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Tranquil Rem Rev PDF
Tranquil Rem Rev PDF
Table of contents
1. CIVIL PROCEDURE
2. CRIMINAL PROCEDURE
3. EVIDENCE
4. SPECIAL PROCEEDINGS
Definition – the same, as conferred by law, except you have to add that venue is
jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can
agree on venue or it can be subject to waiver.
Jurisdiction over the offense. This is essentially the same as jurisdiction over subject
matter.
Jurisdiction over the person. This is jurisdiction over the person of the accused.
Filing fees are not necessary.
Actions
Parties
Venue
Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction
is the power given by law to hear, try, and decide cases. Knowing what court is one thing,
but knowing where to file it is different.
There was an agreement to development of a piece of land in Tanay, Rizal to become
a memorial park. The duty of the owner (living in Quezon City) of the piece of land is
to provide property. The duty of the developer (located in Pasig) is to dig up the land,
put drainages, etc. The owner of the land died, and the heirs are now substituting for
their father. They want to rescind the agreement to develop. Where do they file?
o There are two steps in venue problems. First, determine: is it a real action or a
personal action?
It’s a personal action. It involves rights and obligations of parties, although
the subject matter involves land.
o Where do you file it?
At the option of the plaintiffs. Either in their principal residence (Quezon City)
or the defendant’s (Pasig)
o Which court has jurisdiction?
RTC, because it is an action incapable of pecuniary estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the codal provides the
word “principal” before plaintiff and defendant, so that the plaintiffs will not file the
case before far-flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live
in Batac, Ilocos. Marcos lives in Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action. It’s not covered by the
Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed
where the property is located.
o But the mere filing and payment of fees (for multiple properties in various areas) can
be paid in one office, as long as it can be established that it covers all areas. But the
actual sale will only be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is filed where the property is
located.
o But if it is for collection of a sum of money, file it as a personal action.
Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides, or where their conjugal
home is located (special rule in Family Courts issuance)
What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific law provides
otherwise.
On specific venues, as provided by law –
o Give an example.
Actions for Quo warranto – if the Solicitor general commences it, in can be in
the SC, CA, or RTC of Manila
o What if you want to file an action for perpetuation of testimony?
This is covered by Rule 24 (deposition before action or pending appeal).
Special rule: Place of residence of any expected adverse party or defendant
o What about adoption?
Where the prospective adoptive parents reside
o What about probate?
Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
General rule: RTC where the minor is supposed to be found
Thornton: But if unknown or cannot be found, in the CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu. Plaintiff resides in
Makati, defendant in QC. Where do you file it?
In the MTC of Cebu. Residence in general does not matter.
o What if I file it in Makati?
Yes.
But what will you expect?
Motion to dismiss on the ground of wrong venue, coming from the
defendant.
But what if there was no motion to dismiss, and in the answer, there
was no allegation of improper venue?
There is waiver on the rules of venue.
Remember Rule 9, Section 1. This is the general rule on waivers and objections on
grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer
is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional venue.
o If there are words of exclusivity (ex. “can only be filed in Cebu, waiving all other
venues”), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)
In this case, the stipulation on venue in the principal agreement (PN) applies
to the accessory contract, which is the surety agreement – which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed? Apparently, the
defendant did not notice the improper venue, or he decided to waive it. Can the judge
later motu propio dismiss the case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of improper venue.
(Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment
case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited
pleading, an exception is lack of jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of America)
Summary procedure
Small claims
Pleadings
There is amendment for civil cases and there is amendment for criminal cases.
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?
o Before an answer or within 10 days of service of reply
o What do you need to file?
NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to file?
Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is plea.
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
o Yes, but only as to matters of form, for as long as it will not prejudice the rights of the
accused
Don’t forget that last bit!
o What is the test when it will prejudice the rights of the accused, even if it’s a
matter of form?
If the original defense of the accused will not change.
What is “amendment to conform to evidence”?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer. What is alleged must be
proven.
o If the evidence you presented went beyond the allegations, you may file a motion to
amend the pleading to conform to evidence
There are two kinds of amendments to conform to evidence. What are these?
o First kind – no objection on the part of the other party. For this reason, it will be
allowed even after judgment.
o Second kind – if the other party objects, the amendment is left to the sound
discretion of the court.
Can you amend a complaint when it originally has no cause of action?
o If in the first place there is no cause of action, no amendment will cure such an
absence.
o Can the court order an amendment even if there is no application to amend?
1. Yes, if it is a mere formal (typo) amendment
2. For bill of particulars, the court can either order compliance OR an
amendment
3. Motion to dismiss – the court can either grant, deny, or order an
amendment
There was an amendment of an original complaint, which was the basis for the
issuance of summons. If the original complaint is amended and that is granted by the
court, is there a need for issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the defendant through summons
or voluntary appearance.
o
It is a question of jurisdiction over the person, not a question of amendment.
o
HOWEVER, if there are additional defendants, new summons must be served to
them.
What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been filed, pursuant to new
transactions, occurrences, or events that have arisen.
o Can there be a supplemental complaint?
Yes
o Can there be a supplemental answer?
Yes
o Can there be a supplemental reply?
Yes
o Can there be a supplemental petition?
Yes
So what is the general rule?
o You can file a supplemental pleading as long as there are new transactions,
occurrences, or events that occur after the filing of the first pleading.
o What is the exception?
Usually you cannot do this to the Supreme Court, because you cannot file
something to it unless it asked for it. You would be asked to explain why you
are submitting such.
What is the difference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences that exist during the
filing of the original pleading, but were not placed in the pleading. There was just an
omission.
May be filed without leave of court (before responsive pleading)
o For supplements, the events, transactions, or occurrence only arose after the filing of
the original pleading.
Always with leave of court
Default
Bill of particulars
Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to file a BOP?
When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint that are not averred
with sufficient particularity
o You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?
o The period is interrupted upon filing, but you always have at least five days to file the
answer after.
Deadline to file an answer is in 15 days. You received the complaint December 1.
You filed a motion on December 5. How many days do you have?
o TWELVE, not eleven. You don’t count the day causing the interruption. [VERY
IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on December 14, the motion is
interrupted. How many days do you have?
o You still have Five days.
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3: non-compliance with
court order
What if the person fails to file an answer in the time left?
o Will be declared in default
Filing
Service
Summons
Motions
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties.
But also give notice to the clerk of court (even if the provision does not say it),
because he schedules the hearings.
o Absence of a notice of hearing has what effect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be filed in court and served to the other party at least three days
before the date of hearing. (Three day notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days from the filing of the
motion
Ex. you file it December 6. The last date you can set the hearing for is
December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally.
But since 2008, this rule has been applied strictly.
Motion to dismiss
What are the kinds of dismissal in Civil Procedure?
o 1. There is a motion to dismiss in Rule 16, prompted by defendant. – MOST
COMMON
o 2. But there is also a motion to dismiss in Rule 17, filed by the very same plaintiff
who filed.
Rule 17 also covers failure to prosecute, which is another form of motion to
dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter jurisdiction?
It is the law that confers the right to hear, try, and decide a case
The most common source is RA 7691 amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minor – age of majority
Corporation – must be duly registered with SEC
Attorney in fact – look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appear to state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
o 7. Litis pendentia
Same as RJ, but without
o 8. Prescription
o 9. Failure to comply with condition precedent
Ex. Failure to refer to Katarungang pambarangay
Is this waivable?
o YES. Because it is not jurisdictional.
Ex. Earnest efforts to compromise
Ex. Exhaustion of administrative remedies
Does this fall under this ground?
o Some commentators say yes. But some say failure to
exhaust must fall under PACS-COA
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o ALL
o Except – [F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
When can you file a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of Particulars portion.]
There was MTD filed on basis of lack of J over the defendant. The court, instead of
dismissing the action, dismissing the MTD, or ordering amendment of the complaint,
filed alias summons. Is this grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting for re-filing, the court
issued alias summons which will produce the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o You can file an answer, and the court has discretion to hold preliminary hearing of
your affirmative defenses and use it to dismiss the complaint. Thus, an answer can
be treated as a MTD.
This is a new feature of the 1997 Rules of Court. This has never been asked
in the Bar.
o What is the reason for this new rule?
Note: a MTD is not a prohibited pleading, but when it issues summons, the
court persuades parties not to file an MTD, but to file an answer with an
affirmative defense.
o Why is such court attitude?
