is the mode by which
an accused assails the validity of a criminal complaint or Information filed against him
for insufficiency on its face in point of law, or for defects which are apparent in the face
of the Information. The remedy is not a petition for certiorari, but for petitioners to go to
trial, without prejudice to reiterating the special defenses invoked in their MQI.
Remedial measures as regards interlocutory orders, such as a MQI, are frowned upon
and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals Some other points in criminal procedure
in a single action. (See Javier vs. Sandiganbayan, G.R. Nos. 147026-27, September - the Court acquires jurisdiction over the person of accused by arrest of the accused and by
11, 2009). voluntary appearance.
- The filing of Motion or other pleadings seeking affirmative relief constitutes voluntary
- EXCEPTION: When the court, in denying the MTQ, acts without or in excess of appearance and the consequent submission of one’s person to the jurisdiction of the Court.
jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. - Exception : Special appearance : pleadings where the prayer is precisely for the avoidance
REASON: it would be unfair to require the defendant or accused to undergo the ordeal of jurisdiction of the Court, namely, Motion to Quash on the ground of lack of jurisdiction
and expense of a trial if the court has no jurisdiction over the subject matter or offense, over accused’s person, Motion to Quash warrant of arrest.;; Therefore, accused can
or is not the court of proper venue, or if the denial of the MTQ is made with grave
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
invoke the processes of the Court even though there is neither jurisdiction over the person
nor custody of the law.
1. Jurisdiction over the person of accused versus custody
- However, in application for bail, accused must be in the custody of the law.
Custody how acquired :
b.1. warrant of arrest or warrantless arrest
b.2. when accused voluntarily surrenders to proper authorities
- mere filing of application for bail is not sufficient.
Section 1, Rule 110 – Prosecution of Offenses: Interruption of period of prescription, filing of
the case with the court (Zaldivia principle); Even if Preliminary Investigation is not required, the
prescriptive period for quasi-offenses was interrupted by the filing of Complaint with the Fiscal’s
Office 3 days after the vehicular mishap and remained tolled pending the termination of the
case (Sr. Fidelis Arambulo vs. Hon. Hilarion Laqui, Jr., October 12, 2000).
Qualifying and aggravating circumstances must be alleged in the Information [Sec. 8 and 9,
Rule 110 (Pp. vs. Legaspi, April 20, 2001).
Authority of the Provincial Prosecutor to appear for the People is confined only to the
proceedings before the trial court; In appeals before the Court of Appeals or the Supreme
Court, either by Petition for Review or Certiorari, the Solicitor General is the sole representative
of the People (Salazar vs. Romanquin, May 21, 2004)
Prosecution under control and supervision of the Public Prosecutor - Judicial determination of
probable cause - Absence of probable cause is not a ground for the quashal of the Information.
But is a ground for the dismissal of the case under Sec. 5, Rule 112, the dismissal in that case
is without prejudice.; The trial court is mandated to immediately dismiss the case upon
finding that no probable cause exists to issue warrant of arrest and after having evaluated the
resolution of the Fiscal and supporting information (People vs. Sandiganbayan, September 29,
2004).
If child is above 15 and below 18 acting with discernment and is detained- may be released on
recognizance or on bail. For purposes of recommending the amount of bail, the privileged
mitigating circumstance of minority should be considered (Sec. 34, RA 9344).
Bail - Where TO FILE : With the Court where the case is pending or in the absence or
unavailability of the Judge thereof, with any RTC, MeTC, MTC or MCTC in the province, city or
municipality.
If arrested in a place other than where the case is pending, the bail may also be filed with any
RTC of said place, or if no Judge thereof is available, with any MeTC, MTC or MCTC trial judge
therein:
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Order of Forfeiture vs. Order of Confiscation: 1. Order of Forfeiture is conditional and
interlocutory, there being something more to be done such as the production of the accused
within 30 days; 2. Order of Confiscation is independent of Order of Forfeiture. It is a judgment
ultimately determining the liability of the surety thereunder, and thus, final, and execution may
issue at once; An order of Forfeiture is not appealable.
RA No. 4908- cases where the offended party is a person about to depart from the Philippines
with no definite date of return.
child abuse cases to take precedence over all other cases before the Court except election and
habeas corpus cases. Trial to commence 3 days from date accused is arranged, and no
postponement of initial hearing.
Neypes Doctrine may be applied in criminal cases
On RULES OF DISCOVERY
- Depositions Pending Action (Rule 23)
- Depositions before action or pending appeal (Rule 24)
- Interrogatories to parties (Rule 25)
- Admission by adverse party (Rule 26)
- Production or inspection of documents or things (Rule 27)
- Physical and Mental Examination of Persons (Rule 28)
- Refusal to comply with Modes of Discovery (Rule 29)
- Depositions pending action, when may be taken.— By leave of court after jurisdiction
has been obtained over any defendant or over property which is the subject of the
action (after service of summons), or without such leave after an answer has been
served, the testimony of any person, whether a party or not, may be taken, at the
instance of any party (plaintiff or defendant), by deposition upon oral examination or
written interrogatories.
- The attendance of witnesses may be compelled by the use of a subpoena as provided
in Rule 21. Depositions shall be taken only in accordance with these Rules. The
deposition of a person confined in prison may be taken only by leave of court on such
terms as the court prescribes.
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- The deponent may be examined regarding any matter, not privileged, which is relevant
to the subject of the pending action, whether relating to the claim or defense of any
other party,
including the existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things and the identity and location of persons
having knowledge of relevant facts.
- Examination and cross-examination of deponents may proceed as permitted at the trial
under sections 3 to 18 of Rule 132 (Rules on Evidence).
