DE LA SALLE UNIVERSITY COLLEGE OF LAW

Lasallian Commission on Bar Operations

REMEDIAL LAW
Green Notes 2019
Green Notes 2019 Table of Contents

TABLE OF CONTENTS
GENERAL PRINCIPLES .................................................................................................................................................................................................... 4
A. SUBSTANTIVE LAW VS. REMEDIAL LAW ............................................................................................................................................... 4
B. RULE-MAKING POWER OF THE SUPREME COURT ........................................................................................................................... 4
C. PRINCIPLE OF JUDICIAL HIERARCHY ..................................................................................................................................................... 4
D. DOCTRINE OF NON-INTERFERENCE/JUDICIAL STABILITY .......................................................................................................... 4
JURISDICTION ................................................................................................................................................................................................................... 6
A. CLASSIFICATION OF JURISDICTION ....................................................................................................................................................... 6
B. DOCTRINES OF HIERARCHY OF COURTS AND CONTINUITY OF JURISDICTION .................................................................. 6

C. Jurisdiction of various Philippine Courts ................................................................................................................................................ 7

D. ASPECTS OF JURISDICTION..................................................................................................................................................................... 10
E. JURISDICTION VS. EXERCISE OF JURISDICTION............................................................................................................................... 11
F. JURISDICTION VS. VENUE ......................................................................................................................................................................... 11

G. JURISDICTION OVER CASES COVERED BY BARANGAY CONCILIATION, SMALL CLAIMS CASES AND CASES
COVERED BY SUMMARY PROCEDURE ............................................................................................................................................................... 11
CIVIL PROCEDURE ..........................................................................................................................................................................................................14
A. General provisions (Rule 1) .........................................................................................................................................................................14
B. Cause of action (Rule 2) ...............................................................................................................................................................................15
C. Parties to Civil Actions (Rule 3) .................................................................................................................................................................16
D. Venue (Rule 4).................................................................................................................................................................................................18
E. Pleadings ..........................................................................................................................................................................................................18
F. Filing and Service of Pleadings, Judgments, Final Orders, and Resolutions ............................................................................... 25
G. Summons ........................................................................................................................................................................................................ 28
H. Motions ........................................................................................................................................................................................................... 32
I. Dismissal ......................................................................................................................................................................................................... 37
J. Pre-trial (Rule 18) ..........................................................................................................................................................................................39
K. Intervention (Rule 19) ..................................................................................................................................................................................40
L. Subpoena (Rule 21) ........................................................................................................................................................................................41
M. Computation of Time (Rule 22) .................................................................................................................................................................41
N. Modes of discovery ...................................................................................................................................................................................... 42
O. Trial (Rule 30) ................................................................................................................................................................................................ 45
P. Consolidation or Severance (Rule 31) ..................................................................................................................................................... 46
Q. Demurrer to Evidence (Rule 33) .............................................................................................................................................................. 48
R. Judgments and Final Orders ..................................................................................................................................................................... 49
S. Post-Judgment Remedies ...........................................................................................................................................................................51
T. Execution, Satisfaction, and Effect of Judgments (Rule 39) ............................................................................................................ 57
PROVISIONAL REMEDIES ............................................................................................................................................................................................ 62
A. Nature, Purpose and Jurisdiction over Provisional Remedies ........................................................................................................ 62
B. Preliminary Attachment (Rule 57)............................................................................................................................................................ 62

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C. Preliminary Injunction ................................................................................................................................................................................ 65

Exceptions.......................................................................................................................................................................................................................... 67
D. Receivership (Rule 59) ................................................................................................................................................................................. 67
E. Replevin (Rule 60) .........................................................................................................................................................................................68
SPECIAL CIVIL ACTIONS .............................................................................................................................................................................................. 70
A. JURISDICTION AND VENUE ..................................................................................................................................................................... 70
B. Interpleader (Rule 62) ................................................................................................................................................................................. 72
C. Declaratory Relief and Similar Remedies (Rule 63) ............................................................................................................................ 72
D. Review of Judgments and Final Orders or Resolutions of the COMELEC and COA (Rule 64 in relation to Rule 65) ..... 74
E. Certiorari, Prohibition and Mandamus .................................................................................................................................................. 75
F. Quo Warranto (Rule 66) ..............................................................................................................................................................................77
G. Expropriation................................................................................................................................................................................................. 79
H. Foreclosure of Real Estate Mortgage ..................................................................................................................................................... 83
I. Partition (Rule 69) ........................................................................................................................................................................................86
J. Forcible Entry and Unlawful Detainer ................................................................................................................................................... 88
K. Contempt (Rule 71) ....................................................................................................................................................................................... 94
PENALTIES .................................................................................................................................................................................................................. 95
SPECIAL PROCEEDINGS...............................................................................................................................................................................................98
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE, AND PROCESS ........................................................................99
B. ESCHEAT (RULE 91) .................................................................................................................................................................................... 114
C. GUARDIANSHIP ........................................................................................................................................................................................... 115
D. WRIT OF HABEAS CORPUS ...................................................................................................................................................................... 117
E. CHANGE OF NAME (RULE 103) ............................................................................................................................................................... 121
F. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY (Rule 108) ......................................................... 121
G. CLERICAL ERROR LAW ( R.A. NO. 9048) ............................................................................................................................................. 122
CRIMINAL PROCEDURE ............................................................................................................................................................................................. 123
A. GENERAL MATTERS .................................................................................................................................................................................. 123
B. PROSECUTION OF OFFENSES (RULE 110)........................................................................................................................................... 127
C. PROSECUTION OF CIVIL ACTION (RULE 111) .................................................................................................................................... 132
D. PRELIMINARY INVESTIGATION ............................................................................................................................................................ 134
E. ARREST (RULE 113) ..................................................................................................................................................................................... 138
F. BAIL (RULE 114)............................................................................................................................................................................................ 142
G. ARRAIGNMENT AND PLEA (RULE 116) ................................................................................................................................................. 150
H. MOTION TO QUASH (RULE 117) ............................................................................................................................................................ 153
I. PRE-TRIAL (RULE 119) ................................................................................................................................................................................157
J. TRIAL (RULE 119) ......................................................................................................................................................................................... 158
K. JUDGMENT (RULE 120) ............................................................................................................................................................................ 162
L. NEW TRIAL OR RECONSIDERATION (RULE 121) .............................................................................................................................. 164
M. APPEAL (RULES 122, 123, 124, AND 125) ................................................................................................................................................ 165
N. SEARCH AND SEIZURE (RULE 126) ....................................................................................................................................................... 168
O. PROVISIONAL REMEDIES IN CRIMINAL CASES (RULE 127) .......................................................................................................... 172
P. REVISED GUIDELINES ON CONTINUOUS TRIAL (A.M. NO. 15-06-10-SC)...............................................................................173

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Q. THE RULE ON CYBERCRIME WARRANTS (A.M. NO. 17-11-03-SC) ..............................................................................................174

EVIDENCE ........................................................................................................................................................................................................................176
A. GENERAL CONCEPTS ................................................................................................................................................................................176
B. ADMISSIBILITY ............................................................................................................................................................................................ 177
C. OBJECT (REAL) EVIDENCE ...................................................................................................................................................................... 180
D. DOCUMENTARY EVIDENCE .................................................................................................................................................................... 181
(RULE 130, B) .............................................................................................................................................................................................................. 181
E. TESTIMONIAL EVIDENCE ....................................................................................................................................................................... 184
(RULE 130, C)............................................................................................................................................................................................................. 184
F. BURDEN OF PROOF AND PRESUMPTIONS (RULE 131) .................................................................................................................. 199
G. PRESENTATION OF EVIDENCE ............................................................................................................................................................ 202
H. JUDICIAL AFFIDAVIT RULE ..................................................................................................................................................................... 210
I. WEIGHT AND SUFFICIENCY OF EVIDENCE ...................................................................................................................................... 211
J. RULES ON ELECTRONIC EVIDENCE ................................................................................................................................................... 212
WRIT OF AMPARO ........................................................................................................................................................................................................ 213
WRIT OF HABEAS DATA ............................................................................................................................................................................................. 215
RULES FOR PROCEDURE ON ENVIRONMENTAL CASES ................................................................................................................................. 217
TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) .............................................................................................................. 217
WRIT OF CONTINUING MANDAMUS................................................................................................................................................................ 217
WRIT OF KALIKASAN ............................................................................................................................................................................................. 218

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Green Notes 2019 General Principles

A. SUBSTANTIVE LAW VS. REMEDIAL

LAW

SUBSTANTIVE LAW REMEDIAL LAW

Creates vested rights
(Prospective in No vested rights; can be
application); cannot be waived
waived
SC is empowered to
Cannot be enacted by promulgate rules under its
the SC rule-making power provided
in the Constitution
It prescribes the methods of
enforcing those rights and
obligations created by
It creates, defines and
substantive law. It provides
regulates rights and
for a procedural system for
duties concerning life,
obtaining redress for the
liberty or property which
invasion of rights and
when violated gives rise
GENERAL to a cause of action.
violations of duties and
prescribe rules as to how
suits are filed, tried and

PRINCIPLES Enacted by the Congress

decided by the courts.
Rules promulgated by the SC

B. RULE-MAKING POWER OF THE

SUPREME COURT
Rule-making power, defined: The Supreme Court has the
constitutional power to promulgate rules concerning the
protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and
the legal assistance to the underprivileged

C. PRINCIPLE OF JUDICIAL
HIERARCHY
The policy means that a higher court will not entertain
direct resort to it unless the redress desired cannot be
obtained in the appropriate lower courts.

Exception: The Doctrine of Hierarchy of Courts may be

disregarded if warranted by the nature and importance of
the issues raised in the interest of speedy justice and to
avoid future litigations. Hence, under the doctrine of
liberal construction, the SC may suspend its own rules
(e.g. cases of national interest and of serious implications)

Quesada v. Dept. of Justice: The SC is a court of last

resort, and must so remain if it is to satisfactorily perform
the functions assigned to it by the fundamental charter. It
cannot be burdened with the task of dealing with causes
in the first instance. Its original jurisdiction should be
exercised only where absolutely necessary or where
serious important reason exist.

D. DOCTRINE OF NON-
INTERFERENCE/JUDICIAL
STABILITY

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Green Notes 2019 General Principles

General Rule: No Court has the authority to interfere by

injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize and
much less declare as unjust a judgment of another court
of equal jurisdiction. (Industrial Enterprise v. CA, 1990)

The doctrine of non-interference is also applicable to

administrative bodies. (Philippine Sinter Corporation v.
Cagayan Electric Power and Light Co., Inc., 381 SCRA 582)

Exception: Such doctrine does not apply where a third-

party claimant is involved (Santos v. Bayhon, July 1991)

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Green Notes 2019 Jurisdiction

A. CLASSIFICATION OF
JURISDICTION

1. ORIGINAL VS. APPELLATE

ORIGINAL APPELLATE
Those courts which, under Courts which have the
the law, actions or power to review on appeal
proceedings may originally the decisions or orders of a
be commenced lower court

2. GENERAL VS. SPECIAL

GENERAL
Those competent to decide
on their own jurisdiction
and to take cognizance of
all kinds of cases, unless
otherwise provided by the
law or rules.
Example: Regional Trial
Court
SPECIAL
Those which have no
power to decide on their
own jurisdiction and only
try cases permitted by
statute.
Municipal Trial Courts

3. EXCLUSIVE VS. CONCURRENT

EXCLUSIVE
Power to adjudicate a case
of proceeding to the
exclusion of all other
courts at that stage
CONCURRENT
Power conferred upon
different courts, whether
of the same or different
ranks, to take cognizance
at the same stage of the

JURISDICTION same case in the same or

different territories.

B. DOCTRINES OF HIERARCHY OF
COURTS AND CONTINUITY OF
JURISDICTION

DOCTRINE OF HIERARCHY OF COURTS

An established policy that parties must observe the
hierarchy of courts before they can seek relief directly
from the Supreme Court. The rationale for this rule is
twofold:
a. It would be an imposition upon the limited time
of the Supreme Court; and
b. It would inevitably result in a delay, intended or
otherwise, in the adjudication of cases, which in
some instances, had to be remanded or referred
to the lower court as the proper forum under
the rules of procedure, or as better equipped to
resolve the issues because the Supreme Court is
not a trier of facts.

DOCTRINE OF ADHERENCE OF JURISDICTION/

DOCTRINE OF CONTINUITY OF JURISDICTION
• The principle that once a court has acquired
jurisdiction, that jurisdiction continues until the
court has done all that it can do in the exercise
of that jurisdiction.
• The doctrine holding that even the finality of
the judgment does not totally deprive the court
of jurisdiction over the case. What the court
loses is the power to amend, modify or alter the

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Green Notes 2019
judgment. Even after the judgment has become
final, the court retains jurisdiction to enforce
and execute it.
C. JURISDICTION OF VARIOUS
PHILIPPINE COURTS
SUPREME COURT
a. EXCLUSIVE ORIGINAL JURISDICTION IN THE
PETITIONS FOR CERTIORARI, PROHIBITION,
AND MANDAMUS AGAINST THE:
1) Court of Appeals
2) COMELEC
3) Commission on Audit
4) Sandiganbayan
5) Court on Tax Appeals (R.A. No. 9282)
b. CONCURRENT ORIGINAL JURISDICTION WITH
THE COURT OF APPEALS FOR CERTIORARI,
PROHIBITION, AND MANDAMUS AGAINST
THE:
1) RTC
2) Sandiganbayan
3) Shari’ah District Court
4) NLRC
5) Quasi-judicial agencies
Note: Subject to the doctrine of hierarchy of Courts
c. CONCURRENT ORIGINAL JURISDICTION WITH
THE CA AND RTC IN PETITIONS FOR
CERTIORARI, PROHIBITION AND MANDAMUS
AGAINST:
Lower courts and bodies and in petitions for quo
warranto, and writs of habeas corpus, all subject to the
doctrine of hierarchy of courts.
d. CONCURRENT ORIGINAL JURISDICTION WITH
THE RTC IN CASES AFFECTING
AMBASSADORS, PUBLIC MINISTERS AND
CONSULS.
e. APPELLATE JURISDICTION BY WAY OF
PETITION FOR REVIEW ON CERTIORARI
(APPEAL BY CERTIORARI UNDER RULE 45)
AGAINST CA, SANDIGANBAYAN, RTC ON:
1) Pure questions of law;
2) Cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court; and CTA in its
decisions rendered en banc.
The SC is not a trier of facts which means that passing
upon factual issues is not within the province of the
Supreme Court. The findings of facts of the CA are not
generally reviewable by the SC .
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Jurisdiction
EXCEPTIONS IN WHICH FACTUAL ISSUES MAY BE
RESOLVED BY SC:
1. When the findings are grounded entirely on
speculation, surmises or conjectures;
2. When the inference made is manifestly
mistaken, absurd or impossible;
3. When there is grave abuse of discretion;
4. When the judgment is based on
misapprehension of facts;
5. When the findings of facts are conflicting;
6. When in making its findings the CA went
beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant
and the appellee;
7. When the findings are contrary to the trial
court;
8. When the findings are conclusions without
citation of a 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,
could justify a different conclusion.
CASES WHICH MUST BE HEARD EN BANC:
1. All cases involving the constitutionality of a
treaty, international or executive agreement, or
law;
2. All cases which under the ROC are required to
be heard en banc;
3. All cases involving the constitutionality,
application, or operation of presidential
decrees, proclamations, orders, instructions,
ordinances, and other regulations;
4. Cases heard by a division when the required
majority in the division is not obtained;
5. Cases involving the modification or reversal of a
doctrine or principle of law laid down
previously by the SC in a decision rendered en
banc or by a division;
6. Cases involving the discipline of judges of lower
courts
7. Contests relating to the election, returns, and
qualifications of the President or Vice President
ANCILLARY JURISDICTION
(a) Writ of injunction
(b) Attachment
(c) Receivership
(d) Replevin (except Support Pendente Lite)
COURT OF APPEALS
a. EXCLUSIVE ORIGINAL JURISDICTION IN
ACTIONS FOR THE ANNULMENT OF THE
JUDGMENTS OF THE RTC.
b. CONCURRENT ORIGINAL JURISDICTION with:
1. With SC to issue writs of certiorari,
prohibition and mandamus against the
RTC, CSC, other quasi-judicial agencies
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mentioned in Rule 43, and the NLRC, and
writ of kalikasan;
2. With the SC and RTC to issue writs of
certiorari, prohibition and mandamus
against lower courts and bodies and writs
of quo warranto, habeas corpus, whether
or not in aid of its appellate jurisdiction,
and writ of continuing mandamus on
environmental cases;
3. With SC, RTC and Sandiganbayan for
petitions for writs of amparo and habeas
data
c. EXCLUSIVE APPELLATE JURISDICTION
1. By way of ordinary appeal from the RTC
and the Family Courts;
2. By way of petition for review from the RTC
rendered by the RTC in the exercise of its
appellate jurisdiction;
3. By way of petition for review from the
decisions, resolutions, orders or awards of
the CSC and other bodies mentioned in
Rule 43 and of the Office of the
Ombudsman in administrative disciplinary
cases;
4. Over decisions of MTCs in cadastral or land
registration cases pursuant to its delegated
jurisdiction; this is because decisions of
MTCs in these cases are appealable in the
same manner as decisions of RTCs.
SANDIGANBAYAN
TWO KINDS OF JURISDICTION
(1) Civil jurisdiction
(2) Criminal jurisdiction
a. ORIGINAL JURISDICTION IN ALL CASES
INVOLVING:
1. Violations of RA 3019 (Anti-Graft and
Corrupt Practices Act);
2. Violations of RA 1379 (Anti-Ill-Gotten
Wealth Act);
3. Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
accused are occupying the following
positions in the government, whether in
permanent, acting or interim capacity at
the time of the commission of the offense:
4. Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade 27
and higher, of the Compensation and
Position Classification Act of 1989 (RA
6758);
5. Members of Congress and officials thereof
classified as G-27 and up under RA 6758;
6. Members of the Judiciary without
prejudice to the provisions of the
Constitution;
7. Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution;
8. All other national and local officials
classified as Grade 27 and higher under RA
6758.
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Jurisdiction
9. Other offenses or felonies committed by
the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as
amended by RA 8249 in relation to their
office;
10. Civil and criminal cases filed pursuant to
and in connection with EO Nos. 1, 2, 14-A
(Sec. 4, RA 8249)
b. CONCURRENT ORIGINAL JURISDICTION WITH
SC, CA AND RTC FOR PETITIONS FOR WRITS
OF HABEAS DATA AND AMPARO
c. APPELATE JURISDICTION OVER FINAL
JUDGMENT, RESOLUTIONS OR ORDERS OF
RTC, WHETHER OWN ORIGINAL OR THEIR
APPELATE JURISDICTION
REGIONAL TRIAL COURTS
a. EXCLUSIVE ORIGINAL JURISDICTION:
1. Matters incapable of pecuniary estimation;
Examples of actions incapable of pecuniary estimation
are:
• complaint for expropriation
• action seeking to annul resolution of a GOCC
• action to annul deed of declaration of heirs
• Title to, possession of, or interest in, real
property with assessed value exceeding
P20,000 (outside Metro Manila), or exceeds
P50,000 in Metro Manila;
• Probate proceedings where the gross value of
the estate exceeds P300,000 outside MM or
exceeds P400,000 in MM;
• Admiralty and maritime jurisdiction where the
demand or claim exceeds P300,000 (outside
MM) or where such demand or claim which
exceeds P400,000 in MM;
• Other actions involving property valued at more
than P300,000 outside MM or more than
P400,000 in MM
• In all other cases in which the demand,
exclusive of interest, damages and costs of suit
and attorneys fees.
b. ORIGINAL EXCLUSIVE JURISDICTION OVER
CASES NOT FALLING WITHIN THE
JURISDICTION OF ANY COURT, TRIBUNAL,
PERSON OR BODY EXERCISING JUDICIAL OR
QUASI-JUDICIAL FUNCTIONS
c. CONCURRENT AND ORIGINAL JURISDICTION:
1. With the Supreme Court in actions
affecting ambassadors, other public
ministers and consuls;
2. With the SC and CA in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in
petitions for quo warranto, habeas corpus,
and writ of continuing mandamus on
environmental cases;
3. With the SC, CA and Sandigabayan in
petitions for writs of habeas data and
amparo
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d. APPELLATE JURISDICTION OVER CASES
DECIDED BY LOWER COURTS IN THEIR
RESPECTIVE TERRITORIAL JURISDICTIONS
1. General jurisdiction over cases not within
the exclusive jurisdiction of any court,
tribunal, person or body exercising
jurisdiction of any court
2. RTC acting as special commercial court in
cases involving intra-corporate
controversies under the securities and
regulations code
a. Devices or schemes employed by
or any acts, of the board of
directors, business associates, its
officers or partnership,
amounting to fraud and
misrepresentation which may be
detrimental to the interest of the
public and/or of the stockholder,
partners, members of
associations or organizations
registered with the Commission;
b. Controversies arising out of
intra-corporate or partnership
relations, between and among
stockholders, members, or
associates; between any or all of
them and the corporation,
partnership or association of
which they are stockholders,
members or associates,
respectively; and between such
corporation, partnership or
association and the state insofar
as it concerns their individual
franchise or right to exist as such
entity;
c. Controversies in the election or
appointments of directors,
trustees, officers or managers of
such corporations, partnerships
or associations.
d. Petitions of corporations,
partnerships or associations to
be declared in the state of
suspension of payments in cases
where the corporation,
partnership or association
possesses sufficient property to
cover all its debts but foresees
the impossibility of meeting them
when they respectively fall due or
in cases where the corporation,
partnership or association has no
sufficient assets to cover its
liabilities, but is under the
management of a Rehabilitation
Receiver or Management
Committee created pursuant to
this Decree.
FAMILY COURTS
1. Petitions for guardianship, custody of children
and habeas corpus involving children
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Jurisdiction
2. Petitions for adoption of children and the
revocation thereof
3. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together under
different status and agreements, and petitions
for dissolution of conjugal partnership of gains
4. Petitions for support and/or acknowledgment
5. Petitions for declaration of status of children as
abandoned, dependent or neglected children,
petitions for voluntary or involuntary
commitment of children, the suspension,
termination or restoration of parental authority
and other cases cognizable under PD 603, EO
56 (1986) and other related laws
6. Petition for constitution of Family Home (RA
8369)
7. Petition for declaration of status of children as
abandoned, dependent or neglected children;
8. Petition for involuntary commitment of a child,
or removal of custody against child placement
or child caring agency or individual; or
commitment of disabled child. (AM no. 05-11-
04)
METROPOLITAN TRIAL COURTS, MUNICIPALTRIAL
COURTS IN CITIES, MUNICIPAL TRIAL COURTS,
MUNICIPAL CIRCUIT TRIAL COURTS
a. EXCLUSIVE ORIGINAL JURISDICTION
1. Civil actions and probate proceedings,
testate and intestate, including the grant of
provisional remedies in proper cases,
where the value of the personal property,
estate, or amount the demand does not
exceed P200,000 outside MM or does not
exceed P400,000 in MM, exclusive of
interest, damages of whatever kind,
attorney’s fees, litigation expenses, and
costs;
2. Summary proceedings of forcible entry and
unlawful detainer, violation of rental law;
FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of the
The possession of the defendant is lawful from the
defendant is unlawful beginning becomes illegal
from the beginning; issue by reason of the expiration
is which party has prior de or termination of his right
to the possession of the
facto possession;
property;
The law does not require Plaintiff must first make
previous demand for the such demand which is
defendant to vacate; jurisdictional in nature;
The plaintiff must prove
that he was in prior
The plaintiff need not have
physical possession of the
been in prior physical
premises until he was
possession;
deprived by the
defendant; and
The one year period is
The one-year period is
generally counted from
counted from the date of
the date of actual entry on
last demand.
the property.
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Green Notes 2019
3. Title to, or possession of, real property, or
any interest therein where the assessed
value of the property or interest therein
does not exceed P20,000 outside MM or
does not exceed P50,000 in MM
4. Delegated jurisdiction to hear and decide
cadastral and land registration cases where
there is no controversy provided the value
of the lad to be ascertained by the claimant
does not exceed P100,000
5. All cases of inclusion and exclusion of
voters in their respective cities or
municipalities
6. According to Sec 1 of BP 22, violation of BP
22 “shall be punished by imprisonment of
not less than thirty days but not more than
one (1) year..”
SHARIAH COURTS
a. EXCLUSIVE ORIGINAL JURISDICTION
1. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under the Code of Muslim Personal Laws;
2. All cases involving disposition, distribution
and settlement of the estate of the
deceased Muslims, probate of wills,
issuance of letters of administration or
appointment of administrators or
executors regardless of the nature or the
aggregate value of the property;
3. Petitions for the declaration of absence
and death and for the cancellation or
correction of entries in the Muslim
Registries mentioned in Title VI of Book
Two of this Code;
4. All actions arising from customary
contracts in which the parties are Muslims,
if they have not specified which law shall
govern their relations; and
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and
all other auxiliary writs and processes in
aid of its appellate jurisdiction.
b. CONCURRENT JURISDICTION
1. Petitions by Muslims for the constitution of
a family home, change of name and
commitment of an insane person to an
asylum;
2. All other personal and real actions not
mentioned in paragraph (4) of the
immediately preceding topic, wherein the
parties involved are Muslims except those
for forcible entry and unlawful detainer,
which shall fall under the exclusive original
jurisdiction of the Municipal Circuit Court;
and
3. All special civil actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims.
c. APPELLATE JURISDICTION
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Jurisdiction
1. Shari'a District Courts shall have appellate
jurisdiction over all cases tried in the
Shari'a Circuit Courts within their
territorial jurisdiction.
2. The Shari'a District Court shall decide
every case appealed to it on the basis of
the evidence and records transmitted as
well as such memoranda, briefs or oral
arguments as the parties may submit.
D. ASPECTS OF JURISDICTION
1. JURISDICTION OVER THE PARTIES
The manner by which the court acquires jurisdiction over
the parties depends on whether the party is the plaintiff
or the defendant.
The mode of acquisition of jurisdiction over the plaintiff
and the defendant applies to both ordinary and special
civil actions like mandamus or unlawful detainer cases.
HOW JURISDICTION OVER THE PLAINTIFF IS
ACQUIRED:
Jurisdiction over the plaintiff is acquired by his filing of
the complaint or petition. By doing so, he submits himself
to the jurisdiction of the court.
This presupposes payment of the docket fees. Payment of
docket fees vests a trial court with jurisdiction over the
subject matter or nature of the action
HOW JURISDICTION OVER THE DEFENDANT IS
ACQUIRED:
• Acquired either by his Voluntary appearance in
court and his submission to its authority; or
• By service of summons
Note: Jurisdiction over the person of the defendant is
required only in an action in personam; it is not a
prerequisite in an action in rem and quasi in rem. In an
action in personam, jurisdiction over the person is
necessary for the court to validly try and decide the case,
while in a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to
confer jurisdiction on the court, provided the latter has
jurisdiction over the res.
VOLUNTARY APPEARANCE
General Rule: The defendant‘s voluntary appearance shall
be equivalent to service of summons.(Sec 20, Rule 14,
ROC)
Exception: When the appearance is precisely to object to
the jurisdiction of the court over his person, it is not
considered as an appearance in court and should not be
construed as a submission by the defendant of his person
to the jurisdiction of the court—this so called the concept
of SPECIAL APPEARANCE
2. JURISDICTION OVER THE SUBJECT MATTER
It is the power to deal with the general subject involved in
the action, and means not simply jurisdiction of the
particular case then occupying the attention of the court
but jurisdiction of the class of cases to which the
particular case belongs. It is the power or authority to
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Green Notes 2019 Jurisdiction

hear and determine cases to which the proceeding is the thing is recognized and made effective (Banco
question belongs. Español Filipino vs. Palanca, 37 Phil. 291).

When a complaint is filed in court, the basic questions

that ipso facto are to be immediately resolved by the
court on its own:
• What is the subject matter of their complaint
filed before the court?
• Does the court have jurisdiction over the said
subject matter of the complaint before it?
Answering these questions inevitably requires looking
into the applicable laws conferring jurisdiction.
3. JURISDICTION OVER THE ISSUES
It is the power of the court to try and decide issues raised
in the pleadings of the parties.
An issue is a disputed point or question to which parties
to an action have narrowed down their several allegations
and upon which they are desirous of obtaining a decision.
Where there is no disputed point, there is no issue.
Generally, jurisdiction over the issues is conferred and
determined by the pleadings of the parties. The pleadings
present the issues to be tried and determine whether or
not the issues are of fact or law.
E. JURISDICTION VS. EXERCISE OF
JURISDICTION
Jurisdiction is the power or authority of the court, while
the exercise of this power is called the exercise of
jurisdiction.
Jurisdiction is not the same as the exercise of jurisdiction.
As distinguished from the exercise of jurisdiction,
jurisdiction is the authority to decide a cause, and not the
decision rendered therein. Where there is jurisdiction
over the person and the subject matter, the decision on
all other questions arising in the case is but an exercise of
the jurisdiction. And the errors which the court may
commit in the exercise of jurisdiction are merely errors of
judgment which are the proper subject of an appeal

Jurisdiction over the issues may also be determined and F. JURISDICTION VS. VENUE
conferred by stipulation of the parties as when in the
pre-trial, the parties enter into stipulations of facts and JURISDICTION VENUE
documents or enter into agreement simplifying the issues Authority to hear and Place where the case is to
of the case. determine a case be heard or tried
It may also be conferred by waiver or failure to object to Matter of substantive law Matter or procedural law
the presentation of evidence on a matter not raised in the Establishes a relation Relation between plaintiff
pleadings. Here the parties try with their express or between the court and the and defendant, or
implied consent issues not raised by the pleadings. The subject matter petitioner and respondent
issues tried shall be treated in all respects as if they had Fixed by law and cannot be May be conferred by the
been raised in the pleadings. (Riano) conferred by the parties act or agreement of the
parties
Issues which are not raised in the pleading and tried with
the express or implied consent of the parties, amendment
is allowed. (Sec 5, Rule 10) G. JURISDICTION OVER CASES
COVERED BY BARANGAY
4. JURISDICTION OVER THE RES OR THE CONCILIATION, SMALL CLAIMS
PROPERTY IN LITIGATION CASES AND CASES COVERED BY
Jurisdiction over the res refers to the court‘s jurisdiction
over the thing or the property which is the subject of the SUMMARY PROCEDURE
action. Jurisdiction over the res may be acquired by the
court by placing the property of thing under its custody JURISDICTION OVER SMALL CLAIMS (A.M. NO. 08-9-7-
(custodia legis). SC)
Example: attachment or garnishment of property WHEN APPLICABLE:
Actions before the Metropolitan Trial Courts, Municipal
It may also be acquired by the court through statutory Trial Courts in Cities, Municipal Trial Courts and
authority conferring upon it the power to deal with the Municipal Circuit Trial Courts for payment of money
property or thing within the court‘s territorial where the value of the claim does not exceed Two
jurisdiction. Hundred Thousand Pesos (P200,000.00), exclusive of
interest and costs.
Example: suits involving the status of the parties or suits CASES COVERED:
involving the property in the Philippines of non-resident • Purely civil in nature where the claim or relief
defendants. prayed for by the plaintiff is solely for payment
or reimbursement of sum of money.
Jurisdiction over the res is acquired by the seizure of the • The civil aspect of criminal actions, either filed
thing under legal process whereby it is brought into before the institution of the criminal action, or
actual custody of law, or it may result from the institution reserved upon the filing of the criminal action in
of a legal proceeding wherein the power of the court over

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court (pursuant to Rule 111 of the Revised Rules 7. Petition for certiorari, mandamus, or
of Criminal Procedure) prohibition against any interlocutory order
CLAIMS OR DEMANDS COVERED: issued by the court;
The enforcement of a barangay amicable settlement or an 8. Motion to declare the defendant in default;
arbitration award involving a money claim covered by the 9. Dilatory motions for postponement;
Rule. 10. Reply;
For money owed under any of the following: 11. Third party complaints;
1. Contract of Lease; 12. Interventions.
2. Contract of Loan; JURISDICTION OVER CASES COVERED BY BARANGAY
3. Contract of Services; CONCILIATION
4. Contract of Sale; or General Rule: ALL disputes are subject to Barangay
5. Contract of Mortgage; conciliation pursuant to the Revised Katarungang
For damages arising from any of the following: Pambarangay Law and prior recourse thereto is a pre-
1. Fault or negligence; condition before filing a complaint in court or any
2. Quasi contract; or government offices
3. Contract; Exceptions:
1. Where one party is the government, or any
JURISDICTION OVER CASES COVERED BY THE subdivision or instrumentality thereof;
REVISED RULES ON SUMMARY PROCEDURE 2. Where one party is a public Officer or employee
Actions before the Metropolitan Trial Courts, Municipal and the dispute relates to the performance of
Trial Courts in Cities, Municipal Trial Courts and his official functions;
Municipal Circuit Trial Courts falling under: 3. Where the dispute involves real properties
CIVIL CASES CRIMINAL CASES located in different cities and municipalities,
All cases of forcible Violation of Bouncing unless the parties thereto agree to submit their
entry and unlawful Checks Law (BP 22) difference to amicable settlement by an
detainer, irrespective Violations of Municipal or appropriate Lupon;
of the amount of City Ordinances 4. Any complaint by or against corporations,
damages or unpaid Violations of Rental Law partnerships or juridical entities, since only
rentals sought to be All other criminal cases individuals shall be parties to Barangay
recovered. Where where the penalty conciliation proceedings either as complainants
attorney‘s fees are prescribed is imprisonment or respondents [Sec. 1, Rule VI, Katarungang
awarded, the same not exceeding 6 months, or Pambarangay Rules]
shall not exceed fine not exceeding P1,000, 5. Disputes involving parties who actually reside in
P20,000; or both, irrespective of barangays of different cities or municipalities,
other imposable penalties, except where such barangay units adjoin each
All other cases where accessory or otherwise, or other and the parties thereto agree to submit
the total amount of the of the civil liability arising their differences to amicable settlement by an
plaintiff‘s claim does therefrom, provided, that in appropriate Lupon;
not exceed P100,000 offenses involving damage 6. Offenses for which the law prescribes a
(outside MM) or to property through maximum penalty of imprisonment exceeding
P200,000 (in MM), criminal negligence, rule one [1] year or a fine of over P5,000.00;
exclusive of interest shall govern where the 7. Offenses where there is no private offended
and costs. (except imposable fine does not party;
probate proceedings) exceed P10k. 8. Disputes where urgent legal action is necessary
to prevent injustice from being committed or
DETERMINATION OF APPLICABILITY further continued, specifically the following:
The court shall issue an order declaring whether or not a. Criminal cases where accused is
the case shall be governed by this Rule. A patently under police custody or detention
erroneous determination of the Rule of Summary [Sec. 412 (b) (1), Revised Katarungang
Procedure is a ground for disciplinary action. Pambarangay Law];
b. Petitions for habeas corpus by a
PROHIBITED PLEADINGS UNDER THE RULES OF person illegally deprived of his rightful
custody over another or a person
SUMMARY PROCEDURE:
illegally deprived of or on acting in his
1. Motion to dismiss the complaint or to quash the
behalf;
complaint or information except on the ground
c. Actions coupled with provisional
of lack of jurisdiction over the subject matter, or
remedies such as preliminary
failure to comply with the barangay conciliation
injunction, attachment, delivery of
2. Motion for a bill of particulars;
personal property and support during
3. Motion for new trial, or for reconsideration of a
the pendency of the action;
judgment, or for opening of trial;
d. Actions which may be barred by the
4. Petition for relief from judgment;
Statute of Limitations.
5. Motion for extension of time to file pleadings,
9. Any class of disputes which the President may
affidavits or any other paper;
determine in the interest of justice or upon the
6. Memoranda;
recommendation of the Secretary of Justice;

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10. Where the dispute arises from the

Comprehensive Agrarian Reform Law (CARL)
(Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from
employer-employee relations (Montoya vs.
Escayo,et al., 171 SCRA 442)
12. Actions to annul judgment upon a compromise
which may be filed directly in court. (Sanchez
vs. Tupaz, 158 SCRA 459)
Remedies of a party if the compromise or agreement in
the Lupong Tagapamayapa is not followed:
a. Under Section 417 of the Local Government
Code, such amicable settlement or arbitration
award may be enforced by execution by the
Barangay Lupon within six (6) months from the
date of settlement;
b. By filing an action to enforce such settlement in
the appropriate city or municipal court, if
beyond the six-month period; or
c. To consider it rescinded and insist upon his
original demand under Art. 2041 of the Civil
Code. (Miguel vs Montanez, 2012)

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Green Notes 2019 Civil Procedure

A. General provisions (Rule 1)

ACTION
• Action is the legal and formal demand of one’s
right from another person made and insisted
upon in a court of justice. The determinative
operative act, which converts a claim into an
action is its filling with a court of justice.
• An ordinary suit in a court of justice by which
one party prosecutes another for the
enforcement or protection of a right or the
prevention or redress of a wrong.
• Action and suit are synonymous.
CIVIL PROCEDURE MEANING OF ORDINARY CIVIL ACTIONS

• A civil action is one by which a party sues

another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
(Sec. 3(a) Rule 1, ROC)

MEANING OF SPECIAL CIVIL ACTIONS

• A special civil action is generally brought or
filed for the same purpose as that of an ordinary
civil action but subject to different rules.

MEANING OF CRIMINAL ACITONS

• A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law. (Sec. 3(b), Rule 1, ROC)

CIVIL ACTION SPECIAL PROCEEDINGS

The purpose of an The purpose of a special
action is either to proceeding is to establish a
protect a right or status, a right or a particular
prevent or redress a fact (Sec. 3, Rule 1, ROC)
wrong.

REAL ACTIONS PERSONAL ACTIONS

An action is real when it
affects title to or possession
or real property, or an
interest therein. (Sec. 1, Rule
4, ROC)
Example: an action to
recover possession of real
property plus damages.
All other actions are
personal actions (Sec
2, Rule 4, ROC)
Example: an action for
a declaration of
nullity of marriage.

The distinction between a real and personal action is

important for the purposes of determining the venue of
the action.

ACTION IN REM, IN PERSONAM, AND QUASI IN REM

ACTION IN REM
• A proceeding brought to determine the status
of a particular thing itself and which is confined
to the subject-matter in specie, is in rem, the
judgment being intended to determine the state
or condition, and, pro facto, to render the thing
what the judgment declares it to be. Process

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Green Notes 2019
may be served on the thing itself and by such
service and making proclamation, the court is
authorized to decide upon it without notice to
persons, all the world being parties.
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 or 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 to the
mandate of the court.
• The purpose of this proceeding is to impose
through the judgment of a court, some
responsibility or liability directly upon the
person of the defendant
• In an action in personam, no other than the
defendant is sought to be held liable, not the
whole world.
Rules of Court shall not apply in the following cases:
1. Election cases
2. Land Registration Cases
3. Cadastral
4. Naturalization
5. Insolvency proceedings
B. Cause of Action (Rule 2)
It is the reason why the litigation has come about, it is the
act or omission of the defendant resulting in the violation
of someone’s rights.
Elements of cause of action:
(a) A right in favour or the plaintiff by whatever
means and under whatever law it arises or is
created;
(b) An obligation on the part of the named
defendant to respect or not to violate such
right;
(c) Act or omission on the part of such defendant in
violation of the right of the plaintiff or
constituting breach of the obligation of the
defendant to the plaintiff for which the latter
may maintain an action for recovery of damages
or other appropriate relief.
RIGHT OF ACTION
It is the right to commence and prosecute an action and
to obtain relief sought.
Elements of right of action
(a) Existence of a cause of action;
(b) Performance of all conditions precedent to the
bringing of the action; and
(c) The action must be instituted by the proper
party.
RIGHT OF ACTION CAUSE OF ACTION
Remedial right Formal statement of the
belonging to some operative facts that give rise to
person. such remedial right
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Civil Procedure
FAILURE TO STATE A CAUSE OF ACTION
(a) The mere existence of a cause of action is not
sufficient for a complaint to prosper.
(b) The cause of action must unmistakably be
stated or alleged in the complaint or that all the
elements of the cause of action required by
substantive law must clearly appear from the
mere reading of the complaint.
(c) Where there is defect or an insufficiency in the
statement of the cause of action, a complaint
may be dismissed not because of absence or
lack of a cause of action but because the
complaint “states no cause of action”.
FAILURE TO STATE A CAUSE OF LACK OF CAUSE
ACTION OF ACTION
The failure to state a cause of action Failure to establish
does not mean that there is no cause of action
cause of action. It only means that refers to failure to
the allegations of the plaintiff are prove by evidence
insufficient for the court to know one’s stated cause
that the rights of the plaintiff were of action.
violated by the defendant.
TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION
• The test of sufficiency of a cause of action is
whether or not admitting the facts alleged, the
court could render a valid verdict in accordance
with the prayer of the complaint.
• In determining the sufficiency of the cause of
action, the truth or the falsity of the allegations
in the complaint are beside the point because
the allegations in the complaint are
hypothetically admitted.
• The complaint must contain a concise
statement of the ultimate or essential facts
constituting the plaintiff’s cause of action. The
focus is on sufficiency, not veracity, of the
material allegations.
SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS
• Splitting a single cause of action is the act of
instituting two or more suits for the same cause
of action. (Sec. 4, Rule 2, ROC) The pleader
divides a single cause of action, claim or
demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the
rest for another separate action.
• Splitting a cause of action is not allowed by the
ROC.
• This is discouraged because it breeds
multiplicity of suits and clogs the dockets of the
court. This rule applies not only to complaints
but also to counterclaims and cross-claims.
(Riano)
• A single act may sometimes violate several
rights of a person. Nevertheless, the plaintiff has
only one cause of action regardless of the
number of rights violated.
Three tests to ascertain whether two suits relate to single
or common cause of action:
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Green Notes 2019
(a) Whether the same evidence would support and
sustain both the first and second causes action;
(b) Whether the defenses in one case may be used to
substantiate the complaint in the other;
(c) Whether the cause of action in the second case
existed at the time of the filing of the first
complaint? (Umale v. Canoga Park Dev’t. Coproration
654 SCRA 155, 162).
EFFECT OF SPLITTING A SINGLE CAUSE OF ACTION
• If two or more suits are instituted for a single
cause of action, the filing of one or judgment on
the merits in one is available as a ground for
dismissal of the others.
• The remedy of the defendant is to file a motion
to dismiss.
JOINDER OF CAUSES OF ACTION
Joinder of causes of action is the assertion of as many
causes of action as party may have against another in one
pleading alone.
It is the process of uniting two or more demands or rights
of action in one action.
When there are two or more defendants, or two or more
plaintiffs, the causes of action against the defendants can
only be joined if there is compliance with the rules on
joinder of parties.
Sec. 6 Rule 3 requires that before there can be a proper
joinder of parties, the right to relief should arise out of
the same transaction or series of transactions and there
exist a common question of law or fact. This requirement
does not apply when there is only one plaintiff and
defendant because in such case there are no parties to be
joined.
MISJOINDER OF CAUSES OF ACTION
When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed and
proceeded separately upon motion by a party or upon the
court’s own initiative.
Misjoinder of causes of action is not a ground for the
dismissal of the action (Sec. 6, Rule 2)
C. Parties to Civil Actions (Rule 3)
There are two main categories of parties to a civil action
namely, the plaintiff and the defendant (Sec.1, Rule 3)
KINDS OF PARTIES: REAL PARTIES IN INTEREST;
INDISPENSABLE PARTIES; REPRESENTATIVE AS
PARTIES; NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS
REAL PARTIES IN INTEREST
(1) 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 (Sec.2, Rule 3).
(2) He must present substantial interest in the suit.
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Civil Procedure
(3) The determination of who the real party in interest
is requires going back to the elements of the cause
of action.
(4) Every action must be prosecuted and defended in
the name of the real party in interest (Sec.2, Rule 3).
INDESPENSABLE PARTIES
(a) An indispensable party is a real-party-in-interest
without whom no final determination can be had of
an action(Sec.7, Rule 3)
(b) Without the presence of this party the judgment of a
court cannot attain real finality.
(c) A party who has such interest in the controversy
that a final adjudication cannot be made in his
absence.
REPRESENTATIVE AS PARTIES
(a) Where the action is allowed to be prosecuted and
defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included
in the title of the case and shall be deemed to be the
real property in interest.
(b) A representative may be a trustee of an expert trust,
a guardian, an executor or administrator, or a party
authorized by law or these Rules.
(c) An agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the principal
NECESSARY PARTIES
(a) Not indispensable to the action.
(b) A final determination of the case can be had among
the parties already impleaded where a necessary
party for some reason is not joined.
(c) Ought to be joined as a party for a complete relief to
be accorded as to those already parties, or for a
complete determination or settlement of the claim
subject of the action. (Sec.8, Rule 3)
INDIGENT PARTIES
(1) A party may be authorized to litigate as an indigent if
the court is satisfied that the party is one who has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family.
(2) The application and the hearing to litigate as an
indigent litigant may be made ex parte.
(3) If one is authorized to litigate as indigent, such
authority shall include an exemption from payment
of docket and other lawful fees and transcripts of
stenographic notes. (Sec. 21, Rule 3)
ALTERNATIVE DEFENDANTS
Where the plaintiff cannot definitely identify who among
two or more persons should be impleaded as a defendant,
he may join all of them as defendants in alternative.
UNWILLING CO-PLAINTIFF
(1) He is a party who is supposed to be a plaintiff but
whose consent to be joined as a plaintiff cannot be
obtained as when he refuses to be a party to the
action.
(2) He may be made a defendant and the reason
therefor shall be stated in the complaint.
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COMPULSORY JOINDER OF PARTIES
A joinder is compulsory when the one involved is an
indispensable party. There must be compulsory joinder of
indispensable parties.
PERMISSIVE JOINDER OF PARTIES
For a permissive joinder of parties to be allowed, there
must be: (a) right to relief arising out of the same
transaction or series of transaction; and (b) a question of
fact or law common to all plaintiffs or defendants.
Transaction, defined
Not only a stipulation or agreement but any event
resulting in wrong, without regard to whether the wrong
has been done by violence, neglect or breach of contract.
Series of Transactions, defined
Transactions connected with the same subject
of the action.
MISJOINDER OF PARTIES
A party is misjoined when he is made a party to the action
although he should not be impleaded.
NON-JOINDER OF PARTIES
There is non joinder of parties when he is supposed to be
joined but is not impleaded in the action.
DISTINCTION BETWEEN NON-JOINDER OF PARTIES
AND MISJOINDER OF PARTIES
NON JOINDER OF MISJOINDER OF PARTIES
PARTIES
A party was not impleaded A party was pleaded in an
in the action but should be action but was not
made part of the action. supposed to be impleaded.
Effect of misjoinder or non-joinder of parties
Misjoinder and non joinder of parties are not grounds to
dismiss the action. However, the failure to obey the court
order to drop or add a party is a ground for the dismissal
of the complaint. (Sec.3, Rule 17)
CLASS SUITS
It is an action where one or more may sue for the benefit
of all if the requisites for said action are complied with.
Requisites
(1) Subject matter of the controversy must be of
common or general interest to many persons;
(2) Persons are so numerous that is impracticable to
join all as parties;
(3) Parties actually before the court are found by the
court to be sufficiently numerous and representative
as to fully protect the interests of all concerned; and
(4) Representatives sue or defend for the benefit of all.
(Riano)
Commonality of interest on the subject matter
(a) A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required is a common or general
interest in the subject matter of the litigation.
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Civil Procedure
(b) There is no class suit when the injuries allegedly
suffered by the members of the class are
separate and distinct from each other.
SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY
When two or more persons not organized as an entity
with juridical personality enter into a transaction, they
may be sued under the name by which they are generally
or commonly known.
In the answer of such defendant, the name and addresses
of the persons composing said entity must all be revealed
EFFECT OF DEATH OF PARTY LITIGANT
The death of the client extinguishes the attorney-client
relationship and divests a counsel of his authority to
represent the client. A dead client has no personality and
can no longer be represented.
Whenever a party to a pending action dies, it is the duty
of the counsel of the deceased party to inform the court
of such fact within 30 days after such death. This duty is
mandatory and failure to comply is a ground for
disciplinary action. (Sec.16, Rule 3)
Purpose: the protection of the right to due process of
every party to a litigation who may be affected by the
intervening death—the deceased litigant is himself or
herself protected, as he/she continues to be properly
represented in the suit through his heirs or the duly
appointed legal representative of his estate.
Effect of death of a party litigant
Upon the receipt of the notice of death, the court shall
determine whether or not the claim is extinguished by
such death.
ü If the claim survives
The court shall order the legal
representative of the deceased to appear
and be substituted for the deceased within
30 days from notice.
ü If the claim does not survive
The action is extinguished.
When the opposing party may procure the appointment
of an executor for the estate of the deceased:
(a) When the counsel for the deceased does not
name a legal representative, or
(b) There is a representative named but he fails to
appear within the specified period.
When there is substitution:
(1) Service of summons is not required to effect the
substitution.
(2) The purpose of substitution of parties is the
protection of the right of every party to due
process, to ensure that the deceased would be
properly represented in the suit through the
duly appointed legal representative.
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Green Notes 2019 Civil Procedure

DISTINCTION BETWEEN REAL PARTY IN INTEREST the defendant or any of the principal defendants resides,
AND LOCUS STANDI or in the case of a non-resident defendant where he may
REAL PARTY IN LOCUS STANDI be found, at the election of the plaintiff.
INTEREST
VENUE OF ACTIONS AGAINST NON-RESIDENTS
In private suits, a In non-private suits, the
Non-residents Personal action Real action
litigant must be a real Doctrine of Locus Standi
in the where the where the
party in interest. requires that the one who
Philippines plaintiff resides property is
sues, must show, that he has
located
It is one wne who sustained injury or will
stands to be sustain a direct injury as a
benefited or injured result of a government action, Non-residents If the case involves:
not found in (1) The personal status of the
by the judgment in or has material interest in the
the suit, or the party issue affected by the the Philippines plaintiff - in such a case,
the venue is where the
entitled to the acails challenged official act.
of the suit. plaintiff resides
(2) When it involves a
The Doctrine of Locus Standi
The interest must be is significant in cases property of the defendant
real, which is a involving questions of located in the Philippines
present substantial constitutionality because it is - the venue will be where
interest. (Riano) one of the essential requisites the plaintiff resides or
before such questions may be the place where the
judicially entertained (Riano) property is located.

WHEN THE RULES ON VENUE DO NOT APPLY

(1) In those cases where a specific rule or law
D. Venue (Rule 4)
provides otherwise.
(2) Where prties have validly agreed in writing
VENUE - DEFINITION
before the filing of the action on the exclusive
Place or geographical area where an action is to be filed
venue thereof.
and tried. In civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court.
EFFECTS OF STIPULATIONS ON VENUE
The parties may agree on a specific venue which could be
Place where the action must be instituted and tried.
in a place where neither of them resides. Written
stipulations are either mandatory or permissive. In
VENUE VERSUS JURISDICTION
interpreting stipulations as to venue, inquiry must be
VENUE JURISDICTION
made as to whether or not the agreement is restrictive in
Geographical area in which Power of the Court to
the sense that the suit may be filed only in the place
a court may hear and hear and Decide a case on
agreed upon or merely permissive in that the parties may
determine a case (place of the merits
file their suits not only in the place agreed upon but also
trial)
in the places fixed by the rules.
Procedural Substantive
In Civil cases, venue may be Granted by Law; hence,
stipulated by the parties cannot be stipulated
E. Pleadings
May be waived Cannot be waived,
EXCEPT for jurisdiction 1. Kinds (Rule 6)
over the person
Establishes a relation Establishes a relation COMPLAINT
between the plaintiff and between the court and the A complaint is a pleading alleging the plaintiff’s cause or
the defendant parties and subject matter causes of action. The names and residences of the
Deals with convenience Deals with substance plaintiff and defendant must be stated in the complaint.
Court may not motu propio Court may motu propio
dismiss a case for improper dismiss a case for lack of ANSWER
venue, except in summary jurisdiction An answer is a pleading in which a defending party sets
procedure. forth his affirmative or negative defenses.