Because issues will be joined, and pre-trial sets in where parties can
compromise.
o What is the difference between filing a MTD and an answer?
There is no preliminary hearing of defenses in a MTD.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main proceedings?
No. Even if there is a pending petition for certiorari, the main proceedings will
not be suspended unless you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused, invoking judicial
courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the RTC committed
GADALEJ? Or should it only remand?
The court, subject to its discretion, can either dismiss or remand it. There is
no hard and fast rule.
Dismissal of Actions
Pre-trial
Intervention
Subpoena
Types of subpoena?
o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or things
N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
Can the OMB issue a subpoena?
o Yes.
Can the office of the prosecutor issue?
o Yes.
Is the receipt of a subpoena by a respondent in a case filed before the office of the
prosecutor necessary for the office to acquire jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the Office of the
Prosecutor is a statutory right, not constitutional right. You can altogether dispense
with it, or waive it. It is not essential for DP.
o There is an express provision in Rule 112(D) that says failure to receive the
subpoena will not bar the prosecutor from issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convict?
o The judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must be authorized by the SC to appear
under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena as testificandum?
1. Witness is not bound thereby
What is an example of this?
o If the witness is not qualified. Ex the witness is the spouse of
the person he/she is testifying against
2. Witness fees and kilometrage allowed by the Rules were not tendered
Witness must live within 100 KM of the place where hearing is
conducted
You can also be arrested to compel you
o How do you quash a subpoena duces tecum?
1. Unreasonable and oppressive
2. Relevancy of the books, documents, etc. does not appear
3. Failure to tender the costs of production
4. Kilometrage/witness fees Not in the duces tecum part but you need
the witness to appear too
5. Failure to describe with particularity N.B. not in the rules
Can the clerk of court issue a subpoena in the absence of a judicial action? (Note, this
is not referring to investigation by a quasi-judicial body.)
o No.
Interrogatories to parties
N.B. Under 2004 guidelines, it is the duty of the judge to issue an order to the parties to
avail of Modes of Discovery under Rules 23, 25-27
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio issue it. The other
modes, you have to apply for.
What is required?
o 1. Also upon motion
o 2. And with good cause shown
When can it be done?
o When the physical or mental condition of a party is in controversy
o Ex. Guardianship, Physical Injuries,
What does “in controversy” mean?
o It has to be one of the main issues of the case, not just a side matter.
o It does not have to be the only issue, but it has to be in issue.
What is the consequence if the copy of the examination is given to the party
examined?
o There is a waiver of the privilege
o That requesting party can now also ask for previous or subsequent examination on
the same matters of the requested party
o It must refer to the same condition. So if the examination was on the other party’s
head for mental examination, she can only ask for similar reports on the mental
condition of that party.
What if the requested party refuses?
o The court may make an order for delivery of the report
o If by chance, that other party’s physicians were allowed to testify, their testimonies
can be excluded.
What is the effect of the requested party requesting for a copy of the report made or
taking the deposition of the examining physician?
He waives any privilege in that action or another action involving the same controversy, as
regards testimony of other examining persons, whether before or after
N.B. Privilege of doctor-patient only applies to civil case, not criminal case
Consequences of non-compliance
If there is refusal to answer, what are the consequences?
o 1. The case can be dismissed if he is plaintiff
o 2. If the defendant, judgment by default
o 3. Pleadings can be stricken out
o 4. Held in contempt
He can be arrested
When does arrest as a consequence not apply?
Request for physical or mental examination
Trial
Both civil and criminal procedures will not provide for conduct in examination of a witness.
Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents before the defendant.
o [Check for midterms: can there be reverse order if it is a civil case?]
Can there be judgment without trial?
o When parties agree on facts
o [spaced out]
What are the grounds for cancellation of hearing (actually, postponement)?
o 1. His presence is indispensable and illness is excusable
N.B. it does not say the party must be indispensable; just his presence
o 2. Absence of evidence, and the evidence is material and cannot be procured
despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court – delegated authority to receive evidence
1. There are default proceedings
2. Ex parte
Examples of ex parte proceedings?
o Default
o Application of indigent
o “As in” default [did not appear during PT]
3. Parties agree in writing
Can an adoption case proceeding be delegated to the clerk of court for reception of
evidence?
o No.
o Always with the judge
Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testificandum. If it is a subpoena duces tecum, there must
be order by court.
Can the clerk of court resolve objections raised in an ex parte proceeding?
o No.
o Just note the objections, and forward to the judge.
o The other party is not there – who will object?
Well, the clerk of court just has to note it down if clearly objectionable.
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for court’s information for court to render
judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
Yes, as long as within the order of reference (his authority)
Can he resolve objections?
o Yes.
o N.B. this distinguishes him from a clerk of court
When are commissioners mandatory?
o Expropriation mandatory in second stage
o Partition only optional
If the parties stipulate how the property will be partitioned, there is no need to
go to the second stage where commissioners are required
Report of a commissioner is not a judgment. It only aids the court. What are the
options of the court?
o It may adopt, modify, or reject the report
What is the rule on objections?
o 10 days from filing of report, parties can object to the findings of the report
o BUT, must make it before the commissioner during proceedings, if these can be
made by then – otherwise, will not be considered by the court
Who shoulders the cost?
o The losing party, in general. But the court may apportion
Can the commissioner punish non-compliance with contempt?
o No. It’s the court that appointed the commissioner that can do that.
Consolidation
Demurrer to evidence
Summary judgment
Judgments
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to file?
o 15 days
o Can it be extended?
Cannot be extended
This rule has never been changed. You cannot file an extension on an MR
o So what’s the remedy?
Some lawyers suggest filing a supplement. But actually, there must be a new
event or fact that arises to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the judgment (ex. just
one of the issues).
Distinguish an MR from an MNT.
o The grounds are different. In MNT, the grounds are FAME and newly discovered
evidence.
What fraud is needed here?
Extrinsic fraud.
What is mistake?
Mistake of fact in good faith
If there’s a mistake of law, the remedy is an MR, not MNT
What is newly discovered evidence?
1. It must be material
2. It was not available during trial despite exercise of due diligence
3. If considered by the court, it could later/change the result
o What are the grounds for MR?
1. Evidence not sufficient to support the judgment
2. Excessive damages
3. Decision contrary to law
What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o Rules 40 and 41 (ordinary appeal) – covered by Neypes ruling
o Rule 42 (petition for review) – no need for Neypes ruling, because the provision itself
provides for it
o Rule 43 (review of QJA) – no need as well
o Rule 45 (petition for review on certiorari) – 15 day period for MR is counted already
in the period to file an appeal
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41 (ordinary appeal)
How many times can you file an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the first MNT was filed
What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial without retaking
Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals (not all appellate
courts).
o Rule 53 covers MNT in the CA. So that MNT is different from the MNT here. The
MNT in the Court of Appeals only has one ground: newly discovered evidence.
o There are different periods as well –
In the MNT in trial court: 15 days from judgment
In the CA: for as long as it’s an active case (no need to wait for a judgment in
the CA)
Is there a MNT in the SC?
o Rule 56 –
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that it should do it in the
interest of justice.
Execution
Appeals
[*NOTE for Bar review: check your Appellate Practice notes. They’re better, for these sections]
Rules 44-56 – CA
How is jurisdiction acquired over persons for original cases filed in CA?
o Service of order/resolution or voluntary submission to the court’s jurisdiction
o What does service of order or resolution mean?
Akin to Rule 13 service
o What if there was an effort to serve and it was not received? Is the court
deemed to have acquired jurisdiction?
No. There must be proper service of the resolution or order. Not like
summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings or arguments for
certiorari, annulment of judgment, mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking annulment of judgment of
an RTC decision.
Can you seek an annulment of judgment of an MTC decision?
Yes. You file annulment in the RTC.
Can you seek an annulment of judgment of a CA decision?
No. Fall back to the usual rule that you can only go up to the SC
through Rule 45.
o Can the justices hear the case?
Yes. Alternatively, it can ask the RTC to receive evidence.
Preliminary conference is the equivalent of pre-trial in the CA. Whether it is an original or
appealed case, the CA can set it for preliminary conference.
o What is the effect if the appellant is absent here?
The appeal will be dismissed. This is provided in Rule 50.
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this.
Ex. paid docket fees outside of reglementary period, even if you filed
the appeal within the period; failed to file within the reglementary
period
Ex. failure to file an appellant’s brief
o Can the parties stipulate on the facts?