- At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or
all of a deposition, so far as admissible under the rules of evidence, may be used
against any party who was present or represented at the taking of the deposition or
who had due notice thereof, in accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an
adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the court finds:
(1) that the witness is dead; or
(2)that the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by the party
offering the deposition; or
(3)that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or
(4)that the party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(5)upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and with
due regard to the importance of presenting the testimony of witnesses orally
in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party, the adverse
party may require him to introduce all of it which is relevant to the part
introduced, and any party may introduce any other parts.
- Substitution of parties does not affect the right to use depositions previously taken; and,
when an action has been dismissed and another action involving the same subject is
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afterward brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor.
ON RULE 58
Preliminary injunction not granted without notice; exception. No preliminary injunction
shall be granted without hearing and prior notice to the party or persons sought to be
enjoined. If it shall appear from facts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before the matter can be
heard on notice, the court to which the application for preliminary injunction was made,
may issue ex parte a temporary restraining order to be effective only for a period of
twenty (20) days from service on the party or person sought to be enjoined, except as
herein provided. Within the twenty-day period, the court must order said party or person
to show cause at a specified time and place, why the injunction should not be granted.
The court shall also determine, within the same period, whether or not the preliminary
injunction shall be granted, and accordingly issue the corresponding order.
However, subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex
parte a temporary restraining order effective for only seventy-two (72) hours from
issuance, but shall immediately comply with the provisions of the next preceding section
as to service of summons and the documents to be served therewith. Thereafter, within
the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall
conduct a summary hearing to determine whether the temporary restraining order shall
be extended until the application for preliminary injunction can be heard. In no case shall
the total period of effectivity of the temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied or not resolved
within the said period, the temporary restraining order is deemed automatically vacated.
The effectivity of a temporary restraining order is not extendible without need of any
judicial declaration to that effect, and no court shall have authority to extend or renew
the same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof, the temporary
restraining order shall be effective for sixty (60) days from service on the party or person
sought to be enjoined. A restraining order issued by the Supreme Court or a member
thereof shall be effective until further orders.
The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that
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issued a writ of preliminary injunction against a lower court, board, officer, or quasi-
judicial agency shall decide the main case or petition within six (6) months from the
issuance of the writ.
ON RULE 65
The petition shall be filed not later than sixty (60) days from notice of the judgment, order
or resolution. In case a motion for reconsideration or new trial is timely filed, whether
such motion is required or not, the petition shall be filed not later than sixty (60) days
counted from the notice of the denial of the motion.
If the petition relates to an act or an omission of a municipal trial court or of a
corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the
same is in aid of the courts appellate jurisdiction. If the petition involves an act or an
omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the
petition shall be filed with and be cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal or a regional trial court,
the petition shall be filed exclusively with the Commission on Elections, in aid of its
appellate jurisdiction.
The court in which the petition is filed may issue orders expediting the proceedings, and
it may also grant a temporary restraining order or a writ of preliminary injunction for the
preservation of the rights of the parties pending such proceedings. The petition shall not
interrupt the course of the principal case, unless a temporary restraining order or a writ
of preliminary injunction has been issued, enjoining the public respondent from further
proceeding with the case.
The public respondent shall proceed with the principal case within ten (10) days from the
filing of a petition for certiorari with a higher court or tribunal, absent a temporary
restraining order or a preliminary injunction, or upon its expiration. Failure of the public
respondent to proceed with the principal case may be a ground for an administrative
charge.
After the comment or other pleadings required by the court are filed, or the time for the
filing thereof has expired, the court may hear the case or require the parties to submit
memoranda. If, after such hearing or filing of memoranda or upon the expiration of the
period for filing, the court finds that the allegations of the petition are true, it shall render
judgment for such relief to which the petitioner is entitled.
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However, the court may dismiss the petition if it finds the same patently without merit or
prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial
to require consideration. In such event, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious
petitions for certiorari.
ON PROVISIONAL REMEDIES:
PRELIMINARY ATTACHMENT; CONCEPT; PURPOSE
A remedy to secure a contingent lien on defendant’s property until plaintiff can,
by appropriate proceedings, obtain a judgment and have such property applied to its
satisfaction (Chemphil Export and Import Corp. vs. CA, 251 SCRA 289).
DISTINGUISHED FROM REPLEVIN (Rule 60)
a. Preliminary Attachment – The personal property belongs to the defendant.
Replevin – the personal property belongs to the plaintiff or plaintiff is entitled thereto.
b. Replevin may issue under Rule 60 to recover possession of personal property
unjustly detained and property concealed, removed or disposed of to prevent its being
found preliminary attachment may issue.
3. Preliminary attachment issued against a defendant who does not reside and is
not found in the Philippines. This however does not include foreign corporations duly
licensed to do business in the Philippines but refers only to natural persons. A foreign
corporation authorized to do business in the Philippines is considered as residing in the
Philippines.
Attachment available in an action against a defendant who does not reside and
is not found in the Philippines. It is by virtue of attachment that the Court acquires
jurisdiction over the res, in which event, jurisdiction over the person of the defendant is
not essential. (Mabanag vs. Gallenmore, 81 Phil. 254)
4. Preliminary attachment may be issued ex-parte. For implementation or
enforcement of the writ of preliminary attachment, however, jurisdiction must first be
acquired over the person of the defendant. (Doctrine of Prior or Contemporaneous
Service of Summons)
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The service of summons after the enforcement of the levy on attachment does not cure
the irregularities that attend such enforcement. The writ of attachment should be
reserved after the service of summons. (Onate vs. Abrogar, 241 SCRA 159)
DOCTRINE OF PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS, HOWEVER,
SHALL NOT APPLY
WRITS OF AMPARO AND HABEAS DATA
Writ of Amparo: The petition for a writ of amparo is a remedy available to any person whose
right to life, liberty and security is violated or threatened with violation by an unlawful act
or omission of a public official or employee, or of a private individual or entity. The writ shall
cover extralegal killings and enforced disappearances or threats thereof (Section 1, A.M. No.