VENUE OF REAL ACTIONS NEGATIVE DEFENSES

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.
Specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause or causes
of action.

VENUE OF PERSONAL ACTIONS

All other actions may be commenced and tried where the NEGATIVE PREGNANT
plaintiff or any of the principal plaintiffs resides, or where

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A denial pregnant with the admission of substantial facts

in the pleading responded to which are not squarely Requisites
deied. It is in effect an admission of the averment it is (1) it arises out of or is necessarily connected with the
directed to. transaction or occurrence which is the subject
matter of the opposing party’s claim;
It arises when: (2) it does not require for its adjudication the presence
There is too literal denial of the allegations of the of third parties of whom the court cannot acquire
opponent’s pleadings, for in such case it is merely the jurisdiction; and
form and not the substance that is denied (3) the court has jurisdiction to entertain the claim both
as to its amount and nature, except that in an
Facts alleged with qualifying or modifying language, and original action before the RTC, the counterclaim may
the words of the allegation as so qualified or modified are be considered compulsory regardless of the amount.
literally denied. In such a case, the qualifying
circumstances alone are denied while the fact itself is Tests under the case of Namarco v. United Federation of
admitted. Namarco
(a) Are the issues of fact and law raised by the claim and
AFFIRMATIVE DEFENSES counterclaim largely the same?
Affirmative defense is an allegation of a new matter (b) Would res judicata bar a subsequent suit on
which, while hypothetically admitting the material defendant's claim absent the compulsory
allegations in the pleading of the claimant, would counterclaim rule?
nevertheless prevent or bar recovery by way of (c) Will substantially the same evidence support or
confession and avoidance. refute plaintiff's claim as well as defendant's
counter-claim?
COUNTERCLAIMS (d) Is there any logical relation between the claim and
A counterclaim is any claim which a defending party may the counter-claim?
have against an opposing party.
An affirmative answer to each of the foregoing questions
How raised suggests that the counterclaim is compulsory.
(a) By including it in the answer; [Rule 11, Sec 8]
(b) By filing after the Answer; PERMISSIVE COUNTERCLAIM
(1) A counterclaim may be set up, by leave of court, A counterclaim is permissive if it does not arise out of,
by amendment before judgment when: nor is necessarily connected with, the subject matter of
(1) It is not set up due to oversight, inadvertence or the opposing party’s claim.
excusable neglect, or when justice requires it. [Rule
11, Sec 10] Failure to allege or raise a permissive counterclaim will
(2) A counterclaim, which either matured or was not bar it. A proper remedy is file another action.
acquired by a party after serving his pleading,
with permission of the court be set up in a COMPULSORY COUNTERCLAIM vs. PERMISSIVE
supplemental pleading before judgment. [Rule 11 COUNTERCLAIM
Sec 9] Compulsory Counterclaim Permissive
Counterclaim
COMPULSORY COUNTERCLAIM One which arise out of or is It does not arise out of
One which is cognizable by the regular courts of justice, necessarily connected with nor is it necessarily
arises out of or is necessarily connected with the the transaction or connected with the
transaction or occurrence constituting the subject matter occurrence that is the subject matter of the
of the opposing party’s claim and does not require for its subject matter of opposing opposing party’s claim.
adjudication the presence of third parties over whom the party’s claim. (Sec. 7, Rule 6) There is an absence of a
court cannot acquire jurisdiction. logical connection with
the subject matter of the
A compulsory counterclaim is auxiliary to the proceeding complaint.
in the original suit and derives its jurisdictional support It does not require for its It may require for its
therefrom. A counterclaim presupposes the existence of a adjudication the presence adjusdication the
claim against the party filing the counterclaim. of third parties of whom presence of third parties
the court cannot acquire over whom the court
The filing of a motion to dismiss and the setting up of a jurisdiction. (Sec. 4, Rule 6) cannot acquire
compulsory counterclaim are incompatible remedies. jurisdiction.
Not an initiatory pleading. Initiatory pleading.
The ruling on filing fees does not apply to a compulsory
Need not be accompanied Must be accompanied by
counterclaim but only to permissive counterclaim
by a certification against a certification against
because there is no need to pay docket fees for
forum shopping. forum shopping.
compulsory counterclaim.

Faiilure to raise a cumpolsory counterclaim will deem it EFFECT ON THE COUNTERCLAIM WHEN THE
barred. COMPLAINT IS DIMISSED
If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the plaintiff‘s

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Green Notes 2019 Civil Procedure

motion to dismiss, and the court grants the said motion
to dismiss, the dismissal shall be limited to the complaint.
The dismissal of the complaint, due to the fault of the
plaintiff, is without prejudice to the right of the defendant
to prosecute his counterclaim in the same action or in a
separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared
by the court. The dismissal of the main action does not
carry with it the dismissal of the counterclaim.
(3) Interestagainst both parties
(2) or when he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or an
officer thereof.
REPLY
A reply is a pleading, the office or function of which is to
deny, or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters.

CROSS-CLAIMS PLEADINGS ALLOWED UNDER THE 2016 REVISED

A cross claim is any claim by one party against a co-party RULES OF PROCEDURE FOR SMALL CLAIMS CASES
arising out of the transaction or occurrence that is the AND THE 1991 REVISED RULES ON SUMMARY
subject matter either of the original action or of a PROCEDURE
counterclaim therein.
Pleadings are allowed in the following:
The purpose of a cross-claim is to settle in a single UNDER SMALL CLAIMS UNDER RULES ON
proceeding all the claims of the different parties in the
CASES SUMMARY
case against each other in order to avoid multiplicity of
PROCEDURE
suits.
(1) Statement of claim
 (1) Complaint,
(2) Response
 (2) Compulsory
Limitations:
(3) Counterclaim in the Counterclaim
(1) Must arise out of the subject matter of
response (3) Cross-claim
complainant.
(4) (A.M. No. 08-8-7-SC) pleaded in the
(2) Can be filed only against a co-party.
answer
(3) Is proper only where the cross claimant stands (4) Answers thereto
to be prejudiced by the filing of the action (5) (Sec. 3[A], II, Rules
against him. on Summary
Procedure)
THIRD (FOURT,ETC.) PARTY COMPLAINT
Claim that a defending party may, with leave of court, file
Small Claim Cases, definition
against a person not a party to the action, called the third
These are civil claims which are exclusively for the
(fourth, etc)- party defendant, for contribution,
payment or reimbursement of a sum of money not
indemnity, subrogation or any other relief, in respect of
exceeding P200,000.
his opponent’s claim.
2. Parts of a pleading (Rule 7)
Test of propriety:
(1) It arises out of the same transaction on which
plaintiff’s claim is based, or the third-party claim, CAPTION
although arising out of another or different contract Contains the ff:
or transaction, is connected with the plaintiff’s claim (1) Name the court
(2) The third party defendant would be liable to the (2) Title of the action, and
plaintiff or to the defendant in whole or in part of (3) Docket number, if assigned. (Sec. 1, Rule 7)
plaintiff’s claim against the original defendant,
although the third party’s liability arises out of Note: The title of the action indicates the name of the
another transaction; and parties.
(3) The third party defendant may assert defenses
which the third party plaintiff may have against the SIGNATURE AND ADDRESS
plaintiff’s claim. Every pleading must be signed by the party or counsel
representing him, stating in either case his address which
should not be a post office box. (Sec. 3, Rule 7)
COMPLAINT-IN-INTERVENTION
Intervention is a remedy by which a third party, not
originally impleaded in the proceedings, becomes a VERIFICATION AND CERTIFICATION AGAINST
litigant therein to enable him, her or it to protect or FORUM-SHOPPIG
preserve a right or interest which may be affected by
such proceedings. VERIFICATION
A sworn attestation by the one filing the pleadings that he
Intervening in a case is not a matter of right but of sound has caused the preparation of the pleadings, he has read
discretion of the Court. the contents thereof, and that the same are true and
correct based on his personal knowledge and authentic
records. (Jacinto v. Gumaru, 2014)
Grounds:
(1) Legal interest in any of the ff: Except as when otherwise specifically required by law or
(1) The matter in litigation rule, pleadings need not be under oath, verified or
(2) The success of any of the parties, or accompanied by affidavit (Sec. 4, Rule 7, Rules of Court).

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A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true
and correct of his personal knowledge or based on
authentic records. (Jacinto v. Gumaru, 2014)
Verification must be by a person having personal
knowledge of facts alleged in the information.
The verification by a lawyer is sufficient, it being
presumed that facts by him alleged are true to his
knowledge.
CERTIFICATION AGAINST FORUM SHOPPING
The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting claim
for relief, or in sworn certification annexed thereto and
simultaneously filed therewith:
That he has not commenced any action or filed any claim
involving the same issued in any court, tribunal or quasi
judicial agency and to the best of his knowledge, no such
other action or claim is pending therein;
If there is such other pending action or complaint, a
complete statement of the present status thereof; and
If he should thereafter learn that the same or similar
action or claim has been filed or is pending, he shall
report that fact within 5 days therefrom to the court
wherein his complaint or initiatory pleading has been
filed.
Failure to comply with the requirements shall not be
curable by mere amendment of the complaint or other
initiatory pleading but shall be a cause for the dismissal of
the case without prejudice, unless otherwise provided,
upon motion and after hearing (Sec. 5, Rule 7, Rules of
Court).
FORUM SHOPPING
An act of malpractice committed by a party to the action
by filing multiple suits either successively or
simultaneously in dfferent courts involving the same
parties, same causes of action and asking for the same
relief for the purpose of securing a favorable judgment.
Test to determine FORUM shopping
(1) There is identity of parties
(2) There is identity of Rights or causes of action
and relief prayed for
(3) Any judgment rendered would amount to res
judicata
Forum shopping exists where the elements of litis
pendentia are present or where a final judgment in one
case will amount to res judicata in the other (Lim v.
Vianzon, 2006).
Elements OF Litis Pendentia:
(1) Identity of parties or at least such as to
represent the same interest in both actions;
(2) Identity of rights asserted and relief prayed for,
the relief founded on the same facts; and
(3) Identity in the two cases should be such that
the judgment which may be rendered in one would,
regardless of which the party is successful, amount to res
judicata in the other .
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Civil Procedure
Certificate of non-forum shopping is mandatory but not
jurisdictional.
REQUIREMENTS OF A CORPORATION EXECUTING THE
VERIFICATION/CERTIFICATION OF NON-FORUM
SHOPPING
A juridical entity, unlike a natural person, can only
perform physical acts through properly delegated
individuals. (Riano)
It may be signed by a specifically authorized lawyer who
has personal knowledge of the facts required to be
disclosed in such document.
The certificate of non-forum shopping must be
accompanied by a board resolution or a secretary’s
certificate authorizing the person signing the
certification.
EFFECT OF THE SIGNATURE OF COUNSEL IN A
PLEADING
The signature of counsel constitutes a certificate by him
that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground
to support it; and that it is not interposed for delay.
Unsigned pleading produces no legal effect.
Note: Attorney may be subjected to disciplinary action
3. Manner of making allegations (Rule 8)
MANNER OF MAKING ALLEGATIONS
Every pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relied for his
claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
If defense relied on is based on law, the pertinent
provisions thereof and their applicability to him shall be
clearly and concisely stated.
CONDITION PRECEDENT
In any pleading a general averment of the performance or
occurrence of all conditions precedent shall be sufficient.
(Sec. 3, Rule 8)
FRAUD, MISTAKE, CONDITION OF THE MIND,
JUDGMENTS, OFFICIAL DOCUMENTS OR ACTS
In all averments of fraud or mistake the circumstances
constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge, or other
condition of the mind of a person may be averred
generally. (Sec. 5, Rule 8)
Whenever an action or defense is based upon a written
instrument or document, the substance of such
instrument or document shall be set forth in the pleading,
and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be a part
of the pleading, or said copy may with like effect be set
forth in the pleading. (Sec. 7, Rule 8)
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Green Notes 2019
PLEADING AN ACTIONABLE DOCUMENT
ACTIONABLE DOCUMENT
the written instrument or upon which the action or
defense is based.
Requisites:
(1) The substance of such instrument or document
shall be set forth in the pleading; and
(2) The original or copy thereof shall be attached to
the pleading as an exhibit, which shall be
deemed to be a part of the pleading; or said
copy may with like effect be set forth in the
pleading
The rule is not applicable if the document is not the basis
of the complaint or defense
How to deny the genuineness and due execution of
actionable documents:
To deny the genuineness and due execution of an
instrument means that the defendant must declare under
oath that he did not sign the document or that is
otherwise false or fabricated.
The denial must be specific.
SPECIFIC DENIALS
Defendant is required to make a specific denial to make
him disclose the matters alleged in the complaint which
he sincerely intends to disprove in the trial.
EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
(a) The genuineness and due execution is deemed
admitted.
(b) The document need not be formally offered in
evidence.
WHEN A SPECIFIC DENIAL REQUIRES AN OATH
(1) Denial of the genuineness and due execution of
an actionable document; and
(2) Denial of allegations of usury.
WHEN AN OATH IS NOT REQUIRED:
(1) When the adverse party does not appear to be a
party to the instrument; or
(2) When compliance with an order for an
inspection of the original instrument is refused.
(Sec. 8, Rule 8, ROC)
Effect of making specific denial
Material averment in the complaint, other than those as
to the amount of unliquidated damages, shall be deemed
admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are
deemed admitted if not denied under oath (Sec. 11, Rule 8).
4. Effect of failure to plead (Rule 9)
FAILURE TO PLEAD DEFENSES AND OBJECTIONS
Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject
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Civil Procedure
matter, that there is another action pending between the
same parties for the same cause, or that the action is
barred by a prior judgment or by a statute of limitations,
the court shall dismiss the claim (Sec. 1, Rule 9, ROC).
This is not applicable in Summary Proceedings.
General rule:
Defenses and objections not pleaded either in motion to
dismiss or in the answer are deemed waived. (OMNIBUS
MOTION RULE)
Exceptions
ü The court has no jurisdiction over the subject
matter;
ü Another action is pending between the same parties
for the same cause; or
ü Action is barred by a prior judgment or by statute of
limitations.
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM
AND CROSS-CLAIM
A compulsory counterclaim, or a cross-claim, not set up
shall be barred. (Sec. 2, Rule 9).
A compulsory counterclaim not set up shall be barred if
not raised on time and the party in error is precluded
from setting it up in a subsequent litigation on the ground
of res judicata. The theory being that what are barred by
prior judgments are not only the matters actually raised
and litigated but also such matters as could have been
raised but were not.
A compulsory counterclaim cannot be made the subject
of a separate action but should be asserted in the same
suit involving the same transaction or occurrence giving
rise to it.
DEFAULT
WHEN A DECLARATION OF DEFAULT IS PROPER
Stages of Default
(a) Declaration of Order of Default – when
defendant fails to answer within the time
specified in the rules, the court shall upon
motion of the plaintiff and proof of such failure
declare the defendant in default.
(b) Rendition of Judgment by Default – on the basis
of the allegation of the complaint, or after
receiving plaintiff’s evidence, the court shall
render judgment granting him such relief as the
complaint and the facts proven may warrant.
Elements of a valid declaration of default
(1) The court must have validly acquired jurisdiction
over the person of the defendant either by service of
summons or voluntary appearance.
(2) Defendant failed to plead his answer within the time
allowed therefor,
(3) There must be a motion to declare the defendant in
default filed by the claiming party with notice to the
defending party.
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Green Notes 2019
EFFECT OF AN ORDER OF DEFAULT
A party in default shall be entitled to notice of subsequent
proceedings but not to take part in the trial (Sec. 3 (a),
Rule 9).
Party in default should receive the following notices:
(a) Motion to declare him in default;
(b) Order declaring him in default;
(c) Subsequent proceedings;
(d) Service of final orders and judgments.
Loss of standing in court is the consequence of an order
of default. He loses his right to present his defense,
control the proceedings and examine the witness. It does
not, however, constitute a waiver of all his rights except
that of being heard and of presenting evidence in the trial
court. He is not actually thrown out of court.
RELIEF FROM AN ORDER OF DEFAULT
A party declared in default may at any time after notice
thereof and before judgment file a motion under oath to
set aside the order of default upon proper showing that
his failure to answer was due to fraud, accident, mistake
or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set
aside on such terms and conditions as the judge may
impose in the interest of justice (Sec.3 (b), Rule 9).
Requisites to lift order of default:
Verified motion showing:
ü Fraud, accident, mistake or excusable neglect; and
ü Meritorious defenses.
Remedies available to a defendant in default:
A party declared in default may, At any time after
discovery thereof (from notice) and before judgment, file
a motion, under oath, to set aside the order of default on
the ground that his failure to answer was due to fraud,
accident, mistake or excusable neglect, and that he has
meritorious defense;
If judgment has already been rendered when the
defendant discovered the default, but before the same
has become final and executory, he may file a motion for
a new trial under Sec. 1(a) Rule 37;
If the defendant discovered the default after the
judgment has become final and executory, he may file a
petition for relief under Rule 38; and
He may also appeal from the judgment rendered against
him as contrary to the evidence, or to the law, even if no
petition to set aside the order of default has been
presented by him.
EFFECT OF PARTIAL DEFAULT
When a pleading asserting a claim states a common cause
of action against several defending parties, some of whom
answer and the others fail to do so, the court shall try the
case against all upon the answers thus filed and render
judgment upon the evidence presented (Sec. 3(c), Rule 9).
Requisites when the dismissal against any of multiple
plaintiffs necessarily results in the dismissal of the case:
ü Petitioner has a common cause of action against all
defendants; and
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Civil Procedure
ü All the defendants are indispensable parties to the
case.
EXTENT OF RELIEF TO BE AWARDED
(Sec. 3 (d), Rule 9)
Where a party has been declared in default, the amount
of damages that should be adjudged against him cannot
exceed the amount alleged in the complaint even if the
complainants are able to prove during the reception of
evidence a higher amount of damages. If the amount of
damages is not specified, the court in cases of default
would not be able to make such a determination.
ACTIONS WHERE DEFAULT IS NOT ALLOWED
(Sec.3 (e) Rule 9)
(a) An action for annulment or declaration of nullity of
marriage; or
(b) Legal separation.
5. Amended and supplemental pleadings (Rule 10)
HOW PLEADINGS MAY BE AMENDED
ü by adding or striking out an allegation or the
name of any party, or
ü by correcting a mistake in the name of a party
or a mistaken or inadequate allegation or
description in any other respect, so that the
actual merits of the controversy may speedily
be determined, without regard to technicalities,
and in the most expeditious and inexpensive
manner. (Sec 1, Rule 10)
WHERE THERE IS A FAILURE TO STATE A CAUSE OF
ACTION:
If the complaint failed to aver the fact that certain
conditions precedent were undertaken and complied
with, the failure to so allege the same may be corrected
by an amendment of the complaint.
WHERE NO CAUSE OF ACTION EXISTS:
A complaint whose cause of action has not yet accrued
cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. Such an
action is prematurely brought and is, therefore, a
groundless suit, which should be dismissed by the court
upon proper motion seasonably filed by the defendant.
AMENDMENTS AS A MATTER OF RIGHT
A party has the absolute right to amend his pleading,
regardless of whether a new cause of action or change in
theory is introduced.
A pleading may be amended only once as a matter of right
before any responsive pleading is filed.
ü A complaint may be amended before an answer is
served
ü An answer may be amended before a reply is served
or before the period to file a reply expires
ü A reply may be amended anytime within 10 days after
it is served.
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Green Notes 2019 Civil Procedure

The right to amend is not affected by a motion to dismiss (b) Court may allow the pleadings to be amended
or motion for summary judgment or even a motion for and shall do so freely when the presentation of
judgement on the pleadings. This is because they are all the merits of the action will 
be subserved. 

not considered “responsive pleadings.” (c) As safeguard, the court may grant a
continuance to enable the objecting party to
APPLICABILITY OF MANDAMUS meet such evidence.
The court would be in error if it refuses to admit an
amended pleading when its exercise is a matter of right. SUPPLEMENTAL PLEADINGS
This error is correctible by mandamus because the trial
court’s duty to admit an amended complaint made as a Supplemental
matter of right is purely ministerial. Amendment
Pleadings
Before responsive
pleading is filed
AMENDMENTS BY LEAVE OF COURT
matter of right
once only Always with leave of
WHEN LEAVE OF COURT IS REQUIRED (Sec, 3, Rule 10) WHEN
court
(1) Substantial amendments
After responsive
(2) When a responsive pleading had already been served
pleading is filed
with leave of court
RATIONALE
Leave of court is required because upon the filing of a Grounds for
Reason for
responsive pleading, the issues would have been joined. It supplemental
amendment is
would prejudice the defendant not to be allowed to PURPOSE pleading arose after
available at time of
amend his answer as well. In such manner, an the filing of the first
the first pleading
amendment after the responsive pleading has been filed pleading
would incur unnecessary delay. Supersedes the Taken with the
EFFECT
original pleading original pleading
Thus, in such cases, the court has the discretion whether Before responsive
or not to allow the intended amendment. pleading is filed
may change any
No change in cause of
FORMAL AMENDMENTS time
CAUSE OF action or theory in
(Sec 4, Rule 10) ACTION the pleading sought to
What can be corrected by formal amendments: After responsive
be implemented
ü A defect in the designation of the parties pleading is filed
ü Other clearly clerical or typographical errors may change with
leave of court
The formal amendment must not cause any prejudice the May be a matter
How Always by leave of
adverse party. of right or by
raised court
leave of court
How formal amendments may be effected:
(1) By the court at any stage of the action Supplemental Pleading, defined
(2) By the party at its initiative or on motion A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
AMENDMENTS TO CONFORM TO OR AUTHORIZE happened since the date of the pleading sought to be
PRESENTATION OF EVIDENCE supplemented.
This is an instance wherein the court acquires jurisdiction ü This is not a matter of right.
over the issues even if the same are not alleged in the ü A supplemental pleading only serves to bolster
original pleadings, where the trial of said issues is with or add something to the primary pleading. It
the express or implied consent of the parties. exists side by side with the original. It assumes
that the original pleading is to stand and that
Sec. 5, Rule 10 envisions two situations: the issues joined with the original pleading
(1) No objection to the evidence is raised remained an issue to be tried in the action. It is
ü Issues not raised in pleadings are tried by express or but a continuation of the complaint. Its usual
implied consent of the parties; they are treated in all office is to set up new facts which justify,
respects as if they had been raised. 
 enlarge or change the kind of relief with respect
ü Such amendments as may be necessary to cause the to the same subject matter as the controversy
pleadings to conform to the evidence may be made referred to in the original complaint.
upon motion of any party at any time, even after
judgment.
 When the cause of action in the supplemental complaint
ü Failure to amend does not affect the result of the is different from the cause of action mentioned in the
trial of those issues. 
 original complaint, the court should not admit the
supplemental complaint (Asset Privatization Trust vs. CA,
(2) Objection to the evidence is raised 324 SCRA 533).
(a) Objection on the ground that it is not within the
issues made by the pleadings.

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The filing of an answer to the supplemental pleading is 1. Rules on payment of docket fees; effect of
not mandatory (Chan vs. Chan, 2008). non-payment

EFFECT OF AMENDED PLEADING PAYMENT OF DOCKET FEES

ON THE ORIGINAL PLEADING General rule:

An amended pleading supersedes the original one which
it amends. The original complaint is deemed superseded
and abandoned by the amendatory complaint only if the
latter introduces a new or different cause.
ON ADMISSIONS MADE IN THE ORIGINAL PLEAING
Admissions made in the original pleadings cease to be
judicial admissions. They are to be considered as
extrajudicial admissions. However, admissions in
superseded pleadings may be received in evidence
against the pleader and in order to be utilized as
extrajudicial admissions, they must, in order to have such
effect, be formally offered in evidence.
The court acquires jurisdiction over any case only upon
the payment of the prescribed docket fees. Hence, it is
mandatory and jurisdictional.
It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of prescribed docket
fee that vests a trial court with jurisdiction over the
subject matter or nature of the action.
When the rule on the payment of docket fees is relaxed:
(a) Nonpayment at the time of filing does not
automatically cause the dismissal of the case.
(b) The fee may be paid within the applicable
prescriptive or reglementary period.

6. When to file responsive pleadings (Rule 11) How to determine the amount of the docket fee:
Determination of nature of action is essential to
PLEADINGS WHEN TO FILE determine the amount of the docket fee.
Answer to the complaint; Within 15 days after service
Docket fee may be based on:
Answer to 3rd (4th etc) party of summons; unless a
(a) Nature of the action
complaint different period is fixed by
(b) Value of the property involved
the court
(c) Value of the demand
Answer of a defendant Within 30 days after
foreign private juridical receipt of summons by
entity such entity
2. Rule 13
Answer to amended If as a matter of right: 15
complaint; Answer to days after being served
FILING
amended counterclaim/ with a copy thereof
Act of presenting the pleading or other paper to the clerk
cross-claim/ 3rd or 4th etc If filing is not a matter of
of court (Sec.2, Rule 13, ROC).
party complaint/ right: 10 days from notice
complaint-in-intervention of the order admitting the
PAPERS REQUIRED TO BE FILED AND SERVED
same
(a) Judgments
Answer to counterclaim or Within 10 days from
(b) Resolutions
cross-claim service
(c) orders,
Reply Within 10 days from (d) pleadings subsequent to the complaint
service of the pleading (e) written motions
responded to (f) notices
Answer to supplemental Within 10 days from notice (g) appearances
complaint of the order admitting the (h) demands
same; unless a different (i) offers of judgment,
period is fixed by the court (j) or similar papers
(Sec. 4 Rule 13, Rules of Court)
Extension of time to plead
• Upon motion and on such terms as may be just, SERVICE
the court may extend the time to plead Act of providing a party with a copy of the pleading or
• The Court may also, upon like terms, allow an paper concerned. If any party has appeared by counsel,
answer or other pleading to be filed after the service upon him shall be made upon his counsel or one
time fixed. of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several
parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side.

The purpose of requiring a formal service to the lawyer is

to maintain a uniform procedure, calculated to place in
F. Filing and Service of Pleadings, competent hands the orderly prosecution of a party’s
Judgments, Final Orders, and case.
Resolutions

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Green Notes 2019 Civil Procedure

The actual presence of the offended party and signing of interlocutory, has juridical existence until and unless it is
the judgment by the private prosecutor was considered set down in writing, signed, and promulgated.
as an actual notice.
PERIODS OF FILING PLEADINGS
UPON WHOM SHALL SERVICE BE MADE Period Reckoning Point
If a party has not appeared by counsel, then service must
Answer to the Complaint
be made upon him.
General rule: within 15 Service of summons,
days unless a different period
If a party has appeared by counsel, then service upon said
is fixed by the court (Rule
party shall be made upon his counsel or one of them,
11, Sec. 1)
unless service upon the party himself is ordered by the
Foreign private juridical Receipt of summons (Rule
court (Sec. 2, Rule 13, Rules of Court).
entity defendant, 11, Sec. 2)
summons through
The rule is that when a party is represented by counsel in
government official:
an action in court, notices of all kinds, including motions,
Within 30 days
pleadings, and orders must be served on counsel and
notice to him is notice to the client (People vs. Gabriel) Non-resident Service of extrajudicial
defendant, with summons (Rule 14, Sec. 15)
Note: It has been held that notice or service made upon a extraterritorial service of
party who is represented by counsel is a nullity. As a rule, summon: reasonable
notice to the client and not to his counsel of record is not time not less than 60
notice in law unless for instance when the court or days set by court
tribunal orders service upon the party or when the Answer to amended complaint
technical defect in the manner of notice is waived. (Heirs Amendment was matter Service of a copy of the
of Benjamin Mendoza vs. CA) of right: Within 15 days amended complaint
Amendment not matter Notice of the order
Substitution of counsel of right: Within 10 days admitting the same (Rule
A lawyer’s withdrawal as a counsel must be made in a 11, Sec. 3)
formal petition in the case, without which, notice of Answer to counterclaim or cross-claim
judgment rendered in the case served on the counsel of Within 10 days From service (Rule 11, Sec
record, is, for all legal purposes notice to the client the 4)
date or receipt of which is considered the starting point Answer to third (fourth, etc)-party complaint
from which the period of appeal prescribed by law shall Within 15 days Same rule as answer to
begin to run. the complaint (Rule 11,
Sec. 5)
Legal formalities for substitution: Reply
ü Written application for substitution Within 10 days From service of the
ü Written consent of client to substitution pleading responded to
ü Written consent of attorney to be substituted, if (Rule 11, Sec. 6)
such consent can be obtained; or if not, Answer to supplemental complaint
ü There must be filed with application for Within 10 days From notice of the order
substitution, proof of service of such motion in admitting the same,
the manner required by the rules on attorney to unless a different period
be substituted. is fixed by court

Effect of death of counsel
Where the death of the previous attorney is the cause of
substitution of the counsel, a verified proof of the death
of such attorney must accompany the notice of
appearance of new counsel.
Upon motion and on such terms as may be just, the court
may extend the time to plead provided in these Rules. The
court may also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by these Rules.
(Sec.11, Rule 11)

Papers required to be filed and served MANNER OF FILING

(1) judgment
(2) resolution
1. PERSONAL
(3) order
(1) By presenting the original copies thereof, plainly
(4) pleading subsequent to the complaint
indicated as such, personally to the clerk of court.
(5) written motion
(2) Deemed filed upon the receipt of the same by the
(6) notice
clerk of court who shall endorse on it the date and
(7) appearance
hour of filing.
(8) demand
(9) offer of judgment
2. REGISTERED MAIL
(10) similar papers (Sec. 4, Rule 13, ROC)
ü By sending them through registered mail
ü Deemed filed on the date it was deposited with
Time honoured and of constant observance is the
the post office.
principle that no judgment or order, whether final or

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Green Notes 2019
The original copies must be presented and plainly
indicated as such.
MODES OF SERVICE
PERSONAL SERVICE
Can be done by:
(1) Delivering personally a copy to the party or his
counsel, or
(2) Leaving a copy in his office with his clerk or
with a person having charge thereof.
(3) Leaving the copy between 8am- 6pm, at the
party’s or counsel’s residence, if known, with a
person of sufficient age and discretion then
residing therein (Sec.6, Rule 13, ROC).
Personal service may be either
(1) Actual
(2) constructive. – through substituted service
SERVICE BY MAIL
Can be done by:
(1) Ordinary Mail - it does not constitute filing until the
papers are actually delivered into the custody of
clerk or judge

(a) Service may be done by ordinary mail if no
registry service is available in the locality of
either sender or addressee
(2) Registered Mail - The date of mailing is the date of
filing
Date of filing is determinable from 2 sources:
(1) From the post office stamp on the envelope
(2) from the registry receipt
Filing is done by:
(1) depositing in the post office
 The mere return of mail “unclaimed”, is not sufficient
(2) In a sealed envelope 
 proof of service. There must be clear proof of compliance
(3) Plainly addressed to the party or his 
counsel:
 with postal regulations governing the sending and receipt
(1) At his office if known
(2) Otherwise, at his residence if known
(4) Postagefully pre-paid
 PROOF OF FILING AND SERVICE
(5) With instructions to the postmaster to return the
mail to the sender after 10 days if undelivered
Service by ordinary mail is allowed only in instances
where no registry service exists.
There is a legal and conclusive presumption that the date
postmarked on the envelope is the date of the mailing.
SUBSTITUTED SERVICE
If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made under the two
preceding sections, the office and place of residence of
the party or his counsel being unknown, service may be
made by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by
mail (Sec. 8, Rule 13).
SERVICE FOR FINAL JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS
(1) Personal service
(2) Registered mail
Lasallian Commission on Bar Operations
Civil Procedure
(3) Publication, if the party is summoned by publication
and has failed to appear in the action
There is NO substituted service of judgments and final
orders.
PRIORITIES IN MODES OF SERVICE AND FILING
GENERAL RULE:
Whenever practicable, the service and filing of pleadings
and other papers shall be done personally.
EXCEPTION:
Except with respect to papers emanating from the court,
a resort to other modes must be accompanied by a
written explanation why the service or filing was not
done personally
A violation of this Rule may be cause to consider the
paper as not filed (Sec. 11, Rule 13, ROC)
Whenever personal service in filing is practicable it
becomes mandatory.
WHEN SERVICE IS DEEMED COMPLETE
ü Personal service – upon actual delivery.
ü Service by ordinary mail – upon expiration of 10
days after mailing, unless the court otherwise
provides.
ü Service by registered mail – upon actual receipt by
the addressee, or 5 days from the date he received
the first notice of the postmaster, whichever date is
earlier (Sec. 10, Rule 13).
ü Substituted service – at the time of such delivery
(Sec. 8, Rule 13).
of the notice referred to in Sec.8 Rule 13.
GENERAL RULE: Filing is proven by its existence in the
record of the case.
EXCEPTIONS:
If it is not on record and
ü If filed personally – it shall be proved by the wriitted
or stamped acknowledgement of its filing by the
clerk of court on a copy of the same
ü If filed by registered mail – it shall be proved by the
registry receipt and by the affidavit of the person
who did the mailing containing a full statement of:
ü the date and place of depositing the mail in the post
office in a sealed envelope addressed to the court
ü with postage fully prepaid
ü and with instructions to the postmaster to return
the mail to the sender after 10 days if not delivered.
(Sec 12, Rule 13, ROC)
PROOF OF PERSONAL SERVICE
ü Written admission of party served
ü Official return of the server; or
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Green Notes 2019 Civil Procedure

ü Affidavit of the party serving, containing a full Resident

statement of the date, place and manner of service. (1) Personal service (1) Personal service
(Sec. 13, Rule 13, Rules of Court) (2) Substituted service (2) Substituted service
(3) Constructive (3) Constructive Service (By
PROOF OF SERVICE BY ORDINARY MAIL Service (By publication)
(1) An affidavit of the person mailing and facts of publication) - if unknown
compliance with the rules (Sec 7, Rule 13, ROC) - if unknown - temporarily absent
(2) Registry receipt issued by the mailing officer (Sec 13, - temporarily absent
Rule 13, ROC) Non-Resident
Personal service outside of
PROOF OF SERVICE BY REGISTERED MAIL the country with leave of
ü Affidavit court
ü Registry receipt issued by the mailing office and
Not allowed
the registry return card. (Sec. 13, Rule 13, Rules OR
of Court)
Publication with leave of
Absent any proof of service of the decision, the period of court
15 days within which a party may file a motion for new
trial does not begin to run against such party. If it admits,
however, that it received the copy of the decision on a PERSONAM
certain date despite absence of proof service, that date Purpose: Not only to notify the defendant of the action
would be the reckoning date of the 15 day period against him but also to acquire jurisdiction over his
(Republic vs. Bank of the Philippine Island) person.

Service of summons is required even if the defendant is

G. Summons aware of the filing of the action against him. His
knowledge of the existence of a case is not one of the
1. Nature and purpose of summons in modes by which a court acquires jurisdiction over the
relation to actions in personam, in rem, person of the defendant.
and quasi in rem

SUMMONS REM
A coercive force issued by the court to acquire Purpose: Not the acquisition of jurisdiction over the
jurisdiction over the person of the defendant. defendant but mainly to satisfy the constitutional
requirement of due process.
Summons is the writ by which the defendant is notified of
the action brought against him the issuance of such is a Jurisdiction over the defendant is not mandatory and the
mandatory requirement. court acquires jurisdiction over an action as long as it
acquires jurisdiction over the res.
Upon the filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall forthwith issue
the corresponding summons to the defendants. QUASI IN REM
Purpose: Directed against particular persons. Jurisdiction
The issuance of summons is not discretionary on the part over the person of the defendant is not required, it is the
of the court or the clerk of court but is a mandatory jurisdiction over the res that is essential. Here, judgment
requirement. is binding only against particular persons and not against
the whole world.
NATURE AND PURPOSE OF SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM AND QUASI IN REM
DIFFERENTIATION OF ACTIONS IN PERSONAM, IN
In ACTIONS IN PERSONAM: REM AND QUASI IN REM
ü To acquire jurisdiction over the person of the
In rem In personam Quasi in rem
defendant in a civil case
Directed against
ü To give notice to the defendant that an action has Directed against Directed against
particular
been commenced against him the thing itself particular person
person
Jurisdiction over Jurisdiction over
In ACTIONS IN REM AND QUASI IN REM: Jurisdiction over
the person of the person of
(1) Not to acquire jurisdiction over the defendant but the person is
the defendant is the defendant is
mainly to satisfy the constitutional requirement of required
not required not required
due process
Judgment is
binding only upon Judgment is
Judgment is
the parties binding upon
binding against
impleaded or particular
SERVICE IN RELATION TO ACTIONS the whole world
successors in persons.
In personam In rem/ Quasi in rem interest

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Green Notes 2019
2. Rule 14
CONTENTS OF THE SUMMONS (SEC 3, RULE 14, ROC.)
The summons shall be
(1) directed to the defendant
(2) signed by the clerk of court under seal
1. contain:
(1) name of the court and the names of the parties
to the action
(2) direction that the defendant answer within the
time fixed by the ROC
(3) notice that unless the defendant so answers,
plaintiff will take judgment by default and may
be granted the relief applied for
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the original
and each copy of the summons.
WHO SERVES THE SUMMONS (SEC. 3, RULE 14, ROC.)
The summons may be served by
ü the sheriff
ü sheriff’s deputy
ü other proper court officer
ü for justifiable reasons, any suitable person
authorized by the court issuing the summons
VOLUNTARY APPEARANCE
Voluntary appearance cures the defect in the service of
summons.
General rule: Defendant’s voluntary appearance in the
action shall be equivalent to service of summons (Sec. 14,
Rule 20)
Exceptions
ü Special Appearance to file a MTD
ü Inclusion in the MTD of grounds other than lack of
Jurisdiction over the defendant’s person
An absence of service of summons or an invalid service of
summons will not prevent the court from acquiring
jurisdiction over the defendant as long as he performs
acts that could be construed as voluntary appearance. His
voluntary appearance shall be equivalent to service of
summons.
PERSONAL SERVICE
Note that there is a difference between service in person
of the defendant and personal service which is
contemplated in Rule 13. The latter refers to service of
pleadings, while the former referes to service of
summons.
In an action strictly in personam, service in person on the
defendant is the preferred mode of service. This is to be
done by handing a copy to the defendant in person.
If he refuses to receive and sign for it, the remedy of the
server is to tender the summons to the defendant. If the
defendant refuses the service, the server should not
resort to substituted service immediately. He must
“tender” the summons to him. Tender of summons is not
a separate mode of service. It is part of service in person.
Lasallian Commission on Bar Operations
Civil Procedure
SUBSTITUTED SERVICE
Substituted service may be availed of if “for justifiable
causes, the defendant cannot be serviced within a
reasonable time.” (Sec. 7, Rule 14)
REASONABLE TIME - MEANING
A period of time longer than that demarcated by the word
“prompt” and presupposes that a prior attempt at
personal service had failed. Reasonable time depends on
the:
1. Necessary time under the circumstances for a
reasonably prudent and diligent man to do,
conveniently, what the contract or duty
requires that should be done.
For substituted service to be available there must be:
2. Several attempts by the sheriff to personally
serve the summons within a reasonable period
which eventually resulted in failure to prove
impossibility of prompt service.
“Several attempts” means at least three (3) tries,
preferably on at least two different dates.
3. Citation by the sheriff in his Return of Summons
why such efforts were unsuccessful.
Only then can the impossibility of service be confirmed or
accepted.
How substituted service is made
(1) By leaving copies of the summons at the defendant’s
residence with some person of suitable age and
discretion then residing therein, or
“a person of suitable age and discretion” One who has
attained the full age of full legal capacity (18 years old) and
is considered to have enough discernment to understand
the importance of summons
“discretion” Ability to make decisions which represent a
responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed.
the person must have a “relation of confidence” to the
defendant.
(2) By leaving the copies at defendant’s office or regular
place of business with some competent person in
charge thereof.
“a competent person in charge of the office or regular place
of business “ must be the one managing the office or
business of defendant, such as the president or manager;
and such individual must have sufficient knowledge to
understand the obligation of the defendant in the
summons, its importance, and the prejudicial effects
arising from inaction on the summons”
not necessary that the person in charge be specifically
authorized to receive the summons. It is enough that he
appears to be in charge.
Where the substituted service has been validly served, its
validity is not affected by the defendant’s failure to
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Green Notes 2019
actually receive the summons from the person with
whom the summons has been left.
It is immaterial that the defendant does not in fact
receive actual notice.
The rule does not require the sheriff or any authorized
server to verify that the summons left in the defendant’s
resident or office was actually delivered to the defendant.
CONSTRUCTIVE SERVICE (BY PUBLICATION)
General rules
(1) Constructive service is available only in actions in
rem or in quasi in rem.
(2) It is not available as a means of acquiring jurisdiction
over the person of the defendant in action in
personam.
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all who
might be minded to make an objection of any sort against
the right sought to be established. It brings in the whole
world as a party in the case and vests the court with
jurisdiction to hear and decide it.
General rule:
Publication is not a mode of service in an action in
personam against a resident defendant.
Exception:
Section 14 and 16 of Rule 14
(a) Service upon defendant whose identity or
whereabouts are unknown. (Sec 14)
(b) Residents temporarily out of the Philippines. (Sec 16)
(c) Extraterrirotial service (Sec. 15)
Constructive service always requies permission of the
court.
SERVICE UPON DEFENDANT WHOSE IDENTITY OR
WHEREABOUTS IS UNKNOWN
(Sec. 14, Rule 14)
Applies when:
4. Defendant is sued as an unknown owner; 
or
5. His whereabouts are unknown and cannot be
ascertained with diligent inquiry 
 (a) its resident agent designated in accordance with law
Service of summons may effected through any of the
following modes:
(1) by personal service as in Sec. 6 of Rule 14;
(2) by publication in a newspaper of general circulation
together with a registered mailing of a copy of the
summons and the order of the court to the last
known address of the defendant; or
(3) by any manner the court may deem sufficient.
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE
THE PHILIPPINES
(Sec. 16, Rule 14)
Applies when:
(1) Defendant is a resident of the Philippines;
(2) Is temporarily out of the country
Lasallian Commission on Bar Operations
Civil Procedure
A resident defendant is temporarily out of the country, if
he has a residence or place of business in the Philippines,
and because he cannot be served within a reasonable
time because of his absence in the Philippines, this
absence would now trigger the application of the rule on
substituted service of summons.
SPECIAL CLASSES OF DEFENDANTS
SERVICE UPON ENTITY WITHOUT JURIDICAL
PERSONALITY
(Sec. 8, Rule 14)
Applicable in cases where:
(1) Persons are associated in an entity without juridical
personality; and 

(2) They are sued under the name by which they are
generally or commonly known 

Service is effected upon all of them by:
ü Serving summons upon any of them; or
ü Serving summons upon the person in charge of their
office or place of business
SERVICE UPON DOMESTIC PRIVATE JURIDICAL
PERSONALITY
(Sec. 11, Rule 14)
When the defendant is a corporation, partnership or
association organized under the laws of the Philippines
with a juridical personality, service may be made upon
the following persons:
ü President
ü managing partner
ü general manager
ü corporate secretary
ü treasurer, or
ü in-house counsel
This enumeration has been held to be limited to the
persons enumerated and summons cannot be served
upon any other person.
SERVICE UPON FOREIGN PRIVATE JURIDICAL
PERSONALITY
(Sec. 12, Rule 14)
Service upon a foreign private juridical entity which has
transacted business in the Philippines may be made on
for that purpose, or,
(b) if there be no such agent, on the government official
designated by law to that effect, or
(c) on any of its officers or agents within the Philippines
When a foreign corporation has designated a person to
receive summons on its behalf pursuant to the
Corporation Code, that designation is exclusive and
service of summons on any other person is inefficacious.
SERVICE UPON PUBLIC CORPORATIONS
(Sec. 13, Rule 14)
Service may be effected on:
ü the Socilitor General, when the defendant is the
Republic of the Philippines
ü the executive head, or on such other officer or
officers as the law or the court may direct, if the
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Green Notes 2019
defendant is a province, city or municipality, or
like public corporations.
EXTRATERRITORIAL SERVICE
Extraterritorial service of summons applies when the
following requisites concur: (Sec. 15, Rule 14)
ü The defendant is a non-resident;
ü He is not found in the Philippines; and
ü The action against him is either in rem or quasi in
rem.
It does not apply to a defendant who is a resident of the
Philippines. It also does not apply to an action in
personam.
The specific actions, which are either in rem or quasi in
rem that will justify the application of extraterritorial
service of summons in actions involving a non-resident
are:
(1) Actions that affect the personal status of the
plaintiff;
(2) Actions which relate to, or the subject matter of
which is property within the Philippines, in which
the defendant claims a lien or interest, actual or
contingent;
(3) Actions in which the relief demanded consists,
wholly or in part, in excluding the defendant form an
interest in property located in the Philippines; and
(4) When the defendant’s property has been attached in
the Philippines.
MODES OF EXTRATERRITORIAL SERVICE
When the conditions for the applicability of
extraterritorial service of summons are complied with,
the following are the alternative modes of extraterritorial
service, all of which require a prior leave of court:
(1) By personal service as provided in Sec. 6 of Rule 14
governing ‘service in person on defendant’;
(2) By publication in a newspaper of general circulation
in such places and for such time as the court may
order, in which case a copy of the summons and the
order of the court shall be sent by registered mail to
the last known address of the defendant; or
(3) In any manner the court may deem sufficient.
The personal service in Sec. 6 of Rule 14 will not have the
effect of acquiring jurisdiction over the non-resident
defendant even if the summons and the copy of the
complaint are personally received by him in the country
where he may be found. This is due to the rule that a
non-resident defendant who refuses to come to the
country voluntarily remains beyond the personal
processes over him.
Summons is served upon the defendant not for the
purpose of vesting the court with jurisdiction over the
person of the defendant but merely for satisfying the due
process requirement. In proceedings in rem or quasi in
re, jurisdiction over the defendant is not required as long
as the court acquires jurisdiction over the res.
Compliance with due process is actually the underlying
process of all modes of extraterritorial service.
SERVICE UPON PRISONERS AND MINORS
Lasallian Commission on Bar Operations
Civil Procedure
SERVICE UPON PRISONER
Serve upon the officer having management of the
jail/prison
SERVICE UPON MINORS AND INCOMPETENTS
Serve upon the minor/incompetent and on his legal
guardian
If there is no guardian
Plaintiff may apply for the appointment of a guardian ad
litem
If minor
May serve on his parents
SUMMONS WHEN COMPLAINT IS AMENDED
General rule: An amended pleading supersedes the
original one that it amends
Hence, it does not ipso facto follow that the service of a
new summons is required whenever a complaint is
amended.
Where the defendant has already appeared before the
trial court by virtue of a summons on the original
complaint - the amended complaint may be served upon
them without need for another summons, even if new
causes of actions are alleged.
When the defendant has not yet appeared in court and no
summons had been validly served - new summons on the
amended complaint must be served on them.
(1) It is not the change in the cause of action that gives
rise to the need to serve another summons for the
amended complaint, but rather the acquisition of
jurisdiction over the person of the defendant. If the
trial court has not yet obtained jurisdiction over
them, a new service of summons for the amended
complaint is required.
PROOF OF SERVICE
General rule: Return of service of summons immediately
shifts burden of evidence from plaintiff to defendant
since there is presumption of regularity
Without return of service, Burden is on plaintiff
Exception
Doctrine of substantial compliance
If defendant actually received summons and complaint
despite all these technicalities
Proof of service, how it is done
(1) If personal or substituted service: In writing by
the server and shall:
1. Set forth the manner/place/date of service
2. Specify any papers which have been served with
the process and the name of the person who
received the same
3. Be sworn to when made by a person other than
a sheriff or his deputy
(2) If by publication (SEC 19, RULE 14, ROC)
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Green Notes 2019 Civil Procedure

(a) Affidavit of the printer, his foreman, principal clerk,

or the editor, business/advertising manager, with a Exception: When the court’s jurisdiction is in issue:
copy of the publcation attacked (1) Lack of jurisdiction over subject-matter;
(b) Affidavit showing the deposit of a copy of the (2) Litis pendentia;
summons and order for publication in the post (3) Res judicata;
office, postage prepaid, directed to the defendant by (4) Prescription.
registered mail to his last known address

RETURN (SEC. 4, RULE 14, ROC.) CONTENT AND FORMS OF MOTIONS

When the service has been completed, the server shall,
within five (5) days therefrom:
(1) serve a copy of the return, personally or by
registered mail, to the plaintiff’s counsel; and
(2) shall return the summons to the clerk who
issued it, accompanied by proof of service.
ALIAS SUMMONS (SEC 5, RULE 14, ROC)
Upon plaintiff’s demand, the clerk may issue an alias
summons if either:
(1) Summons is returned without being served on
any/all of the defendants.
(2) Summons was lost.
The server shall also serve a copy of the return on the
plaintiff's counsel within 5 days therefrom, stating the
reasons for the failure of service.
(1) Relief sought to be obtained
(2) Grounds upon which it is based
(3) Supporting affidavits, if:
a) Required by the Rules; or
b) Necessary to prove facts alleged in the
motion
(4) Motions raising factual issued must be supported by
affidavits.
NOTICE OF HEARING AND HEARING OF MOTIONS
A notice of hearing addressed to the clerk of court, and
not to the parties, is no notice at all.
Accordingly, a motion that does not contain a notice of
hearing to the adverse party is nothing but a mere scrap
of paper, as if it were not filed; hence, it did not suspend
the running of the period to appeal. [Provident
International Resources v. CA (1996)]

H. Motions Motion and notice of hearing must be served at least 3

days before the date of hearing; Rule 15, Sec. 4
1. In general (Rule 15)
Three-day Notice Rule
MOTIONS IN GENERAL General rule: Strict compliance is required
DEFINITION OF A MOTION
An application for relief other than by a pleading. Exception: Not absolute. When the adverse party was
given a reasonable opportunity to study the motion and
oppose it, then strict compliance with the three-day
General rule
A motion cannot pray for judgment. notice rule may be dispensed with (Microsoft Corporation
and Adobe Systems Incorporated vs. Farajallaj, 2014).
Exceptions
(1) Motion for judgment on the pleadings Motion and notice shall be furnished at least 3 days
(2) Motion for summary judgment before the intended hearing of the motion, unless the
(3) Motion for judgment on demurrer to evidence Rules provide for an over-period such as in summary
judgments.
MOTIONS VERSUS PLEADINGS
Purpose
Motion Pleading
To prevent surprise upon the adverse party and to enable
Contains allegations of
Contains allegations of facts the latter to study and meet the arguments of the motion.
the ultimate facts
Prays for a relief Prays for a relief
Exceptions
Grant of the relief does not Grant of relief
(a) Ex parte motions;
extinguish the action extinguishes the action
(b) Urgent motions;
(interlocutory relief) (final relief)
(c) Motions agreed upon by the parties to be heard
Generally in writing (with on shorter notice, or jointly submitted by the
Always in writing
some exceptions) parties;
(d) Motions for summary judgment which must be
Omnibus motion rule, defined served at least 10 days before its hearing.
A motion attacking a pleading/ order/ judgment/
proceeding must include all objections then available.
OMNIBUS MOTION RULE
Purpose: To require movant to raise all available relief/
A motion attacking a pleading, order, judgment, or
objections/ defense during a single opportunity to avoid
proceeding must include all objections then available. All
multiplicity of suits and discourage piece-meal objections
objections not included in the motion are deemed waived.
General rule: All objections not included in the motion
are deemed waived.