Yes, if it is an original action, or there is a grant of new trial on the ground for
newly discovered evidence
(Note: newly discovered evidence is the only ground for the CA; FAME is not
included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
But if the CA feels that there is a need for the parties to ventilate their
arguments through oral discussion, then it can do it in its discretion.
o 2. Do you hear motions in the CA?
While for trial courts, motions will be heard, except those that will not
prejudice the rights of the other party.
BUT in the Court of Appeals, motions in the CA need not be heard (same
with the SC)
Comply with minimum requirements of Rule 44 and 50.
o What if you don’t have an assignment of errors?
Your appeal will be dismissed.
o What if you don’t comply with court circulars?
Dismissed.
Rule 51 – provision on judgment. (For trial courts, it is Rule 36.)
<spaced out>
Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds – except that the period to resolve in the CA (90 days) is longer
than the TC (30 days)
Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
TC – reglementary period within receipt of adverse decision
CA – from the time appeal is perfected and as long as the CA has jurisdiction
Remember Sec. 1 and 3. Memorize the cases that will be originally filed in the SC.
What are the cases that can be originally filed in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary actiosn against
members of the Bar/bench, against ambassadors, consuls, other public ministers,
etc.
But if you file a case against a member of the Bench, it will be referred to the
Court Administration. If against a member of the Bar, it will be referred to the
IBP.
o Found in the Constitution: Constitutionality of law, treaty, ordinance, tax imposition,
EO, etc.
What do you need to follow for original cases?
o Rule 46 – original cases
o PLUS: Rule 48 (preliminary conference), Rule 49 (oral argument), Rule 51
(judgment), Rule 52 (MR)
o Is there a MNT?
No.
For appealed cases to the Supreme court, what is the mode?
o Rule 45 – the only way to go up to the Supreme Court
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment), Rule 52 (MR)
o Is there oral argument?
No.
Rule 57 – attachment
Manguila: citing Davao Light and Power. Question is when should jurisdiction over
the defendant vest?
o Distinguish between issuance and implementation of the writ of attachment – to
determine when jurisdiction is needed over the defendant.
o Remember you could file an attachment will the initiatory pleading and apply for it ex
parte. You can also apply for it upon motion.
o To answer the question: there are three stages for attachment –
1. Court issues order granting application
2. Writ of attachment issues pursuant to the order
3. Implementation of the writ
FOR THE FIRST TWO STAGES, jurisdiction over the defendant is not yet
required because it is an ex parte application. However, when you are
implementing the writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?
You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with the order (for
implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the enforcement of the writ.
Either personal or substituted service.
Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if the claim arises from
an obligation (law, contract, quasi-contract, delict, quasi-delict) AND defendant is
about to depart with intent to defraud
What if claim is recovery for sum of money only?
No. You could only apply for attachment if the defendant is about to
depart with intent to defraud.
o 2. Embezzlement/abuse of trust by one with a fiduciary relationship
For all intents and purposes, this is estafa
o 3. Action to recover property and there is willful fraudulent concealment of the
property
o 4. Fraud in contracting the obligation or fraud in the performance thereof – most
asked ground
First: If not for the fraud, the other party would not have entered into the
transaction
Second: In the manner of the performance, it was fraudulent
o 5. Action against a person who removes/conceals property
Unlike (3), this is directed against a person
o 6. Defendant is a non-resident
Fraud not required here, because he can leave at any time
How do you discharge an attachment?
o 1. Most common: post a counter-bond
When do you post a counter-bond?
Can be posted after enforcement of the writ.
You cannot anticipate its enforcement.
o 2. Improper, irregular, or excessive attachment
What is “improper”?
Grounds are not present in the case
What is “irregular”?
Wrong process.
When can this be raised?
ANYTIME, even before enforcement.
Can you recover damages?
o Yes, Section 20 – if there is improper, irregular, or excessive attachment.
o Section 20 applies to all provisional remedies except support pendent lite.
o Where can you apply for it?
In the trial court; during or after trial.
You can apply for it within reglementary period, or when appeal has been
perfected. AS LONG AS it is pending, and not yet final and executory.
o Yu v. Ngo: Evidence required for wrongful attachment. When there is wrongful
attachment, defendant may recover actual damages, without need of proof of bad
faith. When there is malicious attachment, defendant may recover actual, moral, and
exemplary damages.
o What is the scope of the award of actual damages from attachment?
1. With best evidence obtainable, fact of loss or injury
2. Amount thereof
o Can actual damages cover unrealized profits?
Yes. But the amount must be supported by independent evidence of mean
income of the business undertaken.
o How do you prove moral/exemplary damages?
Prove that the wrongful attachment was with malice or bad faith.
o How about attorney’s fees?
Generally, attorney’s fees cannot be awarded when moral or exemplary
damages are not granted.
Exception: when a party incurs expenses to lift wrongfully issued writ of
attachment.
Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the debtor intended to
defraud the creditor by contracting the debt. The fraud must be related to the execution of
the agreement and must have been the reason that induced the party to give consent.
o If the writ of attachment is issued for a ground that is also the cause of action of the
plaintiff, the only way to dissolve it is to post a counter bond.
o If you post a counter bond, does this waive any further claim for damages
arising from wrongful attachment?
No.
Rural Bank of Sta. Barbara: A motion to release property from attachment was treated as
a third party claim (can also be found in Rule 57, Sec. 14). Works as the same manner as a
third party claim, except for one difference: [READ THIS CASE TO CLARIFY]
o Usually, in execution – The applicant posted a bond when he applied for a writ of
attachment (to cover whatever damages defendant will suffer due to attachment) By
reason of a third party claim, with no bond, the process will be suspended. Now it is
the burden of the applicant to post another bond to cover the third party’s damages.
o In attachment – more or less the same procedure. The third party claim suspends
the attachment procedure. But the right of the third party claimant in execution in
attachment could be vindicated in the same or in a separate action. In execution, it
could only be done in a separate action.
o Why?
Because in execution, the judgment is already final.
o In Rural Bank, a motion was filed to release property from attachment, giving
affidavit of title to the sheriff. The court said that the filing of the motion can be
deemed the same as a third party claim (because 3P claim must be filed with sheriff).
It can also be treated as a form of intervention.
Case: Levy on attachment duly registered takes preference over a prior unregistered sale.
The preference created by attachment is not defeated by the subsequent registration (to the
attachment) of a prior sale, because attachment is a proceeding in rem.
Magaling v. Ong: Irregular and improper issuance of attachment. When the attachment is
challenged for being illegally or improperly issued, there must be a hearing.
o The hearing embraces the right to present evidence, and also the establishment of
rights of other parties.
o Mere filing of opposition is not equivalent to a hearing. Absence of a hearing does
not discharge attachment.
o The discharge of an attachment, whether through counterbond or irregular, improper,
or excessive – can only be done through hearing.
Security case: Two ways to secure discharge of attachment. 1) Party whose property or
his representative has been attached can post a security. 2) Said party can show that the
attachment has been improperly or irregularly issued. Mere posting of counter bond does
not discharge the attachment. There should be a specific resolution for the discharge.
Contents of affidavit for attachment?
o 1. Cause of action
o 2. Statement that the grounds apply
o 3. There is no sufficient security
What if the court renders a judgment and there is a previous attachment, duly
registered, what will the subject of execution?
o If there is money duly garnished or obtained through sale of perishable goods, the
money will be applied.
o If not sufficient, use real or personal property that has been attached. But these
properties have to be sold on public sale. Procedure is consistent with Rule 39.
What if the properties attached are not sufficient to satisfy the judgment?
o Court proceeds with ordinary execution to cover the balance.
Rule 58 - Injunction
N.B. Rule 58 has been amended on Dec 2007. It was amended alongside Rules 41 and 65.
What was affected by the amendment?
o Rule 48, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for injunction?
o Yes. There could be a principal action for injunction. There is a distinction made in
this case between principal action and preliminary injunction:
o Principal action – seeks a judgment for a final injunction which is separate and
distinct from
o Preliminary injunction – object is just to preserve status quo
Greenfield, Dela Cruz v. DECS: What are the requisites for a PI?
o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material and substantial
o 3. There is an urgent and permanent necessity for the writ to prevent serious
damage
Types of PI?
o 1. Preliminary injunction to prohibit or stop (status quo ante)
o 2. Preliminary mandatory injunction – an injunction which requires you to do
something or perform something that you do not ordinarily want to perform, in order
to maintain the status quo
Estares: A writ of PI based only on initial and incomplete evidence – is this allowed?