07-9-12-SC, Rule on the Writ of Amparo).
The writ of amparo was originally conceived as a response to the extraordinary rise in the
number of killings and enforced disappearances, and to the perceived lack of available and
effective remedies to address these extraordinary concerns. It is intended to address violations
of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy
beyond those available under the prevailing Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the writ of Amparo – in line with the extraordinary character of the
writ and the reasonable certainty that its issuance demands – requires that every petition for the
issuance of the writ must be supported by justifying allegations of fact (Tapuz vs. Del Rosario,
G.R. No. 182484, June 17, 2008).
Writ of Habeas Data: The writ of habeas data is a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home
and correspondence of the aggrieved party (Section 1, A.M. No. 08-1-16-SC, Writ of Habeas
Data).
The coverage of the writs is limited to the protection of rights to life, liberty and security. And
the writs cover not only actual but also threats of unlawful acts or omissions (Castillo vs. Cruz,
G.R. No. 182165, November 25, 2009).
To be covered by the privilege of the writs, petitioner must meet the threshold requirement that
their right to life, liberty and security is violated or threatened with an unlawful act or omission
(Castillo vs. Cruz, G.R. No. 182165, November 25, 2009).
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Writ of Amparo Rule is intended to address the intractable problem of “extralegal killings” and
“enforced disappearances,” its coverage, in its present form, is confined to these two instances
or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings.” On the other hand, “enforced disappearances”
are “attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of
the person concerned or a refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law (Secretary of National Defense vs. Manalo, G.R. No.
180906, October 7, 2008, 568 SCRA 1).
The writ of amparo shall issue if the Court is preliminarily satisfied with the prima facie existence
of the ultimate facts determinable from the supporting affidavits that detail the circumstances of
how and to what extent a threat to or violation of the rights to life, liberty and security of the
aggrieved party was or is being committed (Tapuz vs. Del Rosario, G.R. No. 182484, June 17,
2008).
Bare allegations that petitioners “in unison, conspiracy and in contempt of court, there and then
willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly,
physically manhandled the petitioners and arrested them will not suffice to prove entitlement to
the remedy of the writ of amparo (Castillo vs. Cruz, G.R. No. 182165, November 25, 2009).
Impleading a certain person as public respondents following the command responsibility
doctrine in an amparo petition is improper. The application of command responsibility
presupposes an imputation of individual liability. The proceedings has nothing to do with fixing
liability for the disappearance, killing or threats, whether that may be criminal, civil or
administrative under the applicable substantive law. The principal objective of the proceedings
is the initial determination of whether an enforced disappearance, extralegal killing or threats
thereof had transpired (In Re Petition for Writs of Amparo and Habeas Data of Melissa
Roxas, G.R. No. 189155, September 7, 2010).
Commanders may be impleaded—not actually on the basis of command responsibility—but
rather on the ground of their responsibility, or at least accountability (In Re Petition for
Writs of Amparo and Habeas Data of Melissa Roxas, G.R. No. 189155, September 7,
2010).
The writ of habeas data is conceptualized as a judicial remedy enforcing the right to privacy,
most especially the right to informational privacy of individuals. The writ operates to protect a
person’s right to control information regarding himself, particularly in the instances where such
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
information is being collected through unlawful means in order to achieve unlawful ends (In Re
Petition for Writs of Amparo and Habeas Data of Melissa Roxas, G.R. No. 189155,
September 7, 2010).
Substantial evidence is an indispensable requirement showing an actual or threatened violation
of the right to privacy in life, liberty or security of the victim before the privilege of the writ may
be extended (In Re Petition for Writs of Amparo and Habeas Data of Melissa Roxas, G.R.
No. 189155, September 7, 2010).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
A.M. No. 09-6-8-SC (April 29, 2010)
Citizen Suits:
Objectives of the Rules:
- To protect and advance the constitutional right of the people to a balanced and healthful
ecology;
- To provide a simplified, speedy and inexpensive procedure for the enforcement of
environmental rights and duties recognized under the Constitution, existing laws, rules and
regulations, and international agreements;
- To introduce and adopt innovations and best practices ensuring the effective enforcement of
remedies and redress for violation of environmental laws; and
- To enable the courts to monitor and exact compliance with orders and judgments in
environmental cases (Section 3).
101
- Covers “civil, criminal and special civil actions involving enforcement or violations of
environmental and other related laws”.
- The Rules may apply in other suits not necessarily based on environmental laws or
laws containing environmental provisions. Example, if a defendant in a civil damages
or defamation suit (the case of which is governed by the regular rules of civil/criminal
procedure) invokes a SLAPP (Strategic Lawsuit Against Public Participation) defense,
then these Rules shall apply insofar as the SLAPP defense is concerned.
- Any Filipino citizen in representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested
parties to manifest their interest to intervene in the case within fifteen (15) days from
notice thereof. The plaintiff may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays copies of said order
(Section 5, A.M. No. 09-6-8-SC (April 29, 2010).
- Citizen suit is limited to Filipino citizens and one that is filed in the public interest
hence, no proof of personal injury is required. A Filipino citizen may be an individual or
a corporation so long as the requirements of Philippine citizenship are complied with.

Highlights of the Rules: consent decree

1. citizen suits
2. consent decree environmental protection order
3. environmental protection order
4. writ of kalikasan writ of kalikasan
5. writ of continuing mandamus
6. strategic lawsuits against public participation (SLAPP) writ of continuing mandamus
7. the precautionary principle.