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When a motion to dismiss is filed, all grounds for
objection available at the time the motion is filed must be
invoked in the motion. This is required under the
“Omnibus Motion Rule.” The objections which are not
invoked are deemed waived.
Not waived even if not invoked in a Motion to Dismiss):
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription
Note: The Omnibus Motion Rule applied only when a
motion to dismiss is filed. If no motion to dismiss is filed,
any of the grounds for dismissal may be pleaded as an
affirmative defense in the answer. (Sec. 6, Rule 16)
LITIGATED AND EX PARTE MOTION
A litigated motion is one which requires the parties to be
heard before a ruling on the motion is made by the court.
Sec. 4 establishes the general rule that every written
motion is deemed a litigated motion.
An ex parte motion is one which does not require that the
parties be heard, and which the court may act upon
without prejudicing the rights of the other party. This
kind of motion is not covered by the hearing requirement
of the Rules (Sec. 2).
PRO-FORMA MOTIONS
A motion failing to indicate time and date of the hearing.
2. Motion to dismiss (Rule 16)
MOTION TO DISMISS IN GENERAL
A remedy of the defendant, or the responding party in
general, which attacks the entire pleading and seeks its
dismissal based on:
(1) Grounds which are patent on the face of the
complaint;
(2) Defenses available to the defendant at the time of
the filing of the complaint.
ü It hypothetically admits the facts stated in the
complaint.
ü It is not a responsive pleading.
ü It is subject to the omnibus motion rule since it
is a motion that attacks a pleading.
Hence, it must raise all objections available at the time
of the filing thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a party.
Exception:
(a) Cases where the court may dismiss a case motu
propio; (Rule 9, Sec. 1)
(b) Failure to prosecute; (Rule 17, Sec. 3)
(c) Sec. 4, Revised Rule on Summary Procedure.
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Civil Procedure
GROUNDS
(1) Lack of Jurisdiction over the defendant’s person;
(2) Lack of Jurisdiction over the subject matter of the
claim;
(3) Improper venue;
(4) Plaintiff’s lack of legal capacity to sue;
(5) Litis pendentia;
(6) Res judicata;
(7) Prescription;
(8) Failure to state a cause of action;
(9) Extinguished claim;
(10) Unenforceable claim under the Statute of Frauds;
(11) Non-compliance with a condition precedent for
filing claim.
NOTE: Motion may only be based on the grounds
enumerated in Sec. 1, Rule 16. These grounds must be
alleged on the motion to dismiss.
1. LACK OF JURISDICTION OVER THE DEFENDANT’S
PERSON
The objection of Lack of Jurisdiction over the person on
account of lack of service or defective service of
summons, must be raised:
(1) At the very first opportunity
(2) Before any voluntary appearance is made
2. LACK OF JURISDICTION OVER THE SUBJECT
MATTER OF THE CLAIM
If the complaint shows on its face Lack of Jurisdiction, the
court may dismiss the case outright instead of hearing the
motion.
A Motion To Dismiss on the ground of Lack of Jurisdiction
over the subject matter may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
(4) At any stage of the proceeding, even for the first
time on appeal and even if no such defense is
raised in the answer.
3. IMPROPER VENUE
Unless and until the defendant objects to the venue in a
Motion To Dismiss prior to a responsive pleading, the
venue cannot truly be said to have been improperly laid
since, for all practical intents and purposes, the venue
though technically wrong may yet be considered
acceptable to the parties for whose convenience the rules
on venue had been devised. Improper venue may be
waived and such waiver may occur by laches.
A stipulation between the parties as to venue does not
preclude the filing of suits in the residence of
plaintiff/defendant under Rule 4, Sec. 2(b). In the absence
of qualifying/restrictive words which would indicate that
a specific place alone is the venue, an agreement as to
venue is merely permissive and there is no waiver of right
to pursue remedy in other courts.
If the court erroneously denies the MTD, the remedy is
prohibition.
4. PLAINTIFF’S LACK OF LEGAL CAPACITY TO SUE
The plaintiff lacks legal capacity to sue:
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(1) When he does not possess the necessary

qualification to appear at the trial b. CONCLUSIVENESS OF JUDGMENT
(2) When he does not have the character which he States a fact or question which was an issue in a former
claims, which is a matter of evidence suit and was there judicially passed upon and determined
by a court of competent jurisdiction, is conclusively
Lack of legal capacity to sue refers to plaintiff’s disability; settled by the judgment therein as far as the parties to
while lack of legal personality to sue refers to the fact that action and persons in privity with them are
that the plaintiff is not a real party in interest, in which concerned and cannot be again litigated in any future
case the ground for dismissal would be that the complaint action between such parties or their privies, in the same
states no cause of action. court or any other court of concurrent jurisdiction on
either the same or different cause of action, while the
5. LITIS PENDENTIA judgment remains unreversed by the proper authority
It is not required to allege that there be a prior pending [Moraga v. Spouses Somo, 501 SCRA 118]
case. It is sufficient to allege and prove the pendency of
another case, even if same had been brought later. 7. STATUTE OF LIMITATIONS
Prescription applies only when the complaint on its face
Requisites [Republic vs. Carmel Development, Inc. shows that indeed the action has already prescribed.
(2002)]
(1) Identity of parties, or at least such as representing If the fact of prescription is not indicated on the face of
the same interest in both actions the complaint and the same may be brought out later, the
(2) Identity of rights asserted and relief prayed for, the court must defer decision on the motion until such time
relief being founded on the same facts, and as proof may be presented on such fact of prescription.
(3) Identity of the two cases such that judgment in one,
regardless of which party is successful, would Prescription Laches
amount to res judicata in the other Concerned with the fact of Concerned with the effect
delay of delay
6. RES JUDICATA A matter of time A matter of equity
Requisites: (Topacio v. Banco Filipino Savings and Statutory Not statutory
Mortgage Banks, 2010) Applies in law Applies in equity
(1) Former judgment must be final; Based on fixed time Not based on fixed time
(2) Judgment must be on the merits;
(3) The court which rendered it had jurisdiction over 8. COMPLAINT STATES NO CAUSE OF ACTION
subject matter and parties; Failure to state a cause of action (not lack of cause of
(4) There must be between the first and the second action) is the ground for a Motion To Dismiss. The former
actions, identity: means there is insufficiency in the allegations in the
(5) identity of parties, pleading. The latter means that there is insufficiency in
(6) subject matter, and the factual basis of the action.
(7) causes of action.
A Motion To Dismiss based upon the ground of failure to
There can be res judicata without a trial, such as in a state a cause of action imports a hypothetical admission
judgment on the pleadings (Rule 34); a summary judgment by the defendant of the facts alleged in the complaint.
(Rule 35); or an order of dismissal under Rule 17, Sec. 3.
A complaint containing a premature cause of action may
For res judicata to apply, absolute identity of parties is be dismissed for failure to state a cause of action.
not required because substantial identity is sufficient.
Inclusion of additional parties will not affect the If the suit is not brought against the real party-in-
application of the principle of res judicata. interest, a motion to dismiss may be filed on the ground
that the complaint states no cause of action. (Tanpinco v.
Res Judicata is a concept of civil law and thus, has no IAC, 1992)
bearing on a criminal proceeding. Hence, the argument
that the dismissal of a case during a preliminary
investigation bars a further reinvestigation because of the
doctrine of res judicata , is untenable (Trinidad v. Office of
FAILURE TO STATE NO CAUSE OF ACTION
the Ombudsman, 2007)
Insufficiency of the Insufficiency of factual
allegations in the pleadings basis for the action
Rationale: May be raised in the MTD at May be raised at any time
(1) Public policy and necessity makes it the interest of the any time before the
the State that there should be an end to litigation; filing of the answer to the
(2) The hardship on the individual that h should be complaint or pleadings
vexed twice for the same cause. (Arenas vs. CA, 2000) asserting a claim
Can be made at the earliest Made after questions of
TWO CONCEPTS OF RES JUDICATA stages of an action fact have been resolved on
a. BAR BY PRIOR JUDGMENT the basis of stipulations,
Bars the prosecution of a second action upon the same admissions or evidence
claim, demand or cause of action. presented

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Without prejudice With prejudice
Based on fixed time Not based on fixed time
9. EXTINGUISHED CLAIM
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or otherwise
extinguished.
10. UNENFORCEABLE CLAIM UNDER THE STATUTE OF
FRAUDS
Those stated under Article 1403(2) of the Civil Code which
enumerates contracts which needs to be evidenced by
some note or memorandum to be enforceable.
This can be filed even if the absence of the cause of
action does not appear on the fact of the complaint.
(Yuviengco et al. v. Dacuycuy, et. al, 1981)
11. NON-COMPLIANCE WITH A CONDITION
PRECEDENT
Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the case on
the ground of non-compliance with a condition
precedent.
RESOLUTION OF MOTION
A motion to dismiss is a litigated motion and, hene,
should be heard.
Hearing and Order
(1) During the hearing of the motion, parties
shall submit: [Rule 16, Sec. 2]
ü Their arguments on questions of law;
ü Their evidence on questions of fact.
Exception: Those not available at that time.
(2) If the case goes to trial, such evidence
presented shall automatically be part of the
evidence of the party presenting the same.
(3) After the hearing, the court may either:
[Rule 16, Sec. 3]
(a) Dismiss the action/claim;
(b) Deny the Motion To Dismiss;
(c) Order the amendment of pleadings.
(4) The court cannot defer the resolution of
the Motion To Dismiss for the reason that
the ground relied upon is not indubitable.
(5) The court’s resolution on the Motion To
Dismiss must clearly and distinctly state
the reasons therefor.
REMEDIES of PLAINTIFF WHEN COMPLAINT IS
DISMISSED
(1) Refile, if dismissal does not amount to adjudication
on the merits
(2) Appeal, if the ground bars re-filing
(3) Petition for Certiorari, if dismissal is tainted with
grave abuse of discretion
REMEDIES of DEFENDANT WHEN MOTION IS DENIED
General Rule: Filing an answer and going through the
regular trial process, and may later file a timely appeal for
the denial of the MTD
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Civil Procedure
Exception: Assail denial through certiorari, prohibition, or
mandamus, if there is grave abuse of discretion
amounting to lack of jurisdiction.
EFFECTS OF DIMISSAL OF COMPLAINT ON CERTAIN
GROUNDS
General rule: The action/claim may be re-filed.
Exception: The action cannot be re-filed (although
subject to appeal) if it was dismissed on any of the
following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/ demand;
(4) Unenforceability under the Statute of Frauds. [Rule
16, Sec. 1 (f),(h),(i)]
WHEN GROUNDS PLEADED AS AFFIRMATIVE
DEFENSES
If no Motion To Dismiss was filed, the grounds in Rule 16,
Sec. 1 may be pleaded as an affirmative defense and the
court may conduct a preliminary hearing thereon as if a
MTD was filed.
BAR BY DISMISSAL
As a general rule, the action/claim may be re-filed.
EXCEPTION: The action cannot be re-filed (although
subject to appeal) if it was dismissed on any of the
following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of Frauds.
IF MOTION TO DIMISS IS DENIED
Movant must file his answer within the balance of the
period under Rule 11 to which he was entitled at the time
of serving his Motion to Dimiss (but not less than 5 days)
computed from his receipt of notice of the denial.
IF PLEADING IS ORDERED TO BE AMENDED
Movant must file his answer within the period under Rule
11, counted from service of the amended pleading (unless
the court gives a longer period).
On other grounds and omnibus motion rule
Motion To Dismiss based on the following grounds may
be filed even after filing an answer: [Rule 9, Sec. 1]
1. Lack Of Jurisdiction over subject-matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
Dismissal of the complaint under Rule 16, Sec. 6 is without
prejudice to the prosecution in the same or in a separate
action of a counterclaim pleaded in the answer.
DISTINGUISHED FROM DEMURRER TO EVIDENCE
UNDER RULE 33
MTD under Rule 33
MTD under Rule 16
(Demurrer to evidence)
Based on preliminary Based on insufficiency of
objections evidence
May be filed by any May be filed only by the
defending party against defendant against the
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whom a claim is asserted in complaint of the plaintiff

the action
Should be filed within the
time for, but prior to, the
filing of the defending
party’s answer to the
pleading asserting the claim
against him
If denied, defendant
answers; else, he may be
declared in default.
If granted, plaintiff may
appeal or if a subsequent
case is not barred, he may
re-file the case
May be filed only after
the plaintiff has completed
the presentation of his
evidence
If denied, defendant may
present evidence.
If granted, plaintiff appeals
and the order of the
dismissal is reversed; the
defendant loses his right
to present evidence.
It is not to enable the movant to prepare for trial. (Riano)
The only question to be resolved in a motion for a Bill of
Particulars is whether or not the allegations in the
complaint are averred with sufficient
definiteness/particularity to enable the movant to
properly prepare his responsive pleading and to prepare
for trial.
A Bill of Particulars becomes part of the pleading for
which it was intended. (Sec. 6, Rule 12)
WHEN APPLIED FOR
(1) Before responding to a pleading
(2) If the pleading is a reply, within 10 days from service
thereof

What it should point out

3. Motion for bill of particulars (Rule 12) (1) The defects complained of;
(2) The paragraph wherein they are contained;
MOTION FOR BILL OF PARTICULARS - DEFINITION (3) The details desired.
It is a detailed explanation respecting any matter which is
not averred with sufficient definiteness/ particularity in ACTION OF THE COURT
the complaint as to enable a party to properly prepare his (1) Deny;
responsive pleading or to prepare for trial. (2) Grant the motion outright;
(3) Allow the parties the opportunity to be heard
It is filed by the plaintiff pursuant to a court order issued
upon granting a motion for Bill of Particulars filed by the COMPLIANCE WITH THE ORDER AND EFFECT OF
defendant before the latter files an answer. NON-COMPLIANCE

In said motion, the defendant prays for a more definite
statement of matters which are not averred with sufficient
definiteness in the complaint.
BILL OF PARTICULARS IN CIVIL AND CRIMINAL CASES
Civil Criminal
More particularized Details items or specific
outline of a pleading; in conduct not recited in the
the nature of a more Information but
specific allegation of nonetheless pertain to or
the facts recited in the are included in the crime
pleading. charged.
To enable an accused:
(1) to know the theory of
the government’s case;
(2) to prepare his defense
and to avoid surprise
The purpose is to
at the trial;
enable a party to
(3) to plead his acquittal
prepare his responsive
or conviction in bar of
pleading properly.
another prosecution
for the same offense;
and,
(4) to compel the
prosecution to observe
PURPOSE
To seek an order from the court directing the pleader to
submit a bill of particulars which avers matters with
“sufficient definiteness or particularity” to enable the
movant to properly prepare his responsive pleading. (Sec.
1, Rule 12)
COMPLIANCE WITH THE ORDER
If motion for Bill of Particulars is granted
wholly/partially:
(1) Within 10 days from notice of order, Bill of
Particulars or a more definite statement should
be submitted (unless court fixes a different
period).
(2) BOP or definite statement filed either as a
separate pleading or as an amended pleading, a
copy of which must be served on the adverse
party.
EFFECT OF NON-COMPLIANCE
In case of non-compliance or insufficient compliance
with the order for Bill Of Particulars, the court:
(1) May order the striking out of the pleading (or
portion thereof) to which the order is directed;
OR
(2) Make such order as it may deem just.
If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered by the
court. (Sec. 4, Rule 12; Sec. 3, Rule 17)
If defendant fails to obey, his answer will be stricken off
and his counterclaim dismissed, and he will be declared in
default upon motion of the plaintiff. (Sec. 3, Rule 9; Sec. 4,
Rule 12; Sec. 4, Rule 17)
EFFECT ON THE PERIOD TO FILE RESPONSIVE
PLEADING
A Motion for Bill of Particulars interrupts the period to
file a responsive pleading.

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Green Notes 2019 Civil Procedure

The movant may file his responsive pleading: An order granting a motion Occurs when the plaintiff
(1) Within the period he was entitled to at the time the to dismiss based on the has either filed the case in
motion was filed; OR following grounds below the wrong court, has come
(2) Within 5 days, whichever is higher. enumerated shall bar the to the court unprepared
refilling of the same claim due to no fault of his own,
Reckoning period to file responsive pleading: or action or there is some other
(1) Service of the Bill of Particulars or more definitive issue that needs to be
pleadings; OR taken care of before the
(2) Notice of denial of his Motion for Bill of Particulars. case can be heard.

NOTE: Motion of Bill of Particulars is NOT an alternative A dismissal without

remedy with a Motion to Dismiss. prejudice enables the
plaintiff to re-file the
I. Dismissal lawsuit at a later time.
• Res Judicata • Section 6 of Rule 16
• Prescription • All other not
MOTION TO DISMISS IN GENERAL
• Unenforceable under mentioned in the
A remedy of the defendant, or the responding party in
Statute of Frauds other column
general, which attacks the entire pleading and seeks its
dismissal based on:
(1) Grounds which are patent on the face of the
b. Dismissals which have an effect of an
complaint;
adjudication on the merits
(2) Defenses available to the defendant at the time of the
filing of the complaint.
Dismissal upon notice by plaintiff
A complaint may be dismissed by the plaintiff by filing a
✓ It hypothetically admits the facts stated in the
notice of dismissal at any time before service of the
complaint.
answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order
✓ It is not a responsive pleading. confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a
✓ It is subject to the omnibus motion rule since it is a notice operates as an adjudication upon the merits when
motion that attacks a pleading. filed by a plaintiff who has once dismissed in a competent
court an action based on or including the same claim.
Hence, it must raise all objections available at the time
of the filing thereof. Dismissal due to fault of plaintiff
If, for no justifiable cause, the plaintiff fails to appear on
General rule: A court may not motu propio dismiss a the date of the presentation of his evidence in chief on
case, unless a motion to that effect is filed by a party. the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Exception: Rules or any order of the court, the complaint may be
(a) Cases where the court may dismiss a case motu dismissed upon motion of the defendant or upon the
propio; (Rule 9, Sec. 1) court's own motion, without prejudice to the right of the
(b) Failure to prosecute; (Rule 17, Sec. 3) defendant to prosecute his counterclaim in the same or
(c) Sec. 4, Revised Rule on Summary Procedure. in a separate action. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise
declared by the court.
GROUNDS
(1) Lack of Jurisdiction over the defendant’s person;
(2) Lack of Jurisdiction over the subject matter of the
claim;
(3) Improper venue;
(4) Plaintiff’s lack of legal capacity to sue; 2. Rule 17
(5) Litis pendentia;
(6) Res judicata; DISMISSAL UPON NOTICE BY THE PLAINTIFF
(7) Prescription; Dismissal here is effected not by motion but by mere
(8) Failure to state a cause of action; notice before the service of either:
(9) Extinguished claim; 1. The answer;
(10) Unenforceable claim under the Statute of Frauds;
2. A motion for summary judgment. (Sec. 1, Rule
(11) Non-compliance with a condition precedent for filing
17)
claim.
It is not the order confirming the dismissal which
1. Kinds operates to dismiss the complaint. As the name of the
a. With prejudice vs. without prejudice order implies, said order merely confirms a dismissal
already effected by the filing of the notice of dismissal.
WITH PREJUDICE WITHOUT PREJUDICE Since the order issued by the Court merely confirms the

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Green Notes 2019
dismissal, it follows that the court does not have to
approve the dismissal because it has no discretion on the
matter (Riano, 2009)
General Rule: The dismissal is without prejudice.
Exception
(1) If the notice of dismissal provides that it is with
prejudice.
ü The dismissal is still with prejudice even it
the notice of dismissal does not so provide,
where such notice is premised on the fact
of payment by the defendant of the claim
involved. (Serrano v. Cabrera, 1953)
(2) TWO-DISMISSAL RULE
Applies when the plaintiff has:
(a) twice dismissed actions;
(b) based on or including the same claim;
(c) in a court of competent jurisdiction.
The second notice of dismissal will bar the refilling of the
action because it will operate as an adjudication of the
claim upon merits.
Accordingly, for a dismissal to operate as an adjudication
upon the merits, i.e., with prejudice to the re-filing of the
same claim, the following requisites must be present:
(1) There was a previous case that was dismissed by a
competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal were filed by the plaintiff;
and
(4) When the motion to dismiss filed by the plaintiff was
consented to by the defendant on the ground that
the latter paid and satisfied all the claims of the
former.
DISMISSAL UPON MOTION OF PLAINTIFF; EFFECT ON
EXISTING COUNTERCLAIM
Dismissal of the complaint is subject to the court’s
discretion and upon such terms and conditions as may be
deemed proper by court
Leave of court for the dismissal is necessary because the
motion is made after a responsive pleading or a motion
for summary judgment has been served.
EFFECT ON EXISTING COUNTERCLAIM:
If defendant pleaded a counterclaim prior to the service
upon him of the plaintiff’s motion for dismissal, the
dismissal shall be without prejudice to the defendant’s
right to either:
(1) Prosecute his counterclaim in a separate action;
(2) Have the counterclaim resolved in the same
action, by manifesting such preference within 15
days from being notified of plaintiff’s motion for
dismissal.
General Rule: Dismissal is without prejudice
Exceptions:
Lasallian Commission on Bar Operations
Civil Procedure
(1) When otherwise stated in the motion to
dismiss; OR
(2) When stated to be with prejudice in the order of
the court
Court approval of the court is necessary in the
dismissal/compromise of a class suit.
DIMISSAL DUE TO THE FAULT OF PLAINTIFF
A complaint may be dismissed even if the plaintiff has no
desire to have the same dismissed. The dismissal in this
case will be through reasons attributed to his fault. Sec 3
Rule 17 provides the grounds for dismissal:
The dismissal due to the fault of the plaintiff may be done
by the court on its own motion (motu proprio) or upon a
motion filed by the defendant (Sec 3, Rule 17, Rules of
Court)
(1) The failure of the plaintiff, without justifiable reasons,
to appear on the date of the presentation of his evidence
in chief;
•The plaintiff’s failure to appear at the trial after
he has presented his evidence and rested his
case does not warrant the dismissal of the case on
the ground of failure to prosecute.
(2) The failure of the plaintiff to prosecute his action upon
a reasonable length of time;
•The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances,
the plaintiff is chargeable with want of due
diligence in failing to proceed with reasonable
promptitude.
(3) The failure of the plaintiff to comply with the Rules of
Court; or
(4) The failure of the plaintiff to obey any order of the
court.
EFFECT OF DISMISSAL UNDER SEC. 3, RULE 17
General Rule: Dismissal is with prejudice and operates as
an adjudication on merits
Exception:
(1) Court declares otherwise; OR
(2) Court has yet to acquire jurisdiction on the person of
the defendant.
The dismissal due to the fault of the plaintiff may be done
by the court on its own motion (motu proprio) or upon a
motion filed by the defendant. (Sec 3, Rule 17, Rules of
Court)
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR
THIRD-PARTY COMPLAINT
The dismissal of the complaint under Sec. 2 of Rule 17 i.e.,
because of the fault of the plaintiff, is without prejudice
to the right of the defendant to prosecute his
counterclaim in the same action or in a separate action.
This Rule applies to the dismissal of counterclaims, cross-
claims or 3rd-party complaints.
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Exceptions:
A party’s non-appearance may be excused only if either
J. Pre-trial (Rule 18) 1. A valid cause is shown for it
2. A representative appears in his behalf, fully
authorized in writing:
CONCEPT OF PRE-TRIAL
a. To enter into an amicable settlement
b. To submit to alternative modes of
Pre-trial is mandatory in civil cases. In a civil case, it is
dispute resolution
not the court which initiates the setting of the case for
c. To enter into stipulations/admissions
pre-trial. It is set at the instance of the plaintiff. It shall be
of facts and of documents
the duty of the plaintiff to promptly file a motion to set
the case for pre-trial.
EFFECT OF FAILURE TO APPEAR AT THE PRE-TRIAL
This motion of the plaintiff is an ex parte motion, thus Who fails to
Effect
need not be subject of a hearing. appear
Dismissal of the action, with prejudice
Plaintiff
The motion for pre-trial is filed within 5 days from the unless otherwise ordered by the court
last pleading. If the plaintiff fails to file the said motion Cause to allow the plaintiff to present his
within the period, the branch clerk of court shall issue Defendant evidence ex-parte and the court to
notice of pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). render judgment on the basis thereof

LAST PLEADING: The last permissible pleading a party BY THE PLAINTIFF

can file is the reply to the answer to the last pleading
asserting the claim. Where the last pleading has not yet
been served and filed, the case is not yet ready for pre-
trial . However, the last pleading need not be literally
construed as one having been served and filed. For
purposes of pre-trial, the expiration of the period for the
filing the last pleading without it having been served and
filed is sufficient.
Since the dismissal of the action shall be with prejudice
unless otherwise provided, the same shall have the effect
of an adjudication on the merits thus, final.
BY THE DEFENDANT
The order allowing the plaintiff to present his evidence ex
parte does not dispose of the case with finality. The order
is therefore, merely interlocutory hence, not appealable.

NATURE AND PURPOSE Default by defendant As in Default

Upon motion and notice to Not required
Pre-trial is a procedural device held prior to the trial for defendant
the court to consider the following purposes (Sec. 2, Rule Requires proof of failure to Not required
18): answer
Court to render judgment, Court to allow plaintiff to
(a) Possibility of amicable settlement or submission to unless it requires present evidence ex parte,
alternative modes of dispute resolution submission of evidence then the court shall render
(b) Simplification of issues judgment
(c) Necessity or desirability of amendments to the Relief awarded must be the Relief awarded may be of
pleadings same in nature and amount different nature and
(d) Possibility of obtaining stipulations or admissions of as prayed for in the amount from the relief
facts and of documents to avoid unnecessary proof complaint prayed for
(e) Limitation of number of witnesses
(f) Advisability of a preliminary reference of issues to a PRE-TRIAL BRIEF
commissioner The parties shall file with the court their respective pre-
(g) Propriety of rendering judgment on the pleadings, or trial briefs which shall be received at least 3 days before
summary judgment, or of dismissing the action the date of the pre-trial. This pre-trial brief shall be
should a valid ground therefore be found to exist served on the adverse party.
(h) Advisability or necessity of suspending the
proceedings The pre-trial brief shall contain the following matters:
(i) Such other matters as may aid in the prompt (1) Statement of their willingness to enter into an
disposition of the action amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof
NOTICE OF PRE-TRIAL (2) Summary of admitted facts and proposed
Notice is important that it would be grave abuse of stipulation of facts
discretion for the court to allow the plaintiff to present (3) Issues to be tried or resolved
his evidence ex parte for failure of the defendant to (4) Documents or exhibits to be presented, stating
appear before the pre-trial who did not receive through the purposes thereof
his counsel a notice of pre-trial. (5) Manifestation of their having availed of their
intention to avail of the discovery procedures or referral
APPEARANCE OF PARTIES to commissioners
General rule: It shall be the duty of both the parties and (6) Number and names of the witnesses and he
their counsels to appear at the pre-trial. (Sec. 4, Rule 18) substance of their respective testimonies

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Green Notes 2019 Civil Procedure

EFFECT OF FAILURE TO FILE PRE-TRIAL BRIEF (2) Joining the defendant

The failure to file the pre-trial brief shall have the same (3) Asserting his right against both plaintiff and
effect as failure to appear at the pre-trial. defendant,

RECORD OF PRE-TRIAL REQUISITES FOR INTERVENTION

The pre-trial proceedings shall be recorded. Upon
termination of such proceedings, the court shall issue the
pre-trial order
PRE-TRIAL ORDER
This order of the court is issued by the court upon the
termination of the pre-trial. Pre-trial order shall be
issued within 10 days after the termination the pre-trial
(A.M. No. 03-109-SC, July 13, 2004)
(1) Legal interest
ü in the matter in controversy; or
ü in the success of either of the parties; or
ü against both parties; or
ü person 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

CONTENTS (2) Intervention will not unduly delay or prejudice the

(1) Matters taken up in the pleadings adjudication of rights of original parties;
(2) The action taken thereon
(3) The amendments allowed to the pleadings, and (3) Intervenor's rights may not be fully protected in a
(4) The agreements or admissions made by the separate proceeding. [Ortega v. CA (1998)]
parties as to any of the matters considered
(5) Should the action proceed to trial, the order Intervention is ancillary and supplemental to an existing
shall, explicitly define and limit the issues to be tried. litigation. Hence the final dismissal of the principal action
results into dismissal of said ancillary action.
General rule: The contents of the order shall control the
subsequent course of the action FACTORS TO BE CONSIDERED
(1) Whether the intervention will unduly delay or
Exception: prejudice the adjudication of the rights of the original
(1) Modified before trial to prevent manifest parties; and
injustice (2) Whether the intervenor’s rights may be fully
(2) Amendment to conform to evidence protected in a separate proceeding.
(3) Issues implied include therein or may be
inferable therefrom by necessary implication [Philippine WHO MAY INTERVENE
Export and Foreign Loan Guarantee Corp. v. Amalgated 1. One who has legal interest in the matter in
Management and Development Corp. (2011)] litigation.
2. One who has a legal interest in the success of
DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE either of the parties
AND PRE-TRIAL IN A CRIMINAL CASE 3. One who has an interest against both parties
4. One who is so situated as to be adversely
Civil Case [Rule 18] Criminal Case [Rule 118] affected by the distribution of other disposition
Set when the plaintiff Set by the court, no motion of property in the custody of the court or of an
moves ex parte to set required from the parties officer
the case for pre-trial
Made after the last Ordered by the court after HOW TO INTERVENE
pleading has been arraignment, and within 30 (a) With leave of court
served and filed days from the date the (b) Motion to intervene may be filed at any time before
court acquired jurisdiction the rendition of judgment by the trial court
over the person of the
accused PLEADINGS IN INTERVENTION
Possibility of an Possibility of an amicable 1. COMPLAINT-IN-INTERVENTION
amicable settlement is settlement is not among its if intervenor asserts a claim against either or all of the
an important objective purposes original parties
Sanctions for non- Sanctions are imposed upon
appearance are the counsel for the accused 2. ANSWER-IN- INTERVENTION
imposed upon plaintiff or the prosecutor if intervenor unites with the defendant in resisting a
and defendant claim against the latter
Pre-trial brief is Pre-trial brief is not
specifically required specifically required INTERVENTION AND INTERPLEADER,
DISTINGUISHED
Intervention Interpleader
K. Intervention (Rule 19) Ancillary Original
Proper in any of Presupposes that the plaintiff has
A legal proceeding by which a third person is permitted the four situations no interest in the subject matter of
by the court to become a party by either: mention in Rule 19 the action or has an interest which
(1) Joining the plaintiff in whole or in part is not disputed

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Green Notes 2019 Civil Procedure

by the other parties b. Test of definiteness – such books must be

Defendants are Defendants are being sued reasonably described by the parties to be
already original precisely to implead them readily identified
parties to the
pending suit
SUBPOENA AD TESTIFICANDUM
TIME TO INTERVENE Process directed to a person requiring him to attend and
Motion may be filed at any time before rendition of to testify at:
judgment. a. the hearing or the trial of an action
b. at any investigation conducted by competent
Answer to complaint-in-intervention must be filed within authority OR
15 days from notice of the order admitting the complaint- c. for the taking of his deposition
in-intervention, unless a different period is fixed by the
court. FORMS AND CONTENTS
a. Name of the court
REMEDY FOR THE DENIAL OF MOTION TO b. Title of the action or investigation
INTERVENE c. Directed to the person required to attend

(a) If intervention is denied GROUNDS FOR QUASHING

ü Appeal by the aggrieved party
ü Mandamus, if there is grave abuse of
discretion
(b) If intervention is granted
ü Petition for certiorari for improper
granting of intervention
L. Subpoena (Rule 21)
Subpoena is a process directed to a person requiring him
to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent
authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or
other things under his control, in which case it is called a
subpoena duces tecum. (Sec.1, Rule 21)
SUBPOENA DUCES TECUM
A process directed to a person which requires him to
bring with him the following:
a. any books
b. documents OR
c. other things under his control
FORMS AND CONTENTS
a. Name of the court
b. Title of the action or investigation; It shall be
directed to the person required to attend
c. Directed to the person required to attend
d. Must contain a reasonable description of books,
documents or things demanded which must
appear to the court prima facie relevant
GROUNDS FOR QUASHING
(1) It is unreasonable or oppressive
(2) The articles sought to be produce do not appear to be
relevant
(3) Person asking for subpoena does not advance cost of
production
(4) Witness fees and kilometrage was not served
a. Witness is not bound thereby
b. Witness fees and kilometrage was not served
SERVICE OF SUBPOENA
Service of a subpoena shall be made in the same manner
as personal or substituted service of summons. The
original shall be exhibited and a copy thereof delivered to
the person on whom it is served, tendering to him the
fees for one day’s attendance and the kilometrage allowed
by these Rules, except that, when a subpoena is issued by
or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made.
The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or
things demanded shall also be tendered. (Sec.6, Rule 21,
ROC).
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
The court which issued the subpoena may, upon proof of
service and failure of witness to attend, issue a warrant
for the arrest of the witness and make him pay the cost of
such warrant and seizure, if the court should determine
that his disobedience was willful and without just cause
(Sec. 8, Rule 21)
The refusal to obey a subpoena without adequate cause
shall be deemed contempt of the court issuing it. (Sec. 9,
Rule 21)
QUASHING OF SUBPOENA
The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the
time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or
things does not appear, or if the person in whose behalf
the subpoena is issued fails to advance the reasonable
cost of the production thereof.

For subpoena duces tecum to issue, the court must M. Computation of Time (Rule 22)
satisfy:
a. Test of relevancy – the books, documents or How to compute time:
other things requested must appear prima facie
relevant to the issue subject of the controversy

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Green Notes 2019
• The day of the act or event from which
designated period of time begins to run is to be
excluded and the date of performance included.
• If the last day of the period falls on a Saturday, a
Sunday or a legal holiday in the place where the
court sits, the time shall not run until the next
working day.
When the law speaks of:
Year 365 days
Month 30 days
*If months are designated by their name,
they shall be computed by the number of
days which they respectively have
Day 24 hours
Night from sunset to sunrise
Night
Effect of interruption:
• The allowable period after such interruption
shall start to run on the day after notice of the
cessation of the cause thereof
• The day of the act that caused the interruption
shall be excluded in the computation of the
period.
N. Modes of Discovery
1. Depositions (Rules 23 and 24)
DEPOSITION PENDING ACTION; DEPOSITION BEFORE
ACTION OR PENDING APPEAL
DEPOSITION PENDING ACTION
By leave of court after jurisdiction has been obtained over
any defendant or over property which is the subject of
the action, 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,
by deposition upon oral examination or written
interrogatories. (Rule 23; 2010 Bar)
DEPOSITION BEFORE ACTION OR PENDING APPEAL
A person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a
verified petition in the court of the place of the residence
of any expected adverse party. (Rule 24)
MEANING OF DEPOSITION
The taking of the testimony of any person, whether he be
a party or not, but at the instance of a party to the action.
This testimony is taken out of court. (Riano)
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.
(Darmarias Garments v. Reyes, 225 SCRA 622)
Two Methods for Taking Deposition
(1) Oral examination
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Civil Procedure
(2) Written interrogatory
USES
(1) Any part or all of the deposition, so far as admissible
under the rules of evidence, may be used
ü against any party who was present or
represented at the taking of the deposition, or
ü against one who had due notice of the
deposition. The deposition or any of its parts,
may be used at the trial or upon the hearing of a
motion or an interlocutory proceeding
(2) The deposition may be used for the following
purposes:
ü For contradicting or impeaching the testimony
of the deponent as a witness;
ü For any purpose by the adverse party where the
deponent is a party or at the time of the
deposition was an officer, director, or managing
agent of a public or private corporation,
partnership or association which is a party;
ü For any purpose by any party, where the
deponent is a witness, whether or not a party, if
the court finds that (i) the witness is dead, (ii)
that the witness resides 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 (iii) that the
witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or (iv)
that the party offering the deposition has been
unable to procure the attendance of witnesses
by subpoena; or (v) when exceptional
circumstances exists, upon application and
notice (Riano).
SCOPE OF EXAMINATION
Deponent may be examined regarding any matter:
(1) Not privileged;
(2) Relevant to the subject of the pending action
(3) Under suchs limitations as the court may order
under Sec. 16 and 18.
(4) 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.
WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE
Objection may be made at the trial or hearing, to
receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the
evidence if the witness were then present and testifying
(Sec. 6, Rule 23)
WHEN MAY TAKING OF DEPOSITION BE TERMINATED
OR ITS SCOPE LIMITED
When done: At any time during the taking of the
deposition
How done: On motion or petition of any party or of the
deponent, filed in the court in which the action is pending
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or the Regional Trial Court of the place where the
deposition is being taken.
Grounds:
(1) Upon a showing that the examination is being
conducted in bad faith or
(2) In such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party.
2. Interrogatories to parties (Rule 25)
WRITTEN INTERROGATORIES TO ADVERSE PARTIES
Purpose
This mode of discovery is availed of by a party to the
action for the purpose of eliciting material and relevant
facts from any of the adverse party (Sec. 1, Rule 25)
Who can apply
(1) Any party desiring to elicit material and relevant
facts from any adverse party shall file and serve upon
the latter written interrogatories to be answered by
the party served.
(2) If the person served is a private or public
corporation, partnership or association, then it will
be answered by any officer competent to testify in
its behalf.
Need for leave of court
Leave of court for written interrogatories is NEEDED if
the answer has not yet been served. If it has been served,
leave of court is NOT needed.
Note: No party may, without leave of court, serve more
than one set of interrogatories to be answered by the
same party
Answers
The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making them.
The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15)
days after service thereof. This period may, upon motion
and for good cause shown, be extended or shortened by
the court.
CONSEQUENCE OF REFUSAL TO ANSWER
The court on motion and notice, may:
(1) strike out all or any part of any pleading of that party
(2) dismiss the action or proceeding or any part thereof
(3) enter a judgment by default against that party, and in
its discretion
(4) order him to pay reasonable expenses incurred by
the other, including attorney's fees. (Sec. 5, Rule 29)
EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES
General rule: A party not served with such may NOT be
compelled by the adverse party
(1) to give testimony in open court or
(2) deposition pending appeal
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Civil Procedure
Exception: Unless allowed by the court for good cause
shown and to prevent failure of justice
Objections
Objections to it may be presented to the court within 10
days after service. The filing of the objections shall have
the effect of deferring the filing and service of the answer
to the interrogatories until the objections are resolved
3. Admission by adverse party (Rule 26)
REQUEST FOR ADMISSION
Purpose (Sec. 1, Rule 26)
(1) to allow one party to request the adverse party in
writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial
(2) to avoid inconvenience to the parties in going
through the rigors of proof, before the trial, a party
may request the other to:
ü admit the genuineness of any material and
relevant document described in and exhibited
with the request; or
ü admit the truth of any material and relevant
matter of fact set forth in the request
WHEN MADE
At any time after issues have been joined
HOW MADE
(1) A party may file and serve upon any other party may
file and serve upon any other party a written request
for the admission by the latter of the genuineness of
any material and relevant document described in
and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the
request.
(2) Copies of the documents shall be delivered with the
request unless copy have already been furnished.
IMPLIED ADMISSION BY ADVERSE PARTY
Each of the matter requested to be admitted shall be
deemed admitted.
UNLESS within a period designated in the request, which
shall not be less than fifteen (15) days after service
thereof, or within such further time as the court may
allow on motion, party requested serves upon the party
requesting a sworn statement either specifically denying
or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
CONSEQUENCES OF FAILURE TO ANSWER REQUEST
FOR ADMISSION
The proponent may apply to the proper court of the place
where the deposition is being taken, for an order to
compel an answer.
If the application is granted, the court:
(a) shall require the refusing party or deponent to
answer the question or interrogatory and
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(b) if it also finds that the refusal to answer was without (d) Permit entry upon designated land or other
substantial justification, it may require the refusing property in his possession or control for the
party or deponent or the counsel advising the purpose of inspecting, measuring, surveying, or
refusal, or both of them, to pay the proponent the photographing the property or any designated
amount of the reasonable expenses incurred in relevant object or operation thereon.
obtaining the order, including attorney's fees.
The order SHALL STATE
If the application is denied and the court finds that it was 1. The time, place and manner of making the
filed without substantial justification, the court may inspection and taking copies AND
require the proponent or the counsel advising the filing of 2. Such terms and conditions which are just.
the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses Production or inspection of things or documents and
incurred in opposing the application, including attorney's Subpoena Duces Tecum, distinguished
fees. (Sec. 1, Rule 29) Production or inspection of
Subpoena Duces Tecum
things or documents
EFFECT OF ADMISISON Essentially a mode of Means of compelling
Admission is only for the purpose of the pending action discovery production of evidence
and shall NOT constitute an admission for any other Rules are limited to the May be directed to a
person nor may it be used against him in any other parties to the action person whether a party or
proceeding. not
Withdrawal The order under this rule is May be issued upon an ex
The court may allow the party making an admission
issued only upon motion parte application
under the Rule, whether express or implied, to withdraw
with notice to the adverse
or amend it upon such terms as may be just.
party
The admitting party must file a motion to be relieved of
the effects of his admissions
5. Physical and mental examination of
EFFECT OF FAILURE TO FILE AND SERVE REQUEST persons (Rule 28)
FOR ADMISSION
General rule: A party who fails to file and serve a request PHYSICAL AND MENTAL EXAMINATION OF PERSONS
for admission on the adverse party of material facts
within the personal knowledge of the latter shall not be This mode of discovery applies to an action in which the
permitted to present evidence thereon mental or physical condition of a party is in controversy
(Sec. 1, Rule 28).
Exception: Unless otherwise allowed by the court for
(1) Good cause shown, and Examples of this action would be:
(2) To prevent a failure of justice (a) An action for annulment of a contract where the
ground relied upon is insanity.
4. Production or inspection of documents or (b) A petition for guardianship of a person alleged to be
things (Rule 27) insane;
(c) An action to recover damages for personal injury
PRODUCTION OR INSPECTION OF DOCUMENTS OR where the issue is the extent of the injuries of the
THINGS plaintiff (Riano)
FILING OF THE MOTION
A motion must be filed by the party seeking the pro- PROCEDURE
duction or inspection of documents and things and the A motion for the examination is filed in the court where
motion must show good cause supporting the same. the action is pending:
(a) Showing good cause for the examination;
Applicable only to a pending action and the things subject (b) With notice to the party to be examined, and all
of the motion must be within the possession, control, or other parties
custody of a party. (c) Specifying the time, plane, manner, conditions and
scope of examination.
PURPOSE
The Court may issue an order for the party to: WAIVER OF PRIVILEGE
1. Produce and permit the inspection and The party examined waives any privilege he may have in
copying or photographing of any that action regarding the testimony of the person who
designated documents, papers, books, has examined or may examine him with respect to that
accounts, letters, photographs, objects same mental or physical examination by:
or tangible things 1. Requesting and obtaining a report of the
(a) not privileged examination so ordered OR
(b) which constitute or contain evidence material 2. Taking the deposition of the examiner
to any matter involved in the action and
(c) are in his possession, custody or control. Physician-patient privilege is inapplicable because the
results of the examination are intended to be made
public.

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Green Notes 2019
REPORT OF FINDINGS
The party examined may request the party causing the
examination to be made to deliver to him a copy of a
detailed written report of the examining physician setting
out his findings and conclusions. After such request and
delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party
examined a like report of any examination, previously or
thereafter made, of the same mental or physical condition
(Sec. 3, Rule 28).
If the party examined refuses to deliver the report, the
court may make an order requiring the delivery on such
terms as are just. If it is the physician who fails or refuses
to make a report, the court may exclude his testimony if
offered at the trial (Sec. 3, Rule 28).
The Court exercises full discretion in regulating physical
and mental examinations of a party to a controversy. The
defendant seeking physical examination of a plaintiff has
no absolute right to choose his own physician. The Court
must first determine whether a physical examination is
necessary, then determine the physician who shall
conduct the examination.
6. Refusal to comply with modes of
discovery (Rule 29)
CONSEQUENCES OF REFUSAL TO COMPLY WITH
MODES OF DISCOVERY
The court may upon proper application, compel a
deponent who refuses to answer an oral
examination/interrogatory submitted (Sec. 1, Rule 29).
A refusal to answer after being directed by the court may
be considered as a contempt of court (Sec. 2, Rule 29).
(a) If the application is granted, the court shall require
the refusing party or deponent to answer the
question or interrogatory and if it also finds that the
refusal to answer was without substantial
justification, it may require the refusing party or
deponent or the counsel advising the refusal, or both
of them, to pay the proponent the amount of the
reasonable expenses incurred in obtaining the order,
including attorney's fees.
(b) If the application for an order to compel a deponent
to answer is denied, the court may require the
proponent or the counsel advising the application, or
both of them, to pay to the refusing party or
deponent the amount of reasonable expenses
incurred in opposing the application, including
attorney’s fees (Sec. 1, Rule 29).
REFUSAL TO BE SWORN
A refusal of a party to be sworn after being directed by
the court may be considered as contempt of court. (Sec. 2,
Rule 29)
REFUSAL TO OBEY ORDER
If a party/officer or managing agent of a party refuses to
obey an order requiring him:
(1) To answer designated questions
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Civil Procedure
(2) To produce a thing for inspection or to permit entry
upon property
(3) To submit to a physical or mental examination
The court may order:
(1) That the matters regarding which the questions
were asked, or the character of the land or the thing,
or the physical and mental condition of the party be
taken to be established.
(2) The disallowance of the disobedient party’s claims
(3) The prohibition of the disobedient party to present
evidence
(4) The striking out of the pleadings or parts thereof
(5) The dismissal of the action or parts thereof
(6) Rendering judgment by default against the
disobedient party OR
(7) The arrest of any party or agent EXCEPT in
disobeying an order to submit to a physical or
mental examination.
FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS
If a party refuses to attend or serve answers, the court
may:
(1) Strike out all or any part of any pleading of that
party.
(2) Dismiss the action or any part thereof.
(3) Enter a judgment by default against that party,
OR/AND
(4) Order that party to pay reasonable expenses
incurred, including attorney’s fees.
The Republic of the Philippines cannot be required to pay
expenses and attorney’s fees under this Rule.
O. Trial (Rule 30)
Trial - judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the Plaintiff and ending with his closing
arguments.
General Rule: When an issue exists, trial is necessary.
Decision should not be made without trial.
Exceptions:
(1) Judgment on the Pleading – where the pleadings
tender no issue at all
(2) Summary Judgment – where from the pleadings,
affidavits, depositions, and other papers, there is
actually no genuine issue
(3) Judgment on Compromise
(4) Judgment by Confession
(5) Dismissal with Prejudice
(6) Judgment under Rule on Summary Procedure
(7) When the parties, in writing, agree upon the
stipulation of facts
ISSUES IN TRIAL
Trial shall be limited to the issues stated in the pre-trial
order unless subject to Section 2 Rule 31.
Additional evidence may be offered at the rebuttal stage
(subject to the discretion of the court) if:
(1) it is newly discovered evidence
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Green Notes 2019
(2) it is omitted through mistake or inadvertence
(oversight)
(3) the purpose is to correct evidence previously offered
HEARING
It is not confined to trial but embraces several stages of
litigation including pre-trial stage. It does not necessarily
mean presentation of evidence.
Notice of Trial
Upon entry of the case in the trial calendar, the clerk of
court shall notify the parties of the date of trial in such
manner as to ensure its receipt at least five (5) days
before such date (Sec. 1, Rule 30).
ADJOURNMENT AND POSTPONEMENTS
A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient
transaction of business may require.
However, the court has no power to adjourn a trial for:
(1) A period longer than 1 month for each adjournment
OR
(2) More than 3 months in all
Exception: when authorized in writing by the court
administrator
REQUISITES OF MOTION TO POSTPONE TRIAL
Postponements are to the sound discretion of the court
and in the absence of grave abuse, it cannot be controlled
by mandamus. It is not a matter of right.
If the adverse party admits the facts to be given in
evidence, the trial will not be postponed even if he
objects or reserves the right to object to their
admissibility.
FOR ABSENCE OF EVIDENCE
Requisites:
(1) A motion for postponement stating the ground relied
upon must be filed AND
(2) The motion must be supported by an affidavit
showing
(a) The materiality and relevancy of such evidence,
and
(b) That due diligence has been used to procure it.
FOR ILLNESS OF PARTY OR COUNSEL
Requisites:
(1) A motion for postponement stating the ground relied
upon must be filed AND
(2) The motion must be supported by an affidavit or
sworn certification showing
(a) The presence of such party or counsel at the
trial is indispensable AND
(b) That the character of his illness is such as to
render his non-attendance excusable
AGREED STATEMENT OF FACTS
The parties to any action may agree, in writing, upon the
facts involved in the litigation, and submit the case for
Lasallian Commission on Bar Operations
Civil Procedure
judgment on the facts agreed upon, without the
introduction of evidence but if the parties agree only on
some facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe
(Sec. 6, Rule 30).
Not permitted in Annulment of Marriage and for Legal
Separation.
ORDER OF TRIAL
Subject to the provisions of Sec. 2 of Rule 31, and unless
the court for special reasons otherwise directs, the trial
shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his
complaint;
(b) The defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and third-
party complaint;
(c) The third-party defendant, if any, shall adduce
evidence of his defense, counterclaim, cross-claim
and fourth- party complaint;
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or
cross-claim has been pleaded, shall adduce evidence
in support of their defense, in the order to be
prescribed by the court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to
adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any other pleadings.
If several defendants or third-party defendants, and so
forth, having separate defenses appear by different
counsel, the court shall determine the relative order of
presentation of their evidence
The normal order of trial may be modified if the court, in
furtherance of convenience and to avoid prejudice,
orders a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint. It may also order,
for the same reasons, a separate trial of any separate
issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues (Sec. 2,
Rule 31).
REVERSAL OF ORDER
The Defendant presents evidence ahead of the Plaintiff,
when the Defendant in his answer, relies upon an
affirmative defense.
Ratio
Plaintiff need not have to present evidence since judicial
admissions do not require proof.
P. Consolidation or Severance (Rule
31)
CONSOLIDATION
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Green Notes 2019
This involves several actions having a common question
of law or fact which may be jointly tried.
SEVERANCE
This contemplates a single action having a number of
claims, counterclaims, cross-claims, third-party claims,
or issues which may be separately tried.
Purpose
(1) to avoid multiplicity of suits
(2) to guard against oppression or abuse
(3) to prevent delay
(4) to clear congested dockets
(5) to simplify the work of the Trial Court
(6) to save unnecessary cost and expenses
General Rule: Consolidation applies to cases pending
before the same judge and not to cases pending in
different branches of the same court or different courts.
This also applies to special proceedings.
Exception: Whenever appropriate, and in the interest of
justice, consolidation in different branches of the same or
different courts can be effected.
(Bank of Commerce v. Hon. Perlas-Bernabe, G.R. No.
172393)
3 ways of consolidating cases:
(1) Where all except one of several
actions are stayed until one is tried, in
which case the judgment in the one
trial is conclusive as to the others.
This is not actually consolidation but
is referred to as such. (quasi-
consolidation)
(2) Where several actions are combined
into one, lose their separate identity,
and become a single action in which a
single judgment is rendered. This is
illustrated by a situation where several
actions are pending between the same
parties stating claims which might
have been set out originally in one
complaint. (actual consolidation)
(3) Where several actions are ordered to
be tried together but each retains its
separate character and requires the
entry of a separate judgment. This
type of consolidation does not merge
the suits into a single action, or cause
the parties to one action to be parties
to the other. (consolidation for trial)
(Republic v. Sandiganbayan, 662 SCRA
152)
Cases can be consolidated for purposes of a single appeal,
and 1 decision can be rendered.
The Supreme Court can also order the consolidation of
the case with the same parties or issues filed in different
courts of equal jurisdiction.
Courts may render separate judgements on each claim
and must be with jurisdiction of the court.
DELEGATION OF RECEPTION OF EVIDENCE
Lasallian Commission on Bar Operations
Civil Procedure
To relieve the judge of some of his judicial functions
when it can be entrusted to a responsible officer.
General Rule: The judge must personally receive or
resolve evidence of the parties.
Exception: It may be delegated only if:
(1) Delegation may only be made in default or ex parte
hearings, or on agreements in writing by the parties.
(2) Reception of evidence shall be made only by the
clerk of court who is a member of the bar.
(3) The Clerk shall have no paper to rule on objections
to any question, admission of evidence, or exhibits
(4) He shall submit his reports and transcripts of the
proceedings together with the objections to be
resolved by the court within 10 days from the
termination of the hearing.
TRIAL BY COMMISSIONERS
Commissioner - A person to whom a case pending in
court is referred, for him to take testimony, hear the
parties and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
The Commissioner may rule upon the admissibility of
evidence, unless otherwise provided in the order of
preference.
General Rule: Trial by commissioner depends largely upon
the discretion of the court.
Exception: The following are instances when such
appointments are mandatory:
(1) Expropriation
(2) Partition
(3) Settlement of Estate of a Deceased Person in case of
contested claims
(4) Submission of accounting by executors or
administrators
An irregularity in the appointment of a commissioner
must be seasonable raised in the Trial Court where the
defect could still be remedied. It could be waived by
consent of the parties, expressly or impliedly.
REFERENCE BY CONSENT OR ODERED ON MOTION
REFERENCE BY CONSENT
The court may order any or all of the issues in a case to
be referred to a commissioner to be agreed upon by the
parties or to be appointed by the court by written
consent of both parties,.
REFERENCE ORDERED ON MOTION
The court may, upon the application of either or of its
own motion, direct a reference to a commissioner in the
following cases:
(a) When the trial of an issue of fact requires the
examination of a long account on either side, in
which case the commissioner may be directed to
hear and report upon the whole issue or any specific
question involved therein;
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Green Notes 2019 Civil Procedure

(b) When the taking of an account is necessary for the

information of the court before judgment, or for Objections to the report based upon grounds which were
carrying a judgment or order into effect. available to the parties during the proceedings before the
(c) When a question of fact, other than upon the commissioner, other than objections to the findings and
pleadings, arises upon motion or otherwise, in any conclusions therein, set forth, shall not be considered by
stage of a case, or for carrying a judgment or order the court unless they were made before the
into effect. commissioner.
HEARING
POWERS OF THE COMMISSIONER Upon the expiration of the period of ten (10) days referred
(1) Exercise power to regulate the proceedings before to in the preceding section, the report shall be set for
him. hearing, after which the court shall issue an order
(2) Do all acts and take all measures necessary or proper adopting, modifying, or rejecting the report in whole or in
for the efficient performance of his duties. part, or recommitting it with instructions, or requiring
(3) Swear witnesses the parties to present further evidence before the
(4) Issue subpoenas and subpoenas duces tecum commissioner or the court (Sec. 11, Rule 32)
(5) Unless otherwise provided in the order of reference.
(6) Rule upon the admissibility of evidence. Q. Demurrer to Evidence (Rule 33)
(7) Requirement of hearing cannot be dispensed with.
GROUNDS
After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the
Failure of parties to appear before the commissioner ground that upon the facts and the law the plaintiff has
If a party fails to appear at the time and place appointed, shown no right to relief. (Sec. 5, Rule 30)
the commissioner may proceed ex parte or, in his
discretion, adjourn the proceedings to a future day, giving WHEN TO AVAIL
notice to the absent party or his counsel of the A demurrer to evidence is availed of by the defendant
adjournment after the plaintiff has completed the presentation of his
evidence (Sec 1, Rule 33, Rules of Court)
Disobedience to a subpoena issued by the commissioner
is deemed contempt of the court which appointed the DEMURRER TO EVIDENCE v. MOTION TO DISMISS
latter Demurrer to evidence Motion to dismiss
It is presented after the Presented before a
Delegation to Clerk of Trial by Commissioner plaintiff has rested its responsive pleading (answer)
Court case is made by the defendant
Clerk of court must be a Commissioner need not be a The ground is based on It may be used on any of
lawyer lawyer insufficiency of evidence those enumerated in Rule 16
Clerk of court cannot If motion is denied, If the motion is denied,
Commissioner can rule on
rule on objection or on defendant may present defendant may file his
objections or on admissibility
the admissibility of his evidence responsive pleading
of evidence
evidence If the motion is granted, the
If motion is granted, the
Commissioner can be complaint is dismissed and
complaint is dismissed.
Delegation is made appointed even after the depending on the ground,
The remedy of the
during trial case has become final and the complaint may be re-
plaintiff is to appeal
executory filed

COMMISSIONER’S REPORT
Upon the completion of the trial or hearing or proceeding
before the commissioner, he shall file with the court his
report in writing upon the matters submitted to him by
the order of reference.
When his powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his
report.
He shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial
evidence presented before him.
EFFECT OF DENIAL
If the demurrer is denied, the defendant shall have the
right to present his evidence. This means that the denial
of the demurrer to evidence does not deprive the
defendant of the opportunity to adduce evidence in his
behalf. 