What kind of evidence is required?
o You don’t need to present your entire case. Only a sampling of evidence is needed,
to give the court an idea to justify why you need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o No. It’s an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o If great and irreparable injury, court can issue a TRO ex parte (without notice and
hearing) for 20 days.
When stations where there is an executive judge, or the presiding judge of a single-sala
court, there can be an issuance of a 72-hour TRO ex parte – if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury
Can an injunction have an effect if enforced outside the judicial district? (ex.
enforced in Makati and Mandaluyong, and the judge is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has been issued
o The posting of a bond in connection with PI does not operate to relieve the party
obtaining the injunction from paying damages – the bond only gives additional
protection in favor of the defendant
o So Rule 57, Sec 20 also applies here. Read above, on the rule re: damages.
A court issued a writ of PI. What is the duty of the court in relation to the main case?
o The main case has to be decided within 6 months or else the judge can be
disciplined by the court. This is a new provision.
Aquino: Dissolution of the injunction, even if it was obtained in good faith, it amounts to a
determination that it was wrongfully obtained. A right of action against the bond accrues.
Garcia: Posting of a bond is a condition sine qua non to issue a writ of PI.
Borromeo: Where the parties stipulated in their credit agreement, PN, contract, etc., that
the mortgagee has the right to foreclose in case of default, this defeats any future claim for
the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount. Mere allegation of
payment without showing actual payment is not basis for issuance of PI.
o 2. Mere claim/allegation that the interest is unconscionable or excessive does not
justify issuance of the PI unless the legal interest is paid.
What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of TRO/injunction do not
apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order can be issued without
a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must apply to status quo
orders if issued for judicial or extrajudicial foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
What are the two kinds of TRO?
o 72 hour TRO – can only be issued by executive judge of a multi-sala court, or
presiding judge of single sala court
Without notice and hearing
Can these 3 days become 20 days?
Yes, after raffle and it is assigned to a regular court judge, who can
now conduct a summary hearing to determine w/n it must extend the
TRO from 3 to 20 days.
o Normal 20 day TRO – issued by a regular court judge after raffle
Without notice and hearing
Great and irreparable injury
Can a 20 day TRO be extended?
No, it automatically expires w/ or w/o a period.
Unless you obtain a preliminary injunction
Can a preliminary injunction be issued without notice and hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or preliminary injunction.
If you file a petition for certiorari against the PI, does it suspend the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition for certiorari (60
days)?
No more.
Before the 2007 amendment, you can ask for a 15 day extension. This was
removed already.
How can you dissolve a writ of PI?
o Is insufficiency a ground to dissolve a PI?
NO. It just a ground to deny, not to dissolve
o 1. File affidavits showing there is no reason for the PI
o 2. File a counterbond + an affidavit showing that he will suffer more damage than
applicant will
Is a counterbond enough?
No
Is the statement enough?
No
Rule 59 – Receivership
The only provisional remedy that can be applied for post-judgment and even if it is already
final and executory.
Grounds:
o 1. Property is in danger of being lost
o 2. Property is in danger of being wasted/dissipated
Or Stipulation in a mortgage contract and the security in the mortgage is not
enough to cover the value of the application
o 3. Preserve property during pendency of appeal, dispose of it according to judgment,
aid execution if execution unsatisfied, carry judgment into effect
o 4. Other reasons the court finds convenient
Requires a bond
How do you dissolve the bond?
o 1. Show no cause
o 2. Post a counterbond
Rule 60 – Replevin
Can property held as evidence in criminal case be subject to a writ of replevin?
o Superlines: NO. In the affidavit of the affiant, the property is not subject of custodia
legis, execution, or attachment. The deprivation, to be validly subject to replevin,
must be illegal or unlawful.
o Property can be said to be in custodia legis, not only when it is in official custody, but
if it pursuant to a legal order in a case
Can one quash a writ of replevin?
o Of course, it may be quashed or dissolved
o How do you dissolve?
1. If you want to regain immediately custody or possession, you just simply
post a counter-bond
[take note of this]
2. Attack the sufficiency of the replevin
Here, you cannot effect an immediate release
What is the value of the bond?
o THIS IS THE ONLY PROV REM WHERE THE BOND/COUNTER BOND IS
DOUBLE THE VALUE OF THE PROPERTY.
What are the contents of the affidavit?
o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
When can replevin be applied for?
o You can only apply for this AT ANY TIME BEFORE AN ANSWER.
o For the other provisional remedies, you can apply anytime while the action is
pending (or for receivership, even after)
What is your remedy after an answer is filed?
o You file an attachment, but the effects are different.
o What are the differences?
1. In replevin, the property subject of the action is taken. In attachment,
properties, whether real or personal are attached to secure the judgment
2. In replevin, when the writ is served, the sheriff takes possession, and
delivers it to the applicant (unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff and delivered to the
court; for real property, the sheriff annotates at the dorsal portion of the title.
Note that the main action is recovery of possession of property. The issuance of a writ of
replevin is just a provisional remedy.
Can there be a principal action for replevin as a provisional remedy?
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can file any provisional remedy as a main action
in aid of an arbitration clause. (!!!)
Pinggol: A replevin bond was deemed invalid because the officer who signed the bond is
without authority to do so from his company.
Danao: Can you subject to replevin a motor vehicle in custody of another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here, ex. Bureau of
Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
In attachment and replevin, there are rules for third party claims. What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third party claimant can
vindicate his right in the same or a separate action. In Rule 39, a third party claimant
can only vindicate his right in a separate action, because judgment is final and
executory.
o What is the rule on intervention (Rule 19)?
You can intervene anytime before judgment. But this only applies to trial
courts.
What about appellate courts?
You can still intervene, but subject to the appellate court’s sound
discretion.
This is the only provisional remedy that does not require a bond. The four others require a
bond. The person applying for support obviously needs money.
o N.B. For all these other provisional remedies, just follow Rule 57 Rule 23. The
general rule is you can only recover damages from a bond while the action is
pending.
o So what is the rule if you are wrongfully compelled to give support?
You don’t recover damages. You ask for reimbursement.
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of execution even when there
is no final judgment:
1. Support pendente lite
2. Indigent (which the court finds that you are not an indigent and requires
you to give filing fees)
What if a person believed that he is the father and he gave support? Then, it turns
out he is not the father.
o If the action is still pending, you can apply for reimbursement in the same action.
o If there is a judgment already, you can apply for it in a separate court proceeding.
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
Rule 62 – Interpleader
Can there be a counterclaim in an interpleader case?
o Yes.
Stuff to remember:
o In the interpleader case, the one filing the case was not violated. There was no
breach.
o The person filing the action can either have an interest which is not in conflict with
the claiming parties, or has no interest at all.
Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real Party in Interest – is
entitled to a lien on the judgment award
What is the difference with intervention?
o In intervention, there is already a pending case. Here, you initiate the action.
1. This is actually a petition for certiorari. If you file under Rule 64, it will be named a Petition
for Certiorari
2. The period to file a petition for certiorari under Rule 64 is 30 days, non-extendable.
o But the period can be interrupted, if an MR is allowed. In which case, you get the
remaining period.
3. This has a limited application; it only covers decisions by the COMELEC and COA.
NOTE: For 43 and 64, all the attachments are certified true copies. The reason is you
involve Quasi Judicial Agencies.
First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule 65: you do not talk
about Rule 65. You have to fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required – GADALEJ. No plain, available, speedy ordinary
remedy.
o It is the same as certiorari.
Certiorari – whose decision can you question?
o Judicial or QJA
Prohibition – whose decision can you question?
o Judicial, QJA, or ministerial
What is the difference between prohibition and mandamus?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X received the
advance of the contract price, and X did not build the house, can you compel his
performance by mandamus?
o No; it is not ministerial. It is a contractual obligation – specific performance.
Can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is tainted with GADALEJ,
Rule 65 Certiorari can be filed with SC.
In prohibition, you cannot prohibit an act that has already been performed. It is already
moot.
Quo Warranto
Rule 67 – Expropriation
Rule 68 – Foreclosure
Rule 69 – Partition
In the last five years, there were questions in the Bar exam, but they involved EJ partition,
not J partition.