Strategic lawsuit against public participation (SLAPP):
- Strategic lawsuit against public participation (SLAPP) refers to an action whether civil,
criminal or administrative, brought against any person, institution or any government
Applications/Coverage: agency or local government unit or its officials and employees, with the intent to
harass, vex, exert undue pressure or stifle any legal recourse that such person,
- Applicable to environmental cases arising from laws that relate to the conservation,
institution or government agency has taken or may take in the enforcement of
development, preservation, protection and utilization of the environment and natural
environmental laws, protection of the environment or assertion of environmental rights.
resources. These may include environmental laws and those laws that may contain
provisions that relate to the environment but are not environmental laws per se.

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- SLAPP applies not only to suits that have been filed in the form of a countersuit, but
also to suits that are about to be filed with the intention of discouraging the aggrieved
person from bringing a valid environmental complaint before the court.
SEC. 4. Who may file. – Any real party in interest, including
the government and juridical entities authorized by law, may
file a civil action involving the enforcement or violation of any
environmental law.
Real party in interest. The phrase “real party in interest” in
this provision retains the same meaning under the Rules of Civil
Procedure14 and jurisprudence.It must be understood, however, in
conjunction with the nature of environmental rights, which are
enjoyed in general by all individuals. Under this section, both a
Filipino citizen and an alien can file a suit so long as they are able
to show direct and personal injury. This provision on real party in
interest must be read in conjunction with citizen suit provisions —
Sec. 5 of this Rule15 and Sec. 1, Rule 5.16
A person who suffers damage or injury arising from an
environmental prejudice which is also the same subject of a citizen
suit can file a separate action under this section to recover for his
personal injury. In this instance, a citizen suit can take place
simultaneously with the filing of an individual complaint.
SEC. 5. Citizen suit. – Any Filipino citizen in representation
of others, including minors or generations yet unborn, may file
an action to enforce rights or obligations under environmental
14 Rules of Court, Rule 3, Sec. 2. Parties in interest. — A real party in interest is the
party who stands to be benefited or injured by the judgment in the suit, or the party entitled to
the
avails of the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
15 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 2, Sec. 5.
16 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 5, Sec. 1.
Annotation to the Rules of Procedure for Environmental Cases 111
laws. Upon the filing of a citizen suit, the court shall issue an
order which shall contain a brief description of the cause of
action and the reliefs prayed for, requiring all interested parties
to manifest their interest to intervene in the case within fifteen
(15) days from notice thereof. The plaintiff may publish the
order once in a newspaper of a general circulation in the
Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003
shall be governed by their respective provisions.
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Citizen suit. To further encourage the protection of the
environment, the Rules enable litigants enforcing environmental
rights to file their cases as citizen suits. This provision liberalizes
standing for all cases filed enforcing environmental laws and
collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The terminology of
the text reflects the doctrine first enunciated in Oposa v. Factoran,17
insofar as it refers to minors and generations yet unborn.
While the Rules liberalize the requirements for standing, in
the case of non-government organizations (NGOs) and people’s
organizations (POs), proof of their juridical personality (i.e.
accreditation, recognition or registration) given the relative ease by
which a number of groups can loosely organize and label themselves
as NGOs or POs. The same proof of juridical personality is also
required in a petition for a writ of kalikasan.18
Unlike the previous section on real party in interest, Sec. 5 is
a suit limited to Filipino citizens and one that is filed in the public
interest hence, no proof of personal injury is required. A Filipino
citizen may be an individual or a corporation so long as the
requirements of Philippine citizenship are complied with. The
reliefs that may be awarded in a citizen suit are discussed in Rule
5, Sec. 1, infra.
As a procedural device, citizen suits permit deferment of
payment of filing fees until after the judgment.19
17 G.R. 101083, July 30, 1993.
18 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 7, Sec. 1.
19 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 2, Sec. 12.
112 A.M. No. 09-6-8-SC
The provision permits the plaintiff to publish the order containing
a brief description of the action in order to allow other persons to
join as co-plaintiffs and to sufficiently apprise the judge of persons
interested to join as such, consistent with the public character of the
citizen suit. This adopts the features of the general rule on publication
found in cases in rem, and is meant to reflect the distinct nature of
environmental cases. In this Rule, however, publication is permissive
and non-jurisdictional and is meant only to encourage public
participation.
Citizen suits may be filed for all types of environmental cases.
In deference to the legislature, however, the provision adds as a
caveat that citizen suits under the Clean Air Act of 1999) and the
Ecological Solid Waste Management Act of 2000 shall be governed
by their respective provisions.
SEC. 6. Service of the complaint on the government or its
agencies. – Upon the filing of the complaint, the plaintiff is
required to furnish the government or the appropriate agency,
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
although not a party, a copy of the complaint. Proof of service
upon the government or the appropriate agency shall be attached
to the complaint.
Service of complaint upon government or its agencies. This
provision makes it mandatory for plaintiffs to notify the concerned
branch of government. Two agencies have been noted in particular:
the Department of Environment and Natural Resources (DENR)
and the Office of the Solicitor General (OSG). If their participation
should prove unwarranted, they may file a manifestation to that
effect.
The service of the complaint would apprise the government of
the pendency of the case and the agencies may intervene if warranted.
The government agency may thus employ its resources, as well as
expertise, to successfully pursue the case.
SEC. 7. Assignment by raffle. – If there is only one (1)
designated branch in a multiple-sala court, the executive judge
shall immediately refer the case to said branch. If there are two
(2) or more designated branches, the executive judge shall
conduct a special raffle on the day the complaint is filed.
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Writ of kalikasan
The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the
Philippine Constitution which provides that: “The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”
Section 15 of the same Article provides that: “The State shall protect and promote the right to
health of the people and instill health consciousness among them.”
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3)
environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus,
(6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary
principle.