Where a Court denies a demurrer to evidence, it should
set the date for the reception of the defendant’s evidence
in chief. It should not proceed to grant the relief
demanded by the plaintiff (Northwest Airlines, Inc vs.
Court of Appeals)

NOTICE TO PARTY An order denying a demurrer to the evidence is

Upon the filing of the report, the parties shall be notified
by the clerk.
They shall be allowed ten (10) days within which to signify
grounds of objections to the findings of the report, if they
so desire.
interlocutory and is, therefore, not appealable. It can,
however, be the subject of a petition for certiorari in case
of grave abuse of discretion or an oppressive exercise of
judicial authority. (Katigbak vs. Sandiganbayan) 


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Green Notes 2019 Civil Procedure

Note: The provisions of the Rules of Court governing Note: It will not apply when no answer is filed.
demurrer to evidence does not apply to an election case
(Gementiza vs. COMELEC) GROUNDS
This is upon motion of the Plaintiff, and no introduction
EFFECT OF GRANT of evidence is needed. But, may also be filed by the
If granted, the case shall be dismissed. defendant on his counter claim where the answer to his
counterclaim:
WAIVER OF RIGHT TO PRESENT EVIDENCE (1) fails to tender the issue
If the motion is granted but on appeal the order of (2) admits the material allegation of the Plaintiff
dismissal is reversed he shall be deemed to have waived
the right to present evidence. (Sec. 5, Rule 30) An answer failed to tender an issue when the material
allegations of the other party are admitted or not
DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS specifically denied by the pleader. Under the rules,
DEMURRER TO EVIDENCE IN A CRIMINAL CASE material allegations of the complain not specifically
denied are deemed admitted (Rule 11, Sec. 8)
Civil Cases Criminal Cases
Defendant need not ask May be filed with or General rule: Judgment on the Pleadings can be done
for leave of court without leave of court. only upon motion to that effect filed by the Claimant. It
Leave of court is necessary cannot be rendered by the court motu proprio.
so that the accused could
present his evidence if the Exception: If at pre-trial the court finds that a judgment
demurrer is denied. on the pleading is proper, it may render such judgment
If the court finds If the court finds the motu proprio (Sec. 2(g), Rule 18)
plaintiff’s evidence prosecution’s evidence
insufficient, it will grant insufficient, it will grant Effects
the demurrer by the demurrer by rendering (1) Plaintiff/ Claimant
dismissing the complaint. judgment acquitting Plaintiff, by moving for judgement on pleadings, is not
The judgment of accused. Judgment of deemed to have admitted irrelevant allegation in
dimsissal is appealable by acquittal is not appealable; Defendant's answer.
the plaintiff. If plaintiff double jeopardy sets in.
appeals and judgment is Plaintiff waives his claim for unliquidated damages
reversed by the appellate
court, it will decide the One who prays for judgment on the pleadings without
case on the basis of the offering proof as to the truth of his own allegations and
plaintff’s evidence with without giving the opposing party an opportunity to
the consequence that the introduce evidence, must be understood to ADMIT all
defendant already loses MATERIAL and RELEVANT ALLEGATIONS of the
his right to present opposing party and to rest his motion for judgment on
evidence; no res judicata those allegations taken together with such of his own as
in dismissal due to are admitted in the pleadings.
demurrer.
The court denies If the court denies the (2) Defendant
demurrer; defendant will demurrer: Defendant is not deemed to have admitted allegations of
present his evidence. (1) if demurrer was with damages in the complaint so no award of damages
leave, accused may without any proof.
present evidence
(2) If demurrer was When Judgment on the Pleadings not applicable
without leave, Material facts alleged in the complaint must always be
accused can no longer proved in
present his evidence (1) Declaration of nullity of marriage
and submits the case (2) Annulment of marriage
for decision based on (3) Legal separation (Sec. 1, Rule 34)
the prosecution’s
evidence Note: When no answer is filed, the remedy is to move the
defendant to be declared in default.

R. Judgments and Final Orders In case of insufficiency of facts, the proper remedy is
amendment.

1. Judgment on the Pleadings (Rule 34)

2. Summary judgments (Rule 35)

JUDGMENT ON THE PLEADINGS

SUMMARY JUDGMENTS
A judgment rendered by the court if the answer fails to
Also called “accelerated judgment”
tender an issue or otherwise admits the material
allegation of the adverse party’s pleading. (Sec. 1, Rule 34)

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Green Notes 2019 Civil Procedure

One, which is rendered by the court on motion of a party, (a) There is no genuine issue as to any
either of the plaintiff or the defendant where there is material fact, except damages which
actually no genuine issue between the parties (Riano) must always be proved; and
(b) The movant is entitled to a judgment
When proper as matter of law.
Summary Judgment is proper only when there is clearly
no genuine issue as to any material fact in the action. If AFFIDAVITS AND ATTACHMENTS
there is any question or controversy upon and question of Form of affidavits and supporting papers
fact, there should be a trial on the merits. (1) Made on personal knowledge
(2) Shall set forth such facts as would be admissible in
Genuine Issue evidence
An issue of fact which call for the presentation of (3) Shall show affirmatively that the affiant is competent
evidence. It is an issue of fact which requires the to testify to the matters stated therein
presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim. Attachments
Proper only in an action Certified true copies of all papers or parts thereof
(1) for a liquidated sum of money referred to in the affidavit shall be atacked thereon or
(2) to collect a debt served therewith.
(3) for declaratory relief Affidavits in bad faith
Affidavits presented under this rule which appear to the
Before the Defendant has answered or moved for court at any time as presented in bad faith or solely for
summary judgment, Plaintiff may, as a matter of right the purpose of delay.
and without order of court, File a Notice of Dismissal at
any time before such answer or motion, without prejudice Effects of presenting affidavits in bad faith
or without prejudice where: (1) Court shall order the offending party or counsel to
(1) the notice states so, pay the other party - amount of reasonable expenses
(2) two-dismissal rule, i.e., Plaintiff had previously which the filing of the affidavits caused him to incur,
dismissed the same case in a court of Competent including attorney’s fees
jurisdiction (2) Court may adjudge the offending party or counsel
(3) even if the notice does not so provide it is premised guilty of contempt, after hearing
on fact of payment by the defendant of the claim
involved.
JUDGMENT ON THE PLEADINGS VERSUS SUMMARY
JUDGMENTS
Who may file the Judgment on Pleadings Summary Judgment
When
motion Proper when it appears Proper even when there is an
Any time after the pleading in answer that there is no issue issue as to damages
Claimant thereto has been served. between the parties. recoverable
(Sec. 1, Rule 35)
Anytime. Based exclusively upon Based not only on the
Defendant
(Sec. 2, Rule 35) the pleadings without pleadings but also on
introduction of evidence. affidavits, depositions, and
WHEN THE CASE NOT FULLY ADJUDICATED admissions of parties
The court at the hearing of the motion, by examining the showing that, except as to
pleadings and the evidence before it and by interrogating the amount of damages,
counsel shall ascertain what material facts exist without there is no genuine issue.
substantial controversy and what are actually and in good
faith controverted. Available in any action Only in actions to recover a
except annulment of debt, or for liquidated sum of
It shall thereupon make an order specifying the facts that marriage or legal money, or for declaratory
appear without substantial controversy, including the separation where it must relief.
extent to which the amount of damages or other relief is always be proved.
not in controversy, and directing such further Subject only to the 3 day Requires prior 10-day notice
proceedings in the action as are just. The facts so notice rule and where all rule.
specified shall be deemed established, and the trial shall the material averments of
be conducted on the controverted facts accordingly.(Sec. the complaint are
4, Rule 35) admitted, motion may be
made ex parte.
Bases of Summary Judgment Generally available only Available to both plaintiff and
(1) Affidavits made on personal knowledge to the plaintiff, unless the defendant
(2) Depositions of the adverse party or a third-party defendant presents a
under Rule 233. counterclaim
(3) Admissions of the adverse party under Rule26. Judgment on the merits May be interlocutory or on
(4) Answers to interrogatories under Rule 25; all the merits
intended to show that:

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(1) Motion for New trial (a) Relief from judgment or

(2) Motion for final order
3. Rendition and entry of judgments and reconsideration (b) Annulment of judgment
final orders (Rule 36) (3) Appeal (c) Petitioner for certiorari

Filing of the signed decision with the clerk of court and

not pronouncement in open court is that which S. Post-Judgment Remedies
constitutes rendition of judgment. (Riano)
1. Motion for new trial or reconsideration
If decision is sent by the judge by registered mail, it is
a. Rule 37
considered filed in court as of the date of its receipt by
the clerk and not the date of its posting or mailing.
GROUNDS FOR MOTION FOR NEW TRIAL OR
RECONSIDERATION
Memorandum decisions may adopt by reference the
findings of fact and conditions of law contained in the [F-A-M-E]
Trial Court decision. FRAUD
Must be extrinsic fraud. Extrinsic farud connotes any
General Rule: Validity of Judgment or order of a court fraudulent scheme executed by the prevailing party
cannot be collaterally attacked. outside the trial against the missing party who because of
such fraud is prevented from presenting his side of the
Exception: If attacked on the ground of:
case.
(a) lack of jurisdiction
(b) irregularity of its entry apparent from the face
of the record ACCIDENT
An event that takes place without one’s foresight or
Where judgment is ambiguous and difficult to comply expectation
with, the remedy is to file a motion for clarificatory relief.
The Court may correct the clerical error even after MISTAKE
finality. Generally refers to mistakes of fact or law where, in good
faith, the defendant was mislead in the case.

ENTRY OF JUDGMENT AND FINAL ORDER EXCUSABLE NEGLIGENCE

Entry - the physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the book
of entries of judgment after the same has become final and
executory.
The clerk of court:
(1) Keeps a judgment book containing a copy of each
judgment of court in the order of their dates.
(2) Keeps a book of entries of judgment containing at
length in chronological order entries of all final
judgment or orders of the court.
The record shall:
(1) Contain the dispositive portion of the judgment or
final order
(2) Signed by the clerk of court
(3) With a certificate by said clerk that the judgment has
already become final and executory
Rule on Immutability of Judgment
General Rule: Final judgments are unalterable even if the
modification is meant to correct erroneous conclusions
of fact and law and even if made by the highest court.
Exception:
(1) Correction of clerical errors
(2) Nunc Pro Tunc entries which cause prejudice to any
party
(3) Void judgments
(4) Whenever circumstances transpire after finality
making the execution unjust and inequitable.
Remedies against judgments or final orders
Before finality After Finality
The failure to take the proper steps at the proper time at
the proper time, not in consequence of party’s own
carelessness, inattention, or willful disregard of the
process of the unavoidable hidrance or accident, or on
reliance on the care and vigilance of his counsel or on
promises made by the adverse party.
Note: The negligence must be excusable and generally
imputable to the party because if it is imputable to the
counsel, it is binding ton the client.
General Rule: Mistakes of counsel as to the competency
of witnesses, the sufficiency and relevancy of evidence,
the proper defense, or the burden of proof, his failure to
introduce certain evidence, or to summon witnesses and
to argue the case, are not proper grounds for a new trial.
Exception: HOWEVER, if the incompetence of counsel be
so great that his client is prejudiced and prevented from
fairly presenting his case, motion for new trial may be
allowed.
REQUISITES OF NEWLY DISCOVERED EVIDENCE
1. That such evidence has been discovered after
trial;
2. That it could have not been discovered or
produced at the trial even with the exercise of
reasonable diligence;
3. That it is material and not merely collateral, or
cumulative, or corroborative or merely
impeaching a witness;
4. If presented, it would probably alter the result.
PARTIAL NEW TRIAL

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If the Court finds that the motion affects the issues of the
case as to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the
rest.
SECOND MR and NT
IN MOTION FOR RECONSIDERATION
General rule: There is “single motion rule” where a party
is not allowed to file a second motion for reconsideration
of a judgment or final order.
Exception: HOWEVER, if the motion for reconsideration
is directed to an interlocutory order, a second motion for
reconsideration is allowed.
In Motion for New Trial, a second motion is allowed
including all grounds available otherwise deemed waived.
It may be filed within the period allowed but excluding
the period by which the first motion was pending.
No appeal may be taken from:
(1) An order denying a motion for new trial or
reconsideration;
(2) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(3) An interlocutory order;
(4) An order disallowing or dismissing an appeal;
(5) 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;
(6) An order of execution;
(7) A judgment or final order for or against 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
(8) An order dismissing an action without prejudice.
(Sec. 1, Rule 41)

b. Remedy against denial and fresh- REMEDY AGAINST JUDGMENTS AND ORDERS WHICH
period rule ARE NOT APPEALABLE

Can MR and NT be appealed? In all the above instances where the judgment or final
Denial of motion for new trial and reconsideration are not order is not appealable, the aggrieved party may file an
appealable. Neither can these be subject for Certiorari appropriate special civil action under Rule 65.(Sec. 1, Rule
under Rule 65. 41)

FRESH PERIOD RULE c. Doctrine of finality/immutability of

Based on the foregoing, an appeal should be taken within judgment
15 days from the notice of judgment or final order
appealed from. To standardize the appeal periods FINAL JUDGMENT RULE; EXCEPTIONS
provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it An appeal may be taken from a judgment or final order
practical to allow a fresh period of 15 days within which to that completely disposes of the case, or of a particular
file the notice of appeal in the Regional Trial Court, matter therein when declared by these Rules to be
counted from receipt of the order dismissing a motion for appealable. (Sec. 1, Rule 41)
a new trial or motion for reconsideration. (Neypes vs.
Court of Appeals, 2005) The aggrieved party may file an appropriate special civil
action under Rule 65. (Sec. 1, Rule 41)
2. Appeals
a. Judgments and final orders subject DOCTRINE OF FINALITY OF JUDGMENT or
to appeal IMMUTABILITY OF JUDGMENT
A decision that has acquired finality becomes immutable
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL and unalterable, and may no longer be modified in any
Interlocutory orders vs. Judgment or Final Orders respect, even if the modification in any respect, even if
the modification is meant to correct erroneous of fact
Interlocutory Orders Final Judgment or Order and law, and whether it be made by the court that
rendered it or by the Highest Court of the land. Any act
refer to something one that finally disposes of,
which violates this principle must immediately be struck
between the adjudicates or determines
commencement and the the rights, or some rights of down. (Gadrinab v. Salamanca, 2014)
end of the suit which the parties, either on the
decides some point or entire controversy or some EXCEPTIONS
matter, but it is not a final definite and separate (1) The coorection of clerical errors;
decision of the whole branch thereof, and which (2) Pro-tunc entries which cause no prejudice to any
controversy. concludes them until it is party;
reversed or set aside. (3) Void judgments
(4) Whenever circumstances transpire after finality of
the decision rendering its execution unjust and
inequitable (FGU Insurance Corporation v. RTC
b. Matters not appealable; available
Makati, 2011)
remedies

MATTERS NOT APPEALABLE

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d. Modes of appeal from judgments or the appellant shall file a notice of appeal
final orders of various courts (Rules and a record on appeal within 30 days
40, 41, 42, 43, and 45) after notice of the judgment or final
order.
MODES OF APPEAL
Petition for Within 15 days from notice of the
Petition for judgment or final order appealed from.
Ordinary appeal Review on
Review
Certiorari
Rule 40; 41 42; 43 45 Where a record on appeal is required,
The appeal to the the appellants shall file a notice of appeal
CA in cases Ordinary and a record on appeal within 30 days
decided by the Appeal under from notice of the judgment or final
RTC in the Rule 41 order.
exercise of its
original However, an appeal in habeas corpus
jurisdiction shall cases shall be taken within 48 hours from
be taken by filing notice of the judgment or final order
a notice of appeal appealed from.
with the court
In all cases Within 15 days from notice of the
that rendered the
where only decision
judgment or final The appeal Petition for
questions sought to be reviewed or of the denial of
order appealed to the CA in Review under
of law are petitioner‘s motion for new trial or
from and serving cases Rule 42
raised or reconsideration filed in due time after
a copy thereof decided by
Court involved, judgment
upon the adverse the RTC in
Filed the appeal
party. No record the exercise
shall be to Within 15 days from notice of the
on appeal shall be of its
the SC by award, judgment, final order or
required except in appellate
petition for resolution, or from the date of its last
special jurisdiction Petition for
review on publication or of the denial of
proceedings and Review under
certiorari petitioner‘s motion for new trial or
other cases of Rule 43
multiple or reconsideration duly filed in accordance
separate appeals with the governing law of the court or
where the law or agency a quo.
the Rules so
require. In such Within 15 days from notice of the
cases, the record Petition for judgment, final order or resolution
on appeal shall be Review on appealed from, or within 15 days from
filed and served in Certiorari notice of the denial of the petitioner‘s
like manner. under Rule 45 motion for new trial or motion for
questions of reconsideration filed in due time
questions of fact fact, law, or purely
Issues
or both questions both questions
Raised PERFECTION OF APPEAL
of fact and law questions of of law
fact and law Perfection of Appeal
(a) By notice of appeal - upon the filing
of the notice of appeal in due time;
Issues to be raised on appeal
Issues to be raised on Appeal (b) By record on appeal - upon the
Questions of fact or mixed approval of the record on appeal filed
Ordinary Appeal in due time;
questions of fact and law
Questions of fact, of law or mixed For Ordinary
Petition for Review In either case, prior to the transmittal
questions of fact and law. Appeals from
Petition for Review purely questions of law of the original record or the record on
MTC to the
on Certiorari appeal, the court may issue orders for
RTC and from
the protection and preservation of the
the RTC to the
rights of the parties which do not
CA.
PERIOD OF APPEAL involve any matter litigated by the
appeal, approve compromises, permit
Period of Appeal
appeals of indigent litigants, order
execution pending appeal in
Within 15 days after notice to the
accordance with Sec. 2, Rule 39, and
Ordinary appellant of the judgment or final order
allow withdrawal of the appeal.
Appeal under appealed from.
Rule 40
Perfection of
Where a record on appeal is required,

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Appeal by Upon the timely filing of a petition for (6) Every record on appeal exceeding twenty (20) pages
Petition for review and the payment of the must contain a subject index. (Sec. 6, Rule 41)
Review under corresponding docket and other lawful
Rule 42. fees
DIFFERENCE OF NOTICE OF APPEAL AND RECORD ON
APPEAL
Distinction between
Notice of Appeal Record on Appeal
Upon the approval of
PARTICIPATION OF THE SOLICITOR GENERAL Appeal is Upon the filing of the record on appeal
DURING APPEAL deemed the notice of appeal filed in due time with
The Office of the Solicitor General shall represent the perfected in due time respect to the subject
Government of the Philippines, its agencies and matter thereof.
instrumentalities and its officials and agents in any The Court loses
litigation, proceeding, investigation or matter requiring The Court loses
jurisdiction only over
the services of lawyers. jurisdiction over
the subject matter
the case upon the
thereof upon
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF Effect of a perfection of the
approval of the
THE MTC perfected appeal filed in due
records on appeal
Where: May be taken to the RTC exercising jurisdiction appeal time and the
filed in due time and
over the area to which the former pertains. expiration of the
the expiration of the
time to appeal of
time to appeal of the
the other parties.
Note: Where the MTC dismisses a case for lack of other parties.
jurisdiction and such dismissal is appealed to the RTC,
should the latter affirm the dismissal and if it has APPEAL FROM JUDGMENTS OR FINAL ORDERS OF
jurisdiction over the subject matter, the RTC is obliged to THE RTC
try the case as if it were originally filed with it.
How:
How: The appeal is taken by filing a notice of appeal with (1) Ordinary Appeal from the judgment or final order of
the court that rendered the judgment or final order the RTC in the exerciseof its original jurisdiction.
appealed from. (Rule 41)
(2) Petition for Review from the judgment or final order
The title of the case shall remain as it was in the court of of the RTC to the CA in cases decided by the RTC in
origin, but the party appealing the case shall be further the exercise of its appellate jurisdiction (Rule 42)
referred to as the appellant and the adverse party as the (3) Petition for Review on Certiorari. (Rule 45)
appellee.
e. Review of judgments or final orders
Note: A record on appeal shall be required only in special of the COA, COMELEC, CSC, and the
proceedings and in other cases of multiple or separate Ombudsman
appeals.
REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE
CONTENTS OF NOTICE OF APPEAL COA
The following shall be specified:
(1) Parties to the appeal;
Where: May be brought to the SC on certiorari under
(2) Judgment or final order or part thereof appealed
Rule 65 by filing the petition within 30 days from notice.
from;
(3) The court to which the appeal is being taken; and
REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE
(4) The material dates showing the timeliness of the
appeal. (Sec. 5, Rule 41) COMELEC

Where: May be brought to the SC on certiorari under

CONTENTS OF RECOND ON APPEAL
(1) Full names of all the parties to the proceedings shall
be stated in the caption of the record;
(2) Specify the judgment or final order from which the
appeal is taken;
(3) In chronological order, include copies of only such
pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment or
final order.
(4) Data that will show that the appeal was perfected on
time.
(5) If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the
evidence, testimonial and documentary, taken upon
the issue involved.
Rule 45 by filing the petition within 30 days from notice.
Rule 64 covers review of judgments and final orders or
resolutions of the COMELEC and COA but the mode of
review is done following the rules on certiorari under
Rule 65. Rule 65 provides for the remedy when a tribunal,
board or officer exercising judicial, quasi-judicial
functions has acted without or in excess of its jurisdiction
and there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law.
ü Rule 64- 30 days from notice of the judgment, order
or resolution.
ü Rule 65- 60 days from notice of the judgment, order
or resolution.

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REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE
CSC
Where: May be taken to the CA under Rule 43.
REVIEW OF JUDGMENTS OR FINAL ORDERS OF THE
OMBUDSMAN
Where: In administrative disciplinary actions, the appeal
should be brought to the CA under Rule 43.
But in cases in which it is alleged that the Ombudsman
has acted with grave abuse of discretion amounting to
lack or excess of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with the SC to set
aside the Ombudsman’s order or resolution.
In criminal or non-administrative case, the ruling of the
Ombudsman shall be elevated to the SC by way of Rule
65.
The SC‘s power to review over resolutions and orders of
the Office of the Ombudsman is restricted on to
determining whether grave abuse of discretion has been
committed by it.
Note: The Court is not authorized to correct every error
or mistake of the Office of the Ombudsman other than
grave abuse of discretion.
f. Review of judgments or final orders
of quasi-judicial agencies
REVIEW OF JUDGMENTS OR FINAL ORDERS OF
QUASI-JUDICIAL AGENCIES
Where: Required to be brought to the CA under the
requirements and conditions set forth in Rule 43.
Note: May be taken to the CA whether the appeal involves
a question of fact, a question of law, or mixed questions
of fact and law.
HOW TO APPEAL
Through a verified petition, appeal shall be taken with the
Court of Appeals on the judgments
or final orders of the following:
(a) Court of Tax Appeal and quasi-judicial agencies in
exercise of their quasi-judicial functions:
(b) Civil Service Commission
(c) Central Board of Assessment Appeals
(d) Securities and Exchange Commission
(e) Office of the President, Land Registration Authority
(f) Social Security Commission
(g) Civil Aeronautics Board,
(h) Bureau of Patents, Trademarks and Technology
Transfer,
(i) National Electrification Administration,
(j) Energy Regulatory Board,
(k) National Telecommunications Commission,
(l) Department of Agrarian Reform under Republic Act
No. 6657,
(m) Government Service Insurance System,
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Civil Procedure
(n) Employees Compensation Commission, Agricultural
Invention Board, Insurance Commission, Philippine
Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law. (Sec. 1, Rule
43)
Excluding: judgments or final order issued under the
Labor Code of the Philippines such as the NLRC. In such
cases, Rule 65 or petition for certiorari shall be the
remedy to elevate the case to the CA. (Sec. 2, Rule 43) (St.
Martin Case, Doctrine of judicial hierarchy)
g. Dismissal, reinstatement, and
withdrawal of appeal
An appeal may be dismissed by the Court of Appeals, on
its own motion or on that of the appellee, on the
following grounds: (Sec. 1, Rule 50)
(1) Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
(2) Failure to file the notice of appeal or the record
on appeal within the period prescribed by these
Rules;
(3) Failure of the appellant to pay the docket and
other lawful fees as provided in section 5, Rule
40 and section 4 of Rule 41; (Bar Matter No. 803,
17 February 1998)
(4) Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in section 4 of Rule 44;
(5) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
(6) Absence of specific assignment of errors in the
appellant's brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(7) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in
its order;
(8) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
(9) The fact that the order or judgment appealed
from is not appealable
WHEN TO WITHDRAW
An appeal may be withdrawn as of right at any time
before the filing of the appellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of the court.
(Sec. 3, Rule 50)
DUAL FUNCTION OF APPELLATE COURTS
An appellate court serves a dual function. The first is the
review for correctness function, whereby the case is
reviewed on appeal to assure that substantial justice has
been done. The second is the institutional function, which
refers to the progressive development of the law for
general application in the judicial system. (A.M. No. CA-
13-51-J)
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THE “HARMLESS ERROR RULE” IN APPELLATE
DECISIONS
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the trial court or by any of
the parties is ground for granting a new trial or for
setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice.
The court at every stage of the proceeding must
disregard any error or defect which does not affect the
substantial rights of the parties. (Sec. 6, Rule 51)
3. Petition for relief from judgment (Rule 38)
GROUNDS FOR AVAILING OF THE REMEDY
(1) When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party
in any court through FAME (Sec. 1, Rule 38)
(2) When the petitioner has been prevented from taking
an appeal by FAME (Sec. 2, Rule 38)
TIME TO FILE ACTION
Within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside;
and
Not more than six (6) months after such judgment or final
order was entered, or such proceeding was taken. (Sec. 3,
Rule 38)
CONTENTS OF PETITION
(1) The petition must be verified;
(2) Affidavits, showing the FAME relied upon; and
(3) Affidavits showing the facts constituting the
petitioner’s good and substantial cause of action or
defense, as the case may be. (Sec. 3, Rule 38)
4. Annulments of judgment (Rule 47)
ANNULMENTS OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS
Definition: An action for annulment of judgment is a
remedy in law independent of the case where the
judgment sought to be annulled was rendered.
Purpose: The purpose of such action is to have the final
and executory judgment set aside so that there will be a
renewal of litigation.
Annulment of judgment is resorted to in cases where the
ordinary remedies of new trial, appeal, petition for relief
from judgment, or other appropriate remedies are no
longer available through no fault of petitioner, and is
based on only two grounds, extrinsic fraud and lack of
jurisdiction. (Alaban v. Court of Appeals, 470 SCRA 697)
Annulment of judgment does not apply to judgments
rendered by quasi-judicial bodies. It does not also apply
to decisions or orders of the Ombudsman in
administrative cases whose decisions or orders may be
appealed to the Court of Appeals under Rule 43.
(Macalalag v. Ombudsman, 2004)
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Civil Procedure
Note: A person need not be a party to the judgment
sought to be annulled, and it is only essential that he can
prove his allegation that the judgment was obtained by
the use of fraud and collusion and he would be adversely
affected thereby.
GROUNDS FOR ANNULMENT
Note: Grounds are exclusive.
(1) Extrinsic Fraud
Extrinsic fraud exists when there is a fraudelent
act committed by the prevailing party outside of
the trial of the case, whereby the defeated party
was prevented from presenting fully his side of
the case by deception practiced on him by the
prevailing party. It is also known as Collateral
Fraud.
Note: Extrinsic fraud must be employed against
it by the adverse party, who because of some
trick, artifice, or device naturally prevails in the
suit. It does not include fraud practiced by its
own witness, in making false testimony.
(2) Lack of Jurisdiction
Lack of jurisdiction refers to either lack of
jurisdiction over the person of the defending
party or over the subject matter of the claim. It
means absence of or no jurisdiction, that is, the
court should not have taken cognizance of the
petition because the law does not vest it with
jurisdiction over the subject matter.
Note: Petitioner must show not merely an abuse
of jurisdictional discretion but an
absolute lack of jurisdiction.
(3) Lack of Due Process
PERIOD TO FILE ACTION
Extrinsic fraud - the action must be filed within four (4)
years from its discovery. (Sec. 3, Rule 47)
Lack of jurisdiction – the action must be brought before
the action is barred by laches or estoppel. (Sec. 3, Rule 47)
EFFECTS OF JUDGMENT OF ANNULMENT
Extrinsic fraud – The court, upon motion, may order the
trial court to try the case as if a motion for new trial was
granted. (Sec. 7, Rule 47)
As a general rule, the prescriptive period is deemed
suspended. However, The prescriptive period shall not be
suspended where the extrinsic fraud is attributable to the
plaintiff in the original action. (Sec. 8, Rule 47)
Lack of jurisdiction – It shall have the effect of setting
aside the questioned judgment or final order rendering
the same null and void but the judgment of annulment is
without prejudice to the the refiling of the original action
in the proper court. (Sec. 7, Rule 47)
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The prescriptive action shall be deemed suspended from

the filing of such original action until the finality of the WHEN EXECUTION SHALL ISSUE
judgment of annulment. (Sec. 8, Rule 47) EXECUTION AS A MATTER OF RIGHT

Also known as Ministerial Execution

5. Collateral attack on judgments (a) On motion;
(b) Upon judgment or order that disposes of the action or
COLLATERAL ATTACK ON JUDGMENTS proceeding
When, in another action to obtain a different relief, an (c) Upon expiration of the period to appeal therefrom and
attack on the judgment is made as an incident in said no appeal has been duly perfected;
action. This is proper only when the judgment, on its face, (d) When appeal has been duly perfected and resolved, by
is null and void. filing a motion with the court of origin submitting true
copies of the final judgment or final order sought to be
Direct Collateral enforced.
against a judgment is made when, in another
made through an action action to obtain a different Once a judgment becomes final and executory, the
or proceeding the main relief, an attack on the prevailing party can have it executed as a matter of right,
object of which is to judgment is made as an and the issuance of a writ of execution becomes a
annul, set aside, or enjoin incident in said action. This ministerial duty of the court .
the enforcement of such is proper only when the
judgment, if not yet judgment, on its face, is null Judgment and orders become final and executory by
carried into effect; or, if and void, as where it is operation of law and not by judicial declaration. Its
the property has been patent that the court which finality becomes a fact when the reglementary period for
disposed of, the aggrieved rendered said judgment has appeal lapses, and no appeal is perfected within such
party may sue for no jurisdiction. [Co vs. period.
recovery. Court of Appeals, 196 SCRA
705(1991)] DISCRETIONARY EXECUTION

The concept of discretionary execution constitutes an

exception to the general rule that a judgment cannot be
T. Execution, Satisfaction, and Effect
executed before the lapse of the period for appeal or
of Judgments (Rule 39) during the pendency of an appeal.

MODES OF EXECUTION OF JUDGMENT REQUISITES:

There are two modes of executing final and executory
judgment:
• Execution by a motion if the enforcement of the
judgment is sought within 5 years from the date of entry
• Execution by independent action if the 5-year period
has elapsed and before it is barred by statute of
limitations.
JUDGEMENTS NOT STAYED BY APPEAL
(a) Judgments as of now declared to be immediately
executory, shall be enforceable after their rendition, and
shall not be stayed unless otherwise ordered by the trial
court.
• Judgments for Injunction
• Judgments for Receivership
• Judgments for Accounting
• Judgments for Support
(b) Judgments that may thereafter be declared to be
immediately executory.
GROUNDS FOR QUASHING A WRIT OF EXECUTION:
(1) Writ of execution varies the judgment
(2) Change in the situation of the parties making
execution inequitable or unjust
(3) Execution is sought to be enforced against property
exempt from execution
(4) It appears that the controversy has never been
submitted to the judgment of the court
(5) Terms of the judgment are not clear enough and there
remains room for interpretation thereof
(6) When it is improvidently issued
(1) Motion filed by a prevailing party with notice to
adverse party
(2) Hearing of the motion for discretionary execution
(3) Good reasons to justify the discretionary execution
(4) Reasons must be stated in the special order
A DISCRETIONARY EXECUTION LIKE AN EXECUTION
PENDING APPEAL
A discretionary execution like an execution pending
appeal must be strictly construed because it is an
exception to the general rule.
Good reasons as justification for the discretionary
execution is essential.
Examples:
(1) Insolvency of judgment debtor
(2) Good subject of the judgment will perish
(3) Frivolous appeal
Mere posting of bond for discretionary execution is NOT
sufficient.
HOW A JUDGMENT IS EXECUTED
Through a writ of execution, which is a court order
directing a sheriff or other officer to enforce a judgment,
usually by seizing and selling the judgment debtor’s
property.

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EXECUTION BY MOTION OR BY INDEPENDENT
ACTION
There is a need to file a motion for the issuance of a writ
of execution. Under SC Circular No. 24-94, a motion for
the issuance of a writ of execution must contain a notice
to the adverse party.
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION
The writ of execution is issued in the name of the
Republic of the Philippines and must contain:
(1) Name of the court that granted the motion
(2) Case number
(3) Dispositive portion of the judgment or order subject of
the execution
(4) Require the sheriff or other proper officer to whom it
is directed to enforce the writ according to the terms
The writ of execution should conform to the dispositive
portion of the decision to be executed and the execution
is void if it is in excess of and beyond the original
judgment.
EXECUTION OF JUDGMENTS FOR MONEY
In executing a judgment for money, the sheriff shall:
(1) Demand from the judgment obligor the immediate
payment of the full amount
(2) If obligor cannot pay, the officer shall levy upon the
properties of the obligor
Levy by the sheriff may be done only if the judgment
obligor cannot pay all or part of the obligation in cash,
certified bank check or other modes acceptable to the
prevailing party.
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
(Sec. 11, Rule 39)
(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. — If a judgment directs a party to execute a
conveyance of land or personal property, or to deliver
deeds or other documents, or to perform, any other
specific act in connection therewith, and the party fails to
comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by
some other person appointed by the court and the act
when so done shall have like effect as if done by the party.
If real or personal property is situated within the
Philippines, the court in lieu of directing a conveyance
thereof may by an order divest the title of any party and
vest it in others, which shall have the force and effect of a
conveyance executed in due form of law. (10a)
(b) Sale of real or personal property. — If the judgment be
for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in
conformity with the judgment. (8[c]
(c) Delivery or restitution of real property. — The officer
shall demand of the person against whom the judgment
for the delivery or restitution of real property is rendered
and all persons claiming rights under him to peaceably
vacate the property within three (3) working days, and
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Civil Procedure
restore possession thereof to the judgment obligee,
otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such means as
may be reasonably necessary to retake possession, and
place the judgment obligee in possession of such
property. Any costs, damages, rents or profits awarded by
the judgment shall be satisfied in the same manner as a
judgment for money. (13a)
(d) Removal of improvements on property subject of
execution. — When the property subject of the execution
contains improvements constructed or planted by the
judgment obligor or his agent, the officer shall not
destroy, demolish or remove said improvements except
upon special order of the court, issued upon motion of
the judgment obligee after the hearing and after the
former has failed to remove the same within a reasonable
time fixed by the court. (14a)
Delivery of personal property. — In judgment for the
delivery of personal property, the officer shall take
possession of the same and forthwith deliver it to the
party entitled thereto and satisfy any judgment for
money as therein provided. (8a)
EXECUTION OF SPECIAL JUDGMENTS
When a judgment requires the performance of any act
other than those mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to the writ
of execution and shall be served by the officer upon the
party against whom the same is rendered, or upon any
other person required thereby, or by law, to obey the same,
and such party or person may be punished for contempt if
he disobeys such judgment. (Sec. 11, Rule 39)
Special Judgment
One which requires the performance of any act, other than
the payment of money or delivery of real or personal
property which a party must personally do because his
personal qualifications and circumstances have been taken
into consideration. (Regalado)
EFFECT OF LEVY ON THIRD PERSONS
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing. (Sec. 12,
Rule 39)
NECESSITY OF LEVY
It is an essential act by which the property is set apart for
the satisfaction of the judgment and taken into coustory
of law, and that, after it has been taken from the
defendant, his interest is limited to its application to the
judgment, irrespective of the time when it may be sold.
EXECUTION IF THE JUDGMENT OBLIGEE/OBLIGOR
DIES
EFFECT OF
DEATH TO
EXECUTION
Execution will issue in any case.
Death of obligee Upon application of his executor,
administrator, or successor-in-
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Green Notes 2019
interest
Death before levy:
(a) Action for recovery of real or
personal property or any lien –
execution will issue
(b) Action for a sum of money –
execution will not issue. In this
case, the judgment obligee should
file claim against the estate of the
judgment obligor under rule 86
Death of obligor
Death after levy: execution will
issue since the property is already
separated from the estate of the
deceased and is deemd in cusodia
legis
Against his executor,
administrator, or successor-in-
interest
Where the application is made
(a) Execution shall be applied for in the court of origin.
(b) If an appeal has been duly perfected and finally
resolved, the execution may be applied for also in the
court of origin on the motion of the judgment obligee.
(c) There is no need to wait for the records of the case to
be remanded to the court of origin.
(d) All that is required is for the appeal to have been duly
perfected and finally resolved before the execution may
be applied for.
PROPERTIES EXEMPT FROM EXECUTION
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from
execution:
a. The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
b. Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
c. Three horses, or three cows, or three
carabaos, or other beasts of burden,
such as the judgment obligor may
select necessarily used by him in his
ordinary occupation;
d. His necessary clothing and articles for
ordinary personal use, excluding
jewelry;
e. Household furniture and utensils
necessary for housekeeping, and used
for that purpose by the judgment
obligor and his family, such as the
judgment obligor may select, of a
value not exceeding one hundred
thousand pesos;
f. Provisions for individual or family use
sufficient for four months;
g. The professional libraries and
equipment of judges, lawyers,
physicians, pharmacists, dentists,
engineers, surveyors, clergymen,
teachers, and other professionals, not
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exceeding three hundred thousand
pesos in value;
h. One fishing boat and accessories not
exceeding the total value of one
hundred thousand pesos owned by a
fisherman and by the lawful use of
which he earns his livelihood;
i. So much of the salaries, wages, or
earnings of the judgment obligor for
his personal services within the four
months preceding the levy as are
necessary for the support of his
family;
j. Lettered gravestones;
k. Monies, benefits, privileges, or
annuities accruing or in any manner
growing out of any life insurance;
l. The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity
from the Government;
m. Properties specially exempted by law.
But no article or species of property mentioned in this
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon. (Sec. 13, Rule 39)
Note: The list is not exclusive. There are other properties
exempt form execution outside the Rules of Court.
PROCEEDINGS WHERE PROPERTY IS CLAIMED BY
THIRD PERSONS
A person claiming a property levied upon may execute an
affidavit of his title or right of possession over the
property. Such affidavit must state the grounds of such
right or title.
IN RELATION TO THIRD-PARTY CLAIM IN
ATTACHMENT AND REPLEVIN
Certain remedies available to a third person not party to
the action but whose property is the subject of execution:
1. Terceria – By making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title. The
affidavit must be served upon the sheriff and
the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
attachment except if the attaching party files a
bond approved by the court. The sheriff shall
not be liable for damages for the taking or
keeping of the property, if such bond shall be
filed.
2. Exclusion or release of property – Upon
application of the third person through a
motion to set aside the levy on attachment, the
court shall order a summary hearing for the
purpose of determining whether the sheriff has
acted rightly or wrongly in the performance of
his duties in the execution of the writ of
attachment. The court may order the sheriff to
release the property from the erroneous levy
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Green Notes 2019
and to return the same to the third person. In
resolving the application, the court cannot pass
upon the question of title to the property with
any character of finality but only insofar as may
be necessary to decide if the sheriff has acted
correctly or not (Ching v. CA, 2004).
For the conjugal partnership to be liable for a
liability that should appertain to the husband
alone, there must be a showing that some
advantages accrued to the spouses (Ibid.).
3. Intervention– This is possible because no
judgment has yet been rendered and under the
rules, a motion for intervention may be filed any
time before the rendition of the judgment by
the trial court (Sec. 2, Rule 19).
4. Accion Reivindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in the
same or in a separate action. He may file a
separate action to nullify the levy with damages
resulting from the unlawful levy and seizure.
This action may be a totally distinct action from
the former case.
RULES ON REDEMPTION
The real property sold may be redeemed from the
purchaser, at any time within 1 year from the date of the
registration of the certificate of sale. If there are other
creditors having lien on the property so redeemed may
again be redeemed within 60 days from the last
redemption (Sec.28, Rule 39, ROC).
If no redemption is made within 1 year from the date of
registration of the certificate of sale, the purchaser is
entitled to a conveyance and possession of the property.
EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT IS UNSATISFIED
Effects when the judgment was returned unsatisfied:
1. The judgment creditor may cause examination
of the judgment debtor as to his property and
income (Sec. 36, Rule 39);
2. The judgment creditor may cause examination
of the debtors of the judgment debtor as to any
debt owed by him or to any property of the
judgment debtor in his possession (Sec. 37, Rule
39);
3. If the court finds, after examination, that there
is property of the judgment debtor either in his
own hands or that of any person, the court may
order the property applied to the satisfaction of
the judgment (Sec. 37, Rule 39);
4. If the court finds the earnings of the judgment
debtor are more than sufficient for his family’s
needs, it may order payment in fixed monthly
installments (Sec. 40, Rule 39);
5. The court may appoint a receiver for the
property of the judgment debtor not exempt
from execution or forbid a transfer or
disposition or interference with such property
(Sec. 41, Rule 39);
6. If the court finds that the judgment debtor has
an ascertainable interest in real property either
as mortgagor, mortgagee, or otherwise, and his
interest can be ascertained without
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Civil Procedure
controversy, the court may order the sale of
such interest (Sec. 42, Rule 39); and
7. If the person alleged to have the property of the
judgment debtor or be indebted to him, claims
an adverse interest in the property, or denies
the debt, the court may authorize the judgment
creditor to institute an action to recover the
property, forbid its transfer and may punish
disobedience for contempt (Sec. 43, Rule 39).
LIMITATIONS ON EXAMINATION
1. Judgment debtor cannot be made to appear
before a judge or commissioner outside the
province where the debtor resides.
2. A judgment debtor may no longer be examined
after the lapse of five years within which a
judgment may be enforced by motion for
execution.
EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR
Requisites
1. Writ must be returned unsatisfied; and
2. Proof that person, corporation or other legal
entity has property of such judgment debtor or
indebted to him.
Effect
Service of order binds all credits due to judgment debtor
and all money and property.
Note: This rule is not applicable where there is no issue
concerning the indebtedness and there is no denial of the
existence of the deposit with the bank which is
considered a credit in favor of the depositor bank.
EFFECT OF JUDGMENTS OR FINAL ORDERS
The effect of a judgment or final order rendered by a
court of the Philippines, having jurisdiction to pronounce
the judgment or final order, may be as follows:
1. In case of a judgment or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
the judgment or final order is conclusive upon
the title to the thing, the will or administration
or the condition, status or relationship of the
person, however, the probate of a will or
granting of letters of administration shall only
be prima facie evidence of the death of the
testator or intestate;
2. In other cases, the judgment or final order is,
with respect to the matter directly adjudged or
as to any other matter that could have been
missed in relation thereto, conclusive between
the parties and their successors in interest, by
title subsequent to the commencement of the
action or special proceeding, litigating for the
same thing and under the same title and in the
same capacity; and
3. In any other litigation between the same parties
or their successors in interest, that only is
deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
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Green Notes 2019 Civil Procedure

actually and necessarily included therein or

necessary thereto. (Sec. 47, Rule 39)

ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENTS OR FINAL ORDERS
Effect of Foreign Judgment
1. In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title to the thing, and
2. 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 successors-in-interest by a
subsequent title.

Enforcement of a foreign judgment

The foreign tribunal must have jurisdiction to render the
judgment or final order.

Ways of enforcing a foreign judgment

1. An action may be filed in court
2. It may be pleaded in an answer or a motion to
dismiss

Note: A foreign judgment may be barred from recognition

if it runs counter to public policy.

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Green Notes 2019 Provisional Remedies

A. Nature, Purpose and Jurisdiction

over Provisional Remedies
It is an inherent power of the court concomitant to its
very existence to issue provisional remedies, like
injunction, to protect the rights and interest of parties
pending litigation. (Far East Bank and Trust Company vs.
Shemberg)

Provisional remedies are temporary, auxiliary, and

ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is
pending. They are writs and processes which are not
main actions and they presuppose the existence of a
principal action. (Buyco v. Baraquia, 2009)

PURPOSE OF PROVISIONAL REMEDIES:

PROVISIONAL (1) To preserve or protect their rights or interests while

the main action is pending;
(2) To secure the judgment;
REMEDIES (3) To preserve the status quo; or
(4) To preserve the subject matter of the action
KINDS OF PROVISIONAL REMEDIES:
(1) Preliminary attachment (Rule 57);
(2) Preliminary injunction (Rule 58);
(3) Receivership (Rule 59);
(4) Replevin (Rule 60); and
(5) Support pendente lite (Rule 61).