Compare an EJP from a JP?
o JP – covered by Rule 69
You must implead all the co-owners because everyone is an indispensable
party
o EJP – covered by Rule 74
What are the two stages in JP?
o 1. Determination of existence of a co-ownership
The co-ownership is created by agreement of the parties or by operation of
law
o 2. Partition of the property
Who institutes action for JP?
o Any co-owner
What is the role of the commissioner?
o There is a need to refer the matter to a commissioner. But remember that under this
rule, it is NOT mandatory. If the parties agreed, the matter will not be referred.
Step-by-step example of JP:
o There is a co-ownership created by death (inheritance)
o An action was instituted under Rule 69.
o The provision of law does not provide for an answer. But in the absence of rules,
there is an answer. So file one.
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment based on the stipulation
of the parties.
o If there is lack of agreement, refer to commissioners.
Examples of EJP:
o 1. Affidavit of self-adjudication
o 2. EJP upon a notarized public instrument
o 3. Even if there is petition for JP, but the parties agreed, it will be treated as an EJP
Needs publication
Do you need a bond?
o For JP, no.
o For EJP, yes, for personal property.
Requisites of EJP?
o 1. There is no will
o 2. There is no debt
o 3. If there are minors, there is appointment of guardians
Until what period can you contest the distribution of the estate under EJP?
o Within a period of 2 years.
Can you contest a JP?
o Paramount rights cannot be prejudiced, even if there is judgment already
Can JP cover both real and personal properties?
o Yes.
Rule 71 – Contempt
What is direct contempt?
o An act of disrespect in the presence of, or so near the court of a judge
o It MUST be within the four corners of his office
o Ex. Refusal to take the witness stand or refuses to take an oath. Or wearing shorts
in court. Or your phone keeps ringing.
What is the nature of direct contempt?
o Direct contempt is summary. You will not be asked to explain.
Distinguish from indirect contempt.
o Contempt which is in violation of order or process of court.
Ex. failure to comply with subpoena of court.
o There is notice and hearing.
How do you charge?
o For direct contempt, there is no need to charge. You just need to disobey or
disrespect.
o For indirect contempt, there are two ways:
1. Formal charge of the judge motu propio
2. Upon a verified complaint filed and docketed separately motion for jndirect contempt. NO!
I have a main case pending in an RTC branch in Makati. I obtained a preliminary
injunction but the other party refused to comply. Can you file a motion for indirect
contempt in the same court that issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:
Let them proceed separately
File a motion to consolidate.
What is your remedy for direct contempt?
o It’s executory, so you can stay its execution by posting a bond.
o File a petition for certiorari or prohibition.
What is your remedy for indirect contempt?
o It’s executory, so you can stay its execution by posting a bond.
o Remedy is an appeal.
What are the penalties for direct contempt?
imprisonment o If in the RTC or higher court, imprisonment up to 10 days. Fine not exceeding 2,000.
until you o In MTC, imprisonment not exceeding 1 day. Fine not exceeding 200.
comply is
allowed Penalty for indirect contempt?
o RTC or up. Imprisonment not exceeding 6 months, Fine not exceeding 30,000.
o MTC not exceeding 1 month. Fine of 5,000 pesos.
What is difference between criminal and civil contempt?
o Criminal contempt disrespect of the court/judiciary punitive. not appealable. ratio: equivalent to acquital. dj
o Civil contempt violation of right of other party
o Can there be administrative contempt? See below (QJAs) if qja has own rules: follow it.
if none: roc
In case of absence of rules in QJA, what is the rule?
o Venue is where the contemptuous act was performed
o Rules of Court apply
Preliminary investigation
What is PI?
o Where the prosecutor determines whether there is probable cause to file a case
against a respondent
Distinguish from inquest?
o Inquest is conducted by an inquest prosecutor, when one is caught under the three
exceptional circumstances provided in law
Who can conduct preliminary investigation?
o City prosecutors, and their assistants, Provincial prosecutors and their assistants
o OMB, and if they authorize the Special Prosecutor he can too
What is the procedure for PI?
o 1. After receiving affidavit-complaint, the prosecutor will determine within 10 ten days
whether there is probable cause
Raffle
Assigned to assistant prosecutor
o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days
In practice there can be a reply or rejoinder, but this is not provided by the
rules if subpoena improperly served or unserved: pi can still continue.
jurisdiction over defendant not necessary, mere statutory right:
o 4. Optional clarificatory hearing waivable
o 5. Resolution
Who prepares the resolution?
The Assistant prosecutor
Is it the city prosecutor or the assistant prosecutor?
Assistant prosecutor prepares it, and then the city prosecutor
approves it
City prosecutor has discretion to dismiss the complaint, file the
information himself, or ask another assistant/State prosecutor to file it
o Regardless of recommendation
Can a resolution be issued by an assistant prosecutor even without
approval of the City prosecutor?
No.
What if the City prosecutor does not agree with the
recommendation of the assistant prosecutor?
remedy of accused: pet for o He has discretion to reverse it.
review to the doj
If the assistant prosecutor believes that there is probable cause, he prepares
circular 70 pet for review: PI a resolution AND an information. Information is filed in court and resolution
or was reinvestigated
served to the parties. If he does not find that there is probable cause, he only
thus, arraignment suspended prepares a resolution. But regardless, no resolution can be issued without
for 60 days
the approval of the City or Provincial prosecutor.
Can you file a complaint with the OMB?
o Yes, and he will then investigate. He can also motu propio investigate.
o Can the NBI conduct preliminary investigation?
No (?)
Is service of a subpoena and receipt thereof necessary for the Office of the
Prosecutor to obtain jurisdiction over the respondent?
o No.
o There is still no case filed against him, just an investigation.
o Even if he does not get to file a counter affidavit, there can still be a resolution issued
against him.
X is arrested, accused of possessing illegal drugs, without a warrant. What is the
procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have them proceed with
inquest
If X applies for preliminary investigation, what happens?
You sign a waiver of Art. 125 of RPC
Will X be released?
If he applies for bail.
Where does X apply for PI?
Before the inquest prosecutor.
Where do you apply for bail?
With the Executive Judge. (This is a “trade secret”)
What is the procedure if someone is arrested for vagrancy, without warrant?
o Note that vagrancy does not need preliminary investigation, so the information can
be directly filed with the MTC.
o Can you apply for bail?
Yes, because you were already arrested.
You were sued for slight physical injuries in MM, and it was not in flagrante delicto,
so it was on the basis of affidavit complaint. What happens?
o There is no need for preliminary investigation.
o So the prosecutor will determine probable cause, then will file the information in
court.
o Is there a need for the respondent to file a counter affidavit here, and is there
need for preliminary investigation?
No.
When are inquest proceedings applicable?
inquest officer o It must be due to a warrantless arrest:
determines: A. In flagrante delicto
1. detained- remedy:
bailxwhen info is filed B. A crime has been committed and the police officer has personal
2. released- not dismissal knowledge that the person committed the crime
of case but is released
subject to further pi C. Escaped from confinement or escape
o Also, it must be for an offense that requires PI (at least 4y, 2m, 1d) Just file
affidavit-complaint to the office of the prosecutor. (Because only 3A is required)
o How do we distinguish (A) from (B)?
First kind – the arresting officer was there when the crime was committed
Second kind – the arresting officer has personal knowledge
If a person is arrested with a warrant can he be placed on inquest?
o No.
What if he was arrested for an offense for which he was previously charged, and then
he escaped from detention and he was arrested without a warrant?
o Inquest must be conducted.
How do you appeal a resolution?
o Within 15 days, file a Petition for Review to the DOJ.
remedy of accused: pet
o Must the petition be verified?
for review to the doj Yes.
circular 70 pet for review:
o Can the period be extended?
PI or was reinvestigated No.
thus, arraignment
o If the DOJ decision is adverse, to where do you go?
suspended for 60 days Rule 43, to the CA
(Or Rule 65, to the CA if there was GADALEJ)
Only to the SC if it’s the OMB
(Or Office of the President if punishable by reclusion perpetua or higher)
o Can you have the DOJ review the resolution if the offense in question does not
require a PI?
No. This is clear in the circular. The offense must require, for its charging, at
least preliminary investigation OR has gone through reinvestigation.
What is reinvestigation?
There was a regular PI, and you were not satisfied with it, so one files
for a reinvestigation with the Office of the Prosecutor or in court.
This is not provided in the rules.
Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6 years (and PI is for
4y,2m,1d)
Once the information is filed in court, what can the judge do?
o 1. Issue a warrant of arrest, after personally determining the existence of probable
cause
o 2. Dismiss the case for absence of probable cause
o 3. The case can call for a hearing to determine probable cause
So what are the options for a judge in an RTC case?
o Just these three.
What about the MTC? – Distinguish:
o A. Not exceeding 6y, but more than 4y,2m,1d:
See above [the three options]. So it’s like the RTC.
o B. Below 4y,2m,1d, more than 6m
Same as three above, but the issuance of the warrant is up to the discretion
of the court. If the court believes the offense is not so grave, it may not issue
a warrant and will just issue summons.
o C. Not more than 6m, falling under the rule on SP
The court cannot issue a warrant of arrest. Instead, the court requires you to
file a counter affidavit
So when does the court issue a warrant of arrest?
Only when there is failure by the accused to appear in court despite
repeated notice
What is an example of a crime involving summary procedure?
BP 22
When can you file a motion for determination of probable cause?
o After filing of information, but before the judge has acted on it
o Can you file after issuance of a warrant of arrest?
No.
Will the filing of a petition for review suspend the issuance of a warrant of arrest?
o No. The mere filing of a petition for review will not suspend the issuance of a warrant
of arrest.
o What it suspends is the arraignment.
o For how long?
60 days suspension of arraignment.
Arrest
Bail
Arraignment
Motion to quash
filed anytime before plea
Why do you file motion to quash? exp: dj, lack juris, prescription,
o To quash the information because it is defective or the court has no jurisdiction.
Differentiate from provisional dismissal:
o In P.D., there is no questioning of the information. In fact, it is valid and charges a
proper offense and the court has jurisdiction over the SM and the person.
no grounds unlike mtq
filed before plea. exp- at any stage of proceeding
effect- info stays but case is prov dismissed. in mtq- info is quashed
What is the effect of a grant of a MTQ?
o Dismissal of the case.
o Is it always dismissal?
Court can order amendment. [No period provided.]
Amendment is a remedy, but it has a narrow application. It does not apply to
all grounds.
Can a case dismissed by a MTQ be re-filed?
o As a general rule, yes.
o It depends on the ground.
o When can it not be re-filed?
1. Prescription
2. Double jeopardy
Can a prosecution file a MTQ?
o No. The applicable remedy is substitution of information.
When a case is dismissed provisionally, what is the effect?
o The case is temporarily dismissed.
Ex. “This case is dismissed for 30 days”
o It can be revived (don’t use “re-file” because the dismissal was just provisional)
o Who will ask for provisional dismissal?
1. The prosecution
With consent of accused
If there is no consent of accused, is it a provisional dismissal?
o No. A dismissal without the consent of the accused would
lead to double jeopardy (obtains finality).
2. Or the accused
Is the prosecution’s consent required?
o No. Even without consent, it’s still a provisional dismissal. As
long as it doesn’t pass the time leading to permanence.
o When can you ask for provisional dismissal?
Any time.
For a dismissal to take effect in MTQ, do you need to wait for a lapse of time?
o There is still a period to seek a remedy after. Ex. You can file an MR.
o After this period, it can be re-filed. (Except for the two exceptional grounds.)
For a provisional dismissal to be permanent, what is the period required?
o Beyond 6 years 2 years thus can no loger be refiled
o 6 years or less 1 year
o When will this period begin to run?
Upon receipt of notice, by the accused (given by the code)
But this has been supplemented by Lacson: Period can only start upon
receipt of notice by the public prosecutor
Rationale: because it is the public prosecutor’s duty to revive the case
What are the grounds for a MTQ?
o 1. Facts stated do not constitute an offense
The elements of the offense are not there
But is it possible that while not constituting an offense, you can be
liable for another offense? Can this be the proper ground of a MTQ?
It’s possible. This is not a ground for a MTQ.
Ex. Charged with qualified theft, but relationship was not alleged. You
file a MTQ. The court can order an amendment to show relationship.
The court cannot quash because there is an offense alleged in the
information.
o 2. Officer who filed the information had no authority to do so.
There was a case in the Sandiganbayan. There was a motion for
reinvestigation and it was granted. The Special Prosecutor amended it
and re-filed it. Can he do that?
No. He has no authority; it is not within his powers.
Ex. a Prosecutor with authority only extending to Bulacan cannot file an
information in Makati.
If a State prosecutor is appointed as Acting city prosecutor, does he
have authority to approve/file the information prepared by the asst.
prosecutor?
Yes as long as he is properly appointed by the DOJ.
o 3. Lack of jurisdiction over the person of the accused
Accused has not voluntarily surrendered
Or Accused not arrested
o 4. More than one offense was charged in the information
How do you know if there is more than one offense?
Ex. murder – can you kill a person twice? No.
Ex. rape – you can rape someone multiple times. For instance X
raped Y five times. How many informations should you file?
o Five.
What if ten checks bounced?
o Ten informations, because each is an offense in its own.
o 5. Criminal liability has been extinguished by prescription
Recall that there is prescription of crimes and prescription of penalties.
To which does this ground apply to?
Prescription of crimes. In prescription of penalties, there is already a
judgment.
o 6. Contains averments that if were true, would constitute a legal excuse or
justification
Ex. Self-defense
o 7. Double jeopardy
What are the requisites?
no dj: 1. Court of competent jurisdiction
a. supervrning events resulted
to graver offense 2. Valid information
b. facts constituting graver
offenses appeared after plea
3. Plea
c. plea of guilt to a lesser 4. Conviction, acquittal, or dismissal without express consent of the
offrnse eithout cobsent of
offended party and public accused
prosec
What are examples of dismissal without the express consent of the
accused?
Ex. failure to prosecute
What about motion to dismiss prompted by the accused on the ground
of violation of right to speedy trial?
It is tantamount to an acquittal and thus leads to DJ. This is an
exception to the general rule
What about a demurrer to evidence which is granted by the court?
It is also tantamount to an acquittal and thus leads to DJ. Another
exception.
What about a motion for determination of probable cause filed by the
accused and granted by the court?
No, this is not an exception. There is no plea yet. There is no
dismissal without express consent of the accused.
Compare motion to dismiss from motion to quash.
o Re: court actions
o Motion to dismiss:
The court can grant, deny, or order an amendment
o Motion to quash:
The court could only order amendment if it’s a defect that can be corrected by
such amendment.
UNLIKE in motion to dismiss, regardless of the ground, the court has
a free hand: can grant, deny, or order amendment.
Whereas here, the court has to order an amendment before denying/granting,
on some grounds.
o Re: refilling
o Motion to dismiss:
In general, it can be re-filed.
Except:
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
o Motion to quash:
In general, it can be re-filed.
Except:
1. Prescription
2. Double jeopardy
o Re: objections not raised
o Motion to dismiss:
In general, grounds not raised are waived.
Except for:
1. Lack of jurisdiction over the SM
2. Prescription
3. Litis pendentia
4. Res judicata
o Motion to quash:
In general, grounds not raised are waived.
Except for:
1. Does not constitute an offense
2. Prescription
3. Double jeopardy
4. Lack of jurisdiction over the offense
When will double jeopardy not set in?
o 1. When there is a supervening event.
o 2. Facts constituting graver charge only were discovered after a plea was entered
o 3. Plea of guilty to lesser offense was made without consent of prosecutor
Except?
For purpose of plea bargaining, the private offended party was notified
but did not appear during arraignment
And the offense is necessarily included in the offense charged
Can there be compromise?
o Basic rule: you cannot compromise criminal action
o But you can compromise the civil aspect of the case
But when you compromise the civil liability, it does not lead to the dismissal of
the criminal case
What do you need?
Affidavit of desistance by the offended party. This is as to the civil
aspect.
The prosecution has to move for the dismissal of the case
o If the prosecution moves for dismissal, does double jeopardy set in?
Check the requisites. If there is plea, double jeopardy sets in. If there is
none, double jeopardy will not.
Can the admissions of the accused be used against him in the proceedings?
o Yes, if it is in writing and signed by the accused and his counsel.
Absences and appearances:
o The rule of absences in pre-trial (in civil case) does not apply in criminal cases.
o The pre-trial will be reset.