The provision on citizen suits liberalizes standing for all cases filed enforcing environmental
laws. Citizen suits have proven critical in forcing government and its agencies to act on its duty
to protect and preserve the environment. The terminology of the text reflects the doctrine first
enunciated in Oposa v. Factoran (G.R. No. 101083, July 30, 1993). To further encourage the
protection of the environment, the Rules enable litigants enforcing environmental rights to file
their cases as citizen suits. As a procedural device, citizen suits permit deferred of payment of
filing fees until after the judgment
The use of a consent decree is an innovative way to resolve environmental cases. It allows for
a compromise agreement between two parties in environmental litigation over issues that would
normally be litigated in court, and other matters that may not necessarily be of issue in court.
An environmental protection order refers to an order issued by the court directing or enjoining
any person or government agency to perform or desist from performing an act in order to
protect, preserve or rehabilitate the environment. It integrates both prohibitive and mandatory
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reliefs in order to appropriately address the factual circumstances surrounding the case. This
remedial measure can also be prayed for in the writs of kalikasan and continuing mandamus.
Similar to the writs of habeas corpus, amparo and habeas data, the issuance of the writ of
kalikasan is immediate in nature. It contains a very specific set of remedies which may be
availed of individually or cumulatively, to wit – it is available to a natural or juridical person,
entity authorized by law, people’s organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons
whose constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee, or private individual or
entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. The petition for the issuance of a writ
of kalikasan can be filed with the Supreme Court or with any of the stations of the Court of
Appeals. Likewise, the summary process leading to the issuance of the writ of kalikasan
dispenses with extensive litigation; this facilitates the prompt disposition of matters before the
court.
Another innovation is the rule on the writ of continuing mandamus which integrates the ruling
in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and
the existing rule on the issuance of the writ of mandamus. Procedurally, its filing before the
courts is similar to the filing of an ordinary writ of mandamus. However, the issuance of a
Temporary Environmental Protection Order is made available as an auxiliary remedy prior to
the issuance of the writ itself.
As a special civil action, the writ of continuing Mandamus may be availed of to compel the
performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the reliefs mandated under the
court's decision. For this purpose, the court may compel the submission of compliance reports
from the respondent government agencies as well as avail of other means to monitor
compliance with its decision.
Its availability as a special civil action likewise complements its role as a final relief in
environmental civil cases and in the writ of kalikasan, where continuing mandamus may
likewise be issued should the facts merit such a relief.
Both petitions for the issuance of the writs of kalikasan and mandamus are exempt from the
payment of docket fees.
Since formidable legal challenges may be mounted against those who seek to enforce
environmental law, or to assert environmental rights, in light of this, the Rules make available a
formidable defense in these by creating a rule on strategic lawsuit against public
participation (SLAPP). . These legal challenges may be pre-emptive in character and may be
done in order to “chill” the latter.
Another significant aspect of the Rules that derives from the transboundary and temporal nature
of ecological injury is the adoption of the precautionary principle. In this context, the
precautionary principle finds direct application in the evaluation of evidence in cases before the
courts. The precautionary principle bridges the gap in cases where scientific certainty in factual
findings cannot be achieved. By applying the precautionary principle, the court may construe a
set of facts as warranting either judicial action or inaction, with the goal of preserving and
protecting the environment. This may be further evinced from the second paragraph where bias
is created in favor of the constitutional right the people to a balanced and healthful ecology.
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Some important provisions on criminal procedure can also be found under the Rules. The Rules will take effect within fifteen (15) days following its publication once in a newspaper
The rule on bail makes available to the accused the privilege of bail from any court, within and of general circulation (SC En Banc Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC).
outside the jurisdiction of the court which had issued the warrant of arrest. The immediate
availability of bail is intended to obviate long periods of detention.
One important innovation under the rule on bail is the execution of an undertaking by the
accused and counsel, empowering the judge to enter a plea of not guilty, in the event the
xxxxxx
accused fails to appear at the arraignment. This authorization permits the court to try the case
in absentia, thereby addressing a fundamental concern surrounding the prosecution of criminal
cases in general, where the accused jumps bail and the court unable to proceed with the
disposition of the case in view of the absence of the accused and the failure to arraign the latter.
Several environmental advocates have lauded the Supreme Court for serving as the major
bulwark for fundamental reforms in environmental protection:
Atty. Antonio Oposa, Jr.: “This is a new day for the life sources of land, air and water. Ordinary
citizens like us are now empowered to take legal action where our political leaders will not. We
thank the Supreme Court for this truly landmark achievement, the first of its kind in the world. It
happened during Chief Justice Puno’s stewardship of the Supreme Court. We salute you, Chief
Justice Puno, the entire Supreme Court, and everyone who played a role in the drafting of this
milestone for the movement of citizens who care for our sources of life! You have made a great
difference and will forever be remembered for this legacy. Mabuhay po kayo!”
Atty. Gloria Estenzo Ramos (Global Legal Action on Climate Change): “A new era of nurturing
for our threatened natural support system has ushered in with the Supreme Court’s
promulgation of the much awaited Rules on Environmental Cases. This will transform the legal
profession and the practice of law in our country and instill a mindset of sustainability among
stakeholders, especially the lawyers, government agencies and the corporate sector. Lawyers
will become stewards of both the law and the environment. The wide gap existing between the
law and reality will narrowed down as the trail-blazing remedies such as the writ of kalikasan,
writ of continuing mandamus, citizen suit and anti-SLAPP, afforded to the people, ecological
stewards and dedicated civil servants will render the violation or non-compliance of
environmental laws a very expensive and tedious option. This legacy of Chief Justice Puno and
the justices of the Supreme Court will be enshrined as one of the greatest gifts not just to
Filipinos and the future generations of this biodiversity rich nation, but to our climate challenged
planet as well. Mabuhay ang SC! Mabuhay si Chief Justice Puno!”