The enumeration is not exclusive. For example, in the

special proceeding of custody of minors, the court may
grant a parent visitation rights and or temporary custody
of the child. (Tan v. Adre, 450 SCRA 145)

OTHER PROVISIONAL REMEDIES

Issued by a family court
(6) Temporary Custody of Minor Children
(7) Order allowing Visitation Rights of Parents

Provisional remedies in a petition for a writ of amparo

(8) Temporary Protection Order
(9) Witness Protection Order
(10) Inspection Order
(11) Production Order

JURISDICTION OVER PROVISIONAL REMEDIES

The court which grants or issues a provisional remedy is
the court which has jurisdiction over the main action.
Even an inferior court may grant a provisional remedy in
an action pending with it and within its jurisdiction.

B. Preliminary Attachment (Rule 57)

Preliminary Attachment is a provisional remedy issued
upon order of the court where an action is pending to be
levied upon the property of the defendant so the property
may be held by the sheriff as security for the satisfaction
of whatever judgment may be rendered in the case.
(Davao Light and Power, Inc. v. CA, 204 SCRA 343)

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Green Notes 2019
Since attachment is harsh, extraordinary, and summary in
nature, the rules on the application of a writ of
attachment must be strictly construed in favor of the
defendant. (Watercraft v. Wolfe)
TWO-FOLD Purpose
(1) To seize the property of the debtor in advance of
final judgment and to hold it for purposes of
satisfying said judgment
(2) To acquire jurisdiction over the action by actual or
constructive seizure of the property in those
instances where personal or substituted service of
summons on the defendant cannot be effected.
(PCIB v. Alejandro, 533 SCRA 738)
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
(1) Recovery of specified amount of money and damages
except moral or exemplary
(a) on a cause of action arising from law contract,
quasi-contract, delict or quasi-delict
(b) where party is about to depart from the
Philippines with intent to defraud creditors;
(2) Actions for money or property embezzled or
fraudulently misapplied or converted to his own use
by:
(a) a public officer
(b) an officer of a corporation,
(c) an attorney, factor, broker, agent, or clerk, in
the course of his employment as such
(d) by any other person in a fiduciary capacity, or
for a willful violation of duty;
(3) Action to recover of possession of property (both real
and personal) unjustly taken, detained or converted,
when the property, or any part thereof, is concealed
or disposed of to prevent its being found or taken;
(4) Actions against a party guilty of fraud in contracting
the debt (dolo causante) or incurring the obligation
or in the performance thereof (dolo incidente);
(5) In an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors;
(6) In an action against a party who does not reside and is
not found in the Philippines, or on whom summons
may be served by publication.
Note: The grounds are exclusive.
REQUISITES
(1) The case must be any of those where preliminary
attachment is proper (Sec. 1, Rule 57);
(2) The applicant must file a motion, whether ex parte or
with notice and hearing;
(3) The applicant must show by affidavit that:
(a) A sufficient cause of action exists;
(b) The case is one of those mentioned in Sec. 1,
(c) There is no other sufficient security for the
claim sought to be enforced by action; and
(d) The amount due to applicant or possession of
which he is entitled to recover is as much as the
sum for which the order is granted above all
legal counterclaims
(4) The applicant must post a bond executed to the
Lasallian Commission on Bar Operations
PROVISIONAL REMEDIES
adverse party.
(a) Amount is fixed by the court in its order
granting the issuance of the writ
(b) Conditioned that, if the court shall finally
adjudge that applicant was not entitled to the
writ, the bond will pay:
ü All costs which may be adjudged to adverse
party and
ü All damages which he may sustain by
reason of attachment
(5) Being provisional in character, attachment depends
for its existence and effectivity upon the pendency
of a principal action in court
Attachment places the property under the custody of the
court (in custodia legis). It is in the nature of proceeding
quasi in rem although sometimes referred to as an action
in rem (Banco-Español Filipino vs. Palanca 37 Phil. 921)
Whether in rem or quasi in rem, the legal effects are
identical because in both cases, jurisdiction over the
person of the defendant is not required as long as the
court acquires jurisdiction over the res. (Valdemieso vs.
Damalerio, 451 SCRA 638)
It does not affect the decision on the merits; the right to
recover judgment on the alleged indebtedness and the
right to attach the property of the debtor are entirely
separate and distinct, and the judgment in the main
action neither changes the nature nor determines the
validity of the attachment.
TYPES OF ATTACHMENT
(a) Preliminary Attachment
Issued at the commencement of the action or at
anytime before entry of the judgment as security for
the satisfaction of any judgment that may be
recovered in the cases provided for by the rules.
(b) Garnishment
Kind of attachment in which the plaintiff seeks to
subject either the property of the defendant in the
hands of a third person called the garnishee, to his
claim or the money which said third person owes the
defendant.
(c) Levy on Execution
The writ issued by the court after judgment by which
the property of the judgment obligor is taken into
the custody of the court before the sale of the
property on execution for the satisfaction of a final
judgment.
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT
An order of attachment may be issued either ex parte or
upon motion with notice and hearing by the court in
which the action is pending, or by the Court of Appeals or
the Supreme Court, and must require the sheriff of the
court to attach so much of the property in the Philippines
of the party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to that fixed
in the order, which may be the amount sufficient to
satisfy the applicant's demand or the value of the
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Green Notes 2019 PROVISIONAL REMEDIES

property to be attached as stated by the applicant, MANNER OF ATTACHING REAL AND PERSONAL
exclusive of costs. PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED
Several writs may be issued at the same time to the BY THIRD PERSONS
sheriffs of the courts of different judicial regions. Levy shall not be made unless preceded or
AFFIDAVIT AND BOND contemporaneously accompanied by:
An order of attachment shall be granted only when it (a) Service of summons, except in instances when
appears by the affidavit of the applicant, or of some other contemporaneous service is not required;
person who personally knows the facts: (b) Copy of the complaint
(a) that a sufficient cause of action exists (c) Application for attachment
(b) that the case is one of the grounds enumerated (d) Affidavit and bond of the applicant; and
(c) that there is no other sufficient security for the claim (e) Order and writ of attachment.
sought to be enforced by the action, and
(d) that the amount due to the applicant, or the value of ATTACHMENT OF SPECIFIC KINDS OF PROPERTY (Sec.
the property the possession of which he is entitled to 7, Rule 57)
recover, is as much as the sum for which the order is (1) Real property, or growing crops thereon, or any
granted above all legal counterclaims. interest therein
(a) By filing with the registry of deeds: (i) copy of
The affidavit, and the bond required by the next the order, together with a description of the
succeeding section, must be duly filed with the court property attached, and (ii) a notice that the
before the order issues. property is attached.
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF (b) The registrar of deeds must index attachments
SUMMONS filed under this section in the names of the
General Rule: Enforcement of the writ or preliminary applicant, the adverse party, or the person by
attachment must be preceded or contemporaneously whom the property is held or in whose name it
accompanied by the service of summons, copy of the stands in the records.
complaint, application and affidavit of the attachment and (c) If the attachment is not claimed on the entire
the bond in favor of the adverse party. area of the land covered by the certificate of
title, a description sufficiently accurate for the
Otherwise, the implementation is null and void. identification of the land or interest to be
affected shall be included in the registration of
Exceptions to Contemporaneous Service of Summons: such attachment.
(a) Where the summons could not be served personally (2) Personal property capable of manual delivery
or by substituted service despite diligent efforts; ü Sheriff issues corresponding receipt
(b) The defendant is a resident of the Philippines who is ü Then takes and safely keeps it in his custody
temporarirly out of the country; (3) Stocks or shares, or an interest in stocks or shares,
(c) The defendant is a non-resident; or of any corporation or company
(d) The action is one in rem or quasi in rem (Sec. 5, Rule ü Leave with the president or managing agent
57) thereof, a copy of the writ, and a notice stating
CLASSES OF ATTACHMENT that the stock or interest of the party against
Preliminary Attachment (Rule Final Attachment (Rule whom the attachment is issued is attached in
57) 39) pursuance of such writ
It is an auxiliary remedy to It is a means for the (4) Debts and credits, including bank deposits, financial
give security for a judgment execution of a final interest, royalties, commissions and other personal
still to be rendered. judgment property not capable of manual delivery
(a) Leave with the person owing such debts, or
There is no sale because a It should always be
having in his possession or under his control,
decision has not yet been accompanied by a sale
such credits or other personal property, or with
rendered. at public auction.
his agent
Resorted to at the Available after the
(b) The following: a copy of the writ, and notice
commencement of the action judgment in the main
that the debts owing by him to the party against
or at any time before entry of action had become
whom attachment is issued, and the credits and
judgment, for the temporary executory, and for the
other personal property in his possession, or
seizure of property of the satisfaction of said
under his control, belonging to said party, are
adverse party judgment.
attached in pursuance of such writ
The proceeds of the sale are in The proceeds of the
(5) The interest of the party against whom attachment
custodia legis sale are turned over to
is issued in property belonging to the estate of the
the attaching creditor
decedent, whether as heir, legatee, or devisee
Intervention is a remedy to a Intervention is NOT
(1) Service made to the executor or administrator
stranger whose property has available as a remedy or other personal representative of the
been attached because there is an
decedent with a copy of the writ and notice that
assumption of final
said interest is attached
judgment in Rule 39
(2) A copy of said writ of attachment and of said
notice shall also be filed in the office of the clerk
of the court in which said estate is being settled
and served upon the heir, legatee or devisee
concerned.

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Green Notes 2019
(6) If the property sought to be attached is in custodia
legis
(a) A copy of the writ of attachment shall be filed
with the proper court or quasi-judicial agency,
and
(b) Notice of the attachment served upon the
custodian of such property.
Note: All properties exempt from execution are likewise
exempt from attachment (Sec. 2, Rule 57; Sec 13, Rule 39)
When Applied For
(1) At the commencement of the action; or
(2) At any time before the entry of judgment.
Who may apply
It may be applied for by the plaintiff or any proper party
(including a defendant who filed a counterclaim, cross-
claim, or a third party complaint).
Stages in the manner of the issuance of writ of
preliminary attachment
The grant of provisional remedy of attachment involves 3
stages:
(1) Issuance of the order granting the application
(2) Issuance of the writ proper
(3) Implementation of the writ
For the initial two stages, it is not necessary that
jurisdiction over the person of the defendant be first
obtained, but once the implementation of the writ
commences, the court must have acquired jurisdiction
over the defendant.14
PROCEEDINGS WHERE ATTACHED PROPERTY IS
CLAIMED BY THIRD PERSON
A third person who has a claim to the property attached
may avail of the following remedies:
(1) File terceria or third-party claim (Rule 57, Sec. 14)
A third-party claim may be filed with the sheriff
while he has possession of the properties levied
upon, this being the only time fixed for the purpose
(a) The claimant makes an affidavit of his title or
right to possession, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff
(b) Substantial identical procedure as in terceria in
Rule 39
(2) File independent action to recover property (Uy v.
CA, 191 SCRA 275); or
(3) File motion for intervention (available only before
judgment is rendered)
DISCHARGE AND THE COUNTER-BOND
After a writ of attachment has been enforced, the party
whose property has been attached, or the person
appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.
Ways of Discharging Attachment
(1) Movant makes a cash deposit, or files a counter-
bond executed to the attaching party with the clerk
of the court where the application is made, in an
amount equal to that fixed by the court in the order
of attachment, exclusive of costs.
(2) Movant may file for an order on the ground that the
same was improperly or irregularly issued or
enforced, or that the bond is insufficient.
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PROVISIONAL REMEDIES
If the attachment is excessive, the discharge shall be
limited to the excess.
Note: There is a difference between the bond for issuance
of writ and bond for lifting the writ
SATISFACTION OF JUDGMENT OUT OF PROPERTY
ATTACHED
The sheriff may cause the judgment to be satisfied out of
the property attached in the following manner:
(1) By paying to the judgment obligee the proceeds of all
sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
(2) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to
satisfy the balance, if enough for that purpose
remain in the sheriff's hands, or in those of the clerk
of the court;
(3) By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the
amounts of such credits and debts as determined by
the court in the action, and stated in the judgment,
and paying the proceeds of such collection over to
the judgment obligee. (Sec 15, Rule 57)
C. Preliminary Injunction
INJUNCTION
A judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a particular act
PRELIMINARY INJUNCTION – DEFINITION AND
NATURE
A preliminary Injunction (PI) is an order granted at any
stage of an action prior to judgment of final order,
requiring a party, court, agency, or person to refrain from
a particular act or acts.
It is an ancillary or preventive remedy where a court
requires a person, party or even a court or tribunal either
to REFRAIN (prohibitory) from or to PERFORM
(mandatory) particular acts during the pendency of an
action.
It is merely a temporary remedy subject to the final
disposition of the principal action.26
INJUNCTION AS MAIN PRELIMINARY
ACTION INJUNCTION
Independent action Ancillary
Seeks a judgment embodying Seeks to preserve status
a final injunction quo
Assailed by petition for
Assailed by timely appeal
certiorari
Purpose: To preserve the status quo or to prevent future
wrongs in order to preserve and protect certain interests
or rights during the pendency of the action.27
Status quo - The last actual, peaceable and uncontested
situation which precedes a controversy. It is the situation
existing at the time of the filing of the case.
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PRELIMINARY INJUNCTION TRO

An order granted at any stage of an Issued to preserve
action or proceeding prior to the the status quo Preliminary Injunction Final Injunction
judgment or final order, requiring a until the hearing of (Sec 1 Rule 58) (Sec 9 Rule 58)
party or a court, agency or a the application for granted at any stage of issued in the judgment in the
person to either refrain from or to preliminary an action prior to the case permanently restraining
perform a particular act or acts injunction. judgment or final the defendant or making the
during the pendency of the action. order therein. preliminary injunction
RTC: Does not permanent.
exceed 20 days GROUNDS FOR ISSUANCE OF PRELIMINARY
May exceed 20 days
CA: Does not INJUNCTION
exceed 60 days (1) The applicant is entitled to the relief demanded, and
SC: Indefinite the whole or part of such relief consists in
Restrains or requires the Maintains the restraining the commission or continuance of the
performance of particular acts status quo act or acts complained of, or in requiring the
REQUISITES performance of an act or acts either for a limited
(a) There must be a verified application (Sec. 4, Rule 58); period or perpetually; or
(b) The applicant must establish: (2) The commission, continuance or non-performance
(1) That he has a right to relief or a right to be of the act or acts complained of during the litigation
protected would probably work injustice to the applicant; or
(2) That the act against which the injunction is (3) A party, court, agency or a person is doing,
sought violates such right; threatening or is attempting to do, or is procuring or
(3) Paramount necessity to restrain the suffering to be done, some act or acts probably in
commission or continuance of the acts violation of the rights of the applicant respecting the
complained of and if not enjoined would work subject of the action or proceeding, and tending to
injustice to him; (Sec. 3, Rule 58) render the judgment ineffectual. (Sec 3, Rule 58)
(c) A bond must be posted, unless otherwise exempted
by the court; (Sec. 4, Rule 58); and DISSOLUTION OF INJUNCTION OR RESTRAINING
(d) Notice and hearing (Sec. 5, Rule 58); ORDER
(1) Upon a showing of its insufficiency.
KINDS OF INJUNCTION (2) On other grounds upon affidavits of the party or
Preliminary Prohibitory Preliminary Mandatory person enjoined, which may be opposed by the
Injunction Injunction applicant also by affidavits.
Purpose: prevent a person Purpose: to require a person (3) If it appears after hearing that although the applicant
from the performance of a to perform a particular act is entitled to the injunction or restraining order, the
or acts issuance or continuance thereof, as the case may be,
particular act or acts
would cause irreparable damage to the party or
This is an extreme remedy person enjoined while the applicant can be fully
which will be granted only compensated for such damages as he may suffer.
upon a showing that: (Sec. 6, Rule 58)
(a) The invasion of the DURATION OF TRO
right is material and (1) The 20-day period of effectivity of a TRO is non-
substantial extendible; the restraining order automatically
(b) Right of complainant is terminates at the end of such period without the
clear and unmistakable need of any judicial declaration to that effect.
(c) There is an urgent and (Aquino v. Luntok, G.R. No. 84324)
paramount necessity (2) If a TRO was issued by the Court of Appeals, it shall
(Almeida v. CA, G.R. No. be effective for 60 days from service on the party
159124) sought to be enjoined.
The act has not yet been The act has already been (3) If a TRO was issued by the Supreme Court, it shall be
performed performed and this act has effective until further orders. (Sec. 5, Rule 58)
violated the rights of IN RELATION TO RA 8975 – BAN ON ISSUANCE OF TRO
another. OR WRIT OF INJUNCTION IN CASE INVOLVING
Status Quo is preserved. Status Quo is restored. GOVERNMENT INFRASTRUCTURE PROJECTS
WHEN WRIT MAY BE ISSUED General Rule: No court, except the Supreme Court, shall
It may be issued at any stage prior to the judgment or issue any temporary restraining order, preliminary
final order by the court where the action or proceeding is injunction or preliminary mandatory injunction against
pending. the government or any of its subdivisions, officials or any
à If the action or proceeding is pending in the Court of person or entity, whether public or private acting under
Appeals or in the Supreme Court, it may be issued by said the government direction, to restrain, prohibit or compel
court or any member thereof. the following acts:
(1) Acquisition, clearance and development of the right-
If after the trial of the action it appear that the applicant of-way and/or site or location or location of any
is entitled to have the act or acts complained of government project;
permanently enjoined (2) Bidding or awarding of contract/project of the

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Green Notes 2019
national government;
(3) Commencement, prosecution, execution,
implementation, operation of any such contract or
project;
(4) Termination or recission of any such
contract/project; and
(5) The undertaking or authorization of any other lawful
activity necessary for such contract/project. (Sec. 3,
RA 8975)
Exceptions
(1) When the mattier is of extreme urgency;
(2) If it involes a constitutional issue;
(3) A grave injustice and irreparable injury will arise
unless a TRO is issued.
Note: In this case, the application shall file a bond in an
amount to be fixed by the court and which bond shall
accrue in favor of the government if the court should
finally decide that the applicant was not entitled to the
relief sought. (Sec. 3, RA 8975)
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO ATTACHMENT
When an application for a writ of preliminary injunction
or TRO is made in a complaint or other initiatory
pleading, the case, if filed in a multi-sala court, shall be
raffled only after notice to and in the presence of the
adverse party. In any event, such notice shall be preceded
or contemporaneously accompanied by a service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
However, it is not available where the summons could not
be served personally or by substituted service despite
diligent efforts or where the adverse party is a resident of
the Philippines temporarily absent therefrom or is a non-
resident thereof. (Sec. 4(c), Rule 58)
D. Receivership (Rule 59)
Purpose
For the preservation of, and at making more secure
existing rights; to protect and preserve the rights of the
parties during the pendency of the main action, during
the pendency of an appeal or as an aid in the execution of
a judgment when the writ of execution has been returned
unsatisfied (Riano)
Receiver
A person appointed by the court in behalf of all the
parties to an action for the purpose of preserving the
property involved in the suit and to protect the rights of
all the parties under the direction of the court.33 He is an
officer of the court who is indifferent to the litigants and
neutral.
A receiver is not a representative party under Rule 3 but a
real party in interest, BUT he cannot file a case without
the consent of the receivership court.
CASES WHEN A RECEIVER MAY BE APPOINTED
UPON VERIFIED APPLICATION, one or more receivers of
the property which is the subject if the action may be
appointed by the court where the action is pending in the
following cases:
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PROVISIONAL REMEDIES
(1) Applicant has an interest in the property or fund
subject of the proceeding and such property is in
danger of being lost, removed, or materially injured
unless a receiver is appointed;
(2) In foreclosure of mortgage, when the property is in
danger of being wasted, dissipated or materially
injured, and that its value is probably insufficient to
discharge the mortgage debt or that it has been
agreed upon by the parties;
(3) After judgment, to preserve the property during the
pendency of an appeal or to dispose of it according
to the judgment or to aid execution.
(4) When appointment of receiver is the most
convenient and feasible means of preserving,
administering or disposing of the property in
litigation.
The property must be under litigation.
REQUISITES
(1) Verified application;
(2) Applicant must have an interest in the property or
funds subject of the action;
(3) Application must show that the property or funds is
in danger of being lost, wasted, or dissipated
(4) Appointed by the court where the action is pending,
or by the CA or by the SC, or a member thereof;
(5) Applicant‘s bond conditioned on paying the adverse
party all damages he may sustain by the appointment
of the receiver in case the appointment is without
sufficient cause;
(6) Receiver takes his oath and files his bond.
The court may, in its discretion, at any time after the
appointment, require an additional bond as further
security for such damages. (Sec. 2, Rule 59)
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER
APPOINTING A RECEIVER
Who may grant receivership
(1) Court, in which the action is pending
(2) Court of Appeals
(3) Supreme Court, or any member thereof
Who may be appointed
The general rule is that neither to a litigation should be
appointed receiver without the other's consent because
"a receiver ought to be an indifferent person between the
parties" and "should be impartial and disinterested"
(Alcantara v. Abas, G.R. No. L-14890)
GENERAL POWERS OF RECEIVER
(1) Bring and defend, in such capacity, actions in his
own name.
(2) Take and keep possession of the property in
controversy;
(3) Receive rents;
(4) Collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver;
(5) Compound for and compromise the same;
(6) Make transfers;
(7) Pay outstanding debts;
(8) Divide the money and other property that shall
remain among the persons legally entitled to receive
the same.
(9) Generally to do such acts representing the property
as the court may authorize; and
(10) Invest fund in his hands, only by order of the court
upon the written consent of all the parties.
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Green Notes 2019
No action may be brought by or against a receiver
without leave of the court which appointed him.
A receiver may not invest funds without an order from
the court and without the written consent of the parties
to the action.
TWO KINDS OF BONDS
1. Applicant‘s Bond – to pay the damages the
adverse party may sustain by reason of
appointment of receiver; and
2. Receiver‘s Bond – to answer for receiver’s
faithful discharge of his duties.
TERMINATION OF RECEIVERSHIP
(1) The Court shall determinine that the necessity for a
receiver no longer exists
(2) On motion of either party or motu proprio,
(3) Due notice shall be given to all parties
(4) A hearing shall be conducted
(5) The court shall then settle the accounts of the
receiver
(6) The court shall direct delivery of the funds or
property in his possession to the person adjudged
entitled thereto, and then
(7) Shall order the discharge of the receiver.
The receiver shall be entitled to a reasonable
compensation which is to be taxed as costs upon the
defeated party or apportioned as justice requires.
E. Replevin (Rule 60)
Replevin is a provisional remedy seeking for the
possession of the property prior to the determination of
the main action for replevin
It may also be a main action with the ultimate goal of
recovering personal property capable of manual delivery
wrongfully detained by a person. In this sense, it is a suit
in itself
WHEN MAY A WRIT OF REPLEVIN BE ISSUED
(1) At the commencement of the action
(2) At any time before the defendant files his answer
Note: for which reason there can be no replevin before
the appellate courts.
WHO MAY AVAIL
It is available to any party praying for the recovery of
possession of personal property unjustly detained (Sec. 1,
Rule 60)
REQUISITES
(a) That the applicant is the owner of the property
claimed;
(b) That the property is wrongfully detained by the
adverse party;
(c) That the property has not been distrained or taken
for a tax assessment or a fine pursuant to law, or
seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia
legis, or if so seized, that it is exempt from such
seizure or custody; (Sec. 2, Rule 60) and
(d) Primary purpose is to allow the plaintiff to retain the
thing during the pendency of the action and to hold
it pendente lite. (Rivera v. Vargas, G.R. No. 165895
Lasallian Commission on Bar Operations
PROVISIONAL REMEDIES
AFFIDAVIT AND BOND
Procedure for the application for Replevin:
(1) File an APPLICATION at the commencement of the
action or at any time before defendant answers.
(2) Application must contain an AFFIDAVIT
The affidavit must show that
(1) Applicant is the owner of the property claimed
particularly describing it, or is entitled to the
possession thereof;
(2) Property is wrongfully detained by the adverse party;
(3) Property has not been taken for tax assessment or a
fine pursuant to law, or seized under a writ of
execution or under custodia legis; and
(4) Actual market value of the property.
Applicant must give a BOND, executed to the adverse
party and double the value of the property. (Sec. 2, Rule
60)
REDELIVERY BOND
Value: in double of the value of the property as stated in
the affidavit aforementioned
Purpose: for the return of the property to the defendant
of such sum as he may recover from the plaintiff in the
action. (Sec. 2, Rule 60)
SHERIFF’S DUTY IN THE IMPLEMENTAITON OF THE
WRIT
(1) Serve a copy of the order together with a copy of the
application, affidavit and bond to the adverse party;
(2) Take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his
custody;
(3) Demand delivery of the property if the property is
concealed in a building or enclosure, and if be not
delivered, cause the building or enclosure to be
broken open and take the property into his
possession;
(4) After taking possession, keep the property in a
secure place and shall be responsible for its delivery
to the party entitled thereto.
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
(1) Third party shall file and serve affidavit upon sheriff
and applicant stating his entitlement to possession
and shall serve the affidavit upon the sheriff while
the latter has possession of the property;
(2) Sheriff shall return the property to third person
unless applicant files a bond (same amount as the
value of the property) approved by court to
indemnify the third person;
(3) Claim for damages upon said bond must be filed
within 120 days from date of filing of the bond.
Note: When the bond is filed, the sheriff shall not be
liable for damages for the taking or keeping of such
property.
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Green Notes 2019 PROVISIONAL REMEDIES

The party-claimant is not precluded from vindicating his

claim and may maintain an action and seek injunctive
relief against the sheriff. The applicant is likewise not
precluded from claiming damages against the third party
who filed a frivolous or spurious claim in the same or
separate action, (Sec. 7, Rule 60).

(4) Demand delivery of the property if the property is

concealed in a building or enclosure, and if be not
delivered, cause the building or enclosure to be
broken open and take the property into his
possession;
(5) After taking possession, keep the property in a
secure place and shall be responsible for its delivery
to the party entitled thereto.

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Green Notes 2019 Special Civil Actions

NATURE OF SPECIAL CIVIL ACTIONS

Special civil actions are basically ordinary civil
proceedings; what makes them special are the distinct
peculiarities inherent in their very nature not found in
ordinary civil actions.
The Supreme Court observed that partition of real estate
, quo warranto, certiorari, prohibition and mandamus,
expropriation and foreclosure of mortgage are actions in
themselves, but possessing special matters that required
special procedures. For this reason, these proceedings
are classified as special civil actions. (De Fiesta vs.
Llorente, 25 Phil. 544)

ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL

ACTIONS
ORDINARY CIVIL SPECIAL CIVIL ACTIONS
ACTIONS
A party sues another for A civil action subject to
the enforcement or specific or special rules
protection of a right or the
prevention or redress of a
wrong
Governed by the rules for Ordinary rules apply
ordinary civil actions primarily but subject to
the specific rules
Involves two or more Involves two or more
parties parties
Initiated by a complaint Some are initiated by a
complaint; some by

SPECIAL CIVIL Based on a cause of action

petition
Some special civil actions
have no cause of action
ACTIONS A. JURISDICTION AND VENUE
VENUE JURISDICTION
Interpleader Plaintiff’s or MTC – value of
Defendant’s claim or personal
Residence property does not
exceed P300K
outside Metro
Manila or
MeTC – does not
exceed P400K in
Metro Manila;

MTC - if real
property: does not
exceed P20K and
the case is filed
outside Metro
Manila
MeTC – does not
exceed P50K in
Metro Manila

RTC – if the value

exceeds the
amounts above or if
exclusively within
RTC’s jurisdiction
i.e. incapable of
pecuniary
estimation

Petitioner’s or GR: RTC, because it

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Green Notes 2019 Special Civil Actions

Declaratory Respondent’s is incapable of Expropriation real property or pecuniary

Relief Residence pecuniary a portion estimation
estimation. thereof;
If personal
XPN: If the petition property,
has far-reaching plaintiff’s or
implications and it defendant’s
raises questions residence
that should be Location of RTC – incapable of
resolved, it may be Foreclosure Real Property pecuniary
treated as one for of Real Estate or a portion estimation
prohibition or for Mortgage thereof
mandamus, which MTC OR RTC- an
the SC and CA may action to forclose a
take cognizance rem may also be
considered an
NOTE: Where the action involving
action is one for interest in real
quieting of titile the property. under B.P.
jurisdiction will 129, as amended,
depend upon the where the action is
assessed value of one “involving title
the property. to, or possession of,
real property or any
interest therein,
Certiorari, RTC of the RTC, CA, SC, jurisdiction
Prohibition place where the Sandiganbayan in depends on the
and respondent is aid of its appellate assessed value
Mandamus situated jurisdiction (MTC: not more
-if filed with than 20k or in
the Metro Manila not
Sandiganbayan, more that 50K;
location of the mortgage debt not
respondent is more than 300k or
immaterial in Metro Manila not
more than 400k,
Quo RTC of the RTC, CA, SC othwerwise the
Warranto place where the action shall be filed
respondent or QUO WARRANTO in RTC (Riano/
any of the UNDER RULE 66 Feria and Noche
respondents Sandiganbayan has 2007)
resides exclusive orgiginal
jurisdiction on quo Partition Location of RTC – incapable of
-if filed with warranto arising or Real Property pecuniary
the CA, SC or that may arise in or a portion estimation
Sandiganbayan, cases filed under thereof (IF
location of EO No. 1,2,14,14-A SEVERAL However, an action
respondent is but this must be in DISCTINCT for partition of real
immaterial aid of its appellate PARCELS OF property also
jurisdiction and not LAND ARE IN involves “interest in
-if SolGen exclusive of the SC DIFF real property.” All
commenced PROVINCES, civil actions
the action, it QUO WARRANTO VENUE MAY BE involving title to, or
should be with UNDR THE IN RTC OF ANY possession of, real
the RTC-Manila OMNIBUS OF SAID property or any
or CA, or SC or ELECTION CODE PROVINCES); If interest therein, the
Sandiganbayan Comelec, RTC OR personal jurisdction depend
MTC as the case property, on the assessed
Sandiganbayan may be plaintiff’s or value. (Sec 19(2) of
has exclusive defendant’s BP 129 as amended)
original residence
jurisdiction on
quo warranto MTC – personal
cases filed by property not more
the PCGG than 300K and in
Location of the RTC – incapable of Metro Manila not

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Green Notes 2019 Special Civil Actions

more than 400K; of the contending parties. Otherwise, it may be barred by

real property not laches. (Wack Wack Golf & Country Club v. Lee Won, G.R.
more than 20K and No. L-23851(1976)
in metro manila not
more than 50K. EXCEPTION: Where the stakeholder acts with reasonable
beyond these, RTC. diligence in view of environmental circumstances, the
(Feria cited by remedy is not barred. (Wack Wack Golf & Country Club v.
Riano) Lee Won, G.R. No. L-23851(1976)

INTERPLEADER VIS-À-VIS INTERVENTION UNDER

RULE 19
Forcible Location of the MTC INTERPLEADER INTERVENTION UNDER
Entry and Property RULE 19
Unlawful A Special Civil Action, Not an original action but
Detainer independent and original merely ancillary and
depends upon the
Contempt Where the MTC, RTC, CA or SC existence of a pending
court involved action
is sitting Commenced by filing a Commenced by a motion
complaint for leave to intervene filed
B. Interpleader (Rule 62) in a pending case with the
attached pleading-in-
PURPOSE intervention
Filed by a person who has Filed by a person who has a
A special civil action whereby a person who has property no interest in the subject legal interest in the:
in his possession or an obligation to render, wholly or matter of action or if he subject matter of the
partially, without claiming any right therein, or an has interest, the same is litigation, the success of
interest, which in whole or in part is not disputed by the not disputed by the either parties, an interest
claimants, comes to court and asks that the person who claimants against both, or may be
consider themselves entitled to demand compliance with adversely affected by the
the obligation be required to litigate among themselves in disposition or distribution
order to determine finally who is entitled to the same. of property in the custody
(Alvarez v. Commonwealth, 65 Phil 302) of the court or of an officer
The remedy is afforded not to protect a person against thereof
double liability but to protect him against double vexation The defendants are The defendants are already
in respect of one’s liability. (Beltran v. People’s Homesite, brought into the action parties to an existing suit
G.R. No L-25138, August 28, 1969) because they are sued and
impleaded in the complaint
The purpose of Interpleader is to compel conflicting
claimants to interplead and litigate their several claims IMPROPRIETY OF INTERPLEADER AS REMEDY
among themselves It is believed that where the allegations of the complaint
do not show conflicting claims between or among the
REQUISITES FOR INTERPLEADER persons required to interplead, the complaint for
1. The plaintiff claims no interest in the subject matter, interpleader is subject to dismissal on the ground
or if he has an interest, his claim is not disputed; of impropriety of the interpleader, not a failure to state a
2. There must be at least 2 or more conflicting cause of action under Rule 16 because the meaning of a
claimants; cause of action in ordinary civil actions cannot apply to
3. The conflicting claims are made against the same an interpleader. Besides, for an interpleader to be proper
person (plaintiff); such conflicting claims must exist (Sec. 1, Rule 62, Rules of
4. The subject matter must be one and the same (and Court). Conversely, there is impropriety where no such
derived from the same source). adverse claims can be found from the reading of the
complaint. (Riano)
WHEN TO FILE
C. Declaratory Relief and Similar
Whenever conflicting claims upon the same subject Remedies (Rule 63)
matter are or may be made against a person who claims NATURE
no interest whatever in the subject matter, or an interest An action for declaratory relief is brought to secure an
which in whole or in part is not disputed by the claimants, authoritative statement of the rights and obligations of
he may bring an action against the conflicting claimants the parties under a contract or a statute for their
to compel them to interplead and litigate their several guidance in the enforcement or compliance with the
claims among themselves (Sec. 1) same (Meralco vs. Philippine Consumers Foundation, 374
SCRA 262)
GENERAL RULE: Within a reasonable time. An action for PURPOSE
interpleader should be filed within a reasonable time after The purpose is to seek for a judicial interpretation of an
a dispute has arisen without waiting to be sued by either instrument or for a judicial declaration of a person‘s

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Green Notes 2019
rights under a statute and not to ask for affirmative reliefs
like injunction, damages or any other relief beyond the
purpose of the petition as declared under the Rules.
SUBJECT MATTER OF DECLARATORY RELIEF
The subject matter in a petition for declaratory relief is
any of the following:
a) Deed;
b) Will;
c) Contract or other written instrument;
d) Statute;
e) Executive order or regulation;
f) Ordinance; or
g) Any other governmental regulation
The list is exclusive (Lerum v. Cruz, 87 Phil. 652, 657)
Note: Declaratory relief is not proper in following cases:
a) Citizenship
b) Abstract, hypothetical question
c) Hereditary rights
d) Based on contingent event
e) No administrative remedy has been exhausted
f) Pretends to be declaratory relief
g) Third-party complaint
WHO MAY FILE THE ACTION
(1) Any person interested under a deed, will, contract or
other written instrument or whose rights are affected by
a statute, executive order or regulation, ordinance or
other governmental regulation may before breach or
violation thereof, bring an action in the RTC to determine
any question of construction or validity arising and for a
declaration of his rights or duties, thereunder (Sec. 1).
(2) Those who may sue under the contract should be
those with interest under the contract like the parties,
the assignees and the heirs as required by substantive law
(Art. 1311, Civil Code).
(3) If it be a statute, executive order, regulation or
ordinance, the petitioner is one whose rights are
affected by the same (Sec. 1, Rule 63). The other parties
are all persons who have or claim any interest which
would be affected by the declaration. The rights of person
not made parties to the action do not stand to be
prejudiced by the declaration (Sec. 2).
OTHER PARTIES
1. All persons who have or claim any interest which
would be affected by the declaration shall be made
parties; and no declaration shall, except as otherwise
provided in the Rules, prejudice the rights of persons
not parties to the action. (Sec 2, Rule 63).
2. In any action which involves the validity of a statute,
executive order or regulation, or any other
governmental regulation, the Solicitor General shall
be notified by the party assailing the same and shall
be entitled to be heard upon such question. (Sec 3,
Rule 63).
3. In any action involving the validity of a local
government ordinance, the
corresponding prosecutor or attorney of the local
governmental unit involved shall be similarly notified
and entitled to be heard. If such ordinance is alleged
to be unconstitutional, the Solicitor General shall
also be notified and entitled to be heard. (Sec 4, Rule
63).
Lasallian Commission on Bar Operations
Special Civil Actions
REQUISITES OF AN ACTION FOR DECLARATORY
RELIEF
(1) The subject matter must be a deed, will, contract or
other written instrument, statute, executive order or
regulation or ordinance;
(2) The terms of said document or the validity thereof
are doubtful and require judicial construction;
(3) There must have been no breach of said document;
(4) There must be actual justiciable controversy or the
ripening seeds of one( there is threatened litigation
the immediate future); there must be allegation of
any threatened, imminent and inevitable violation of
petitioner‘s right sought to be prevented by the
declaratory relief sought;
(5) The controversy is between persons whose interests
are adverse;
(6) The issue must be ripe for judicial determination e.g.
administrative remedies already exhausted;
(7) The party seeking the relief has legal interest in the
controversy; and
(8) Adequate relief is not available thru other means.
Stated otherwise, the requisites are:
(a) There must be a justiciable controversy;
(b) The controversy must be between persons whose
interests are adverse;
(c) The party seeking the relief must have legal interest
in the controversy; and
(d) The issue is ripe for judicial determination (Republic
vs. Orbecido III, 472 SCRA 114).
WHEN MAY THE COURT REFUSE TO MAKE JUDICIAL
DECLARATION
Grounds for the court to refuse to exercise declaratory
relief;
a) A decision would not terminate the uncertainty or
controversy which gave rise to the action; or
b) The declaration or construction is not necessary and
proper under the circumstances as when the
instrument or the statute has already been breached
(Sec. 5).
In declaratory relief, the court is given the discretion to
act or not to act on the petition. It may therefore choose
not to construe the instrument sought to be construed or
could refrain from declaring the rights of the petitioner
under the deed or the law. A refusal of the court to
declare rights or construe an instrument is actually the
functional equivalent of the dismissal of the petition.
CONVERSION TO ORDINARY ACTION
If before final termination of the case, a breach should
take place, the action may be converted into ordinary
action to avoid multiplicity of suits (Republic vs.
Orbecido, G.R. No. 154380, Oct. 5, 2005).
SPECIAL ISSUE ON DECLARATORY RELIEF
The only issue that may be raised in such a petition is the
question of construction or validity of provisions in an
instrument or statute. (Province of Camarines Sur v.
Court of Appeals, 600 SCRA 569)
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
Reformation Of An Instrument
It is not an action brought to reform a contract but to
reform the instrument evidencing the contract. It
presupposes that there is nothing wrong with the
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Green Notes 2019 Special Civil Actions

contract itself because there is a meeting of minds 2. the deed, claim, encumbrance or proceeding claimed
between the parties. The contract is to be reformed to be casting cloud on his title must be shown to be
because despite the meeting of minds of the parties as to in fact invalid or inoperative despite its prima facie
the object and cause of the contract, the instrument appearance of validity or legal efficacy.
which is supposed to embody the agreement of the
parties does not reflect their true agreement by reason of D. Review of Judgments and Final
mistake, inequitable conduct or accident. The action is
brought so the true intention of the parties may be
Orders or Resolutions of the
expressed in the instrument (Art. 1359, CC). COMELEC and COA (Rule 64 in
Where the consent of a party to a contract has been relation to Rule 65)
procured by fraud, inequitable conduct or accident, and
an instrument was executed by the parties in accordance
with the contract, what is defective is the contract itself APPLICATION OF RULE 65 UNDER RULE 64
because of vitiation of consent. The remedy is not to Sec. 7, Art. IX-A of the Constitution reads, ― "unless
bring an action for reformation of the instrument but to otherwise provided by the Constitution or by law, any
file an action for annulment of the contract (Art. 1359, decision, order or ruling of each commission may be
CC). brought to the Supreme Court on certiorari by the
Reformation of the instrument cannot be brought to aggrieved party within 30 days from receipt of a copy
reform any of the following: thereof." The provision was interpreted by the Supreme
a) Simple donation inter vivos wherein no condition is Court to refer to certiorari under Rule 65 and not appeal
imposed; by certiorari under Rule 45 (Aratuc vs. COMELEC, 88
b) Wills; or SCRA 251; Dario vs. Mison, 176 SCRA 84).
c) When the agreement is void (Art. 1666, CC).
A party aggrieved by the judgment, final orders or
CONSOLIDATION OF OWNERSHIP resolution of the Commission on Elections and
The concept of consolidation of ownership under Art. Commission on Audit may file a petition for certiorari
1607, Civil Code, has its origin in the substantive under Rule 65 with the Supreme Court (Sec. 2, Rule 64,
provisions of the law on sales. Under the law, a contract Rules of Court)
of sale may be extinguished either by legal redemption
(Art. 1619) or conventional redemption (Art. 1601). If the mode review is petition for certiorari under Rule 65,
When the redemption is not made within the period then this means that the judgments or final orders of the
agreed upon, in case the subject matter of the sale is a constitutional commissions referred to in Rue 64 are not
real property, Art. 1607 provides that the consolidation of reviewable by appeal. Under Rule 65, certiorari is
ownership in the vendee shall not be recorded in the available only when there is no appeal, nor any other
Registry of Property without a judicial order, after the plain, speedy or adequate remedy in the ordinary course
vendor has been duly heard. of law. (Riano, 2016)
The action brought to consolidate ownership is not for
the purpose of consolidating the ownership of the DISTINCTION IN THE APPLICATION OF RULE 65 TO
property in the person of the vendee or buyer but for the JUDGMENTS OF THE COMELEC AND COA AND THE
registration of the property. The lapse of the redemption APPLICATION OF RULE 65 TO OTHER TRIBUNALS,
period without the seller a retro exercising his right of PERSONS, AND OFFICERS
redemption, consolidates ownership or title upon the Rule 64 Rule 65
person of the vendee by operation of law. Art. 1607
requires the filing of the petition to consolidate
Directed only to the Directed to any tribunal,
ownership because the law precludes the registration of
judgments, final orders or board or officers exercising
the consolidated title without judicial order (Cruz vs. Leis,
resolutions of the judicial or quasi-judicial
327 SCRA 570).
COMELEC and COA; functions;
Quieting Of Title To Real Property
This action is brought to remove a cloud on title to real
Filed within 30 days from Filed within 60 days from
property or any interest therein. The action contemplates
notice of the judgment; notice of the judgment;
a situation where the instrument or a record is
apparently valid or effective but is in truth and in fact
The filing of a motion for The period within which to
invalid, ineffective, voidable or unenforceable, and may be
reconsideration or a filed the petition if the
prejudicial to said title to real property. This action is
motion for new trial if motion for reconsideration
then brought to remove a cloud on title to real property
allowed, interrupts the or new trial is denied, is
or any interest therein. It may also be brought as a
period for the filing of the another 60 days from
preventive remedy to prevent a cloud from being cast
petition for certiorari. notice of the
upon title to real property or any interest therein (Art.
If the motion is denied, the denial of the motion.
476, Civil Code).
aggrieved party may file
For an action to quiet title to prosper, two (2)
the petition within the
indispensable requisites must concur, namely:
remaining period, but
1. the plaintiff or complainant has a legal or an
which shall not be less than
equitable title to or interest in the real property
5 days reckoned from the
subject of action, and
notice of denial.

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 Green Notes 2019 Special Civil Actions

course of law
E. Certiorari, Prohibition and Purpose To annul or To compel the To prevent an
Mandamus modify the performance encroachmen
judgment, of a ministerial t, excess,
DEFINITIONS AND DISTINCTIONS
order, and legal duty usurpation or
CERTIORARI
resolution, or assumption
A writ issued from the Supreme Court to any inferior
proceedings of of jurisdiction
court, board, officer exercising judicial or quasi-judicial
the tribunal,
functions whereby the records of a particular case is
board or
ordered to be elevated up for review and correction in
officer
matters of law.
It is a prerogative writ and issued in the exercise of
judicial discretion. There must be a showing of CERTIORARI UNDER RULE 65 AND APPEAL BY
capricious, arbitrary and whimsical exercise of power for CERTIORARI UNDER RULE 45, DISTINGUISHED
it to prosper PETITION FOR APPEAL BY CERTIORARI
PROHIBITION CERTIORARI UNDER UNDER RULE 45
A writ by which a superior court prevents the inferior RULE 65
courts, a corporation, board or persons, from usurping or Special Civil Action Mode of Appeal
exercising a jurisdiction or a power with which they have (Original Action)
not been vested by the law.(Matuguina Integrated vs CA) Subject is interlocutory Subject is Final Judgment
MANDAMUS order or those in Rule 41,
A writ issued in the name of the State, to an inferior Section 1
court, tribunal, corporation, board, officer, or person, Question of Jurisdiction Question of Law
commanding the performance of an act which the law Filed within 60 days after Filed within 15 days after
enjoins as a duty resulting from an office, trust or station. notice of judgment notice of judgment
It is employed to compel the performance, when refused, Filing of Motion for No Motion for
of a ministerial duty. It does not compel the performance Reconsideration required Reconsideration required
of a contractual obligation or to compel a course of Does not stay judgment Stays judgment
conduct nor to control or review the exercise of Party is the court, Original parties
discretion. tribunal or officer
CERTIORARI PROHIBITION MANDAMUS May be filed in the RTC, Filed in the Supreme Court
To whom May be May be May be CA or SC
directed directed directed directed
against against any against any against any PROHIBITION AND MANDAMUS, AND INJUNCTION,
tribunal, board tribunal, tribunal, DISTINGUISHED
or officer corporation, corporation, PROHIBITION and INJUNCTION
exercising board, officer board, officer
MANDAMUS
judicial or or person, or person
Strikes at once to the Usually recognizes the
quasi-judicial whether
jurisdiction of the court jurisdiction of the court
functions exercising
before which the
judicial, quasi-
proceeding is pending
judicial or
Directed to the court Directed only to the
ministerial
itself or the entity which parties-litigants, without
functions
exercised the any manner interfering
What 1. The entity 1. The entity 1. The entity –
discretionary in act, in with the court
must be acted – acted- a. Unlawfully
case of a mandamus
alleged a. Without a. Without neglected a
jurisdiction; jurisdiction; ministerial
b. In excess of b. In excess of duty; or
jurisdiction; or jurisdiction; or b. Unlawfully
c. With c. With excluded
GADALEJ GADALEJ another from
the use and
2. There is no 2. There is no enjoyment of CERTIORARI REQUISITES
appeal or any appeal or any a right or 1. There must be a controversy.
other plain, other plain, office to 2. The tribunal, board or officer against whom the
speedy, and speedy, and which one is controversy is brought exercises judicial or quasi-
adequate adequate entitled judicial functions.
remedy in the remedy in the 3. The tribunal, board or officer has acted without
ordinary ordinary 2. There is no jurisdiction, or in excess of its jurisdiction, or with
course of law course of law appeal or any grave abuse of discretion amounting to lack or
other plain, excess of jurisdiction
speedy, and 4. There is no appeal, nor any plain, speedy, and
adequate adequate remedy in the ordinary course of law.
remedy in the
ordinary