If the witness is absent, the court can rely on compulsory processes
If the accused in absent
1. There is forfeiture of bail
2. There will be a warrant of his arrest
[Distinguish cancellation from forfeiture of bail]:
Cancellation –
o Voluntary surrender or death.
o It is automatically cancelled upon acquittal, conviction, or
dismissal of the case against him without express consent of
the accused.
Forfeiture – failure to appear
What is the procedure?
The court will order the bondsman to produce the accused within 30
days. If he fails to do so, the bail will be forfeited.
What is your remedy for forfeited bail?
Appeal
Pre-trial
Is it mandatory?
admission at pre trail is a judicial
o There is pre-trial before Clerk of Court admission
Can there be stipulations? compromise in criminal cases:
o Yes gr: no
exps: libel theft phy inj estafa
Can there be marking of documents? bp22 in the jdr. what you
o Yes compromise is civil aspect
if compromised, offended
What is the order of trial? exec affid of desistance.
o Prosecution notice to public prosec.
Judgments
Ordinary appeal
Criminal: X was charged with acts of lasciviousness (within MTC jurisdiction). MTC
renders judgment. Who reviews it?
o RTC, through notice of appeal filed with the MTC. (RULE 122)
o Compare/contrast with Civil:
MTC RTC, through notice of appeal. (RULE 40)
Or MTC RTC, through record of appeal (not available in criminal cases)
What is the procedure in the RTC for criminal cases, when acting as appellate court?
o Parties submit their memoranda (Rule 122, Sec 9)
o Compare/contrast with Civil:
Same. Parties submit memoranda.
Criminal: Court of original jurisdiction is the RTC, and he was convicted for homicide.
Appeal?
o Go to the Court of Appeals, through Notice of appeal filed with the RTC.
o Compare/contrast with RTC in civil action:
Go to the CA, through Notice of appeal filed with RTC. OR file a record of
appeal.
So still the same.
o What is the procedure followed by the CA in criminal cases?
File appellant’s brief (Rule 124), within 30 days
File appellee’s brief, within 30 days
Reply brief, within 20 days
o Compare/contrast with civil cases:
45/45/20 days
The search warrant said “an undetermined amount of shabu.” The original case was
for marijuana. Will this be enough for the police officers to conduct a search?
o Yes, even if the amount was not specified. What is required is that the object of the
search be described with particularity. Quantity is not required.
The police officer was armed with a search warrant. But before implement or
enforcing it, on plain view, he saw illegal firearms. Can there be a valid search?
o Yes. Plain view exception applies, even if there is a search warrant.
Where could you apply for a search warrant?
o You apply to the court, following the rule on territoriality.
Can it be possible to apply in a court outside of the place where the crime was
committed?
o Yes, for compelling reasons.
o What can be a compelling reason?
It’s a question of fact, but an example is when he is a public officer of that
locality and there is doubt that a search warrant can be properly applied for.
Is application for a search warrant a criminal action?
o No. It is a special judicial process.
Can it become one?
o No. You need an information because the application for a search warrant will not
evolve into an information.
Where do you file for quashal of search warrant?
o In the court wherein it was applied for if there is no case yet
o If there is a case, in the court where the case is pending
Who determined probable cause for search warrants?
o The judge. Not the prosecutor.
o Wherelse is probable cause required, apart from application for search
warrant?
Preliminary investigation
Rule 113, warrantless arrest (personal knowledge that crime has been
committed)
Warrant of arrest
Search and seizure
o What is required for the judge to do?
Personal examination and determination by the judge of the
complainant/applicant and witnesses.
It does not involve mere submission of affidavits.
Give an example of a search based on a warrant, where the place is described with
particularity.
o Ex. if it’s an apartment, you give the number of the apartment.
o What if it’s a stretch of apartments, and what was indicated is apartment B, but
what was searched was apartment C. Was there a valid search?
No.
o But was the search warrant valid?
Yes. The search warrant can be valid, but the implemented was invalid.
o There were illegal items seized from apartment C. How can you prevent these
motionto quash: search
not yet made
goods from being used in a criminal trial?
motion to supress: Motion to suppress.
already searched
o Differentiate motion to quash from motion to suppress.
filed: no crim case- court Motion to quash is before implementation of the search warrant.
which issued. there us-
where pending Motion to suppress is after implement and before presentation in court.
What if there is no way to describe with particularity the place, esp. when it is a
province?
o It’s possible to say “kilometer 30.” But this can’t apply for cities or municipalities.
To whom must a search warrant be served?
o The lawful occupant.
o In the absence of the lawful occupant?
To a relative.
o In the absence of the occupant or relative?
To two witnesses of sufficient age and discretion residing in that locality.
When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the premises where they were
seized
What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit inventory makes him
liable for contempt.
Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For normal crimes, it can be
exception: evidentiary
done in court or police station or wherever.) value and authenticy of
o The person must make a physical science report to track the chain of custody. evidence is maintained
is still admissible.
What is the rule as to search and arrest?
o The general rule is that the arrest must come before the search and seizure.
o Or, the search and seizure must be contemporaneous to arrest.
If you apply for a search warrant in QC, can it be applied outside of the territorial
jurisdiction?
o If it’s a violation of the DDL, IP code, illegal possession of firearms, illegal gambling,
heinous crimes, AML, violation of tariff and customs code.
o You have to apply before an executive judge before the City of Manila or Quezon
City. This will be effective anywhere in the Philippines.
Re: Seizure of fake goods (ex. fake Adidas) – What is the role of the private party?
o The private party can submit documents and pleadings to support the application of
the NBI.
The place of manufacture of the fake goods is in Cavite, and place of sale is in San
Juan. Where do you apply?
o Either place.
Provisional remedies
Judicial notice
When is it mandatory?
o 1. States – existence, territorial extent, political history, forms of government,
symbols of nationality
o 2. Law of nations, admiralty, maritime courts of the world, and their seals
o 3. Political constitution and history of the Philippines, official acts of legislative,
executive, judicial departments of Philippines
o 4. Laws of nature, measure of time, geographical divisions
Why are these mandatory?
o Because they have already been established. They cannot be disputed anymore.
o No need to introduce evidence anymore.
Can the court take judicial notice of rentals?
o No. The court cannot take judicial notice of factual matters.
Is the court bound to take judicial notice of municipal orders?
o The court is obliged to take judicial notice of law, but not ordinances.
o What about memorandum circulars issued by departments?
No. The court is not expected to take notice of these less important matters.
What is covered by discretionary judicial notice?
o 1. Matters of public knowledge
Examples:
Ex. death of Corazon Aquino
o 2. Capable of unquestionable demonstration
What is this?
If repeated in a regular manner, it will establish that fact.
Examples:
Mathematical computation
Statistics
Effects of poison, etc.
Do surveys fall under this?
No, because methods change, samples change, etc.
o 3. Ought to be known to judges due to their judicial function
Can a judge take judicial notice of proceedings pending in other
courts?
No.
He’s not bound to know all the cases filed.
What about pending cases in his own sala?
No.
Unless he takes the consent of the parties.
When can there be taking of judicial notice?
o During trial – on any matter and with hearing
o After trial and before judgment – same, but only on matters decisive of a material
issue in a case
o After appeal – same, but only on matters decisive of a material issue in a case
Can every matter be subject of judicial notice?
o Yes, during the hearing.
o You are not limited to the enumerations provided in law.
What is the need for a hearing?
o Propriety of taking judicial notice
There was an insurance recovery claim, dated September 2009. It was not alleged in
the claim that the loss happened on the day Ondoy struck Manila. Can the other party
request the court to take judicial notice (or can the court motu propio take judicial
notice) of this fact?
o Yes.
Judicial admissions:
o Statement made as to a fact in issue made in a pleading
o Do you need proof as to judicial admissions?
No.
o When is there a judicial admission?
When there is a pending proceeding
o What are covered?
1. Statements in pleadings (ex. complaint or answer)
2. Statements made during testimonial presentation
3. Depositions or other documents
4. Pre-trial
5. Documents submitted in court
o Can they be withdrawn?
Yes, when –
There was no intent to make such an admission
Or there was palpable mistake
Rule 130
N.B. The rules on admissibility are applicable to object, documentary, and testimonial
evidence alike.
What is object evidence?
o Those addressed to the senses of the court
An object is presented so that the court can perceive it.
What if it is immobilized ex. real property or personal properties attached?
o Ocular inspection
Is a photograph object evidence?
o [not answered]
Do you need the photographer to identify the picture?
o Yes.
o Or a person who can attest to its exactness and accuracy.
o What must be proved?