Atty. Roan Libarios (Integrated Bar of the Philippines, Governor): “A.M. No. 09-6-8 is a major
breakthrough that will finally bridge the wide gap between Philippine environmental protection
laws and their enforcement. Mother Nature will rejoice from the innovative legal weapons
created and unleashed for its defense by the SC – the citizens’ right, EPO, writs of kalikasan
and continuing mandamus. Truly, no other set of rules can match the potency of A.M. No. 09-6-
8 in promoting ‘environmental accountability.’ With its potency, it will energize, if not transform
the field of legal advocacy in environmental protection.”
The Sub-committee who finalized the Rules was chaired by Chief Justice Reynato S. Puno, its
other members include Justice Presbitero J. Velasco, Jr., Justice Diosdado M. Peralta, Justice
Lucas P. Bersmain, Justice Ma. Alicia Austria-Martinez (ret.), Commission on Climate Change
Commissioner Mary Ann Lucille L. Sering, Judge Myrna Lim-Verano, and the U.S. Department
of Interior’s in-country representative, Atty. Asis G. Perez.

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EJECTMENT: SUBSTANCE AND PROCEDURE

EJECTMENT
by: NATURE
“In general, involves a perturbation of social order which must be restored as promptly
HON. MARIA FILOMENA D. SINGH as possible. Thus, the Rule(s) on Summary Procedure, which govern(s) the proceedings
Presiding Judge, Br. 85, RTC-Quezon City in these cases and which were designed to meet that end, are intended to provide an
Professor, Philippine Judicial Academy expeditious means of protecting actual possession or right of possession of property. A
Professor, Ateneo de Manila School of Law mere reading of the summary rule reveals the basic objective, through the procedural
requirements and prohibitions therein, to obviate dilatory practices and unnecessary
ACCION PUBLICIANA delay which have long been the bane of ejectment proceedings.” (Perez-Claudio vs.
“Accion plenaria de posesion is a plenary action for recovery of possession in an Quebral, G.R. No. 165962, July 6, 2007)
ordinary civil proceeding in order to determine the better and legal right to possess,
independently of title.” (Bejar, et al. vs. Caluag, G.R. No. 171277, February 15, 2007; SUBJECT MATTER
Encarnacion vs. Amigo, 502 SCRA 172 [2006]) “It is hornbook doctrine that in an ejectment case, it is not the prime function of the
versus ACCION INTERDICTAL courts to resolve questions relating to title to or ownership of the property in litigation.
“An ejectment proceeding which may either be that for Unlawful Detainer (Desahucio) What is involved in ejectment cases is merely the issue of material or physical
and Forcible Entry (Detentacion), which is a summary action for recovery of physical possession (possession de facto) independent of any claim of ownership set forth by
possession” (Encarnacion vs. Amigo, 502 SCRA 172 [2006]) any of the party-litigants, such that any one of them who can prove prior possession de
facto may recover such possession even from the owner himself, regardless of the
Distinctions: character of such possession, provided that he has in his favor priority in time.” (Perez-
(1) Period of filing: length of time of dispossession Claudio vs. Quebral, id.)
(2) Jurisdiction of court
“Well entrenched is the doctrine that in ejectment cases, the sole question for
ACCION REIVINDICATORIA resolution is the physical or material possession of the property in question, so that
“Accion de reivindicacion involves not only possession but ownership of the property. neither the claim of juridical nor an averment of ownership can outrightly prevent the
The plaintiff in this action sets up title in himself and prays that he be declared the owner court from taking cognizance of the case. In ejectment cases, all the court may do is to
and be given possession thereof.” (Bejar, et al. vs. Caluag, supra.) resolve who is entitled to its possession although, in doing so, it may make a

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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
determination of who is the owner of the property in order to resolve the issue of
possession. But such determination is not clothed with finality. Neither will it affect
ownership of the property or constitute a binding and conclusive adjudication on the
merits with respect to the issue of ownership.” (Spouses Raymundo vs. Spouses
Bandong, G.R. No. 171250, July 4, 2007)
FORCIBLE ENTRY and UNLAWFUL DETAINER: COMPARED
“(1) a case for forcible entry, [which] is an action to recover possession of a property
from the defendant whose occupation thereof is illegal from the beginning, as he
acquired possession by force, intimidation, threat, strategy or stealth; and (2) a case for
unlawful detainer, [which] is an
action for recovery of possession from defendant whose possession of the property was
inceptively lawful by virtue of a contract (express or implied) with the plaintiff, but
became illegal when he continued his possession despite the termination of his right
thereunder.” (Spouses Malison vs. Court of Appeals, G.R. No. 147776, July 10, 2007)
“The 2 forms of ejectment suits, forcible entry and unlawful detainer, may be
distinguished from each other mainly by the fact that in FE, the plaintiffs must prove that
they were in prior possession until they were deprived thereof by the defendant; in UD,
the plaintiffs need not have been in prior physical possession.” (Sumulong vs. Court of
Appeals, 232 SCRA 372, May 10, 1994)
TEST TO DETERMINE IF UD or FE
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“It is the nature of defendant's entry into the land which determines the cause of
action, whether it is forcible entry or unlawful detainer.” (Valdez, Jr. vs. Court of
Appeals, 489 SCRA 369 [2006]; cf. Arambulo vs. Gungab, 471 SCRA 640 [2005])
DETERMINING JURISDICTION
“Jurisdiction in ejectment cases is determined by the allegations pleaded in the
complaint. As long as these allegations demonstrate a cause of action either for forcible
entry or for unlawful detainer, the court acquires jurisdiction over the subject matter.