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GENERAL RULE: Filing of motion for reconsideration is
required before filing for certiorari.
EXCEPTIONS
1. When the case involves matters of extreme urgency
(Matutina v. Buslon, August 24, 1960)
2. When the order or judgment complained of is a
patent nullity (Luzon Surety v. Maribella, September
30, 1960)
3. When the question had been properly raised, argued
and submitted to the respondent court and passed
upon by it (Fernandez v. Caluag, December 20, 1961)
4. In the interest of justice and public welfare and
advancement of public policy (Jose v. Zulueta)
5. Order was issued without or in excess of jurisdiction
(Philippine Consumers Foundation v. NTC, 1983)
6. When relief is extremely urgent, there is no more
need to wait for the resolution of motion for
reconsideration (Vda. De Sayman v. CA, 1983)
7. When the question raised is purely of law (Central
Bank v. Cloribel, 1972)
WHEN MAY CERTIORARI PROSPER
1. Appeal is not a speedy and adequate remedy
(SaludesvsPajarillo, 1947)
2. Order is issued without or in excess of jurisdiction
(PNB vs Florendo, 1992)
3. In consideration of public welfare and for the
advancement of public policy (Jose vsZulueta, 1961)
4. Order is a patent nullity (Marcelo vs De Guzman,
1982)
5. To avoid future litigation (St. Peter Memorial Park vs
Campos, Jr., 1975)
6. To avoid a miscarriage of justice (EscuderovsDulay,
1988)
7. In furtherance of broader interest of justice and
equities (MarahayvsMelicor, 1990)
PROHIBITION REQUISITES
1. There is a controversy;
2. Respondent is exercising judicial, quasi-judicial or
ministerial functions;
3. Respondent acted without or in excess of
jurisdiction or acted with grave abuse of discretion
amounting to lack of jurisdiction; and
4. There must be no appeal, or other plain, speedy and
adequate remedy
MANDAMUS REQUISITES
1. There must be a clear legal right and duty
2. The act to be performed must be practical - within
the powers of the respondent to perform such that if
the writ of mandamus was issued, he can comply
with it, or else the essence will be defeated
3. Respondent must be exercising a ministerial duty – a
duty which is absolute and imperative and involves
merely its execution
4. The duty or act to be performed must be existing – a
correlative right will be denied if not performed by
the respondents; and
5. There is no other plain, speedy and adequate remedy
in the ordinary course of law. preliminary injunction
must be sought. (De Castro v. Judicial and Bar
Council, 2010)
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Special Civil Actions
MINISTERIAL DUTY – One which an officer or tribunal
performs in a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done (Roble Arrastre,
Inc. v. Villaflor 2006)
WHEN PETITION FOR CERTIORARI, PROHIBITION
AND MANDAMUS PROPER
When there is no other plain, speedy, or adequate remedy
in the ordinary course of law.
WHEN PETITION FOR CERTIORARI IS PROPER
Only to correct errors of jurisdiction, not errors of
judgment.
Questions of fact cannot be raised in an original action
for certiorari. Only established or admitted facts may be
considered. (Suarez v. NLRC, 1998)
WHEN PETITION FOR PROHIBITION IS PROPER
Prohibition is a preventive remedy. However, to prevent
the respondent from performing the act sought to be
prevented during the pendency of the proceedings for
the writ, the petitioner should obtain a restraining order
and/or writ of preliminary injunction. (REGALADO)
The office of prohibition is not to correct errors of
judgment but to prevent or restrain usurpation by
inferior tribunals and to compel them to observe the
limitation of their jurisdictions. (HERRERA)
WHEN PETITION FOR MANDAMUS IS PROPER
The purpose of mandamus is to compel the performance,
when refused, of a ministerial duty, this being its main
objective.
A writ of mandamus will not issue to control the exercise
of official discretion or judgment, or to alter or review the
action taken in the proper exercise of the discretion of
judgment, for the writ cannot be used as a writ of error or
other mode of direct review.
However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of the
fiscal of discretionary functions where his actuations are
tantamount to a wilful refusal to perform a required duty.
(REGALADO)
INJUNCTIVE RELIEF
GENERAL RULE: The mere elevation of an interlocutory
matter through a petition for certiorari does not by itself
merit a suspension of the proceedings before a public
respondent, applying Sec. 7, Rule 65. The public
respondent shall proceed with the principal case WITHIN
10 DAYS from filing of the petition for certiorari with the
higher court, absent a TRO or preliminary injunction, or
upon its expiration. Failure may be a ground for an
administrative charge (AM No. 07-7-12- SC)
EXCEPTIONS:
1. When a writ of preliminary injunction or TRO is
issued: The burden is on petitioner to show that
there are meritorious grounds, i.e. there is an urgent
necessity in order to prevent serious damage; or
2. Judicial courtesy: Even if there is no injunction
issued, lower court should defer to higher court
where there is a strong probability that the issues
before the higher court would be rendered “moot
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and moribund as a result of the continuation of the
proceedings in the” court of origin. (Republic
v.Sandiganbayan, 2006)
EXCEPTIONS TO FILING A MOTION FOR
RECONSIDERATION BEFORE FILING PETITION A
PETITION FOR CERTIORARI, PROHIBITION, AND
MANDAMUS
GENERAL RULE:A motion for reconsideration is an
essential precondition for the filing of a petition for
certiorari, prohibition or mandamus. It is a plain, speedy
and adequate remedy. This is to enable the lower court,
in the first instance, to pass upon and correct its mistakes
without the intervention of the higher court.
EXCEPTIONS:
1. When the issue is one purely of law;
2. When there is urgency to decide upon the question
and any further delay would prejudice the interests
of the government or of the petitioner;
3. Where the subject matter of the action is perishable;
4. When order is a patent nullity, as where the court a
quo has no jurisdiction or there was no due process;
5. When questions have been duly raised and passed
upon by the lower court;
6. When there is urgent necessity for the resolution of
the question;
7. When Motion for Reconsideration would be useless,
e.g. the court already indicated it would deny any
Motion for Reconsideration;
8. In a criminal case, where relief from order of arrest
is urgent and the granting of such relief by the trial
court is improbable;
9. Where the proceeding was ex parte or in which the
petitioner had no opportunity to object;
10. When petitioner is deprived of due process and
there is extreme urgency for urgent relief; and
11. When issue raised is one purely of law or public
interest is involved
REFLIEFS PETITIONER IS ENTITLED TO
1. Injunctive relief – Court 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 (Sec.
7, Rule 65)
2. Incidental reliefs as law and justice may require
(Secs. 1-2, Rule 65)
3. Other reliefs prayed for or to which the petitioner is
entitled (Sec. 8, Rule 65)
ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION
CASES
In election cases involving an act or an omission of a
municipal or regional trial court, the petition [for
certiorari, prohibition, or mandamus] shall be filed
EXCLUSIVELY with the Commission on Elections, in aid
of its appellate jurisdiction [Sec. 4, par. 3, Rule 65 as
amended by AM No. 07-7-12-SC (2007)]
PETITION AND CONTENTS
1. A verified petition is filed in the proper court which
shall be accompanied by:
a. A certified true copy of the judgment, order, or
resolution subject thereof
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b. Copies of all pleadings and documents relevant
and pertinent to the case
c. Sworn certification of non-forum shopping
2. Contents of the petition
a. Allegation of facts with certainty
3. Prayer
a. For certiorari: 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
b. For prohibition: That judgment be rendered
commanding the respondent to desist from
further proceedings in the action or matter
specified therein, or otherwise granting such
incidental reliefs as law and justice may require.
c. For mandamus: That judgment be rendered
commanding the respondent, immediately or at
some other time to be specified by the court, to
do the act required to be done to protect the
rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
wrongful acts of the respondent.
GENERAL RULE: The petition shall be filed not later than
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 60 days counted from the
notice of the denial of the motion. The 60 day period is
non-extendible.
EXCEPTIONS: The court may grant extension which in no
case shall exceed 15 days for compelling grounds
EFFECTS OF FILING AN UNMERITORIOUS PETITION
The filing of an unmeritorious petitions have an effect of
dismissal by the court. Disciplinary sanctions may also be
imposed for patently dilatory and unmeritorious
petitions.
F. Quo Warranto (Rule 66)
QUO WARRANTO
It is a demand made by the State upon some individual or
association to show what right they exercise some
franchise or privilege appertaining to the State, which
according to the Constitution and laws of the land, they
cannot legally exercise by virtue of the grant and
authority of the State. (44 Am. Jur 88-89)
It is a prerogative writ by which the government can call
upon any person to show by what warrant he holds a
public office or exercise a public franchise. (3 Moran 208
[1970])
Allegations in quo warranto that certain persons usurped
the offices, powers and functions of duly elected
members of the board, trustees and/or officers make out
a case for an intra-corporate controversy. Such falls
under the jurisdiction of the SEC and is governed by its
rules. (Calleja vs. Panday, 2006)
It may be dismissed at any stage when it becomes
apparent that the plaintiff is not entitled to the disputed
public office, position or franchise. Courts are not
compelled to still proceed when it is obvious that the
petition is insufficient. (Feliciano v. Villasin, 2008)
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QUO WARRANTO FILED BY A PRIVATE INDIVIDUAL respondent is

AND FILED BY THE SOLICITOR GENERAL, disqualified and the
DISTINGUISHED petitioner who
QUO WARRANTO QUO WARRANTO received the second
(Rule 66) (OEC Sec. 25) number of votes.
Filed by 1. Solicitor General Any voter (Maquiling v.
whom or Public COMELEC)
Prosecutor (a) In
behalf of the WHEN GOVERNMENT COMMENCE AN ACTION
Republic or (b) AGAINST INDIVIDUALS
upon the An action for the usurpation of a public office, position or
request or franchise may be commenced by a verified petition
relation of brought in the name of the Republic of the Philippines
another person. through the Solicitor General or public prosecutor.
2. Individual 1. Compulsory: When to commence:
claiming to be a. When directed by the President; OR
entitled to a b. When upon complaint or otherwise he has good
public office or reason to believe that any of the following cases
position can be established by proof:
usurped or a. A person who usurps, intrudes into, or
unlawfully held unlawfully holds or exercises a public
or exercised by office, position or franchise;
another. b. A public officer who does or suffers an
Venue 1. If commenced 1. If filed against act which, by the provision of law,
by Solicitor election of a constitutes a ground for the forfeiture
General: RTC Member of of his office; or
Manila, CA or Congress, c. An association which acts as a
SC; Regional, corporation within the Philippines
2. Otherwise: RTC Provincial or City without being legally incorporated or
with jurisdiction Officer; without lawful authority so to act.
over the area 2. If against a 2. Discretionary: When to commence:
where municipal or a. Upon permission of the court; AND
respondent barangay officer: b. At the request and upon the relation of another
resides, CA or appropriate RTC person, provided that the officer bringing it may
SC or MTC, first require an indemnity for the expenses and
respectively. costs of the action in an amount approved by
Period Within 1 year from Within 10 days after and to be deposited in the court by the person
of Filing ouster or from the proclamation of at whose request and upon whose relation the
time the right to the results; same is brought
position arose;
Grounds 1. A person, who 1. Ineligibility
usurps, intrudes 2. Disloyalty to the WHEN INDIVIDUAL MAY COMMENCE AN ACTION
into or Republic A person claiming to be entitled to a public office or
unlawfully holds position usurped or unlawfully held or exercised by
or exercise a another may bring an action therefor in his own name.
public office,
position or ACTION BY PRIVATE ACTION BY SOLICITOR
franchise; INDIVIDUAL GENERAL OR PUBLIC
2. A public officer, PROSECUTOR (IN THE
who does or NAME OF THE
suffers an act REPUBLIC)
which, by Necessary for the Not necessary that there
provision of petitioner to prove his be a person claiming to
law, constitutes right to the office in be entitled to the office
a ground for dispute; otherwise the alleged to have been
forfeiture of court shall not pass on usurped; thus the duty of
office. the right of the defendant the court is to pass upon
Effect The Court will oust The occupant who in office. the right of the defendant
the person illegally was declared only
appointed and will ineligible or disloyal Burden is on the No presumption exists in
order the seating will be unseated but petitioner to show his favor of defendant;
person who was the petitioner may be entitlement to the office; Solicitor General does
legally appointed declared the rightful presumption exists in not prove entitlement to
and entitled to the occupant of the favor of defendant office
office. office if the

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PARTIES AND CONTENTS OF THE PETITION
All persons who claim to be entitled to the public office,
position or franchise may be made parties, and their
respective rights to such public office, position or
franchise determined, in the same action.
The petition shall set forth:
1. The name of the person who claims to be entitled
thereto, if any; and
2. An averment of his right to the same and that the
respondent is unlawfully in possession thereof.
VENUE
Courts where plaintiff may file quo warranto:
1. Supreme Court (Section 5 [1], Article VIII, 1987
Constitution
2. Court of Appeals (Sec. 9 [1], BP 129)
3. RTC exercising jurisdiction over the territorial
area where the respondent resides (Sec 21 [1],
BP 129)
4. Sandiganbayan(RA 8429 in cases which are
relevant to its jurisdiction)
5. COMELEC (over quo warranto cases)
6. MTC (barangay level election contest)
(RegatchovsCleto, 1983)
NOTE: If filed by the Solicitor General, it may directly
bring the action before the RTC of Manila or the CA or
the SC.
Hierarchy of courts must still be observed, although not
expressly provided for the rule. (Mendoza v. Villas, 2011)
JUDGMENT IN QUO WARRANTO ACTION
Sec. 9. Judgment where usurpation found, Rule 65
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall be
rendered:
1. That such respondent be ousted and altogether
excluded therefrom; and
2. That the petitioner or relator, as the case may
be, recover his costs; and
3. Such further judgment may be rendered
determining the respective rights in and to the
public office, position or franchise of all the
parties to the action as justice requires.
RIGHTS OF A PERSON ADJUDGED ENTITLED TO
PUBLIC OFFICE
1. Execution of the office after taking oath of office and
executing any official bond required by the law
2. Demand from respondent all the books and papers
appertaining to the office to which judgment relates.
a. Respondent’s neglect or refusal to comply
with the demand is punishable by
contempt
3. Bring an action for damages against respondent for
damages sustained by him by reason of the
usurpation.
a. Must be commenced within 1 year after
entry of judgment establishing petitioner’s
right to the office in question.
Quo Warranto is an action which violates the rule on
splitting the cause of action. It is designed for the
purpose of determining who between the contestants is
entitled to hold office. Once the court has decided this
issue, the law authorizes the winning party to file a
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Special Civil Actions
subsequent complaint for the recovery of damages arising
from the usurpation of office.
LIMITATIONS
An action for quo warranto can be filed against the
alleged usurper not later than 1 year from date of
usurpation.
JUDGMENT FOR COSTS
The court may render judgment for costs against either
the petitioner, the relator, or the respondent, or the
person or persons claiming to be a corporation, or may
apportion the costs, as justice requires.
RELATOR – person mentioned in Section 3; the person
who will request the Solicitor General to file the case
G. Expropriation
EXPROPRIATION is the power of the sovereign state to
take or authorize the taking of any property within its
jurisdiction for public use without the owner’s consent (18
Am Jur. 631)
NOTE: If the owner consents, then there is no need for
filing the case.
Expropriation is not synonymous to Eminent Domain.
The latter is the inherent power of the State to take
property for public use. The former is the proceeding to
implement eminent domain.
REQUISITES FOR THE VALID EXERCISE OF THE RIGHT
OF EMINENT DOMAIN
1. Property to be taken must be private;
2. There must be due process of law;
3. Payment of just compensation; and
4. Taking must be for public use
PUBLIC USE - One which confers some benefit or
advantage to the public; it is not confined to actual use by
public. It is measured in terms of right of public to use
proposed facilities for which condemnation is sought and,
as long as public has right of use, whether exercised by
one or many members of public, a ‘public advantage’ or
‘public benefit’ accrues sufficient to constitute a public
use. (Manosca v. CA, 1996)
HOWEVER, the term “public use” has acquired a more
comprehensive coverage -to the literal import of the
term signifying strict use or employment by the public
has been added the broader notion of indirect public
benefit or advantage. (City of Manila v. Te, 2011)
LIMITATION TO THE EXERCISE OF THE RIGHT OF
EMINENT DOMAIN
1. Exercised only by the State or entities authorized by
the law;
2. Inherent power belongs to the national government
and not to the local government, except when the
law and charters expressly authorize them to do so;
3. Just compensation must be paid to the property
owner –
4. element of due process in expropriation; right value
plus no delay in payment;
5. Due process must be observed – compliance with
the rules provided; and
6. Only as much property will be taken as necessary for
the legitimate purpose of expropriation
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Nothing in the law limits the expropriation to only real WHERE:

property. Personal property may also be expropriated but Deposit shall be made with the authorized government
not money. depositary. (Amount is to be held by such bank subject to
MATTERS TO ALLEGE IN A COMPLAINT FOR the orders of the court)
EXPROPRIATION FORMS OF DEPOSIT:
The right of eminent domain shall be exercised by the GENERAL RULE: Deposit shall be in money.
filing of a verified complaint which shall state with EXCEPTION: The court authorizes the deposit of a
certainty: certificate of deposit of a government bank of the
1. The right and purpose of expropriation; Republic of the Philippines payable on demand to the
2. Describe the real or personal property sought to be authorized government depositary.
expropriated; and
3. Join as defendants all persons owning or claiming to After the deposit, court shall order sheriff or proper
own, or occupying, any part thereof or interest officer to place plaintiff in possession of the property.
therein, showing the separate interest of each Such officer shall promptly submit a report to the court
defendant. with service of copies to parties.
4. Make the following averments, if needed:
a. If title appears to be in the Republic, although
REPUBLIC ACT. 8974 (2000): An Act to Facilitate the
occupied by private individuals;
Acquisition of Right-of-Way, Site or Location for
b. If title is otherwise obscure or doubtful so that
National Government Infrastructure Projects and for
plaintiff cannot with accuracy or certainty
specify who the real owners are. Other Purposes
TWO STAGES IN AN EXPROPRIATION PROCEEDING EXPROPRIATION RA 8974
1. Determination of the authority of the plaintiff to UNDER RULE 67
exercise the power of eminent domain and the Scope Expropriation in Only when
propriety to exercise in the context of the facts. general, for both national
real and personal government
This stage is terminated by either an order of dismissal of properties expropriates real
the action or order of condemnation declaring the property for
expropriation to be proper and legal. national
government
These orders are final and executory and hence, may be infrastructure
appealed (Municipality of Binanvs Garcia, 1989) projects
For writ of Government is Government is
2. Determination of just compensation. possession required to make required to make
to issue preliminary immediate
Done with the assistance of not more than three deposit payment to owner
commissioners. The order determining just compensation upon filing of
is final and appealable. complaint
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO Amount of Equal to assessed Equal to the
POSSESSION OF THE REAL PROPERTY, IN RELATION payment or value of real market value of
TO R.A. NO. 8974 deposit property for the property as
Plaintiff shall have the right to take or enter upon purposes of stated in the tax
possession of the real property upon: taxation declaration or
1. Filing of complaint or at any time thereafter, and current relevant
after due notice to defendant; zonal value of BIR,
2. Making preliminary deposit whichever is
higher, and value
PRELIMINARY DEPOSIT - Money which the plaintiff of improvements
initially deposits in order for him to be placed in and/or structures
possession of the property involved using
replacement cost
PURPOSE:
method
1. To act as a down payment - if government wins and
the amount of just compensation is fixed by the NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL
court, preliminary deposit becomes the down JUST COMPENSATION
payment; For the acquisition of right-of-way, site or location for
2. To act as damages - if government loses, defendant any national government infrastructure project through
entitled to claim for damages (Republic vs Baylosis, expropriation upon the filing of the filing of the
1960) complaint, and after due notice to the defendant, the
VALUE: implementing agency shall immediately pay the owner of
1. Real property – assessed value of the property for the property the amount equivalent to the sum of:
taxation purposes. 1. 100 percent of the value of the property based
2. Personal property – provisionally ascertained and on the current relevant zonal valuation of the
the amount to be deposited is fixed by the court. BIR; and
2. The value of the improvements and/or
structures as determined under Sec. 7 of R.A.
8974, supra (Sec. 4, RA 8974)

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DEFENSES AND OBJECTIONS
If a defendant has no objection or defense to the action
or the taking of his property:
1. He may file and serve a notice of appearance
and a manifestation to that effect, specifically
designating or identifying the property in which
he claims to be interested, within the time
stated in the summons.
2. Thereafter, he shall be entitled to notice of all
proceedings affecting the same.
If a defendant has objection(s) to the filing of the
complaint or any objection (s) or defense(s) to the taking
of his property:
1. He shall serve his answer within the time stated
in the summons. The answer shall specifically
designate or identify the property in which he
claims to have an interest, state the nature and
extent of the interest claimed, and adduce all
his objections and defenses to the taking of his
property.
2. No counterclaim, cross-claim or third-party
complaint shall be alleged or allowed in the
answer or any subsequent pleading.
GENERAL RULE: A defendant waives all defenses and
objections not so alleged.
EXCEPTION: In the interest of justice, the court may
permit amendments to the answer which shall be made
not later than 10 days from the filing thereof.
Just compensation may be proven with or without
objections/defense, and whether or not defendant
appeared/answered: In any case, in the determination of
just compensation, defendant may present evidence as to
the amount of compensation to be paid.
ORDER OF EXPROPRIATION
It is the order declaring that the plaintiff has lawful right
to take the property.
WHEN IS IT ISSUED?
1. Objections or defenses against the right of
plaintiff to expropriate are overruled; or
2. No party appears to defend the case
CONTENTS OF THE ORDER
1. That the plaintiff has a lawful right to take the
property sought to be expropriate;
2. For the public use or purpose described in the
complaint; and
3. Upon payment of just compensation
a. To be determined as of the date of
taking, or
b. The filing of the complaint, whichever
came first
REMEDY OF THE AGGRIEVED PARTY
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the
court from determining the just compensation to be paid.
EFFECT
After the rendition of such an order, the plaintiff shall not
be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and
equitable.
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NOTE: From the moment that the court issues such
order, the property is deemed expropriated. This marks
the end of Stage 1 of the proceeding.
ASCERTAINMENT OF JUST COMPENSATION
Upon the rendition of the order of expropriation:
1. The court shall appoint not more than 3
competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken.
2. The order of appointment shall designate:
a. The time and place of the first session
of the hearing to be held by the
commissioners; and
b. Specify the time within which their
report shall be submitted to the court.
3. Copies of the order shall be served on the
parties.
4. Objections to the appointment of any of the
commissioners shall be filed with the court
within 10 days from service, and shall be
resolved within 30 days after all the
commissioners shall have received copies of the
objections.
NOTE: Appointment of commissioners is mandatory.
Just compensation should be determined as of the date of
the time taking of the property or the filing of the
complaint, whichever comes first.
PROCEEDINGS BY COMMISSIONERS
Before entering upon the performance of their duties:
1. The commissioners shall take and subscribe an
oath that they will faithfully perform their
duties as commissioners, which oath shall be
filed in court with the other proceedings in the
case.
2. Evidence may be introduced by either party
before the commissioners who are authorized
to administer oaths on hearings before them.
DUTIES
1. The commissioners shall view and examine the
property sought to be expropriated and its
surroundings, and may measure the same.
a. Unless the parties consent to the
contrary and after due notice to the
parties to attend
b. After which either party may, by
himself or counsel, argue the case.
2. The commissioners shall assess the
consequential damages to the property not
taken and deduct from such consequential
damages the consequential benefits to be
derived by the owner from the public use or
purpose of the property taken, the operation of
its franchise by the corporation or the carrying
on of the business of the corporation or person
taking the property. But in no case shall the
consequential benefits assessed exceed the
consequential damages assessed, or the owner
be deprived of the actual value of his property
so taken.
REPORT BY COMMISSIONERS
The court may order the commissioners to report when
any particular portion of the real estate shall have been
passed upon by them, and may render judgment upon
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Green Notes 2019
such partial report, and direct the commissioners to
proceed with their work as to subsequent portions of the
property sought to be expropriated, and may from time
to time so deal with such property.
1. The commissioners shall make a full and
accurate report to the court of all their
proceedings
2. Such proceedings shall not be effectual until the
court shall have accepted their report and
rendered judgment in accordance with their
recommendations.
3. Report shall be filed within 60 days from the
date the commissioners were notified of their
appointment, which time may be extended in
the discretion of the court. Except as otherwise
expressly ordered by the court
4. Upon the filing of such report, the clerk of the
court shall serve copies thereof on all interested
parties, with notice that they are allowed 10
days within which to file objections to the
findings of the report, if they so desire.
ACTION UPON COMMISSIONERS’ REPORT
Upon the expiration of the period of 10, or even before
the expiration of such period but after all the interested
parties have filed their objections to the report or their
statement of agreement therewith, the court may:
1. After hearing, accept the report and render
judgment in accordance therewith;
2. Recommit to commissioners for further report
of facts, for cause shown;
3. Set aside the report and appoint new
commissioners; or
4. Accept the report in part and reject in part; and
5. Make such order or render such judgment as
shall secure the plaintiff (as to its right to
expropriate) and the defendant (as to his right
to just compensation)
Determination of just compensation is a judicial function,
which cannot be encroached upon the legislative or
executive branch of government (EPZA vs Dulay, 1987)
RIGHTS OF PLAINTIFF AFTER JUDGMENT AND
PAYMENT
1. Upon payment by the plaintiff to the defendant
of the compensation fixed by the judgment
including legal interest thereon from the taking
of the possession of the property; or
2. After tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have:
a. The right to enter upon the property
expropriated and to appropriate it for the
public use or purpose defined in the
judgment; or
b. The right to retain it should he have taken
immediate possession thereof.
EFFECT OF REFUSAL TO RECEIVE PAYMENT
If the defendant and his counsel absent themselves from
the court, or decline to receive the amount tendered, it
shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment
thereof to the defendant or the person ultimately
adjudged entitled thereto.
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Special Civil Actions
NOTE: Upon payment of just compensation will the
plaintiff become the owner of the property. From that
moment, the government acquires the right to possess
EFFECT OF APPEAL
The right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the
judgment.
EFFECT OF REVERSAL
If the appellate court determines that plaintiff has no
right of expropriation, judgment shall be rendered
ordering the RTC to forthwith enforce the restoration to
the defendant of the possession of the property, and to
determine the damages which the defendant sustained
and may recover by reason of the possession taken by the
plaintiff.
COSTS
The fees of the commissioners shall be taxed as a part of
the costs of the proceedings. All costs, except those of
rival claimants litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the owner of the
property and the judgment is affirmed, in which event the
costs of the appeal shall be paid by the owner.
EFFECT OF ENTRY OF JUDGMENT
CONTENTS OF JUDGMENT
1. Statement of the particular property or interest
therein expropriated, with adequate description; and
2. Nature of the public use or purpose for which it is
expropriated.
WHEN TITLE IS VESTED
1. If personal property, upon payment of just
Compensation;
2. If real property, upon payment of just compensation
and recording of the judgment in the registry of
deeds where the property is situated
PECULIARITY OF THE PROCEEDINGS
1. Multiple appeals are allowed and the period to
appeal is 30 days; no record of appeal is required.
2. The procedure is not summary but there are
prohibited pleadings, such as counterclaim, cross-
claim, etc
3. Even if defendant is declared in default, he can still
participate in the proceedings (i.e. determine just
compensation)
4. Even if defendant accepts money as just
compensation, he can still assail the judgment on the
propriety of the expropriation
Q: How to determine just compensation in expropriation
cases?
A: Just compensation means the property’s fair market
value at the time of the filing of the complaint, or "that
sum of money which a person desirous but not compelled
to buy, and an owner willing but not compelled to sell,
would agree on as a price to be given and received
therefor."The measure is not the taker’s gain, but the
owner’s loss. In the determination of such value, the court
is not limited to the assessed value of the property or to
the schedule of market values determined by the
provincial or city appraisal committee; these values
consist but one factor in the judicial valuation of the
property. The nature and character of the land at the
time of its taking is the principal criterion for determining
how much just compensation should be given to the
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landowner All the facts as to the condition of the made, then the loans had not yet become due and
property and its surroundings, as well as its demandable. This meant that respondents had not
improvements and capabilities, should be considered defaulted in their payments and the foreclosure by
(NPC vs. Tiangco, 2007). petitioner was premature. Foreclosure is valid only when
the debtor is in default in the payment of his
H. Foreclosure of Real Estate obligation. (General Milling Corp. v. Spouses Ramos, 2011)
ALTERNATIVE REMEDIES OF THE CREDITOR;
Mortgage
SPLITTING SINGLE CAUSE OF ACTION
MORTGAGE, DEFINED
The rule is that a mortgage-creditor has a single cause of
It is an interest in the land created by a written
action against a mortgagor-debtor, that is, to recover the
instrument providing security for the performance of a
debt.
duty or the payment of debt. The mortgage operates as a
The mortgage-creditor has the option of either:
conveyance of the legal title to the mortgagee, but such
(1) filing a personal action for collection of sum of
title is subject to defeasance on payment on the debt or
money;
performance of the duty by the mortgagor.
(2) or instituting a real action to foreclose on the
FORECLOSURE, DEFINED
mortgage security.
Remedy available to the mortgagee by which he subjects
the mortgaged property to the satisfaction of the
An election of the first bars recourse to the second,
obligation to secure which the mortgage was given
otherwise there would be multiplicity of suits in which
To shut out, bar or destroy an equity of redemption; a
the debtor would be tossed from one venue to another
termination of all the rights of the mortgagor or his
depending on the location of the mortgaged properties
grantee in the property covered by the mortgage;
and the residence of the parties. (Flores v. Spouses Lindo,
procedure by which the mortgaged property is sold on
Jr. 2011)
default of mortgagor in satisfaction of the mortgage debt
The Court has ruled that if a creditor is allowed to file his
There can be a loan without mortgage but there cannot
separate complaints simultaneously or successively, one
be a mortgage without a loan. Mortgage is only an
to recover his credit and another to foreclose his
accessory contract and the loan is the principal one.
mortgage, he will, in effect, be authorized plural redress
REAL ESTATE MORTGAGE, DEFINED for a single breach of contract at so much costs to the
It is an accessory contract executed by a debtor in favor
court and with so much vexation and oppressiveness to
of a creditor as a security for the principal obligation. This
the debtor. (Riano, 2016)
principle is usually a simple loan or mutuum described in
PACTUM COMMISSORIUM, DEFINED
Article 1953 of the Civil Code of the Philippines. (Riano,
Pactum commissorium is "a stipulation empowering the
2016)
creditor to appropriate the thing given as guaranty for
To be a real estate mortgage, the contract must be
the fulfillment of the obligation in the event the obligor
constituted on either immovables (real property) or
fails to live up to his undertakings, without further
alienable real rights. If constituted on movables, the
formality, such as foreclosure proceedings, and a public
contract is a chattel mortgage. (Art. 2124, Civil Code)
sale." (Pena, 2008)
DRAGNET CLAUSE OR BLANKET MORTGAGE CLAUSE,
The elements of pactum commissorium, which enable the
DEFINED mortgagee to acquire ownership of the mortgaged
A "blanket mortgage clause," also known as a property without the need of any foreclosure proceedings,
"dragnet clause" in American jurisprudence, is one which are:
is specifically phrased to subsume all debts of past or (1) There should be a property mortgaged by way of
future origins. Such clauses are "carefully scrutinized and security for the payment of the principal obligation;
strictly construed." and
It has been settled in a long line of decisions that (2) There should be a stipulation for automatic
mortgages given to secure future advancements are valid appropriation by the creditor of the thing mortgaged
and legal contracts, and the amounts named as in case of non-payment of the principal obligation
consideration in said contracts do not limit the amount
within the stipulated period." (Spouses Edralin v.
for which the mortgage may stand as security if from the
Philippine Veterans Bank2011)
four corners of the instrument the intent to secure future
NOT A VALID AGREEMENT
and other indebtedness can be gathered. (Prudential Bank
The intent to appropriate the property given as collateral
v. Spouses Alviar, 2005)
in favor of the creditor appears to be evident, for the
WHEN FORECLOSURE IS PROPER debtor is obliged to dispose of the collateral at the pre-
Foreclosure of REM presupposes that the debtor failed to agreed consideration amounting to practically the same
pay his debt despite demand. The default of the debtor amount as the loan. In effect, the creditor acquires the
must first be established. Such default occurs when collateral in the event of non-payment of the loan. This is
payment is not made after a valid demand, unless the within the concept of pactum commissorium. Such
contract between the parties carries with it a stipulation
stipulation is void. (Bustamante v. Spouses Rosel, 1999)
that demand is not necessary for default to arise. (Riano,
THREE STAGES IN JUDICIAL FORECLOSURE OF
2016)
MORTGAGE
ISSUE ON DEMAND TO PAY
(1) Determination of the right to foreclose;
The issue of whether demand was made before the
(2) Foreclosure itself’;
foreclosure was effected is essential. If demand was made
(3) Recovery of deficiency
and duly received by the respondents and the latter still
did not pay, then they were already in default and
foreclosure was proper. However, if demand was not

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Green Notes 2019
APPLICABILITY OF RULE 68
It only applies to judicial foreclosure of real estate
mortgage.
WHAT MUST BE ALLEGED IN THE COMPLAINT FOR
FORECLOSURE
The complaint shall set forth the following:
(1) The date and due execution of the mortgage;
(2) its assignments, if any; the names and
residences of the mortgagor and the mortgagee;
(3) a description of the mortgaged property;
(4) a statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage,
(5) the amount claimed to be unpaid thereon; and
(6) the names and residences of all persons having
or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants
in the action. (Section 1, Rule 68)
WHO ARE THE POSSIBLE DEFENDANTS?
(1) Mortgage debtor – the one who borrowed money
and mortgaged his property
(2) Mortgagor or owner, if the debtor is another person
– when person who owns the property mortgaged it
to accommodate the loan of the debtor
(3) All persons having or claiming an interest in the
premises subordinate in the right to that of the
holder of the mortgage
PROCEDURE
A foreclosure suit will proceed like an ordinary civil
action insofar as they are not inconsistent with Rule 68.
JUDGMENT ON FORECLOSURE FOR PAYMENT OR
SALE
If upon the trial in such action the court shall find the
facts set forth in the complaint to be true, it shall:
(1) Ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including
interest and other charges as approved by the
court, and costs, and
(2) Shall render judgment for the sum so found due
and
(3) Order that the same be paid to the court or to
the judgment obligee within a period of not less
than ninety (90) days nor more than one
hundred twenty (120) days from the entry of
judgment, and
Note: The period given in the rule is not merely
procedural requirement; it is a substantive right granted
to the mortgage debtor as the last opportunity to pay the
debt and save his mortgaged property from final
disposition at the foreclosure sale. (Riano, 2016)
(4) That in default of such payment the property
shall be sold at public auction to satisfy the
judgment. (Section 2, Rule 68)
EQUITY OF REDEMPTION, DEFINED
Right of the defendant-mortgagor to extinguish the
mortgage and retain the ownership of the property by
paying the amount fixed in the decision of the Court
within 90 to 120 days after the entry of judgment or even
after the forecelosure sale but prior to its confirmation.
(Limpin vs IAC, September 29, 1988)
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Special Civil Actions
RIGHT OF REDEMPTION, DEFINED
Right granted to the debtor-mortgagor, his successor-in-
interest or any judicial creditor of the debtor-mortgagor,
or any person having a lien in the property subsequent to
its mortgage or deed of trust under which the property is
sold, to redeem the property within one year from the
registration of the sheriff’s certificate of foreclosure sale.
(De Castro vs IAC, September 26, 1988)
EQUITY OF REDEMPTION AND RIGHT OF
REDEMPTION, DISTINGUISHED
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Right of the defendant Right of the debtor, his
mortgagor to extinguish successor in interest, or
the mortgage and retain any judicial creditor of said
ownership of the property debtor or any person
by paying the secured debt having a lien on the
within the 90 to 120 day property subsequent to the
period after entry of mortgage.
judgment or even after the
foreclosure sale but prior
to its confirmation
Period is 90-120 days after Period is 1 year from date
entry of judgment or even of registration of
after foreclosure sale but certificate of sale
prior to confirmation
Governed by Rule 68 Governed by Sec. 29- 31,
Rule 39
EFFECT OF JUDGMENT
It is considered a final adjudication of the case and,
hence, subject to challenge by the aggrieved party by
appeal or other post-judgment remedies. (Riano, 2016)
FORCELOSURE JUDGMENT
Judgment rendered in favor of plaintiff, stating that there
is a valid cause of action and that the last chance to pay
the obligation, interests, charges, etc within a specified
period.
SALE OF MORTGAGE PROPERTY; EFFECT
When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the
amount of the judgment within the period specified
therein, the court, upon motion, shall order the property
to be sold in the manner and under the provisions of Rule
39 and other regulations governing sales of real estate
under execution. (Section 3, Rule 68)
Note: Jurisprudence suggests that the motion for the sale
of the mortgaged property is non-litigable and may be
made ex parte pursuant to the judgment of the
foreclosure. (Riano, 2016)
EFFECT OF CONFIRMATION OF THE SALE
Such sale shall not affect the rights of persons holding
prior encumbrances upon the property or a part thereof,
and when confirmed by an order of the court, also upon
motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their
rights in the purchaser, subject to such rights of
redemption as may be allowed by law. (Section 3, Rule 68)
CONFIRMATION OF SALE, DEFINED
It operates to divest the rights in the property of all the
parties in the action and to vest rights in the purchaser,
subject to the right of redemption as may be allowed by
the law.
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EFFECT OF FINALITY OF THE ORDER OF
CONFIRMATION
Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of
the property unless a third party is actually holding the
same adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a writ of
possession, upon motion, from the court which ordered
the foreclosure. (Section 3, Rule 68)
The order of confirmation is appealable, and if not
appealed from within the period for appeal, such order
becomes final. (Riano, 2016)
DISPOSITION OF PROCEEDS OF SALE
The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the
sale, be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue, after paying
off the mortgage debt due, the same shall be paid to
junior encumbrancers in the order of their priority, to be
ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly
authorized agent, or to the person entitled to it. (Section
4, Rule 68)
HOW SALE TO PROCEED IN CASE THE DEBT IS NOT
ALL DUE
If the debt for which the mortgage or encumbrance was
held is not all due as provided in the judgment as soon as
a sufficient portion of the property has been sold to pay
the total amount and the costs due, the sale shall
terminate; and afterwards as often as more becomes due
for principal or interest and other valid charges, the court
may, on motion, order more to be sold. (Section 5, Rule 68)
IF PROPERTY CANNOT BE SOLD WITHOUT PREJUDICE
TO PARTIES
But if the property cannot be sold in portions without
prejudice to the parties, the whole shall be ordered to be
sold in the first instance, and the entire debt and costs
shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such
rebate is proper. (Id.)
REGISTRATION OF THE SALE
A certified copy of the final order of the court confirming
the sale shall be registered in the registry of deeds. If no
right of redemption exists, the certificate of title in the
name of the mortgagor shall be cancelled, and a new one
issued in the name of the purchaser.
Where a right of redemption exists, the certificate of title
in the name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the sale
shall be registered and a brief memorandum thereof
made by the registrar of deeds upon the certificate of
title. In the event the property is redeemed, the deed of
redemption shall be registered with the registry of deeds,
and a brief memorandum thereof shall be made by the
registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of
deeds; whereupon the certificate of title in the name of
the mortgagor shall be cancelled and a new one issued in
the name of the purchaser. (Section 7, Rule 68)
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Special Civil Actions
DEFICIENCY JUDGMENT
It is a judgment rendered by the court upon motion and
showing that the proceeds from the sale of the property
is not sufficient for the payment of judgment debt.
IF THERE IS A BALANCE
DUE TO PLAINTIFF AFTER IF THERE IS NO BALANCE
APPLYING PROCEEDS OF DUE
THE SALE
The court, upon motion, Otherwise, the plaintiff
shall render judgment shall be entitled to
against the defendant for execution at such time as
any such balance for the balance remaining
which, by the record of the becomes due under the
case, he may be personally terms of the original
liable to the plaintiff, upon contract, which time shall
which execution may issue be stated in the judgment.
immediately if the balance (Id.)
is all due at the time of the
rendition of the judgment.
(Section 6, Rule 68)
EFFECT OF DEFICIENCY JUDGMENT
It is in itself, a judgment, hence also appealable. (Riano,
2016)
Moreover, no independent action need be filed to recover
then deficiency from the defendant. The deficiency
judgment shall be rendered upon motion of the
mortgagee. (Id.)
WHEN MORTGAGOR IS NOT THE DEBTOR
It has been suggested that the mortgagor, who is not the
debtor and who merely executed the mortgage to secure
the principal debtor’s obligation, is not liable for the
deficiency unless he assumed liability for the same in the
contract. (Philippine Trust Company vs. Echaus, 1929)
WHEN THERE SURPLUS INSTEAD OF DEFICIENCY
It is the duty of the mortgagee to return to the mortgagor
any surplus in the selling price during the foreclosure
sale. (Riano, 2016)
A mortgagee who exercises the power of sale contained
in a mortgage is considered a custodian of the fund and,
being bound to apply it properly, is liable to the persons
entitled thereto if he fails to do so. And even though the
mortgagee is not strictly considered a trustee in a purely
equitable sense, but as far as concerns the unconsumed
balance, the mortgagee is deemed a trustee for the
mortgagor or owner of the equity of redemption.
Thus it has been held that if the mortgagee is retaining
more of the proceeds of the sale than he is entitled to,
this fact alone will not affect the validity of the sale but
simply give the mortgagor a cause of action to recover
such surplus. (Suico vs. PNB, 2007)
FORCELOSURE JUDGMENT FROM DEFICIENCY
JUDGMENT, DISTINGUISHED
FORECLOSURE JUDGMENT DEFICIENCY
JUDGMENT
Judgment Quasi-in rem Judgment in personam
Directed against the rights of a Directed against the
persons on the property itself debtor-mortgagor
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Green Notes 2019 Special Civil Actions

personally apart their respective interests so that they may enjoy

and possess those in severalty, resulting in the partial or
INSTANCES WHEN IT IS IMPROPER FOR THE COURT total extinguishment of co-ownership. (Leoveras vs.
TO RENDER A DEFICIENCY JUDGMENT Valdez, 2011)
(1) Where the mortgagor mortgaged his property to
secure the debt of another without assuming PARTITION OF REAL ESTATE
personal liability of such debt; It is a judicial controversy between persons, who being
(2) Where the mortgagor is a non-resident who failed to co-owners thereof; seek to secure a division for partition
submit himself to the jurisdiction of the court; no for themselves of the common property, giving to each
personal judgment for deficiency can be rendered one of them the part corresponding to each.
against him;
(3) Where the mortgagor dies after the rendition of the EXISTENCE OF CO-OWNERSHIP IN PARTITION
judgment of foreclosure. Partition presupposes the existence of a co-ownership
over a property between two or more persons. Thus, it
TWO TYPES OF FORECLOSURE OF MORTGAGE was ruled that a division of property cannot be ordered
1. JUDICIAL FORCELOSURE by the court unless the existence of co-ownership is first
Mortgagee files the case before the court; governed by established, and that an action for partition will not lie if
Rule 68 the claimant has no rightful interest in the property. (Co
2. EXTRA-JUDICIAL FORECLOSURE Giuk Lun vs. Co., 2011)
There is no court case but the procedure followed is that
of Act 3135 INSTANCES WHEN CO-OWNER MAY NOT DEMAND
PARTITION AT ANY TIME
Judicial and Extra-Judicial Foreclosure, distinguished 1. There is an agreement among the co-owners to keep
the property undivided for a certain period of time
JUDICIAL EXTRA-JUDICIAL but not exceeding 10 years. This term may, however,
FORECLOSURE FORECLOSURE be extended by a new agreement. (Art. 494, Civil
Requires court Court intervention not Code)
intervention necessary 2. When partition ism prohibited by the donor or
Only equity of testator for a period not exceeding 20 years;
Right of redemption exists 3. When partition is not prohibited by law;
redemption
Governed by the Rules of 4. When the property is not subject to a physical
Governed by Act 3135 division and to do so would render it unserviceable
Court
Not appealable; for the use for which it is intended;
Decisions are appealable 5. When the condition imposed upon voluntary heirs
immediately executory
Order of the Court cuts Foreclosure does not cut before they can demand partition has not yet been
off all rights of the parties off the rights of all the fulfilled.
impleaded parties involved
Period of redemption Period to redeem starts LEGAL EFFECT OF PARTITION
starts from the finality of from the date of It is to terminate the co-ownership and consequently, to
the judgment until order registration of the make the previous co-owners the absolute and exclusive
of confirmation certificate of sale owner of the share allotted to him.
No need for special power Special power of attorney
of attorney in the in favor of the mortgage is WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
contract of mortgage needed in the contract DEFENDANTS
Recovery of deficiency Recovery of deficiency is All co-owners must be impleaded; they are indispensable
can be done by mere through an independent parties; hence, when one is left out, the judgment will not
motion action become final.
Once left out, a co-owner may intervene whether or not
The resort to extra-judicial foreclosure must always be there is a judgment rendered.
provided in the contract. The mortgage contract must
contain a Special Power of Attorney constituting the MATTERS TO ALLEGE IN THE COMPLAINT FOR
mortgagee as the attorney-in-fact of the mortgagor to PARTITION
resort to extra-judicial foreclosure. If none exists, then 1. Nature and extent of his title
mortgagee has only one option – judicial foreclosure. 2. Adequate description of the real estate sought to be
partitioned
3. Joining of Defendants – All other persons interested
I. Partition (Rule 69) in the property (Sec. 1, Rule 69)
4. Demand for accounting of the rents, profits, and
Definition other income from the property to which he may be
The Civil Code of the Philippines defines partition as the entitled to as his share. (Sec. 8, Rule 69)
separation, division and assignment of a thing held in Note: Since these cannot be demanded in another action
common among those to whom it may belong. (Article (because they are part of the cause of action for
1079) partition), they are barred if not set up. (Riano, 2016)
Partition is the division between two or more persons of
real or personal property, owned in common, by setting

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WHEN ALLEGATIONS IN COMPLAINT NOT FOR
PARTITION
When the allegations in the complaint allege that the
plaintiff asserts exclusive ownership of the property
sought to be partitioned, the nature of the action is not
one for partition. It is an action for the recovery of
property. (De la Cruz vs. Court of Appeals, 1999)
TWO STAGES IN PARTITION:
1. Determination of whether or not a co-ownership in
fact exists and a partition is proper and may be made
by voluntary agreement of all parties interested in
the property.
Note: The determination of whether the subject property
is owned in common and whether all the co-owners are
made parties in the case. Such order of partition is
appealable.
2. Actual partitioning of the subject property.
Note: The order or decision is appealable. Commences
when the parties are unable to agree upon the partition
ordered by the court; shall be effected then by the court
with the assistance of not more than three
commissioners.
CONDITION FOR ACTION TO LIE
The settlement of the issue on ownership is the first stage
in an action for partition and the action will not lie if the
claimant has no rightful interest in the property in
dispute. (Garingan vs. Garingan, 2005)
ORDER OF PARTITION
1. During the trial, the court shall determine whether
or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership among
the parties, and that a partition is not legally
proscribed, thus may be allowed. If the court finds
the facts in order and that there is a right to demand,
it will issue an order of partition. (Riano, 2016)
2. If after the trial the court finds that the plaintiff has
the right thereto, it shall order the partition of the
real estate among all the parties in interest. (Section
2, Rule 69)
REMEDY AGAINST FINAL ORDER OF THE DECREE
A final order decreeing partition and accounting may be
appealed by any party aggrieved thereby. (Id.)
MODES OF PARTITION
1. By agreement of the parties;
2. By judicial proceedings under the Rules of Court
when the parties cannot reach an agreement.
The right of the co-owners to opt for an agreement of
partition in lieu of a judicial partition is recognized by the
Rules of Court. If the co-owners cannot agree on the
partition of the property, the only recourse is the filing of
an action for partition. (Riano, 2016)
PARTITION BY AGREEMENT IF THEY AGREE
The parties may, if they are able to agree, make the
partition among themselves by proper instruments of
conveyance, and the court shall confirm the partition so
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Special Civil Actions
agreed upon by all the parties, and such partition,
together with the order of the court confirming the same,
shall be recorded in the registry of deeds of the place in
which the property is situated.
PARTITION BY AGREEMENT IF THEY DID NOT AGREE
There always exists the possibility that the co-owners are
unable to agree upon the partition. If they cannot
partition the property among themselves, the next stage
in the action will follow, and this stage is the appointment
of commissioners. (Riano, 2016)
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS; COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT
If the parties are unable to agree upon the partition, the
court shall appoint not more than three (3) competent
and disinterested persons as commissioners to make the
partition, commanding them to set off to the plaintiff and
to each party in interest such part and proportion of the
property as the court shall direct. (Section 3, Rule 69)
The appointment of commissioners, which is a mandatory
under the circumstances, presupposes that the parties
cannot agree upon the partition among themselves.
(Riano, 2016)
Note: Observe that the provision authorizes the
commissioners merely to make or effect the partition.
Nothing in the provision grants them the authority to
adjudicate on questions of title or ownership of property.
(Id.)
OATH AND DUTIES OF COMMISSIONERS
Before making such partition, the commissioners shall:
(1) Take and subscribe an oath that they will faithfully
perform their duties as commissioners;
(2) Which oath shall be filed in court with the other
proceedings in the case.
In making the partition, the commissioners shall:
(1) View and examine the real estate, after due notice
to the parties to attend at such view and
examination, and
(2) Hear the parties as to their preference in the
portion of the property to be set apart to them and
the comparative value thereof, and
(3) Set apart the same to the parties in lots or parcels
as will be most advantageous and equitable, having
due regard to the improvements, situation and
quality of the different parts thereof. (Section 4, Rule
68)
WHEN DIVISION WOULD BE PREJUDICIAL
When it is made to appear to the commissioners that the
real estate, or a portion thereof, cannot be divided
without prejudice to the interests of the parties, the court
may:
(1) Order it assigned to one of the parties willing to
take the same;
(2) Provided he pays to the other parties such
amounts as the commissioners deem equitable.
Note: Unless one of the interested parties asks that the
property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell the
real estate at public sale under such conditions and
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within such time as the court may determine. (Section 5,
Rule 69)
REPORT OF THE COMMISSIONERS
The commissioners shall make a full and accurate report
to the court of all their proceedings as to the partition, or
the assignment of real estate to one of the parties, or the
sale of the same. Upon the filing of such report, the clerk
of court shall serve copies thereof on all the interested
parties with notice that they are allowed ten (10) days
within which to file objections to the findings of the
report, if they so desire.
PROCEEDINGS NOT BINDING UNTIL CONFIRMED
No proceeding had before or conducted by the
commissioners shall pass the title to the property or bind
the parties until the court shall have accepted the report
of the commissioners and rendered judgment thereon.
(Section 6, Rule 69)
ACTION OF THE COURT UPON COMMISSIONERS’
REPORT
Upon the expiration of the period of ten (10) days referred
to in the preceding section, or even before the expiration
of such period but after the interested parties have filed
their objections to the report or their statement of
agreement therewith, the court may, upon hearing:
(1) accept the report and render judgment in
accordance therewith;
(2) or, for cause shown, recommit the same to the
commissioners for further report of facts;
(3) or set aside the report and appoint new
commissioners;
(4) or accept the report in part and reject it in
part;
(5) And may make such order and render such
judgment as shall effectuate a fair and just
partition of the real estate, or of its value, if
assigned or sold as above provided, between
the several owners thereof. (Section 7, Rule 69)
JUDGMENT AND ITS EFFECTS
1. If actual partition of property is made, the judgment
shall state definitely, by metes and bounds and
adequate description, the particular portion of the
real estate assigned to each party, and the effect of
the judgment shall be to vest in each party to the
action in severalty the portion of the real estate
assigned to him.
2. If the whole property is assigned to one of the
parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state
the fact of such payment and of the assignment of
the real estate to the party making the payment, and
the effect of the judgment shall be to vest in the
party making the payment the whole of the real
estate free from any interest on the part of the other
parties to the action.
3. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the
purchaser or purchasers and a definite description
of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making
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Special Civil Actions
the payment or payments, free from the claims of
any of the parties to the action. (Section 11, Rule 69)
RECORDING OF THE JUDGMENT
A certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which the
real estate is situated, and the expenses of such recording
shall be taxed as part of the costs of the action. (Id.)
NEITHER PARAMOUNT RIGHTS NOR AMICABLE
PARTITION AFFECTED BY THIS RULE
Nothing in this Rule contained shall be construed so as to
prejudice, defeat, or destroy the right or title of any
person claiming the real estate involved by title under any
other person, or by title paramount to the title of the
parties among whom the partition may have been made;
nor so as to restrict or prevent persons holding real
estate jointly or in common from making an amicable
partition thereof by agreement and suitable instruments
of conveyance without recourse to an action.
Note: In partition, no rights of a third person over the
property are affected because there is no transmission of
rights; there is merely a designation and segregation of
shares
PARTITION OF PERSONAL PROPERTY
The provisions of this Rule shall apply to partitions of
estates composed of personal property, or of both real
and personal property, in so far as the same may be
applicable. (Section 13, Rule 69)
Note: Rules may also apply to personal properties.
PRESCRIPTION OF ACTION
Action for partition is unprescriptible for a long as the co-
owners expressly or impliedly recognize the co-
ownership. However, if a co-owner repudiates the co-
ownership and makes known such repudiation to the
other co-owners, then partition is no longer the proper
remedy of the aggrieved owner. He should file accion
reivindicatioria (Roque vs IAC, 1988).
The right of action to demand partition does not
prescribe (De Castro v. Echarri, G.R. No. 5609 (1911), except
where one of the interested parties openly and adversely
occupies the property without recognizing the co-
ownership (Cordova v. Cordova (1958) in which case,
acquisitive prescription may set in.
J. Forcible Entry and Unlawful
Detainer
THREE POSSIBLE ACTIONS TO BE FILED IN COURT
GOVERNING REAL PROPERTIES
1. Accion Reinvindicatoria (Recovery of
Ownership)
2. Accion Publiciana (Recovery of Possession)
3. Accion Interdictal (Forcible entry (detentacion)
or unlawful detainer (des halicio)
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Plaintiff must prove that he No need of prior

was in prior possession possession

1 year period reckoned from 1 year period reckoned

the date of actual entry from the date of the last
ACCION ACCION ACCION demand
INTERDICTAL PUBLICIANA REINVIDICATORIA
ACCION INTERDICTAL AND ACCION PUBLICIANA,
Summary Plenary action Action for the DISTINGUISHED
action for the for the recovery of
recovery of recovery of ownership plus ACCION INTERDICTAL ACCION PUBLICIANA
physical real right of possession
possession possession Under the Summary Ordinary civil action the
where the when the Proceeding; purpose of purpose of which is to
dispossess- dispossess- which is the recovery of recover the right of
ion has not ion has lasted possession de facto possession (possession de
lasted for more for more than jure)
than 1 year 1 year
Exclusive jurisdiction of RTC if it exceeds P20K; if it
Jurisdiction: RTC: Value RTC: Value exceeds the MTC is less, then MTC
MTC regardless exceeds P20K P20K or P50K in
of value of or P50K in Metro Manila Period to file is 1 year from May be filed at any time
property Metro Manila unlawful deprivation or before ownership or other
MTC: if it does not unlawful withholding of real rights of the real
MTC: if it does exceed such possession property involved are lost
not exceed the amounts by acquisitive prescription
above
amounts Causes are force, Any other cause of
intimidation, strategy, unlawful dispossession
FORCIBLE ENTRY, DEFINED threat or stealth (FISTS) other than FISTS, or even
Consists in depriving a person of the possession of the FISTS but after the lapse of
land or building for a period of time not exceeding 1 year one year
by force, intimidation, strategy, threat or stealth (Tenerio
vs Gamboa, 81 Phil 55) Immediate execution is Immediate execution or
The sole issue in forcible entry is who has a better right governed by Rule 70 execution pending appeal
to possess the property involved. A non-registered owner Section 19 is governed by Rule 39
can file an action since the sole issue is who has the Section 2 (there must be a
better right to possess and not as to who owns the good reason)
property
The 1 year period begins from the time of the entry HOW TO DETERMINE JURISDICTION IN ACCION
PULICIANA AND ACCION REINVINDICATORIA
UNLAWFUL DETAINER, DEFINED 1. RTC has jurisdiction where the assessed value
Consists in the unlawful withholding by a person from of the property exceeds P20,000 or, in Metro
another, for not more than one year, of the possession of Manila, P50,000;
any land or building after the expiration or termination of 2. MTC has jurisdiction if the assessed value does
the right to hold such possession by virtue of an express not exceed said amounts. (Secs. 19, 33,BP 129, as
or implied contract (Torres vs Ocampo, 80 Phil 36) amended)