That it is an accurate representation of what happened.
As to production and circumstances under which they were produced.
Prove who operated the camera, the ability of the camera to capture the
scene, etc.
o Prove all these first before going into the contents of the photograph.
What about videos?
o Similarly, lay down the basis, before presenting the contents
What is a paraffin test?
o See definition
o Are the results conclusive?
No. It’s not 100% reliable.
Is a lie detector test 100% reliable?
o No. You can cheat it.
What is demonstrative evidence?
o Evidence that adds to or explains.
o Maps, charts, graphs, etc.
o Is it the same as demonstration?
No. Demonstration is when you ask for a re-enactment or display of how an
act was done or re: facts.
Documentary evidence
Testimonial evidence
Mr. X and his group robbed BPI in Makati. X and his group were also suspected of
robbing BPI in Intramuros. He was caught, and a case was filed against him. If there
is a separate criminal case involving the robbery in BPI Intramuros, can the facts
surrounding the Makati BPI robbery be appreciated?
o No, not to establish a different robbery. But you can use it to establish any of the
exceptions outlined below.
o Ex. The manner in which the robbery was conducted is the same, showing a system.
Ms. Y married Mr. A. She obtained insurance. A died. She married B. She obtained
insurance. B died. She married C. She obtained insurance. C almost died due to
poisoning. Are the previous deaths admissible?
o Yes, but only to establish intent.
What is the general rule as to prior conduct?
o Generally not admissible.
o What are the exceptions?
To establish intent, knowledge, identity, plan, system, scheme, habit, custom,
or usage, and the like.
What is the rule on unaccepted offer?
o An offer in writing to pay a sum of money or deliver a written instrument/personal
property, if rejected without valid cause, is equivalent to actual production and tender
Dying declaration
o Requisites
1. The dying person is under the consciousness of his impending death
2. Declaration relates to the facts/circumstances pertaining to the death
3. He should eventually die
4. The recipient of the information should be competent to testify
o Does this extend to civil cases?
Yes.
As long as it pertains to the circumstances regarding his death.
o There is a dying person on the floor and he calls X. He told X to tell his wife to
handle his bank account, tell his children to manage the properties, etc. Is this
the proper subject of a dying declaration?
No. It does not cover circumstances re: his death.
o What if he doesn’t die?
It becomes part of res gestae
o What if the dying declarant made an ante-mortem statement, in writing, be
presented in evidence?
Yes, because this exception covers memoranda.
Declaration against interest
o Requisites?
1. The person is dead/unavailable
2. Made statement against his interest
3. Would not have made that statement had it not been true
o Extends to declaration against pecuniary interest, proprietary interest, criminal acts,
etc.
o Why is this reliable?
Because by human nature, nobody will make a prejudicial statement against
himself
Act or declaration about pedigree
o Requisites?
1. The person is dead/unavailable
2. Made by a person related by birth or marriage
3. Declaration was made prior to the controversy
So there is no motive to falsify
4. The relationship between the declarant and the person whose pedigree is
in question is shown by independent evidence
o Must the witness be related to the declarant?
No. He need not be.
But the relationship should be between the declarant and the person whose
pedigree is in question
Family reputation or tradition regarding pedigree
o Requisites?
1. There is controversy re: pedigree of any member of the family
2. Reputation or tradition existed prior to the controversy
3. Witness testifying must be a member of the family of that person, by
consanguinity or affinity
Or proved by family bibles, rings, etc.
o What is reputation?
How other people perceive one to be.
o Can reputation be wrong?
Yes.
This is different from character – who one really is
o Who will testify?
A member of the family by marriage or consanguinity. This is unlike
declaration about pedigree.
o What else?
Family bibles, charts, rings, engravings, etc.
Common reputation
o What are covered?
1. Public knowledge of more than 30 years
This has a partner provision in documentary evidence (“ancient
documents”)
Give an example of public knowledge of more than 30 years.
o There is a marker in the barangay disclosing information on
the founding of the barangay.
o Sometimes it can border on history, which will then become
subject to judicial notice
2. Reputation about marriage
How do you develop a reputation re: marriage?
o When people perceive them to be married. Ex. living in one
house, with children, etc. Even if this is not true.
3. Reputation as to moral character
Entries made in the regular course of business
o Requisites?
1. The person is dead/unavailable
2. Made the entry in a position to know the facts, in professional capacity
3. Entries made at or near the time of transaction
4. Done in the regular course of business
o Who is ideally the person testifying?
The one who actually made the entries. This exception only applies if he/she
is dead or unable to testify.
o Who will then testify on his/her behalf if this occurs?
Person who is also in a position to know the facts
Entries in official records
o Requisites?
1. Made by public officer or person enjoined by law to make entry
2. Made in performance of duty
3. Had sufficient knowledge of the facts, personally or through official
information
o Does the official have to be dead/unavailable?
No.
o How do you use this provision?
Secure a certified true copy, then you identify it and present it in court
When do you present the original only?
If there is issue as to its genuineness
o Reason behind this provision?
As to not waste the time of the public official
Commercial lists
o Requisites?
1. Contained in published compilation
2. Generally relied upon by these persons
3. Statements are matters of interest to these persons engaged in the
occupation
o Why can you use this listing?
It is used by the members of the profession and it is relied upon
o How do you use this?
Just present the commercial list, no need to present the writer
o Give examples
SCRA (which is not an official publication, but used and relied upon)
Buy and Sell paper NO. Because it is used, but not reliable.
Stock Market listings
Learned treatises
o Covers history, science, law, and the arts ONLY
o So it won’t cover billiards, or whatever
o How do you present?
1. Court takes judicial notice that the writer is an expert recognized in his
profession
2. Bring in an expert witness to testify that the writer is an expert in his
profession
Testimony/deposition of a witness
o Requisites?
1. Witness is dead/unable to testify
2. Identity of parties
3. Identity of issues
4. Opportunity to cross-examine prior case
Res gestae
o What are the kinds of res gestae?
A. Spontaneous statements
B. Verbal acts
o Requisites of spontaneous statements?
1. Startling occurrence
2. Spontaneous statements
3. Relating to the circumstances of the occurrence
o What is to be testified on?
His spontaneous statement
o Why is this reliable?
No time to fabricate
After 24 hours, is it still a startling occurrence?
Depends on how startled the person still is. If he was able to go out
malling already, etc., then there was time to fabricate.
o What are verbal acts?
Statements made contemporaneous to an equivocal act and characterizing it
Give an example of an equivocal act.
X handed a wad of cash to Y. This can mean anything.
Give an example of a contemporaneous act characterizing the equivocal
act.
“I am lending this to you.”
NOTE: If Y testified, it’s not hearsay because it was told to him personally. If
a third person who overheard it testified, this is when the exception applies.
Opinion rule
Authentication of documents
Offer of evidence
Jurisprudence
Settlement of estates
Guardianship
Trustees
Who is a trustee?
o Can be made to carry in effect the provisions of a will or a written instrument
o Appointed/confirmed in the probate court
Adoption
There was a child who was left outside of the house of a childless couple and having
noticed that no one is claiming the child, the couple adopted the child. But they
secured a birth certificate and filled in the child’s details (simulation of birth), without
applying for legal adoption. The child grew up and when she applied for a visa to the
US, she was denied because she was found to not be the natural child of the mother
(who is sterile). What are implications and what actions must be taken to correct the
situation?
o 1. Petition for correction/cancellation of entries, because the birth certificate is false
Where do you file it?
The place where the entry was made or recorded
Who are the parties; who are impleaded?
Only the civil registrar (under the ROC)
Under jurisprudence, include the child as well and the declared parent
of the child, and those who hereditary rights are affected (ex.
Grandparents)
o 2. Get certification that the child was neglected or abandoned
Do you need a judicial declaration that the child was neglected or
abandoned?
NO. You just need a certificate from DSWD from an administrative
proceeding. (Take note of this; new law and never asked in the Bar.)
o 3. Legal adoption
What if the adopter is a foreigner?
He must have been residing in the Philippines for at least 3 years
What are the other qualifications?
o 16 year age difference
o Note the others from Civil Law notes
What kind of petition must be filed?
o Inter-Country Adoption
Where do you institute the action for adoption?
Family Court where the adoptee resides
If the adoptee has no residence (abandoned), where the adopter
resides
Habeas corpus
Change of name
Family home
Appeal