This principle holds, even if the facts proved during the trial do not support the cause of
action thus alleged, in which instance the court, after acquiring jurisdiction, may resolve
to dismiss the action for insufficiency of evidence.” (Habagat Grill vs. DMC-Urban
Property Developer, Inc., G.R. No. 155110, March 31, 2005; cf. Bejar, et al. vs. Caluag,
supra.; Encarnacion vs. Amigo, supra)
JURISDICTION OVER ISSUE
“All ejectment cases are covered by the Rule on Summary Procedure and are within the
jurisdiction of the inferior courts regardless of whether they involve questions of
ownership. The court in ejectment cases may determine questions of ownership
whenever necessary to decide the question of possession.” (Gayoso vs. 22 Realty
Corporation, G.R. No. 147874, July 17, 2006)
“The defense of ownership referred to in Section 16 of Rule 70 refers to a situation where
defendants either claim ownership of the subject property orattributes said ownership to
another person other than the plaintiff. It does not apply where defendants merely
question the validity of the title of the plaintiff. Thus, petitioners must anchor the legality
of their material possession of the property on a claim of title in order for the court to be
able to touch, at least provisionally and only for purposes of determining possession, on
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
the legality of the issue of ownership.” (Spouses Dario Lacap vs. Jouvet Lee, 394 SCRA
1 [2002])
“Where the issue of ownership is raised, the courts may pass upon it to determine who
has the better right to possess the property. xxx The lower court's adjudication of
ownership in the ejectment case is merely provisional and would not bar or prejudice an
action between the same parties involving title to the property.” (Sps. Pascual vs. Sps.
Coronel, G.R. No. 159292, July 12, 2007)
REQUISITE ALLEGATIONS
(1) in Forcible Entry
(a) plaintiff was in prior physical possession
(b) he was deprived of possession by defendant by means of FISST
“It is not necessary that the complaint allege, in the language of the statute, that the
person has been deprived of his possession by force, intimidation, threat, strategy or
stealth. The foundation of a possessory action is really the forcible exclusion of the
original possessor by a person who has entered without right. The words “by force,
intimidation, threat, strategy or stealth” include every situation or condition under which
one person can wrongfully enter upon real property and exclude another, who has had
prior possession, therefrom.” (David vs. Cordova, G.R. No. 152992, July 28, 2005; cf.
Benguet Corporation vs. Cordillera Caraballo Mission, et al., G.R. No. 155343, September
2, 2005)
viz The bare allegation that plaintiff was “deprived of possession” has been held
insufficient (Saclolo vs. IAC, 159 SCRA 63 [1988], citing Gumiran vs. Gumiran, 21 Phil.
174)
(c) the action is filed within 1 year from deprivation of possession, or discovery thereof
(Dela Cruz vs. Court of Appeals, 510 SCRA 103 [2006])
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“Under Section 1, Rule 70, the one-year period within which a complaint for unlawful
detainer can be filed should be counted from the date of demand, because only upon
lapse of that period does the possession become unlawful. Forcible entry and unlawful
detainer are quieting processes and the one-year time bar to the suit is in pursuance of
the summary nature of the action.” (Salud Lopez vs. Robert David, Jr., G.R. No. 152145,
March 30, 2004; cf. Leonin vs. Court of Appeals, G.R. No. 141418, September 27, 2006;
Peralta-Labrador vs. Bugarin, 468 SCRA 308 [2005])
(d) Demand is NOT necessary (Medel vs. Militante, 41 Phil. 526; Dikit vs. Ycasiano, 89
Phil. 46)
(2) In unlawful detainer
(a) existence of defendant's right to possess (by contract or tolerance)
“To justify an action for unlawful detainer based on alleged tolerance, the permission
must have been present at the beginning of the possession. If the possession was
unlawful from the start, an action for unlawful detainer would be improper. Since
defendants were alleged to have entered the property without the knowledge and
consent of plaintiff, even if tolerance is alleged, the action cannot be for unlawful
detainer.” (Unida vs. Heirs of Urban, G.R. No. 155432, June 9, 2005; Sarona vs. Villegas,
supra.; Heirs of Melchor vs. Melchor, 415 SCRA 726 [2003]; 1040 Realty vs. Cruz, 410
SCRA 484 [2003])
(b) defendant's default = violation of his obligation (to pay, or to comply with contract
conditions, or to surrender property upon demand)
(c) plaintiff's demand to vacate, or to pay and vacate
Demand is jurisdictional in Unlawful Detainer (Rule 70, Section 2; Arquelada vs.
Philippine Veterans Bank, 329 SCRA 536 [2000]). “It partakes of the nature of an extra-
judicial remedy that must be pursued before resorting to judicial action so much so that
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BATHAN NOTES for REMEDIAL LAW (2014 BAR EXAMINATIONS)
when there is full compliance, there is no need for action” (Cetus Development vs. Court
of Appeals, 176 SCRA 72)
“A simple allegation that “defendant is unlawfully withholding possession from plaintiff”
is sufficient. The phrase “unlawful withholding” has been held to imply possession on
the part of the defendant, which was legal in the beginning, having no other source than
a contract, express or implied, and which later expired as a right and is being withheld
by defendant. Even if the phrase “unlawfully withholding” was not actually used in the
complaint, if the allegations amount to an unlawful withholding, the complaint is
adequate.” (Minerva Umpoc, et al. vs. Mildred Mercado, G.R. No. 158166, January 21,
2005)
(d) the action is brought within one (1) year from the time defendant's possession
becomes unlawful (Section 1, Rule 70; Sergio and Jovita Barbosa vs. Pilar Hernandez,
G.R. No. 133564, July 10, 2007). “Once the demand is made, the 1-year period within
which to file an unlawful detainer case starts to run.” (Sarona vs. Villegas, 22 SCRA 1257
[1968]). “It is the owner's demand for the tenant to vacate the premises and the tenant's
refusal to do so which makes unlawful the withholding of possession” (Siapan vs. Court
of Appeals, 327 SCRA 11 [2000]). Period is counted from date of last demand (Leonin vs.
Court of Appeals, G.R. 141418, September 27, 2006).