FORCIBLE ENTRY AND UNLAWFUL DETAINER, WHO MAY INSTITUTE THE ACTION AND WHEN;
DISTINGUISHED a. In Forcible Entry
FORCIBLE ENTRY UNLAWFUL DETAINER A person deprived of possession of any land or building
by force, intimidation, strategy, threat, or stealth. (Section
Possession by the Possession is inceptively 1, Rule 70)
defendant is unlawful from lawful but it becomes Reckoning point:
the beginning as he illegal by reason of the It is counted from the date of entry or taking of
acquires possession by termination of the right possession except in the case of stealth or strategy in
force, intimidation, threat, which it is from the time the plaintiff learned of the entry.
strategy or steath b. In Unlawful Detainer
Lessor, vendor, vendee, or other person against whom
No prior demand is Demand is jurisdictional if any land or building is unlawfully withheld; his legal
necessary the ground is non- representatives or assigns. (Id.)
payment of rentals or
failure to comply with the
lease contract
c. Period of Filing

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Within one year after such unlawful deprivation or WHAT MUST BE ALLEGED IN THE COMPLAINTS
withholding of possession. (Id.) The following are the allegations indispensable for both
actions in order for the first level courts to acquire
AGAINST WHOM THE ACTION MAY BE MAINTAINED jurisdiction:
A person deprived of the possession of any land or FORCIBLE ENTRY UNLAWFUL DETAINER
building by force, intimidation, threat, strategy, or stealth, 1. The plaintiff had prior 1. Initially, the
or a lessor, vendor, vendee, or other person against physical possession of possession of
whom the possession of any land or building is unlawfully the property; property by the
withheld after the expiration or termination of the right 2. That the defendant defendant was by
to hold possession, by virtue of any contract, express or deprived him of such contract with or by
implied, or the legal representatives or assigns of any possession by means tolerance of the
such lessor, vendor, vendee, or other person, may, at any of force, intimidation, plaintiff;
time within one (1) year after such unlawful deprivation or threats, strategy, or 2. Eventually, such
withholding of possession, bring an action in the proper stealth. (Abad vs. possession became
Municipal Trial Court against the person or persons Farrales) illegal upon notice by
unlawfully withholding or depriving of possession, or any 3. Filed within 1 year plaintiff to defendant
person or persons claiming under them, for the from dispossession. of the termination of
restitution of such possession, together with damages the latter’s right of
and costs. (Section 1, Rule 70) possession;
Note: These allegations are
PLEADINGS ALLOWED 3. Thereafter, the
not required in an unlawful
1. Complaint; defendant remained in
detainer case.
2. Compulsory counterclaim pleaded in the possession of the
answer; property and deprived
3. Cross-claim pleaded in the answer; the plaintiff of the
4. Respective answers. (Section 4, Rule 70) enjoyment thereof;
and
Note: Pleadings must be verified. (Id) 4. Within 1 year from the
last demand on
PROHIBITED PLEADINGS defendant to vacate
The following petitions, motions, or pleadings shall not be the property, the
allowed: plaintiff instituted the
complaint for
1. Motion to dismiss the complaint except on the ejectment.
ground of lack of jurisdiction over the subject
matter, or failure to comply with section 12; WHEN THE COMPLAINT FAILS TO AVER FACTS HOW
2. Motion for a bill of particulars; ENTRY WAS EFFECTED
3. Motion for new trial, or for reconsideration of a When the complaint fails to aver facts constitutive of
judgment, or for reopening of trial; forcible entry or unlawful detainer, as where it does not
4. Petition for relief from judgment; state how entry was effected or how and when
5. Motion for extension of time to file pleadings, dispossession started, the remedy should either be an
affidavits or any other paper; accion publiciana or accion reivindicatoria. (Jose vs.
6. Memoranda; Alfiuerto, 2012)
7. Petition for certiorari, mandamus, or It is necessary that the complaint must sufficiently show
prohibition against any interlocutory order such a statement of facts as to bring the party clearly
issued by the court; within the class of cases for which the statutes provide a
8. Motion to declare the defendant in default; remedy, without resort to parol testimony, as these
9. Dilatory motions for postponement; proceedings are summary in nature. (Riano, 2016)
10. Reply;
11. Third-party complaints; POSSESSION AS THE ISSUE
12. Interventions. Possession in the eyes of the law does not mean that a
man has to have these feet on every square meter of the
AFFIDAVITS REQUIRED ground before he is deemed to be in possession. (De la
The affidavits required to be submitted under this Rule Rosa vs. Carlos)
shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence, and shall show
MEANING OF PRIOR PHYSICAL POSSESSION IN
their competence to testify to the matters stated therein.
FORCIBLE ENTRY CASES
(Section 14, Rule 70)
It did not refer to a literal concept of physical possession.
It is sufficient that petitioner was able to subject the
IF VIOLATED THIS REQUIREMENT property to the action of his will. (Mangaser vs. Ugay,
A violation of this requirement may subject the party or
2014)
the counsel who submits the same to disciplinary action,
and shall be cause to expunge the inadmissible affidavit
RATIONALE BEHIND THE CONCEPT
or portion thereof from the record. (Id.)
It would create an absurd situation. It would be putting
premium in favor of land intruders against Torrens title
holder, who spent months, or even years, in order to

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register their land, and who religiously paid real property
taxes thereon. As such, the Torrens title holders would
have to resort to ordinary civil actions thereby defeating
the very purpose of the summary procedure of an action
for forcible entry. (Id.)
ACTION ON THE COMPLAINT
The court may, from an examination of the allegations in
the complaint and such evidence as may be attached
thereto:
1. Dismiss the case outright on any of the grounds for
the dismissal of a civil action which are apparent
therein.
2. If no ground for dismissal is found, it shall forthwith
issue summons. (Section 5, Rule 70)
WHEN DEFENDANT OCCUPIES PREMISES BY MERE
TOLERANCE
A person who occupies the land of another at the latter’s
tolerance or permission, without any contract between
them, is necessarily bound by an implied promise that he
will vacate upon demand, failing which is a summary
action for ejectment is the proper remedy against him.
As a consequence, the possessor by tolerance is liable to
pay rentals, not from the time the premises were
occupied, but from the time the demand to vacate was
made up to the time that the premises are fully vacated.
WHEN THE RULE ON TOLERANCE DOES NOT APPLY
It does not apply where there was forcible entry at the
start. Common reason then suggests that if the
possession was illegal at the inception and not merely
tolerated, the defendant’s entry into the land was effected
clandestinely, or one made without the knowledge of the
owners. It is, therefore, a possession by stealth which is
forcible entry. (Riano, 2016)
EFFECT OF PENDENCY OF AN ACTION INVOLVING
ONWERSHIP ON THE ACTION FOR FORCIBLE ENTRY
AND UNLAWFUL DETAINER
It does not bar the filing of an ejectment suit nor suspend
the proceedings of one already instituted. The underlying
reason is to prevent the defendant from trifling with
summary nature of an ejectment suit by the simple
expedient of asserting ownership over the disputed
property. (Tecson vs. Guttierez)
CASES WHICH DO NOT BAR AN ACTION FOR
FORCIBLE ENTRY OR UNLAWFUL DETAINER
1. Injunction suits
2. Accion Publiciana
3. Writ of Possession Case
4. Action for Quieting of Title
5. Suits for Specific Performance with Damages
6. Action for Reformation of Instrument
7. Action for Reconveyance of Property or “Accion
revindicatoria”
8. Suits for annulment of sale or title or document
affecting property (Riano, 2016)
CONCEPT OF DEMAND IN UNLAWUL DETAINER CASE
Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made
upon the lessee. (Section 2, Rule 70)
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Special Civil Actions
The requirement for a demand implies that the mere
failure of the occupant to pay rentals or to comply with
the conditions of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure to
comply with the demand to vacate that vests upon the
lessor a cause of action. (Larano vs. Spouses Calendacion)
DEMAND MUST BE TWO-FOLD:
(1) Demand to pay or (2) Demand to vacate.
comply with the conditions
of the lease contract; AND
Where the suit is predicated upon the defendant’s non-
compliance with the conditions of the lease contract, the
proper demand should be to comply and to vacate and
not to comply or vacate. The latter type of demand gives
rise to an action for specific performance and not
unlawful detainer. (Cetus Development vs. Court of
Appeals)
FORM OF DEMAND
1. Written notice of such demand upon the person
found on the premises.
2. Posting such notice on the premises if no person be
found thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of land or
five (5) days in the case of buildings.
3. May be verbal provided that sufficient evidence must
be adduced to show that there was indeed a demand
like testimonies from disinterested and unbiased
witnesses. (Jakihaca vs. Aquino)
WHEN DEMAND NOT NECESSARY
(1) There is a stipulation dispensing with a demand;
(2) The ground for the suit is based on the expiration of
lease. (Riano, 2016)
SUMMARY PROCEDURE
GENERAL RULE: All actions for forcible entry and
unlawful detainer, irrespective of the amount of damages
or unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder
provided.
EXCEPTION: Except in cases covered by the (1)
agricultural tenancy laws or (2) when the law otherwise
expressly provides.
PLEADINGS ALLOWED
The only pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded in the
answer, and the answers thereto. All pleadings shall be
verified. (Section 4, Rule 70)
ANSWER
Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve
a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived,
except lack of jurisdiction over the subject matter. Cross-
claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed
within ten (10) days from service of the answer in which
they are pleaded. (Section 6, Rule 70)
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Green Notes 2019
EFFECT OF FAILURE TO ANSWER
Should the defendant fail to answer the complaint within
the period above provided, the court, motu proprio or on
motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and
limited to what is prayed for therein. The court may in its
discretion reduce the amount of damages and attorney’s
fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of
section 3 (c), Rule 9 if there are two or more defendants.
(Section 7, Rule 70)
DEFENSE OF TENANCY
Jurisdiction over the subject matter is determined by the
allegations in the complaint. Hence, the defenses in the
answer do not determine jurisdiction. (Marino, Jr. vs.
Gamilla)
While it is true that the jurisdiction of the court in a suit
for ejectment or forcible entry is determined by the
allegations in the complaint, yet where tenancy is averred
as a defense and upon hearing, it is shown to be the real
issue, the court should dismiss the case for want of
jurisdiction. (Ignacio vs. CFI Bulacan)
PRELIMINARY CONFERENCE
Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held. The
provisions of Rule 18 on pre-trial shall be applicable to the
preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with the next preceding
section. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall
likewise be entitled to judgment in accordance with the
next preceding section. This procedure shall not apply
where one of two or more defendants sued under a
common cause of action who had pleaded a common
defense shall appear at the preliminary conference.
No postponement of the preliminary conference shall be
granted except for highly meritorious grounds and
without prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the movant.
(Section 8, Rule 70)
RECORD OF PRELIMINARY CONFERENCE
Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up therein, including but not
limited to:
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by
the parties;
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of
further proceedings, in which event the judgment
shall be rendered within thirty (30) days from
issuance of the order;
4. A clear specification of material facts which
remain controverted; and
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5. Such other matters intended to expedite the
disposition of the case. (Section 9, Rule 70)
SUBMISSION OF AFFIDAVITS AND POSITION PAPERS
Within ten (10) days from receipt of the order mentioned
in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the
factual issues defined in the order, together with their
position papers setting forth the law and the facts relied
upon by them. (Section 10, Rule 70)
PERIOD FOR RENDITION OF JUDGMENT
GENERAL RULE: Within thirty (30) days after receipt of
the affidavits and position papers, or the expiration of the
period for filing the same, the court shall render
judgment. (Section 11, Rule 70)
EXCEPTION: However, should the court find it necessary
to clarify certain material facts, it may, during the said
period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or
other evidence on the said matters within ten (10) days
from receipt of said order. (Id)
Note: Judgment shall be rendered within fifteen (15) days
after the receipt of the last affidavit or the expiration of
the period for filing the same. Also, the court shall not
resort to the foregoing procedure just to gain time for the
rendition of the judgment. (Id.)
REFERRAL FOR CONCILIATION
Cases requiring referral for conciliation, where there is
no showing of compliance with such requirement, shall
be dismissed without prejudice, and may be revived only
after that requirement shall have been complied with.
(Section 12, Rule 70)
PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to
prevent the defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession through forcible
entry or unlawful detainer may, within five (5) days from
the filing of the complaint, present a motion in the action
for forcible entry or unlawful detainer for the issuance of
a writ of preliminary mandatory injunction to restore him
in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof. (Section 15,
Rule 70)
PRELIMINARY MANDATORY INJUNCTION
Possessor may present a motion for issuance of
preliminary mandatory injunction in the action for
forcible entry or unlawful detainer within 5 days from
filing of complaint to restore him in his possession. Court
shall decide the motion within 30 days from filing. (Sec.
30)
Preliminary mandatory injunction shall be available:
(1) At the start of the action; (Sec. 15)
(2) On appeal to the RTC upon motion of plaintiff
within 10 days from perfection of appeal. (Sec.
20
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Green Notes 2019
The injunction on appeal is to restore to plaintiff in
possession:
(1) If the court is satisfied that the defendant’s
appeal is frivolous or dilatory; or
(2) That the appeal of plaintiff is prima facie
meritorious. (Sec. 20)
Note: MTC can also issue a preliminary mandatory
injunction in an unlawful detainer case. (Day v. RTC of
Zamboanga, 1990)
RESOLVING DEFENSE OF OWNERSHIP
When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine
the issue of possession. (Section 16, Rule 70)
Generally, the court will only determine the issue of
possession. But if the issue on ownership is intertwined
with the issue of possession, the court may rule on
ownership but the declaration of ownership is merely
prima facie.
JUDGMENT, IF ALLEGATIONS ARE TRUE
If after trial the court finds that the allegations of the
complaint are true, it shall render judgment in favor of
the plaintiff for the:
(1) Restitution of the premises,
(2) The sum justly due as arrears of rent or as
reasonable compensation for the use and
occupation of the premises,
(3) Attorney’s fees and costs.
JUDGMENT, IF ALLEGATIONS NOT TRUE
If it finds that said allegations are not true, it shall render
judgment for the defendant to:
(1) Recover his costs.
(2) If a counterclaim is established, the court shall
render judgment for the sum found in arrears
from either party and award costs as justice
requires. (Section 17, Rule 70)
While damages seem to be recoverable, these are limited
only to:
(1) Attorney’s fees
(2) Costs
(3) Unpaid Rentals and
(4) Reasonable Compensation
Note: Other damages can be claimed in another case
(Reyes vs CA, 38 SCRA 138, Baen vs CA, 125 SCRA 634)
JUDGMENT CONCLUSIVE ONLY ON POSSESSION; NOT
CONCLUSIVE IN ACTIONS INVOLVING TITLE OR
OWNERSHIP
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. Such
judgment shall not bar an action between the same
parties respecting title to the land or building. (Section 18,
Rule 70)
REMEDY FOR JUDGMENT OR FINAL ORDER
The judgment or final order shall be appealable to the
appropriate Regional Trial Court which shall decide the
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same on the basis of the entire record of the proceedings
had in the court of origin and such memoranda and/or
briefs as may be submitted by the parties or required by
the Regional Trial Court. (Id.)
HOW TO STAY IMMEDIATE EXECUTION OF
JUDGMENT
GENERAL RULE: If judgment is rendered against the
defendant, execution shall issue immediately upon
motion. (Section 19, Rule 70)
EXCEPTION:
The defendant must take the following steps to stay the
execution of the judgment:
(1) Perfect an appeal;
(2) File a supersedeas bond to pay the rents,
damages and costs accruing down to the time
of the judgment appealed from; and
(3) Deposit periodically with the Regional Trial
Court, during the pendency of the appeal, the
adjugdjed amount of rent under the contract or
if there be no contract, the reasonable value of
the use and occupation of the premises.
(Bugarin vs. People)
All the above requisites must concur. Thus even if the
defendant had appealed and filed a supersedeas bond, but
failed to pay the accruing rentals, the appellate court
could, upon motion of the plaintiff, with notice to the
defendant, and upon proof of such failure, order the
immediate execution of the appealed decision without
prejudice to the appeal taking its course. Such deposit,
like the supersedeas bonds, is a mandatory requirement;
hence, if it is not complied with, execution will issue as a
matter of right. (Antonio vs. Geronimo)
SUPERSEDEAS BOND
Bond which will answer for all the amount due to the
plaintiff up to the date of the judgment.
Should be deposited within 15 days together with the
notice of appeal.
Make periodical deposits of the rents falling due during
the pendency of the appeal every month.
PRELIMINARY MANDATORY INJUNCTION IN CASE OF
APPEAL
Upon motion of the plaintiff, within ten (10) days from the
perfection of the appeal to the Regional Trial Court, the
latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the
court is satisfied that the defendant’s appeal is frivolous
or dilatory, or that the appeal of the plaintiff is prima facie
meritorious. (Section 20, Rule 70)
IMMEDIATE EXECUTION ON APPEAL TO COURT OF
APPEALS OR SUPREME COURT
The judgment of the Regional Trial Court against the
defendant shall be immediately executory, without
prejudice to a further appeal that may be taken
therefrom. (Section 21, Rule 70)
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It is a disregard of or disobedience with the rules and

orders of a judicial body, or an interruption of its
proceedings by disorderly behavior, or insolent language,
in its presence or so near thereto, as to disturb the
proceedings or to impair the respect due to such body.
DIFFERENTIATE UNLAWFUL DETAINER FROM The power to punish contempt is inherent in all courts;
its existence is essential to the preservation of order in
FORCIBLE ENTRY
judicial proceedings and the enforcement of judgments,
orders and mandates of the court and consequently, to
UNLAWFUL DETAINER FORCIBLE ENTRY
the administration of justice
The possession of the The possession of the
Rule 135 (5) – inherent power of courts – to compel
defendant is unlawful defendant is lawful from the
obedience to its orders, to maintain its dignity while
from the beginning; beginning becomes illegal by
proceedings are going on; violation of such and a person
issue is which party has reason of the expiration or
can be held in contempt
prior de facto termination of his right to the
KINDS OF CONTEMPT
possession; possession of the property;
AS TO MANNER OF COMMISSION
The law does not require Plaintiff must first make such
(1) Direct
previous demand for the demand which is
(2) Indirect
defendant to vacate; jurisdictional in nature;
The plaintiff must prove The plaintiff need not have
AS TO NATURE
that he was in prior been in prior physical
(1) Criminal
physical possession of possession;
(2) Civil
the premises until he
was deprived by the DUAL FUNCTION OF CONTEMPT PROCEEDINGS:
defendant; and (1) Vindication of public interest by punishment of
contemptuous conduct.
The one-year period is The one-year period is
(2) Coercion to compel contemnor to do what the
generally counted from counted from the date of last
law requires him to uphold the power of the
the date of actual entry demand
Court and to secure the rights of the parties to
on the property.
a suit awarded by the Court.
RULES IN THE EXECUTION OF JUDGMENTS IN
DIRECT CONTEMPT AND INDIRECT CONTEMPT,
EJECTMENT CASES
DISTSINGUISHED
A judgment on a forcible entry and detainer action is
immediately executory and the court’s duty to order the
execution is practically ministerial. This rule applies when DIRECT CONTEMPT INDIRECT CONTEMPT
the judgment is against the defendant. It does not apply (SECTION 1) (SECTION 3)
when it is the defendant that prevails.
Committed in the presence Not committed within the
PERSONS BOUND BY THE JUDGMENT IN EJECTMENT of or so near the court presence of the court
CASES
GENERAL RULE: The judgment in an ejectment case is Summary in nature There is a charge and a
binding only upon the parties properly impleaded and hearing
given opportunity to be heard. This is because an
ejectment suit is an action in personam. Punishment: Punishment:
EXCEPTION: If before RTC – fine not If before RTC – fine not
The judgment becomes binding on anyone who has not exceeding P2K or exceeding P30K or
been impleaded if he or she is a: imprisonment not imprisonment not
(1) Tresspasser, squatter or agent of the defendant exceeding 10 days or both; exceeding 6 months or both;
fraudulently occupying the property to If before MTC – fine not If before MTC – fine not
frustrate the judgment; exceeding P200 or exceeding P5K or
(2) Guest or occupant of the premises with the imprisonment not imprisonment not
permission of the defendant; exceeding 1 day or both exceeding 1 month or both
(3) A transferee pendente lite;
(4) Sublessee; Remedy is certiorari or Remedy is appeal
(5) Co-lessee; and prohibition
(6) Member of the family, relative or privy of the
defendant. (Sunfloiwer Neighborhood Otherwise known as Otherwise known as
Association vs. Court of Appeals) contempt in facie curiae constructive contempt

K. Contempt (Rule 71)

DEFINITION
In simple terms, it is defiance of the authority of the
court.

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is a delicate one and care is needed to avoid arbitrary or

DIRECT CONTEMPT
Act committed in the presence of or so near the court or
judge as to obstruct or interrupt the proceedings before
the same.
INDIRECT CONTEMPT
Constructive contempt; one committed out or not in the
presence of the court. It is an act done in a distance
which tends to belittle, degrade, obstruct, interrupts, or
embarrass the court and justice, as in refusing to obey its
order or lawful process and can be punished only after
hearing.
CRIMINAL CONTEMPT AND CIVIL CONTEMPT,
DISTINGUISHED
oppressive conclusions. (Lorenzo Shipping vs. DMAP, 2011)
REMEDY OF A PERSON ADJUDGED IN DIRECT
CONTEMPT
The person adjudged in direct contempt by any court
may not appeal therefrom, but may:
(1) Avail himself of the remedies of certiorari or
prohibition.
(2) The execution of the judgment shall be
suspended pending resolution of such petition,
provided such person:
a. Files a bond fixed by the court which
rendered the judgment; and
b. Conditioned that he will abide by and
perform the judgment should the petition
be decided against him. (Section 2, Rule 71)

CRIMINAL CIVIL CONTEMPT PENALTIES

CONTEMPT OFFENSE PENALTY
If RTC or a court of Fine not exceeding P2,000
Punitive in nature; Compensatory or remedial equivalent or higher rank and/or Imprisonment not
punishment exceeding 10 days or both
If lower court: Fine not exceeding P200
Intent is a necessary Intent is immaterial and/or Imprisonment not
element exceeding 1 day or both
(Section 1, Rule 71)
State is the real Aggrieved party or his
prosecutor successor or someone SPECIFIC ACTS PUNISHABLE AS INDIRECT
who has pecuniary CONTEMPT
interest in the right to be A person guilty of the following acts may be punished for
protected indirect contempt:
(1) Misbehavior of an officer of a court in the
The defendant is There is no presumption, performance of his official duties or in his
presumed innocent although the burden of official transactions;
and the burden is on proof is on the (2) Disobedience or resistance to a lawful writ,
the prosecution to complainant, and while the process, order, or judgment of a court
prove charges beyond proof need not be beyond (3) Any abuse of or any unlawful interference with
reasonable doubt reasonable doubt, it must the processes or proceedings of a court not
amount to more than mere constituting direct contempt;
preponderance of (4) Any improper conduct tending, directly or
evidence indirectly, to impede, obstruct, or degrade the
CIVIL CONTEMPT, DEFINED administration of justice;
Consists in the failure to do something ordered to be (5) Assuming to be an attorney or an officer of a
done by a court or judge in a civil case for the benefit of court, and acting as such without authority;
the opposing party therein. (6) Failure to obey a subpoena duly served
(7) The rescue, or attempted rescue, of a person or
CRIMINAL CONTEMPT, DEFINED property in the custody of an officer by virtue of
Consists in the conduct that is directed against the an order or process of a court held by him.
authority and dignity of the court or of a judge acting (Riano, 2016)
judicially, as in unlawfully assailing or discrediting the
authority and dignity of the court or judge, or in doing a CLEAR AND PRESENT DANGER RULE IN CONTEMPT
forbidden act. It means that the evil consequence of the comment must
be extremely serious and the degree of imminence
NO FORMAL PROCEEDING REQUIRED, SUMMARY extremely high before an utterance can be punished.
PROCEEDINGS There must be exist a clear and present danger that the
The court may proceed, upon its own knowledge of the utterance will harm the administration of justice.
facts without further proof and without issue or trial in (Marantan vs. Diokno, 2014)
any form, to punish a contempt committed directly under
its eye or within its view. REMEDY OF A PERSON ADJUDGED IN INDIRECT
BUT there must be adequate facts to support a summary CONTEMPT
order for contempt in the presence of the court. The The judgment or final order of a court in a case of
exercise of the summary power to imprison for contempt indirect contempt may be:

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a. Appealed to the proper court as in criminal
cases. (Section 11, Rule 71)
Note: But execution of the judgment or final order shall
not be suspended until a bond is filed by the person
adjudged in contempt, in an amount fixed by the court
from which the appeal is taken, conditioned that if the
appeal be decided against him he will abide by and
perform the judgment or final order. (Id.)
Generally, a non-party may not be liable for contempt
unless he is guilty of conspiracy with any of the parties in
violating the court’s orders. (Desa Ent. Inc. v. SEC, 1982)
A contempt proceeding, whether civil or criminal, is still a
criminal proceeding, hence, acquittal is a bar to a second
prosecution. The distinction is for the purpose only of
determining the character of the punishment to be
administered. (Santiago v. Anunciacion, 1990)
HOW CONTEMPT PROCEEDINGS ARE COMMENCED
Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was
committed by an order or any other formal charge
requiring the respondent to show cause why he should
not be punished for contempt.
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting
particulars and certified true copies of documents or
papers involved therein, and upon full compliance with
the requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt charges
arose out of or are related to a principal action pending in
the court, the petition for contempt shall allege that fact
but said petition shall be docketed, heard and decided
separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal
action for joint hearing and decision. (Section 4, Rule 71)

PENALTIES (SEC 7, RULE 71) Summary of Procedure for Indirect Contempt

OFFENSE PENALTY PROCEDURE FOR INDIRECT CONTEMPT
Against RTC, or Fine not exceeding P30,000 Who Court Motu Party
court of equivalent and/or Imprisonment not Initiates Propio
or higher rank exceeding 6 month, or both How it is By order or any By a verified petition
Committed against Fine not exceeding P500, and/or initiated written charge with supporting
lower court Imprisonment not exceeding 1 requiring particulars and
month, or both respondent to certified true copy of
Contempt consists Offender may also be ordered to show cause why documents or papers
in violation of a writ make complete restitution to the he should not be involved and full
of injunction, TRO, party injured by such violation of held in compliance with the
or status quo order the property involved or such contempt requirements for filing
amount as may be alleged and initiatory pleadings in
proved. ordinary civil actions
Committed against a Penalty shall depend upon the Where it is Where the contempt is directed against the
person or entity provisions of the law which initiated RTC or equivalent or higher rank;
exercising authorizes penalty for contempt
quasijudicial against such persons or entities When the contempt is directed against a
functions (Sec. 12, Rule 71) lower court:
RTC of the place where the lower court is
WHERE CHARGE TO BE FILED IF AGAINST RTC sitting or
Where the charge for indirect contempt has been In the same lower court subject to appeal
committed against a Regional Trial Court or a court of to the higher court
equivalent or higher rank, or against an officer appointed Hearing and If hearing is not immediately conducted,
by it, the charge may be filed with such court. (Section 5, Bail respondent may be released upon the filing
Rule 71) of the bond in the amount fixed by the
court
WHERE CHARGE TO BE FILED IF COMMITTED Appeal Appeal may be taken in proper courts as in
AGAINST LOWER COURT criminal cases
Where such contempt has been committed against a Execution of Execution of judgment shall not be
lower court, the charge may be filed with the Regional Judgment suspended even by appeal unless bond if
Trial Court of the place in which the lower court is filed conditioned upon the performance by
sitting; but the proceedings may also be instituted in such the respondent of that judgment should it
lower court subject to appeal to the Regional Trial Court be decided against him on appeal
of such place in the same manner as provided in section 2
of this Rule. (Id) WHEN IMPRISONMENT SHALL BE IMPOSED
When the contempt consists in the refusal or omission to
HEARING; RELEASE ON BAIL do an act which is yet in the power of the respondent to
If the hearing is not ordered to be had forthwith, the perform, he may be imprisoned by order of the court
respondent may be released from custody upon filing a concerned until he performs it. (Section 8, Rule 71)
bond, in an amount fixed by the court, for his appearance
at the hearing of the charge. On the day set therefor, the PROCEEDING WHEN PARTY RELEASED ON BAIL FAILS
court shall proceed to investigate the charge and TO ANSWER
consider such comment, testimony or defense as the When a respondent released on bail fails to appear on the
respondent may make or offer. (Section 6, Rule 71) day fixed for the hearing, the court may issue another
order of arrest or may order the bond for his appearance

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to be forfeited and confiscated, or both; and, if the bond Umbac for contempt. The Ad-Hoc Committee of said
be proceeded against, the measure of damages shall be legislative body has even less basis to claim that it can
the extent of the loss or injury sustained by the aggrieved exercise these powers. (Negros Oriental II Electric
party by reason of the misconduct for which the Cooperative vs. Sangguniang Panlungsod)
contempt charge was prosecuted, with the costs of the
proceedings, and such recovery shall be for the benefit of
the party injured. If there is no aggrieved party, the bond
shall be liable and disposed of as in criminal cases.
(Section 9, Rule 71)

COURT MAY RELEASE RESPONDENT

The court which issued the order imprisoning a person
for contempt may discharge him from imprisonment
when it appears that public interest will not be prejudiced
by his release. (Section 10, Rule 71)
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Unless otherwise provided by law, this Rule shall apply to
contempt committed against persons, entities, bodies or
agencies exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish
for contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall have
jurisdiction over such charges as may be filed therefor.
(Section 12, Rule 71)

CRITICISM OF COURTS
The power to punish contempt does not, however, render
the courts impenetrable to public scrutiny nor does it
place them beyond the scope of legitimate criticism.
However, it shall be bona fide, and shall not spill over the
walls of decency and propriety. (Garcia vs. Manrique,
2012)

CONTEMPT IN RELATION TO EXECUTION OF

JUDGMENTS
When the subject of execution is a special judgment
which directs the performance of an act other than the
payment of money, sale or delivery of property or those
other than the payment of money, sale or delivery of
property, the judgment can be complied with only by the
judgment ibligor or officer so directed by the judgment
and not anyone else. This kind of judgment, like in
mandamus, is specifically directed to the person required
to obey the same. Hence, if disobeyed, shall be punished
for contempt. (Riano, 2016)

CONTEMPT POWERS OF THE LEGISLATURE;

LEGISLATIVE INVESTIGATIONS
While recognizing the congressional power to conduct
legislative inquiries, also provides for the following
limitations to the power:
(1) It must be exercised in aid of legislation;
(2) It must be in accordance with the duly
published rules of procedure; and
(3) The rights of persons appearing in or affected
by such inquiries shall be respected. (Riano,
2016)

CONTEMPT POWER OF LOCAL LEGISLATIVE BODIES

There being no express provision in the LGC explicitly
granting local legislative bodies, the power to issue
compulsory process and the power to punish for
contempt, the Sangguniang Panlungsod of Dumaguete is
devoid of power to punish the petitioners Torres and

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SPECIAL PROCEEDING
A Special Proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact. (Rule 1,
Section 3 (c))

SUBJECT MATTER OF SPECIAL PROCEEDING

1. Settlement of estate of deceased persons
2. Escheat
3. Guardianship and custody of children
4. Trustees
5. Adoption
6. Rescission and revocation of adoption
7. Hospitalization of insane persons
8. Habeas Corpus
9. Change of name
10. Voluntary dissolution of corporations
11. Judicial approval of voluntary recognition of minor
natural children
SPECIAL 12. Constitution of Family Home*
13. Declaration of absence and death
14. Cancellation or correction of entries in the civil

PROCEEDINGS registry

*1st Note: Constitution of Family Home is already

obsolete. Under the Family Code, there is no need to
constitute the family home judicially or extrajudicially. All
family homes constructed after the effectivity of the
Family Code are constituted as such by operation of law.

2nd Note: The list in Rule 72, Section 1 is not exclusive.

A petition for liquidation of an insolvent corporation
should be classified a special proceeding because it only
seeks a declaration of the corporation's state of
insolvency and the concomitant right of creditors and the
order of payment of their claims in the disposition of the
corporation's assets. (Pacific Banking Corporation
Employees’ Organization v. CA, 242 SCRA 493)

3rd Note: There are cases where due to another governing

law, the rules on special proceedings do not apply. Article
41 of the Family Code provides that for the purpose of
contracting the subsequent marriage in case of an
absentee spouse, the spouse present must institute a
summary proceeding for the declaration of presumptive
death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Republic v. CA,
Madrona and Jomoc, 458 SCRA 200)

DISTINCTIONS BETWEEN ORDINARY CIVIL ACTION

AND SPECIAL PROCEEDINGS

Ordinary Civil Action Special Proceeding

1. An affirmative relief for 1. No cause of action

injury arising from a needed. What is
party’s wrongful act or necessary is the
omission is prayed for. establishment of a status,
Thus, cause of action is right, or a particular fact.
necessary.

2. Initiated by filing a 2. Initiated by filing a

Complaint. The Petition. The Defendant

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Defendant files an files an Opposition. Municipal Circuit

Answer.
3. Parties involved are
adversaries.
4. Nature is in personam:
Jurisdiction is acquired
through service of
summons or voluntary
appearance
5. Summons required for
acquisition of jurisdiction.
Trial Courts
● If above P300,000:
3. Parties are not Regional Trial Court
adversaries, except when
in the course of the
proceedings, there are VENUE IN JUDICIAL SETTLEMENT OF ESTATE
oppositors. (Sec. 1, Rule 73)
The decedent’s will shall be proved, or letters of
administration granted, and his estate be settled in:
4. Nature is in rem:
Jurisdiction is acquired Inhabitant of the Inhabitant of a Foreign
through publication Philippines (Whether Country
[binding against the Citizen or Alien)
whole world]
CFI of the Province/City CFI of any province
5. Summons required for where decedent resides wherein decedent had his
due process purposes at the time of his death estate.
only.

“Resides” should be viewed as the personal, actual or

NOTE: In the absence of special provisions, the rules physical habitation of a person, his actual residence or
provided for in the ordinary actions as far as practicable, place of abode. It signifies physical presence in a place
applies in special proceedings. (Rule 72, Section 2) and actual stay thereat. (Garcia Fule v. CA, 74 SCRA 189)
EXCLUSIONARY RULE: The court first taking cognizance
“Practicable” means that it may be applied in special of the settlement of the estate of a decedent, shall
proceedings where doing so would not pose an obstacle exercise jurisdiction to the exclusion of all other courts.
to said proceedings. (Alan Sheker v. Estate of Alice Sheker, (Sec. 1, Rule 73)
534 SCRA 62)
EXTENT OF JURISDICTION OF PROBATE COURT
A. SETTLEMENT OF ESTATE OF
DECEASED PERSONS, VENUE, The probate court exercises limited jurisdiction. Its
jurisdiction merely relates to matters having to do with
AND PROCESS
the settlement of the estate and the probate of wills, the
appointment and removal of administrators, executors,
As a rule, when a person dies leaving property, the same
guardians and trustees, examples of which are:
should be judicially administered and the competent
1. Liquidation of Estate
court should appoint a qualified administrator.
2. Administration of the Estate
3. Distribution of the Estate
Settlement of a deceased person’s estate may be:
4. Testamentary Capacity of Testator
1. Testate: Decedent left a will. Necessitates a
5. Compliance with Formalities of the Will as
Probate Proceedings.
prescribed by law (Camaya v. Patulandong, G.R.
2. Intestate: Decedent left no will.
144915, February 23, 2004)
NATURE General rule: Questions as to title to property cannot be
It is a proceeding in rem which is binding against the passed upon on testate or intestate proceedings.
whole world. All persons having interest in the subject Exceptions:
matter involved, whether notified or not, are equally 1. In a provisional manner to determine whether
bound. said property should be included in the
inventory, without prejudice to final
JURSIDICTION determination of title in a separate action.
(Cuizon v. Ramolete, 129 SCRA 495)
The exercise of jurisdiction depends upon the gross value 2. With consent of all the parties. without
of the estate of the decedent. (B.P. 129, as amended by prejudice to the rights of third persons
R.A. 7691) (Trinidad v. CA, G.R. No. 75579 (1991))
3. If the question is one of collation or
advancement (Coca v. Borromeo, 81 SCRA 278)
4. When the estate consists of only one property
Within Metro Manila Outside Metro Manila
(Portugal v. Portugal-Beltran, 467 SCRA 184)
● If the value of the ● If the value of the
POWERS AND DUTIES OF THE PROBATE COURT
estate does not estate does not
exceed P400,000: exceed P300,000:
1. Issue warrants and processes necessary to compel
Municipal Trial Court Municipal Trial
the attendance of witnesses or to carry into effect its
● If above P400,000: Court, Metropolitan
orders and judgments, and all other powers granted
Regional Trial Court Trial Courts,
it by law. (Sec. 3, Rule 73)

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Green Notes 2019
2. Issue a warrant for the apprehension and
imprisonment of a person who defies a probate
order until he performs such order or judgment, or
is released. (Sec. 3, Rule 73)
3. Order the probate of the will of the decedent. (Sec. 3,
Rule 73)
4. Grant letters of administration to the party best
entitled thereto or to any qualified applicant (Sec. 5,
Rule 79)
5. Supervise and control all acts of administration, hear
and approve claims against the estate of the
deceased. (Sec. 11, Rule 86)
6. Order the payment of lawful debts. (Sec. 11, Rule 88)
7. Authorize the sale, mortgage or any encumbrance of
real estate. (Sec. 2, Rule 89)
8. Direct the delivery of the estate to those entitled
thereto. (Sec. 1, Rule 90)
PROCEDURE FOR JUDICIAL SETTLEMENT OF ESTATE
Petition for Probate of Will
Court order fixing the time and place for
probate
Publication of hearing for 3 consecutive
weeks. Notice shall be given to the
designated/known heirs, legatees, and
devisees, and the executor (if the petitioner
is not the testator)
Issuance of Letters
Testamentary/Administration
Publication of Notice for Filing Claims
Issuance of Order of Payment or Sale of
Properties
Payment of Claims:
Sale/Mortgage/Encumbrance of Estate
Properties
Distribution of remainder, if any
(Note: may be made prior payment of claims
if a bond is filed by the heirs)
1. Summary settlement of estates (Rule 74)
General rule: When a person dies leaving property, the
same should be judicially administered and the
competent court should appoint a qualified
administrator.
Exceptions:
1. Extrajudicial Settlement of Estate
2. Summary Settlement of Estates of Small Value
Lasallian Commission on Bar Operations
Special Proceedings
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN PARTIES
An extrajudicial settlement of estate is valid when the
following are present:
1. The decedent died intestate
2. The estate has no outstanding debts at the time of
the settlement
3. The heirs are all of age, or the minors are
represented by their judicial guardians or legal
representatives
4. The settlement is made in a public instrument,
stipulation, or affidavit duly filed with the register of
deeds
5. The fact of such extrajudicial settlement must be
published in a newspaper of general circulation in
the province once a week for 3 consecutive weeks
6. In case of personal property, a bond equivalent to
the value of the personal property posted with the
Register of Deeds.
WHEN ALLOWED
Extrajudicial Settlement of Estate is allowed only in
Intestate Succession.
TWO-YEAR PRESCRIPTIVE PERIOD
Creditors who have a claim against the estate must file a
petition for letters of administration within 2 years after
the death of the decedent. If no creditor files a petition, it
shall be presumed that the decedent left no debts. (Rule
74 Section 1)
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR
It is an affidavit executed by the sole heir of a deceased
person, adjudicating to himself the decedent’s entire
estate, which shall be filed in the office of the register of
deeds.
The sole heir simultaneously files a bond with said
register of deeds in an amount equivalent to the value of
the personal property involved. (Festin)
PROCEDURE FOR EXTRAJUDICIAL SETTLEMENT OF
ESTATE
Divide the Estate among themselves by:
1. A public instrument
2. If they disagree: In an ordinary
action of partition
3. If only one heir: Affidavit of Self-
Adjudication
The public instrument or Affidavit of Self-
Adjudication must be filed in the office of
the Register of Deeds
The parties shall file (simultaneously and as
a condition precedent) a bond in an amount
equivalent to the value of the personal
property involved, with the Register of
Deeds
100
Green Notes 2019 Special Proceedings

The fact of extra-judicial settlement or exceed P10,000. The

administration shall be published in a amount is jurisdictional.
newspaper of general circulation, once a
week for 3 consecutive weeks Allowed only in intestate Allowed in both testate
succession and intestate estates
SUMMARY SETTLEMENT OF ESTATES OF SMALL
VALUE, WHEN ALLOWED
Proper only when there Available even if there are
Summary Settlement of Estates of Small Value refers to a:
are no outstanding debts debts, as the court will
● summary proceeding for the settlement of the
of the estate at the time make provisions for the
deceased person’s estate, without need of an
of settlement payment thereof
appointment of an administrator or executor,
whether the deceased died testate or intestate
● It applies only if the gross value of the estate does Can be resorted only at May be instituted by any
not exceed P10,000. (Sec. 2, Rule 74) the instance and by interested party and even
agreement of all the heirs by a creditor of the
estate, without the
PROCEDURE
consent of the heirs

Petition for summary settlement with

allegation that the gross value of the estate REMEDIES OF AGGRIEVED PARTIES AFTER
does not exceed P10,000 EXTRAJUDICIAL SETTELEMENT OF ESTATE

As a rule, no extrajudicial settlement shall be binding

upon any person who as not participated therein or had
Publication of notice of the fact of summary no notice thereof.
settlement once a week for 3 consecutive Thus, as a remedy, an aggrieved party may, within the 2-
weeks in a newspaper of general circulation, year reglementary period:
and after such other notice to interested 1. Claim against the bond or the real estate, or both
persons as the court may direct. 2. File suppletory or amended Extrajudicial Settlement
3. Reopening by intervention before rendition of
judgment
Hearing held not less than 1 month nor 4. Annulment of Deed of Extrajudicial Settlement
more than 3 months from the date of the
last publication notice WHEN APPLICABLE
When there is an heir or other person who has been
unduly deprived of his lawful participation in the estate.
Court proceeds summarily, without CONTENTS OF PETITION FOR ALLOWANCE OF WILL
appointing an executor/administrator, and (Sec. 2, Rule 76)
to make orders as may be necessary such 1. The jurisdictional facts
as: 2. Names, ages, and residences of the heirs, legatees,
1. Grant allowance of will, if any and devisees of the testator or decedent
2. Determine persons entitled to 3. Probable value and character of the property of the
estate estate
3. Pay debts of estate which are due 4. The name of the person for whom letters are prayed
5. Name of the person having custody of it (if the will
has not been delivered to the court)
Filing of bond fixed by the court
NOTE: Any defects in the petition will not render void the
allowance of the will, or the issuance of the letters
testamentary or of administration, when the will is
Partition of the Estate annexed.
GROUNDS FOR DISALLOWING A WILL
(Sec. 9, Rule 76in rel. to Article 839 of the Civil Code)
DISTINCTIONS BETWEEN EXTRAJUDICIAL
1. If not executed and attested as required by law
SETTLEMENT OF ESTATE AND SUMMARY
2. If the testator was insane, or otherwise mentally
SETTLEMENT OF ESTATES OF SMALL VALUE
incapable to make a will at the time of its execution
Extrajudicial Settlement Settlement of Estates of 3. If it was executed under duress, or the influence of
of Estate Small Value fear, or threats
4. If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of
Does not require court Involves judicial
some other person for his benefit
intervention adjudication although in a
5. If the signature of the testator was procured by
summary proceeding
fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his
Value of the estate is Applies only where the
signature thereto.
immaterial gross estate does not

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As a rule, anyone who contests the will must state the
grounds for opposing its allowance, and serve a copy to
the petitioner and other parties interested in the estate.
(Sec. 10 Rule 76)
REPROBATE (Rule 77)
Wills proved and allowed in a foreign country, according
to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the
Philippines.
PROCEDURE FOR PROBATE
TESTATOR DIES
Within 20 days after knowledge of the
death of the testator, he shall deliver the
will:
1. to the court having jurisdiction
2. or to executor named in the will
Duty of
If he neglects to do so without
Custodian
satisfactory excuse, he shall be fined not
exceeding P2,000
OR may be committed to prison and kept
there until he delivers the will
Within 20 days after he:
1. had knowledge of the death of the
testator
2. or knows that he is named executor
if he obtained such knowledge after
the death of the testator
Present such will to the court having
jurisdiction [unless the will has reached
Duty of the court in any other manner]
Executor
Within the same period, signify to the
court in writing his acceptance of the trust
or his refusal to accept.
If he neglects to do so without
satisfactory excuse, he shall be fined not
exceeding P2,000 or may be committed to
prison and kept there until he delivers the
will
FILE PETITION FOR ALLOWANCE OF WILL
1. Any executor, devisee, or legatee
named in a will
Who may
2. Any other person interested in the
file
estate
petition? 3. The testator himself during his
lifetime
It must show, so far as known to
petitioner:
1. The jurisdictional facts
2. Names, ages, and residences of the
heirs, legatees, and devisees of the
testator or decedent
Contents of
3. Probable value and character of the
the Petition
property of the estate
4. The name of the person for whom
letters are prayed
5. Name of the person having custody
of it [If the will has not been
delivered to the court]
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NOTE: Any defects in the petition will not
render void the allowance of the will, or
the issuance of the letters testamentary
or of administration, when the will is
annexed.
COURT’S DUTIES
1. Fix a time and place for proving the will when all
concerned may appear to contest the allowance of
the will
2. Cause notice of such time and place to be published
3 weeks successively in a newspaper of general
circulation
3. Cause copies of notice of the time and place to be
addressed to the designated or other known heirs,
legatees, and devisees at their residence [if known],
and deposited in the post office with the postage
prepaid at least 20 days before hearing.
NOTES:
• Copy of notice must be mailed to the executor
named [and to co-executor if any], if the petitioner is
another person.
• Newspaper publication not necessary when petition
for probate was filed by the testator himself.
• Personal service of copies of the notice 10 days
before the hearing date shall be equivalent to
mailing.
• Notice shall be sent to compulsory heirs only if it is
the testator asking for the allowance of his own
will
HEARING
NOTE: Compliance with the notice and publication
requirement must be shown before introduction of the
testimony. All testimonies shall be taken under oath and
reduced into writing.
UNCONTESTED: The court may grant
allowance of the will on the testimony of 1
of the subscribing witnesses
CONTESTED: All the subscribing
Proof of witnesses and the notary public, if present
Notarial in PH and not insane, must be produced
Will and examined.
NOTE: If all or some of the witnesses are
in PH but outside of the province where
the will is filed, their deposition must be
taken.
UNCONTESTED: At least one who knows
the handwriting and signature of testator
who explicitly declares that the will and
signature are in the handwriting of the
Proof of
testator
Holographic
Will CONTESTED: At least 3 witnesses who
know the handwriting of the testator
explicitly declare that the will and
signature are in the handwriting of the
testator
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WHEN TESTATOR HIMSELF FILES ISSUED TO EXECUTOR IF HE IS COMPETENT,

PETITION FOR ALLOWANCE OF ACCEPTS THE TRUST, AND GIVES BOND AS REQUIRED
HOLOGRAPHIC WILL:
The fact that he affirms that the REQUISITES FOR ALLOWANCE
holographic will and the signature are in 1. Duly authenticated Copy of the will
his own handwriting, is sufficient 2. Duly authenticated Order or decree of the allowance
evidence of the genuineness and due in foreign country;
execution.
EVIDENCE NECESSARY FOR REPROBATE
NOTE: If contested, burden of proof is on At the re-probate proceedings, the proponent must prove
the contestant the following:
GENERAL RULE: No will shall be proved 1. that the testator was domiciled in the foreign
as a lost or destroyed will country
2. that the will has been admitted to probate in
UNLESS: such country
1. The will is proved to have been in 3. that the foreign court was, under the laws of
Proof of existence at the time of death of the said foreign country, a probate court with
Lost or testator jurisdiction over the proceedings
Destroyed 2. Or is shown to have be fraudulently 4. the law on probate procedure in said foreign
Will or accidentally destroyed in the country and proof of compliance therewith
lifetime of the testator without his 5. the legal requirements in said foreign country
knowledge for the valid execution of the will. (Fleumer v.
3. Or its provisions are clearly and Hix, 54 Phil. 610)
distinctly proved by at least 2
credible witnesses NOTE: Foreign laws do not prove themselves in the
Philippine Jurisdiction and Philippine Courts are not
WHEN WITNESSES DO NOT bound to take judicial notice of them. Thus, executors
RESIDE IN PROVINCE: WHEN WITNESSES ARE and administrators of the decedent’s estate are duty-
if none of the subscribing bound to introduce in evidence the pertinent law of the
DEAD, INSANE, OR DO
witnesses resides in the foreign country which admitted to probate the will of the
NOT RESIDE IN PH:
province where the will was decedent. (Ancheta v. Dalaygon, 2006)
the court may admit
filed, but the deposition of
testimony of other
one or more may be taken, PROCEDURE FOR REPROBATE
witnesses to prove the
the court may:
sanity of the testator,
1. on motion, direct the FILE PETITION FOR ALLOWANCE OF WILL IN
and the due execution of
deposition to be taken, PHILIPPINES TOGETHER WITH COPY OF WILL, ORDER
the will.
and OR DECREE OF ALLOWANCE (Both duly authenticated)
• As evidence of
2. authorize a
execution of the
photographic copy of Who may file?
will, the court may
the will to be made and 1. Executor
admit proof of the
to be presented to the 2. Other person interested
handwriting of the
witness on his
testator, and of the
examination, who may COURT SHALL FIX TIME AND PLACE OF HEARING.
subscribing
be asked questions as (Must follow the notice and publication requirement)
witnesses, or of any
regards the will, and to
of them HEARING
the handwriting of the
testator and others
IF ALLOWED, Certificate of Allowance, signed by the
judge, and attested by the seal of the court, to which a
CERTIFICATE OF ALLOWANCE copy of the will shall be attached, will be issued to be filed
If the court finds that the will was duly executed, and that and recorded by the clerk.
the testator was of sound and disposing mind at the time
of the execution of the will, and not acted under duress, NOTE: The will shall have the same effect as if originally
menace, undue influence, or fraud: proved and allowed in such court.