(e) prior physical possession by plaintiff is NOT necessary
EXECUTION OF JUDGMENTS
General Rule: Immediately Executory
“Under Section 19, Rule 70, a judgment in a forcible entry and detainer action is
immediately executory to avoid further injustice to a lawful possessor, and the court's
duty to order the execution is practically ministerial. The defendant may stay it only by
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(a) perfecting an appeal; (b) filing a supersedeas bond; and (c) making a periodic deposit
of the rental or reasonable compensation for the use and occupancy of the property
during the pendency of the appeal.” (Bugarin, et al. vs. Palisoc, et al., G.R. No. 157985,
December 2, 2005)
“As a general rule, a judgment in favor of the plaintiff in an ejectment suit is immediately
executory, in order to prevent further damage to him arising from the loss of possession
of the property in question. To stay the immediate execution of the said judgment while
the appeal is pending, the foregoing provision requires that the following must concur:
(1) the defendant perfects his appeal; (2) he files a supersedeas bond; and (3) he
periodically deposits the rentals which become due during the pendency of the appeal.
The failure of the defendant to comply with any of these conditions is a ground for the
outright execution of the judgment, the duty of the court in this respect being
“ministerial and imperative.” Necessarily then, the supersedeas bond should be filed
within the period for the perfection of the appeal.
Under Section 8, Rule 70, the supersedeas bond shall be equivalent to the unpaid
rentals, damages and costs which accrued before the decision was rendered, as
determined by the MTC in the said decision. Petitioners need not require the MTC to fix
the amount of the supersedeas bond.” (Spouses Chua vs. Court of Appeals, 286 SCRA
437 [1998])
“Even granting the remote possibility that the notice of appeal was timely filed, the
defendant had also failed to file in due time the requisite supersedeas bond, on which
other count the judgment of the trial court had thereby become immediately executory.
In view of this additional aspect, even if the case had been elevated on appeal to the
proper court, the latter could not acquire appellate jurisdiction thereover, much less
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reverse or substantially modify the judgment of the court a quo.” (Development Bank of
the Philippines vs. Llanes, Jr., 266 SCRA 212 [1997])
Exceptions: When NOT immediately executory
“Exceptions to the general rule that judgment in ejectment in favor of plaintiff is
immediately executory: (1) where delay in posting of supersedeas bond or deposit is due
to fraud, accident, mistake or excusable negligence; (2) where supervening events
occurring subsequent to the judgment bring about a material change in the situation of
the parties which makes execution inequitable; or, (3) where there is no compelling
urgency for the execution because it is not justified by prevailing circumstances.”
(Hualam Construction Corporation vs. Court of Appeals, 214 SCRA 612 [1992])
Order of Execution: NOT appealable
“An order of execution is not appealable because otherwise a case would never end. If
the order of execution cannot be appealed, neither can the order of demolition issued in
pursuance thereof be appealable. Where all the delay in the execution of the judgment
lasting for almost 8 years is due to petitioner's own act, this Court for reasons of equity
is constrained to treat the motion for execution and the subsequent motion for alias writ
of execution and motion for demolition as constituting in effect an action to revive
judgment under Section 6, Rule 39.” (Luciano David vs. Hon. Bienvenido Ejercito, et al.,
71 SCRA 484 [1976])
SHERIFF'S DUTY IN EJECTMENT
“A sheriff's duty to execute a valid writ is purely ministerial, not discretionary, i.e., the
duty is one which an officer or tribunal performs in the context of a given set of facts, in
a prescribed manner and without regard to the exercise of his own judgment upon the
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propriety or impropriety of the act done. The duty of the sheriff being ministerial, he has
no discretion to delay it. Absent any instructions by a court to the contrary, he is
mandated to proceed with reasonable celerity and promptness. If for any reason he
cannot implement the writ in part or in full, his duty is outlined in Section 14, Rule 39:
“The writ of execution shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full
within 30 days after his receipt of the writ, the officer shall report to the court and state
the reason therefor. Such writ shall continue in effect during the period within which the
judgment may be enforced by motion. The officer shall make a report to the court every
30 days on the proceedings taken thereon until the judgment is satisfied in full, or its
effectivity expires.” (Celestino Garcera II vs. Othello Parrone, A.M. No. P-05-2030, July 15,
2005)
“Under Section 10 [c] of Rule 39, enforcement in ejectment cases requires the Sheriff
must give notice of such writ and demand from defendant to vacate the property within 3
days. Only after such period can the Sheriff enforce the writ by the bodily removal of
defendant and his personal belongings. When a decision in ejectment states that it is
“immediately executory,” it does not mean dispensing with the required notice or 3-day
removal period. A Sheriff who enforces the writ without the required notice or before the
expiry of the 3-day period runs afoul of Rule 39.” (Manuel Mendoza vs. Angel Doroni,
A.M. No. P-04-1872, January 31, 2006)
“The defendant in an ejectment case must be accorded an opportunity to make adequate
arrangements and find a place for the transfer of her personal belongings and other
property to avoid damage to her properties, and at the same time, ascertain if the writ is
timely and properly issued by the court. The immediate enforcement of the writ of
ejectment execution is carried out by giving the defendant notice of such writ, and
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making a demand that defendant comply therewith within a reasonable period, normally
from 3 to 5 days, and it is only after such period that the sheriff enforces the writ.”
(Leody Manuel vs. Jose and Daisy Escalante, 387 SCRA 239 [2002])

ON WHOM BINDING

“A judgment in an ejectment suit is binding not only upon the defendants in the suit but
also against those not made parties thereto, if they are: (a) trespassers, squatters or
agents of the defendant fraudulently occupying the property to frustrate the judgment;
(b) guests or other occupants of the premises with the permission of the defendant; (c)
transferees pendente lite; (d) sublessee; (e) co-lessees; or (f) members of the family,
relatives and other privies of the defendant.” (Rudy Lao vs. Jaime Lao, G.R. No. 149599,
May 16, 2005)

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