A certificate of allowance, signed by the judge, and The court shall grant letters testamentary, or letters of
attested by the seal of the court shall be attached to the administration with the will annexed.
will. Such will and certificate shall be filed and recorded
by the clerk. NOTE: Such letters testamentary or of administration
shall extend to all the estate of the testator in PH.
Attested copies of the will devising real estate and of
certificate allowance shall be recorded in the Register of
Deeds of the province in which the lands lie.

UNDER RULE 78, LETTERS TESTAMENTARY WILL BE

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DISPOSITION OF THE ESTATE: estate)

After the payment of just debts and expenses of
administration, the estate shall be disposed in accordance
The amount of Amount of compensation
to the will.
compensation to be strictly governed by
received may be provided Section 7, Rule 85.
If there is residue, it shall be disposed of as provided by
for by the testator in the
law in cases of estates in PH belonging to persons who
provisions of the will,
are inhabitants of another state or country.
otherwise §7, Rule 85 will
be followed.
EFFECTS OF PROBATE
1. The will shall be treated as if originally proved and
allowed in PH courts WHEN AND TO WHOM LETTERS OF ADMINSTRATION
2. Letters testamentary or administration with a will GRANTED
annexed shall extend to all estates of the PH A. TO WHOM GRANTED
3. After payment of just debts and expenses of General rule: Any person who is competent.
administration, the residue of the estate shall be He must be capable of making a will or is not especially
disposed as provided by law in cases of estates in PH disqualified. A person or association authorized to
belonging to persons who are inhabitants of another conduct the business of a trust company in the
state or country. (Sec. 4, Rule 77) Philippines may be appointed in the same manner as an
individual.
1. Of age
LETTERS TESTAMENTARY AND ADMINISTRATION 2. Resident of the Philippines
WHO MAY ADMINISTER THE ESTATE 3. The court deems him fit (i.e. not a drunkard)
a) Executor Exception: Those who are incompetent under law:
b) Administrator 1. Minor
2. Non-resident of the Philippines
3. Those who, in the opinion of the court are unfit
Executor/ Executrix Administrator/ to exercise the duties of the trust by reason of:
Administratrix a. Drunkenness
b. Improvidence
Person named expressly Person appointed by the c. Want of understanding
by the deceased person in intestate court to d. Want of integrity
his will to administer, administer the estate of a e. Conviction of an offense involving
settle, and liquidate his deceased person who: moral turpitude.
estate a) Dies without leaving MINORITY OF DISQUALIFICATION
a will A minor is incapacitated to enter into contracts, and
b) No named executor needs the assistance of a guardian or legal representative
even if there is a will to exercise any valid act.
c) If the one named is
incompetent, refuses NON-RESIDENT OF THE PHILIPPINES AS A
the trust, or fails to DISQUALIFICATION
give a bond The courts, charged with the responsibilities of
d) Will is subsequently protecting the estates of deceased persons, wards of the
declared null and estate, etc., will find much difficulty in complying with
void this duty by appointing administrators and guardians who
are not personally subject to their jurisdiction.
Has duty to present the Decedent left no will, thus Notwithstanding that there is no statutory requirement,
will to the court within 20 there is no such duty the courts should not consent to the appointment of
days after knowledge of persons as administrators and guardians who are not
the death of the testator, personally subject to the jurisdiction of our courts here.
or after he knows that he (Guerrero v. Teran, G.R. No. 4898, March 19, 1909)
was appointed as
executor (if he obtained DRUNKENNESS: DEGREE TO BE DISQUALIFIED
such knowledge after It is the degree that would impair a person’s sound
death), unless the will has judgment and reason and which would necessarily affect
reached the court in any his integrity and honesty.
manner.
IMPROVIDENCE
Testator may provide that Required to give bond It generally connotes unwise or ill-advised spending. An
the executor serve unless exempted by law executor or administrator is entrusted with the
without a bond (BUT the management of an estate and an improvident person
court may direct him to lacks the good judgment and foresight required.
give a bond to pay debts
incurred against the WANT OF UNDERSTANDING

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It means lacking the knowledge to know the nature of the
functions of an executor or administrator.
LACK OF INTEGRITY
Generally, connotes a person’s lack of credibility as to
affect his honesty. Mere antagonistic interest does not
disqualify a person outright from being appointed.
CORPORATIONS CAN BE EXECUTORS OR
ADMINISTRATORS
If it is authorized to conduct the business of a trust
company in the Philippines, then it may be appointed as
an executor, administrator, guardian of an estate, or
trustee, in like manner as an individual. However, it
cannot be appointed as a guardian over the person of the
ward.
WHEN ARE LETTERS TESTAMENTARY OR
ADMINISTATION GRANTED
(1) Letters testamentary: It is an authority issued to an
executor named in the will to administer the estate.
It is issued once the will has been proved and
allowed, and if the executor named is competent,
accepts the trust, and gives bond.
(2) Letters of administration: It is an authority issued
by the court to a competent person to administer
the estate of the deceased if:
a. No executor is named in the will
b. If executor is appointed, such person
named is incompetent, refuses the trust, or
fails to give bond
c. Person dies intestate
ORDER OF PREFERENCE
(Rule 78, Section 6)
The order of preference in the grant of administration are
as follows:
1. Surviving spouse or next of kin, or both, in the
discretion of the court, or to such person as
such surviving spouse or next of kin, requests to
have appointed, if competent and willing to
serve
2. The principal creditors, if competent and
willing to serve, if the surviving spouse or next
of kin, or the person selected by them be
incompetent or unwilling or if the surviving
spouse or next of kin neglects for 30 days after
the death of the person to apply for
administration or to request that administration
be granted to some other person
3. Such other person as the court may select if
there is no such creditor competent and willing
to serve. (Sec. 6)
NOTE: ‘Next of kin’ are those entitled by law to receive
the decedent’s properties. (Ventura v. Ventura, G.R. No.
L-26306, April 27, 1988)
RATIONALE FOR ORDER OF PREFERENCE
Those who will reap the benefit of a wise, speedy and
economical administration of the estate, or in the
alternative, suffer the consequences of waste,
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Special Proceedings
improvidence, or mismanagement, have the highest
interest and most influential motive to administer the
estate correctly. (Suntay III v. Cojuangco-Suntay, 2012)
ORDER OF PREFERENE NOT ABSOLUTE
The order of preference is not absolute for it depends on
the attendant facts and circumstances of each case. In
the appointment of an administrator, the principal
consideration is the interest in the estate of the one to be
appointed. (In the Matter of the Intestate Estate of Cristina
Aguinaldo-Suntay v. Isabel Cojuangco-Suntay, 2012)
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY
WHO MAY OPPOSE
Any person interested in the will may file a written
opposition. (Rule 79, Section 1)
INTERESTED PERSONS
One who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a
creditor; thus interest must be material and direct, not
merely indirect or contingent. (Garcia-Quiazon v. Belen,
G.R. No. 189121, July 31, 2013)
FORM OF OPPOSITION
1. It must be in writing, signed by the applicant,
stating the facts essential to give the court
jurisdiction over the case.
2. It must state the grounds why the letters
testamentary should not issue to the persons
named therein as executors.
GROUNDS
1. Incompetency of the person for whom the
letters are prayed for; or
2. Contestant’s own right to the administration
(ex. Preferential right under order of
preference)
NOTE: Letters of administration may be granted to any
qualified applicant, though it appears that there are other
competent persons having better right to the
administration, if such persons fail to appear when
notified and claim the issuance of letters to themselves
(Sec. 6, Rule 79).
CONTENTS OF A PETITION FOR LETTERS OF
ADMINISTRATION
1. Jurisdictional facts;
2. Names, ages and residences of the heirs, and
the names and residence of the creditors of the
deceased;
3. The probable value and character of the estate
(for initial inventory purpose);
4. Name of the person for whom letters of
administration are prayed. (Sec. 2, Rule 79)
NOTE: Defects in the petition shall not render void the
issuance of letters of administration.
ALLEGATIONS IN THE JURISDICTIONAL FACTS
1. Death of Testator
2. If the decedent is a resident, his last place of
residence, which must be within the territorial
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jurisdiction of the court before whom the petition is
brought;
3. If the decedent is a non-resident, the place where he
has an estate which must be within the territorial
jurisdiction of the court before whom the petition is
brought;
4. Names, ages and residences of possible heirs and
creditors;
5. The probable value of the estate (for establishing
proper court jurisdiction);
6. The name of the person for whom the letters is
prayed for. (De Guzman v. Angeles, 1988)
DUTY OF THE COURT ONCE PETITION FOR LETTERS
OF ADMINISTRATION IS FILED
1. Fix the time and place for hearing of the petition
2. Cause notice thereof to be given to:
a. Known heirs of the decedent
b. Known creditors of the decedent
c. Other persons believed to have an interest
in the estate.
NOTICE AND PUBLICATION
Notice of the time and place of the hearing must be
published for 3 weeks successively prior to the time
appointed, in a newspaper of general jurisdiction in the
province where the court has jurisdiction.
Notice of such must also be given to:
a) Known heirs
b) Creditors
c) Any other person who has an interest in the estate
REASON FOR NOTICE
Notice is essential to the validity of the proceeding in
order that no person may be deprived of his right to
property without due process of law. Notice through
publication is jurisdictional, the absence of which makes
court orders affecting other persons, subsequent to the
petition, void. (De Guzman v. Angeles, 1988)
SIMULTANEOUS FILING OF OPPOSITION AND
PETITION
A petition for letters of administration may be filed, at the
same time with the opposition, to himself, or to any
competent person or persons named. (Sec. 4, Rule 79)
ORDER OF APPOINTMENT OF REGULAR
ADMINISTRATION IS NOT FINAL
The order of appointment of a regular administrator is
appealable. (Sec.1 (e), Rule 109)
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
GENERAL POWERS OF AN
EXECUTOR/ADMINISTATOR
1. To have access to, and examine and take copies of
books and papers relating to the partnership in case
of a deceased partner (Sec. 1, Rule 84)
2. To examine and make invoices of the property
belonging to the partnership in case of a deceased
partner (Sec. 1, Rule 84)
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3. To maintain in tenantable repairs, houses and other
structures and fences and to deliver the same in
such repair to the heirs or devisees when directed so
to do by the court (Sec. 2, Rule 84)
4. To make improvements on the properties under
administration with the necessary court approval
except for necessary repairs
5. To possess and manage the estate when necessary:
a. For the payment of debts; and
b. For the payment of expenses of
administration (Sec. 3, Rule 84)
The contract of lease, being a mere act of administration,
could validly be entered into by the administratrix within
her powers of administration, even without the court's
previous authority. (De Hilado vs. Nava, 1939)
When the estate of a deceased is already the subject of a
testate or intestate proceeding, the administrator cannot
enter into any transaction involving it without any prior
approval of the probate court. (Estate of Olave v. Reyes,
1983)
RESTRICTIONS ON THE POWER OF AN
EXECUTOR/ADMINISTRATOR
1. He cannot acquire by purchase, even at public
or judicial action, either in person or mediation
of another, the property under administration;
2. He cannot borrow money without authority
from the court;
3. He cannot speculate with funds under
administration, nor place them where they may
not be withdrawn at once by order of the court
[even if it means depositing the funds in a
current account with a lower interest rate];
4. He cannot lease the property under
administration for more than 1 year;
5. He cannot continue the business of the
deceased unless authorized by the court; and
o NOTE: If he does so, he is chargeable for all
the losses without allowing to receive the
benefits of any profit he might make.
6. He cannot profit by the increase or decrease in
the value of the property under administration;
7. He cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other co-
owners. (Herrera, Vol. III-A, pp. 116-117, 2005 ed.)
EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH
ALL ESTATE AND INCOME
Chargeable in his account with the whole of the estate
which has come into his possession, at the value of the
appraisement contained in the inventory, with:
a) Interest
b) Profit
c) Income of such estate
d) Proceeds of the estate as is sold by him, at the
price at which it was sold. (Sec. 1, Rule 85)
EXECUTOR OR ADMINISTRATOR REQUIRED TO MAKE
INVENTORY AND RENDER ACCOUNTS
Inventory: Rendered within 3 months of appointment
and includes an appraisal of all real and personal estate of
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the deceased which has come into his possession or b) Did not appoint any testamentary or of
knowledge. (Sec. 1, Rule 83) executor in his will administration
• Not included: c) Will subsequently b) executor is a claimant
a) Wearing apparel of surviving husband or wife disallowed of the estate
and minor children d) There is no will c) by any cause,
b) The marriage bed and bedding (intestacy) including an appeal
c) Such provisions and other articles as will from allowance or
necessarily be consumed in the subsistence of disallowance of a will
the family of the deceased (Sec. 2, Rule 83) Obliged to pay debts of the Not obliged to pay debts of
estate estate
Accounting: Rendered within 1 year from the time of Appointment may be Regarded as an
receiving letters testamentary or of administration unless subject of appeal interlocutory order and
the not subject to appeal
court otherwise directs. Executor or administrator shall
render such further accounts as the court may require ONLY ONE SPECIAL ADMINISTRATOR IS ALLOWED
until the estate is wholly settled (Sec. 8, Rule 85) As under the law, only one general administrator may be
appointed to administer, liquidate and distribute the
NECESSARY EXPENSES estate of a decedent. It clearly follows that only one
Such expenses as are entailed for the preservation and special administrator may be appointed to administer
productivity of the estate and for its management for temporarily said estate. A special administrator is but a
purpose of liquidation, payment of debts, and distribution temporary administrator appointed in lieu of the general
of the residue among persons entitled thereto. (Hermanos administrator (Roxas v. Pecson, 1948)
v. Abada, 1919)
NOT CONSIDERED NECESSARY EXPENSES ORDER OF PREDERENCE UNDER TULE 78 DOES NOT
1. Expenses on death anniversary of deceased because APPLY TO APPOINTMENT OF SPECIAL
no connection with care, management and ADMINISTRATOR
settlement of estate; The order of preference in the appointment of a regular
2. Expenses for stenographic notes and unexplained administrator does not apply to the selection of a special
representation expenses; administrator, as the appointment of the latter lies
3. Expenses incurred by heir as occupant of family entirely in the discretion of the court and is not
home without paying rent appealable. (Tan v. Gedorio, 2008)
4. Expenses incurred by an executor or administrator
to produce a bon POWERS AND DUTIES OF A SPECIAL ADMINISTRATOR
1. Possess and take charge of the goods, chattels,
APPOINTMENT OF SPECIAL ADMINISTRATOR rights, credits and estate of the deceased
Special Administrator: A representative of the decedent 2. Preserve the same for the executor or
appointed by the probate court to care for and preserve administrator afterwards appointed
his estate until an executor or general administrator is 3. Commence and maintain suit for the estate
appointed. 4. Sell only perishable property and other
A special administrator is an officer of the court who is property ordered sold by the court
subject to its supervision and control, expected to work 5. Pay debts only as may be ordered by the court.
for the best interest of the entire estate, with a view to its (Sec. 2, Rule 80)
smooth administration and speedy settlement. The 6. Prepare and submit an inventory of the estate
principal object of the appointment of a temporary 7. Render an accounting of administration.
administrator is to preserve the estate until it can pass to
the hands of a person fully authorized to administer it for NOTE: A special administrator shall not be liable to pay
the benefit of creditors and heirs. (Ocampo v. Ocampo et any debts of the deceased unless so ordered by the court.
al., 2010)
WHEN DUTIES OF SPECIAL ADMINISTRATOR CEASES
WHEN APPOINTED When letters testamentary or of administration are
(1) When there is delay in granting letters testamentary granted on the estate of the deceased, the powers of the
or of administration special administrator shall cease:
(2) By any cause including an appeal from the allowance • He shall deliver to the executor/administrator the
or disallowance of a will (Sec. 1, Rule 80) goods, chattels, money, and estate of the deceased in
(3) When the executor or regular administrator has a his hands.
claim against the estate he represents (Sec. 8, Rule • The executor/administrator may prosecute to final
86) judgment suits commenced by such Special
Administrator (Sec. 3, Rule 80)

Regular Administrator Special Administrator GROUNDS FOR REMOVAL OF A REGULAR

ADMINISTRATOR DOES NOT APPLY TO SPECIAL
Appointed when: Appointed when: ADMINISTRATORS
The appointment and removal of a special administrator
a) Decedent died a) there is delay in
rests entirely on the discretion of the court. The
intestate granting letters
sufficiency of any ground for removal should thus be

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Green Notes 2019
determined by the court whose sensibilities are, in the
first place, affected by an act or in disregard of the rules
or the orders of the court. (Degala v. Ceniza1947)
GROUNDS FOR REMOVAL OF ADMINISTRATOR
An administrator may be removed if he:
1. Neglects to:
a. Render his account
b. Settle the estate according to law, or
c. Perform an order or judgment of the court,
or a duty expressly provided by these rules,
2. Absconds
3. Becomes insane, or
4. Becomes incapable or unsuitable to discharge the
trust
NOTE:
• When an executor or administrator dies, resign, or is
removed, the remaining executor or administrator
may administer the the trust alone, unless the court
grants letters to someone to act with him.
• If there is no remaining executor or administrator,
administration may be to any suitable person.
GROUNDS NOT EXCLUSIVE
The court is invested with ample discretion in the
removal of an administrator for as long as there is
evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the
rules or the orders of the court which it deems sufficient
or substantial to warrant the removal of the
administrator.
EXAMPLES OF VALID GROUNDS FOR REMOVAL OF
ADMINISTRATOR
1. Death;
2. Resignation;
3. An administrator who disbursed funds of the estate
without judicial approval. (Cotia vs. Jimenez, 104 Phil.
960);
4. False representation by an administrator in securing
his appointment (Cabarubbias vs. Dizon, 76 Phil. 209);
5. An administrator who holds an interest adverse to
that of the estate or by his conduct showing his
unfitness to discharge the trust (Garcia vs. Vasquez,
32 SCRA 490);
6. An administrator who has the physical inability and
consequent unsuitability to manage the estate (De
Borja vs. Tan, 93 Phil. 167).
WHEN LETTERS OF ADMINISTRATION REVOKED
1. When a newly-discovered will has been admitted to
probate after the issuance of letters of
administration, such letters of administration may be
revoked; and
2. When letters of administration have been issued
illegally or without jurisdiction, such letters of
administration may be revoked by the probate court.
(Sec.1. Rule 82)
EFFECTS OF REVOCATION (Sec.3, Rule 80)
1. All powers of administration shall cease;
2. The administrator shall forthwith surrender his
letters to the court
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3. The administrator shall render his account within
such time as the court directs, and;
4. Proceedings for the issuance of letters testamentary
or of administration under the will shall be had.
DUTY OF ADMINISTRATOR UPON REVOCATION
1. Surrender the letters to court
2. Render his account within such time as the court
may direct (Sec. 1, Rule 82)
POWERS OF NEW EXECUTOR OR ADMINISTRATOR
1. To collect and settle the estate not administered that
the former executor or administrator had;
2. To prosecute or defend actions commenced by or
against the former executor or administrator;
3. To recover execution on judgments in the name of
former executor or administrator;
4. Authority to sell granted by court to former executor
or administrator may be renewed without further
notice or hearing. (Sec. 4, Rule 82)
ESTATE IS BURDENED WITH LIEN OF CREDITORS
Upon the death of a person, all his property is burdened
with all his debts, his death creating an equitable lien for
the benefit of the creditors. Such lien continues until the
debts are extinguished either by the payment,
prescription, or satisfaction in one of the modes
recognized by law. (Suiliong and Co. v. Chio Taysan, 12
Phil. 13)
PURPOSE OF PRESENTATION OF CLAIMS AGAINST
ESTATE
1. To protect the estate of the deceased
2. To enable the executor or administrator to examine
each claim, and determine whether it is proper,
which should be allowed
3. To appraise the administrator and the probate court
of the existence of the claim so that a proper and
timely arrangement may be made for its payment in
full or by pro-rata portion in the due course of the
administration. (Estate of Olave v. Reyes, G.R. No. L-
29407, July 29, 1983)
TIME WITHIN WHICH CLAIMS SHOULD BE FILED;
EXCEPTIONS
General Rule: The filing of claims against the estate shall
not be more than 12 nor less than 6 months after the date
of the first publication of the notice. (Sec. 2, Rule 86)
Exception: Belated Claims
Belated claims may be filed even beyond the period fixed
by the court:
1. Money claims against the estate may be allowed at
any time before an order of distribution is entered,
at the discretion of the court for cause and upon
such terms as are equitable. The court may allow
such claim to be filed not exceeding 1 month from
the order allowing belated claims (Quisumbing v.
Guison, 1946)
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the
estate within the period fixed by the probate court
for the settlement of such claims, the creditor will be
allowed to set up the same as a counterclaim to the
action filed by the estate against him.
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CONDITIONS IN FILING BELATED CLAIM
The rule clothes the court with authority to permit the
filing of a claim after the lapse of 12 months, or at any
time before the order of distribution is entered, subject to
the following conditions:
1. Application of a creditor who has failed to file
his claim
2. Just cause [showing why permission for the
belated claim should be granted]
3. The extension of time granted for filing the
claim must not exceed one month.
PUBLICATION OF NOTICE TO CREDITORS
The executor or administrator shall cause the:
1. publication of notice for 3 weeks successively in a
newspaper of general circulation in the province,
and
2. posting in 4 public places in the province, and
3. in 2 public places in the municipality, where the
decedent last resided. (Sec. 3, Rule 86)
Printed copy of the published notice shall be filed in court
within 10 days after its publication accompanied with
affidavit setting forth the dates of first and last
publication and name of newspaper where it was printed.
(Sec. 4, Rule 86)
SIGNIFICANCE OF NOTICE
Publication of notice is constructive notice to creditors
and, thus, a creditor would not be permitted to file a
claim beyond the period fixed in the notice on the bare
ground that he had no knowledge of the administration
proceedings. (Villanueva v. PNB, 1963)
STATUTE OF NON-CLAIMS
It is the period fixed for the filing of the claims against the
estate. The rule mandates certain creditors of a deceased
person to present their claims for examination and
allowance within a specified period, otherwise they are
barred forever.
PURPOSE: To settle the estate with dispatch, so that the
residue may be delivered to the persons entitled thereto
without their being afterwards called upon to respond in
actions for claims. (Santos v. Manarang, 27 Phil. 213)
NOTE: Statute of non-claims supersedes the Statute of
Limitations insofar as the debts of deceased persons are
concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the
claim is barred forever. However, both statute of non-
claims and statute of limitations must concur in order for
a creditor to collect.
TYPES OF CLAIMS COVERED
1. All money claims against the decedent arising from
contract, express or implied, whether the same be
due, not due, or contingent
2. All claims for funeral expenses and expenses for the
last sickness of the decedent
3. Judgment for money against the decedent. The
judgment must be presented as a claim against the
estate, where the judgment debtor dies before levy
on execution of his properties. (Sec. 5, Rule 86)
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NOTE: Enumeration is exclusive.
CONTINGENT CLAIM
It is one by which, by its nature is necessarily dependent
upon an uncertain event for its existence and claim, and
its validity and enforceability depending upon an
uncertain event. (Gasket and Co. v. Tan Sit, 43 Phil. 810)
WHEN ALLOWED
1. When it becomes absolute
2. Presented to the court or executor/administrator
within 2 years from the time limited for other
creditors to present their claims; and
3. Not disputed by executor/administrator
• If disputed: It may be proved and allowed or
disallowed by the court as the facts may
warrant (Rule 88, Section 5)
NOTE: Mutual claims may be set off against each other in
such action.
ALTERNATIVE REMEDES OF A MORTGAGE CREDITOR
UPON DEATH OF DEBTOR
1. Waive the security and claim the entire debt from
the estate as an ordinary claim
• Creditor is deemed to have abandoned the
mortgage and he cannot thereafter file a
foreclosure suit if he fails to recover his money
claim against the estate
2. Foreclose mortgage judicially and prove any
deficiency as an ordinary claim
• Foreclosure suit should be against the executor
or administrator as party defendant. The
creditor may obtain deficiency judgment if he
fails to fully recover his claim
3. Rely solely on the mortgage and foreclose it before
it is barred by prescription without right to claim
for deficiency
• This mode includes extrajudicial foreclosure of
sale and its exercise precludes one from
recovery of any balance of debt against the
estate and frees the estate from further liability
NOTE: These remedies are distinct, independent, and
mutually exclusive remedies. An election of one remedy
operates as a waiver of the other
CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST
THE ESTATE
When the executor or administrator has a claim against
the estate he represents:
1) The executor or administrator is required to give
notice to the court in writing.
2) The court shall appoint a special administrator who
is vested with the same powers and subject to the
same liability as the general administrator or
executor only insofar as it pertains to the adjustment
of such claim.
3) The court may order the executor or administrator
to pay to the special administrator necessary funds
to defend such claim. (Sec. 8, Rule 86)
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NOTE: These instances are deemed actions that survive

the death of the decedent.

Claims that survive Claims that do not

survive

Rule 87, Sec. 1 Rule 86, Sec 5

Actions that may be Actions that may be

commenced directly commenced against the
against the executor and estate of the deceased.
administrator

HOW TO FILE A CLAIM Recovery of real/personal Money claims, debts

PROCEDURE property (or any interest incurred by the deceased
First: Deliver the claim with the necessary vouchers to the therein) from the estate; during his lifetime arising
clerk of court. enforcement of a lien from contract; claims for
If executor or thereon; action to recover funeral expenses or the
administrator damages arising from tort last illness of the
demands decedent; judgments for
original: Original money against the
must be decedent.
exhibited.
If founded on a bond,
UNLESS: lost or ACTIONS WHICH MAY NOT BE BROUGHT AGAINST
bill, note, or other
Second: Serving a instrument: Original destroyed. Claim EXECUTOR OR ADMINISTRATOR
copy of claim on must then be An action upon claim for recovery of money or debt or
need not be filed but
the executor or accompanied by interest therein shall not be commenced against the
copy with all
administrator. an affidavit executor or administrator. This should be brought against
indorsements must
containing a the estate itself.
be attached to the
copy or
claim filed.
particular
REQUISITES BEFORE CREDITOR MAY BRING AN
description of
the instrument
ACTION FOR RECOVERY OF PROPERTY
and stating its FRAUDULENTLY CONVEYED BY THE DECEASED
loss or A creditor may commence and prosecute to final
destruction. judgment, in the name of the executor or administrator,
an action for the recovery of property fraudulently
If claim is due: accompanied by affidavit stating the amount conveyed or attempted to conveyed by the deceased,
justly due, that no payments have been made which are not when the following circumstances concur:
credited, and that there are no offsets to the same, to the 1. That the deceased in his lifetime had conveyed real
knowledge of the affiant. property or a right or interest therein, or a debt or
If claim is not due, or is contingent: accompanied by affidavits credit, with intent to defraud his creditors or to
stating the particulars thereof. avoid any right, debt or duty;
2. That the deceased had so conveyed such property,
NOTES: right, interest debt or credit, that by law the
1) When the affidavit is made by a person other than conveyance would be void against his creditors;
the claimant, he must state the reason why it is not 3. That the subject of the attempted conveyance would
made by the claimant. be liable to attachment by any of the creditors in his
2) The claim when filed, shall be attached to the record lifetime;
of the case in which the letters testamentary or of 4. That there is a deficiency of assets in the hands of an
administration were issued, although the court, in its executor or administrator for the payment of the
discretion, and as a matter of convenience, may debts and expenses for administration; and
order all the claims to be collected in a separate 5. That the executor or administrator has failed to
folder. commence the action for recovery of the subject of
the conveyance or attempted conveyance.
6. That leave is granted by the court to the creditor to
ACTIONS THAT MAY BE BROUGHT AGAINST
file the action
EXECUTORS AND ADMINISTRATORS
7. That a bond is filed by the creditor as prescribed in
The following are the actions that may be commenced
this provision; and
directly against the executor or administrator:
8. That the action by the creditor is in the name of the
1) Recovery of real or personal property or any interest
executor or administrator.
therein from the estate
2) Enforcement of a lien thereon
3) Action to recover damages for any injury to person NOTE: The last three requisites are unnecessary where
or property, real or personal. (Sec. 1, Rule 87) the grantee is the executor or administrator himself, in
which case the action should be in the name of all the
creditors.

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DEBTS PAID IN FULL IF ESTATE SUFFICIENT
The executor or administrator shall pay within the time
limited for that purpose:
1. After hearing and ascertaining all the money claims
against the estate; and
2. It appears that there are sufficient assets to pay the
debts (Sec. 1, Rule 88)
ORDER OF PREFERENCE OF PAYMENT
1. Pay according to the provisions of the will: if the
testator makes provision by his will, or designates
the estate to be appropriated for the payment of his
debts, the expenses of administration, or the family
expenses,
2. If the provision made by the will or the estate
appropriated is not sufficient: such part of the
estate of the testator, real or personal, as is not
disposed of by will, if any shall be appropriated.
ORDER OF PROPERTY LIABILITY
1. Personal property not disposed of by will
2. Real property not disposed of by will
3. Any deficiency shall be met by contributions as
provided in Sec. 6, Rule 88.
General Rule: Personal estate is first chargeable to the
estate.
Exception: Real estate is chargeable:
1. When personal property of decedent is
insufficient to pay debts; or
2. Where sale of personal property would be
detrimental to the participants of the estate.
WHEN PERSONAL PROPERTY ALREADY IN THE
HANDS OF HEIRS, LEGATEES, OR DEVISEES
The court may order the heirs to turn over the personal
properties in such proportion necessary to pay claim,
even if the administrator possess the real properties as
Sec. 2 requires personal property is first chargeable to
the estate.
ESTATE TO BE RETAINED TO MEET CONTINGENT
CLAIMS
If court is satisfied that a contingent claim is valid:
1. It may order the executor/administrator to retain in
his hands sufficient estate for the purpose of paying
the contingent claim when such becomes absolute.
2. If estate insolvent: retain a portion equal to the
dividend of the other creditors. (Sec. 4, Rule 88)
PAYMENT OF CONTINGENT CLAIMS
1. If claim becomes absolute within 2 years limited for
creditors and allowed by the court: Creditor shall
receive payment to the same extent as the other
creditors if the estate retained by the executor or
administrator is sufficient.
2. Claim not presented after becoming absolute
within 2 year period and allowed by the court: The
assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled. (Sec. 5, Rule 88)
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If the contingent claim matures after the expiration of the
two years, the creditors may sue the distributees, who
are liable in proportion to the shares in the estate
respectively received by them (Jaucian v. Querol, 1918)
CONTRIBUTIVE SHARES FIXED BY COURT
When the distributees have already come into possession
portions of the estate, the court shall fix their
contributive shares that they may be liable to the estate
of the creditors. (Sec. 6, Rule 88)
LIABILITY OF HEIRS AND DISTRIBUTEES
Heirs are not required to respond with their own
property for the debts of their deceased ancestors. But
even after partition of an estate, the heirs and
distributees are liable individually for the payment of all
lawful outstanding claims against the estate in proportion
to the amount or value of the property they have
respectively received from the estate. (Pavis v. de la Raja,
8 Phil. 70)
PROVISIONS OF THE CIVIL CODE ON PREFERENCE OF
CREDIT APPLIES
If estate is insolvent, Section 7, Rule 88 in relation to
Articles 1059 and 2239 to 2251 of the Civil Code on
Concurrence and Preference of Credits must apply.
CLAIMS OUTSIDE THE PHILIPPINES
Claims proven outside the Philippines may be added to
the list of claims in the Philippines against the estate of an
insolvent resident and the estate will be distributed
equally among those creditors, if:
1) executor had knowledge and
2) opportunity to contest its allowance therein. (Rule
88, Section 10)
PRINCIPLE OF RECIPROCITY
The benefit of Sections 9 (insolvent non-resident rule)
and 10 (claims outside Philippines rule) cannot be
extended to the creditors in another country if the
property of such deceased person there found is not
equally apportioned to the creditors residing in the
Philippines, according to their respective claims. (Sec.10,
Rule 88)
TIME FOR PAYING DEBTS AND LEGACIES
General rule: Not exceeding 1 year in the first instance
Exception: Court may extend the period, after hearing and
notice, on the following conditions:
1) Extension must not exceed 6 months for a single
extension; and
2) The whole period allowed shall not exceed 2 years.
GROUNDS FOR EXTENSION
1. Original executor or administrator dies
2. New administrator is appointed (Sec. 16, Rule 88)
REQUISITES
1. Executor or administrator must apply.
2. Notice of the time and place of hearing.
3. Court must hear the application.
4. Extension not to exceed 6 months beyond the time
which the court might have allowed to such original
executor or administrator
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Green Notes 2019
STAGES BEFORE DISTRIBUTION OF ESTATE
1. Liquidation of the estate
2. Collation and Declaration of heirs
• Purpose: to determine to whom the residue of
the estate should be distributed.
a. Determination the right of a natural child
b. Determination of proportionate shares of
distributees
Afterwards, the residue may be distributed and delivered
to the heirs. (Herrera)
POWERS OF THE COURT IN THE DISTRIBUTION AND
PARTITION
1. Collate;
2. Determine the heirs; and
3. Determine the share of each heirs.
Advancements made or alleged to have been made to
heirs by decedent may be determined by court having
jurisdiction of estate. The final order of the court shall be
binding on the person raising the questions and on the
heir. (Sec. 2,Rule 90)
LIQUIDATION
It is the determination of all assets of the estate and
payment of all debts and expenses. (Festin)
General rule: An order of distribution or assignment shall
be made only after payment of the debts, funeral charges,
and other expenses against the estate. (Silverio, Jr. v. CA,
G.R. No. 178993, September 16, 2009)
Exception: Distributees, or any of them, give a bond, in
sum to be fixed by the court, conditioned for the payment
of said obligations within such time as the court directs.
PROJECT OF PARTITION
It is a proposal for the distribution of the hereditary
estate which the court may accept or reject. (Reyes v.
Barretto-Datu, 1967)
The executor/administrator has no duty to prepare and
present the same under the Rules. The court may,
however, require him to present such project to better
inform itself of the condition of the estate. (3 Moran 541,
1980 Ed.)
It is the court that makes that distribution of the estate
and determines the persons entitled thereto:
1. On application of executor/administrator or
person interested in the estate
2. Notice
3. Hearing
Court shall assign the residue of the estate to the persons
entitled to the same, naming them and the proportions,
or parts, to which each is entitled.
Such persons may demand and recover their respective
shares from the executor/administrator, or any other
person having the same in his possession.
If there is a controversy as to who are heirs or shares
such shall be heard and decided as in ordinary cases. (Sec.
1, Rule 90)
EFFECT OF FINAL DECREE OF DISTRIBUTION
A final decree of distribution of the estate of a deceased
person vests the title to the land of the estate to the
distributes. If the decree is erroneous, it should be
corrected by opportune appeal, for once it becomes final,
its binding effect is like any other judgment in rem, unless
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Special Proceedings
properly set aside for lack of jurisdiction or fraud. (Vda. de
Kolayco v. Tengco, 207 SCRA 600)
The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when
he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable
to negligence. (Vda. De Alberto v. CA, 1989)
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT
GIVEN HIS SHARE
The better practice for the heir who has not received his
share is to:
1. Demand his share through a proper motion in the
same probate or administrative proceedings, or
2. Motion for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
(Guilas v. Judge of the CFI of Pampanga, 1972)
PROBATE COURT LOSES JURISDICTION OF AN ESTATE
UNDER ADMINISTRATION AFTER PAYMENT OF ALL
DEBTS
The probate court loses jurisdiction of an estate under
administration only after payment of all debts, and the
remaining estate delivered to the heirs entitled to receive
the same. (Guilas v. Judge of the CFI of Pampanga, 1972)
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT
OF EXECUTION
General rule: A probate court does not have the power to
issue writs of execution.
A writ of execution is not the proper procedure for the
payment of debts and expenses of administration. The
proper procedure is for the court to order the sale of
personal estate or the sale of mortgaged of real property
of the deceased and all debts or expenses of
administration should be paid out of the proceeds of the
sale or mortgage. (Aldamiz v. Judge of CFI-Mindoro, 85
Phil. 228)
Execptions:
Under the following circumstances, the probate court
may issue writs of execution:
a) To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the decedent’s
assets.
b) To enforce payment of expenses of the partition.
c) To satisfy the costs when a person is cited for
examination in probate proceedings
TRUSTEES
A trust is a confidence reposed in one person, called the
trustee, for the benefit of another, called the cestui que
trust, with respect to property held by the former of the
benefit of the latter. The person in whom confidence is
reposed as regards the property for the benefit of
another is known as the trustee. (Festin)
NOTE: Rule 98 of the Rules of Court only applied to
Express trust, one which is created by a will or written
instrument.
WHEN IS A TRUSTEE NECESSARY
A trustee is necessary:
a) To carry into effect a will where the testator
omitted appointing a trustee in the Philippines
b) To carry into effect other written instruments
where the trustee declines, resigns, dies, or is
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removed before the accomplishment of trust
(Festin)
DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
EXECUTOR/
ADMINISTRATOR
Accounts are NOT under
oath and except for initial
and final submission of
accounts, they shall be
filed only at such times as
may be required by the
court
Court that has jurisdiction
may be MTC or RTC
May sell, encumber, or
mortgage property if it is
necessary for the purpose
of paying debts, expenses
of administration or
legacies or for
preservation of property
or if sale will be beneficial
to heirs, legatees or
devisees
(Upon application to the
court with written notice
to the heirs)
Order of sale has NO TIME
LIMIT
Approved by the court to
settle estate of the
decedent
NOT EXEMPTED from
filing a bond even if such
exemption is provided in
the will (ratio: bond is only
conditioned upon payment
of debts)
Services of executors or
administrators are
terminated UPON
PAYMENT OF DEBTS of
the estate and
DISTRIBUTION of
property to the heirs
MUST PAY the debts of
the estate
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TRUSTEE
Accounts must be UNDER
OATH and filed ANNUALLY
Court which has jurisdiction
is the RTC if appointed to
carry into effect provisions of
a will; if trustee dies, resigns,
or is removed in the
appointment of new trustee
May sell or encumber
property of the estate held in
trust if necessary or
expedient or upon order of
the court
Order of sale has NO TIME
LIMIT
Appointed to carry into
effect the provisions of a will
or written instrument
(contractual trust)
May be EXEMPTED from
filing a bond if provided in
the will or if beneficiaries
requested such exemption
Trusteeship is terminated
upon TURNING OVER THE
PROPERTY to beneficiary
after expiration of the trust
(period may be provided for
in the will or trust contract)
No obligation to pay the
debts of the beneficiaries or
trustor
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CONDITIONS OF THE BOND
General rule: Before entering the duties of his trust, a
trustee shall file with the clerk of court having
jurisdiction of the trust a bond in the amount to be
determined by the court.
Exception: The trustee may be exempted when:
1. Testator requests so;
2. All person beneficially interested in the trust
requests so. (Sec. 5, Rule 98)
CONDITIONS
The following conditions shall be deemed to be a part of
the bond whether written or not:
1. Inventory: Make and return to the court, at such
time as it may order, a true inventory of all the real
and personal estate belonging to him as trustee,
which at the time of the making of such inventory
shall have come to his possession or knowledge
2. Faithful Management and Discharge of Trust:
Manage and dispose of all such estate, and faithfully
discharge his trust in relation thereto, according to
law and the will of the testator or the provisions of
the instrument or order under which he is
appointed;
3. Render Accounting: Upon oath at least once a year
until his trust is fulfilled, a true account of the
property in his hands and the management and
disposition thereof
• UNLESS: he is excused therefrom in any year by
the court
4. Settlement of Account and Delivery of the Estate: At
the expiration of his trust he will settle his account
in court and pay over and deliver all the estate
remaining in his hands, or due from him on such
settlement, to the person or persons entitled to
thereto. (Sec. 6, Rule 98)
REQUISITES FOR THE REMOVAL AND RESIGNATION
OF A TRUSTEE
The court may remove a trustee upon:
1) Petition of the parties beneficially interested
2) Due notice to the trustee
3) Hearing
GROUNDS FOR THE REMOVAL AND RESIGNATION OF
A TRUSTEE
1. Insanity
2. Incapability if discharging the trust or unsuitability
therefor.
3. Resignation; but propriety is to be determined by the
court (Rule 98, Section 8)
4. Death of trustee
5. When the termination appears essential to the
interest of the person beneficially interested.
NATURE OF POSSESSION
The possession of the property by the trustee is not an
adverse possession, but only a possession in the name
and in behalf of the owner of the same.
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A trustee may acquire the trust estate by prescription
provided there is a repudiation of the trust, such
repudiation being open, clear and unequivocal, known to
the cestui que trust. In that case, prescription will
commence to run from and after said repudiation and the
knowledge thereof by the cestui. (Salinas v. Tuazon, 1931
TERRITORIALITY OF AUTHORITY OF TRUSTEE
The powers of a trustee appointed by a Philippine court
cannot extend beyond the confines of the territory of the
Republic.
This is based on the principle that his authority cannot
extend beyond the jurisdiction of the Republic, under
whose courts he was appointed. (Herrera)
B. ESCHEAT (RULE 91)
Escheat is a proceeding whereby the State, by virtue of
sovereignty, steps in and claims the real or personal
property of a person who dies intestate leaving no heir. In
the absence of a lawful owner, a property is claimed by
the State to forestall an open invitation to self-service by
the first-timers. (Republic v. CA, 2002)
The concept behind this is the REGALIAN DOCTRINE:
“all lands of the public domain belong to the State, that
the State is the source of any asserted right to ownership
of land and charged with the conservation of such
patrimony.”
ASSIGNMENT OF PROPERTIES FOR LIMITED
PURPOSES
Assign personal estate to
municipality or city where he last
Resident resided in the Philippines
Deceased Assign real estate to the
municipalities or cities, respectively,
in which the same is situated
Deceased Never The whole estate may be assigned to
Resided in the respective municipalities or cities
Philippines where the same is located.
LIMITED PURPOSES
For the benefit of:
1. Public schools
2. Public Charitable institutions
3. Centers
WHEN TO FILE
1. When the decedent died without leaving a will, or
2. When the decedent dies without leaving legal heirs
to succeed, or
3. When there is a will but was not allowed to be
admitted to probate (Sec. 1, Rule 91)
REQUISITES FOR FILING OF PETITION
1. Person dies intestate leaving no heirs or someone
entitled by law to succeed
2. The petition must be filed in behalf of the real party
in interest, the Republic of the Philippines
3. Filed in the CFI of the province where the deceased
last resided or where he had his estate (if non-
resident)
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REMEDY OF RESPONDENT AGAINST PETITION
1. Respondents have opportunity to file an opposition
in the scheduled hearing set forth by the court
2. Respondents can file an action to recover the
escheated property within 5 years from date of
judgment.
• If already sold, the municipality or city shall be
accountable for the proceeds after deducting
reasonable charges for the care of the estate
(Rule 91)
PERIOD FOR FILING ACTION TO RECOVER
Action to recover escheated property may be brought
within 5 years from date of such judgment.
NOTE: If not brought within that period, the claim shall
be barred forever.
REASON: The 5-year period is not a device capriciously
conjured by the State to defraud any claimant. On the
contrary, it is decidedly prescribed to encourage would
be claimants to be punctilious in asserting their claims,
otherwise, they may lose them forever in a final
judgment. (Republic v. CA, 2002)
PROCEDURE OF ESCHEAT PROCEEDINGS
Applies When? If person dies intestate, seized of real
property in the Philippines, or leaves no heir or person by
law entitled to the estate
Who may file petition? Contents of Petition: set
Solicitor General or his forth the facts, and prayer
representative in behalf of that the estate of the
the Republic of the deceased be declared
Philippines escheated.
Court issues an Order for Hearing: which recites the
purpose of the petition, fixes a date and place for the
hearing.
• Hearing date shall not be more than 6 months after
the entry of the order
Court directs Publication of Order of Hearing: at least
once a week for 6 successive weeks in some newspaper of
general circulation published in the province, as the court
shall be deem best
HEARING AND JUDGMENT
• Upon satisfactory proof of:
o Order for Hearing and Publication
requirement
o that the person died intestate, seized of
real or personal property in PH, leaving no
heir or person entitled to the same
o no sufficient cause shown to the contrary
• Court shall adjudge that the estate of the deceased
in PH, after the payment of just debts and charges,
shall escheat
ASSIGNMENT OF PROPERTIES FOR LIMITED
PURPOSES
Resident deceased
• assign the personal estate to the municipality or city
where he last resided in the Philippines
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• assign the real estate to the municipalities or cities,
respectively, in which the same is situated.
Never Resided in PH
• the whole estate may be assigned to the respective
municipalities or cities where the same is located.
LIMITED PURPOSE:
For the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.
C. GUARDIANSHIP
Guardianship is a trust relation of most sacred character,
in which one person, called a “guardian” acts for another
called the “ward” whom the law regards as incapable of
managing his own affairs. (Festin)
BASIS OF GUARDIANSHIP
Guardianship is the duty of protecting the rights of
persons or individuals who because of age or incapacity
are in an unfavorable position vis-à-vis other parties.
Unable as they are to take due care of what concerns
them, they have the political community to look after
their welfare.
Parens Patriae is inherent in the supreme power of the
State. It is in interest of humanity and for the prevention
of injury to those who cannot protect themselves. (Festin)
WHO IS A GUARDIAN
He is a person appointed by law to entrust with the
custody and control of persons and/or properties of an
infant, insane, or persons incapable of managing his own
affairs (Festin)
a. Guardian over incompetent who are not minors
– governed by Rules 92-97 of the Rules of Court
b. Guardian over minors – governed by AM 03-02-
05 SC “Rule on Guardianship of Minors”
CLASSIFICATION AND KINDS OF GUARDIAN (FESTIN)
1. According to Scope of Powers
a. General – one whose responsibility is over the
person of the ward or over his property
b. Limited - one whose responsibility is over the
property only
2. According to the Constitution
a. General Guardian
b. Legal Guardian – is a person who, without need
of judicial appointment, is designated as such by
provision of law. [e.g. Parents over the person of
their minor children]
c. Guardian ad litem – any competent person
appointed by the court to prosecute or defend a
minor, insane or person declared to be
competent, in an action in court.
General Rule: Only acts of administration are allowed to
be discharged by guardians.
Exception: When court orders specifically that a specific
act of dominion or ownership may be discharged (i.e
selling or property)
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GENERAL POWERS AND DUTIES OF GUARDIANS
(applicable to both guardians over minors & incompetents)
1. Care and Custody of Ward, and/or Management of
the ward’s estate
o If ward is non-resident: Guardian shall
have management of all the estate of the
ward within PH.
o No court other than that in which such
guardian was appointed shall have
jurisdiction over the guardianship.
2. Pay debts of the ward
o If not sufficient, then out of the ward’s real
estate upon obtaining an order for the sale
or encumbrance thereof.
3. Settle accounts, collect debts, and appear in actions
for the ward
o Guardian may, with the approval of the
court, compound for the same, and give
discharges to the debtor, on receiving a
fair and just dividend of the estate and
effects.
4. Frugally manage the estate and apply proceeds to
maintain the ward
o If income and profit insufficient, guardian
may sell or encumber the real estate, upon
being authorized by order to do so, and
apply the proceeds as may be necessary to
such maintenance.
5. Join in an assent to a partition of real or personal
estate held by the ward jointly or in common with
others, when authorized by the court.
o Such authority shall only be granted after
hearing, upon such notice to the relatives
of the ward as the court may direct, and a
careful investigation as to the necessity
and propriety of the proposed action.
6. Render Inventory within 3 months after appointment
and annually upon request of interested persons
a. Interested persons may compel, upon
application, to render inventory
b. Inventories and accounts shall be sworn to
by the guardian
c. All the estate of the ward described in the
1st inventory shall be appraised.
d. In the appraisement, the court may request
assistance of one or more inheritance tax
appraisers.
NOTE: Whenever any property of the ward not
included in an inventory already rendered is
discovered, or succeeded to, or acquired by the
ward: Like proceedings shall be made for securing an
inventory and appraisement of it, within 3 months
after discovery, succession, or acquisition.
7. Account for his settlement and allowance
a. When: Upon the expiration of a year from
the time of his appointment, and as often
as may be required.
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b. The guardian (other than a parent), shall be

Who may petition for Who may petition for
allowed the amount of his reasonable
appointment of appointment of
expenses incurred in the execution of his
guardian? guardian?
trust and compensation for his services, as
a) Any relative, friend, a) Any relative, friend,
the court deems just. (should not exceed
or other person or other person
15% of the net income of the ward)
interested b) Ward himself if 14
b) Ward himself yrs. old/over
CONDITIONS OF THE BOND OF THE GUARDIAN
c) Director of Health if c) Secretary of Social
(Applicable to both guardians over minors & incompetents)
needs Welfare or
hospitalization Secretary of Health
1. To make and return to the court a complete (in case insane
inventory within 3 months of the whole estate of his minor needs
ward hospitalization)
2. To faithfully execute the duties of his trust, manage
the estate, and dispose of the estate
Venue: Venue:
3. To render a true and just account of all the estate of
If resident: CFI of If resident: Family Court
the ward in his hands and all the proceeds
province or municipality of province or
therefrom, and at the expiration of their trust to fully
where ward residing municipality where ward
account the settlement and surrender all that
If non-resident: CFI residing
belongs to he ward’s estate
where property or part is If non-resident: Family
4. To perform all orders of the court by him to be
situated Court where property or
performed
part is situated
NOTE: When deemed necessary, the court may require a
Factors in appointing: Factors in appointing:
new bond to be given by the guardian, and may discharge
a) Financial situation a) Financial situation
the sureties on the old bond from further liability, after
b) Physical & Mental b) Physical & Mental
due notice to interested persons, when no injury can
condition condition
result therefrom to those interested in the estate.
c) Moral character & c) Moral character &
NOTE: Rule 92-97 now only applies to guardianship over
conduct conduct
incompetent persons who are not minors. Guardianship
d) History of the d) Relationship of
over minors is governed by A.M. No. 03-02-05 SC.
appointee trust with minor
e) Ability to discharge e) Ability to discharge
Over Incompetent Over Minors (A.M. No. duties and powers duties and powers
03-02-05 SC) f) Lack of conflict of
interest with minor

Incompetent: Minors: Grounds for termination: Grounds for

1. Those suffering below 18 years of age a) Competence of termination:
from the penalty of whether incompetent or ward a) Emancipation of
civil interdiction not b) Death of ward ward
2. Hospitalized lepers c) Death of guardian b) Death of ward
3. Prodigals d) No need for c) Death of guardian
4. Deaf and Dumb guardianship
5. Those of unsound
mind even though Procedure for Opposition, hearing, and appointment
they have lucid of non-resident guardian are the same
intervals
6. Persons by reason of
age, disease, weak
mind, and other
similar causes RULES ON GUARDIANSHIP OF MINORS
cannot without aid
take care of Legal Guardian of Minors: father and mother jointly,
themselves and without need for court appointment
manage their
property GROUNDS FOR FILING PETITION FOR GUARDIANSHIP
OF A MINOR
a) Death, continued absence, or incapacity of parents
b) Suspension, deprivation, or termination of parental
authority
c) Marriage of surviving parent who is unsuitable to
exercise parental authority
d) Best interests of the minor

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There are no fixed guideline as to determine which is the
best interest of the child but it is inferred from
circumstances which shall best rear the development of
the child (Gualbeto v. Gualberto, 2005)
Another factor is the Tender Age presumption which
gives the mother the preference to be awarded custody
of a child below 7 years of age.
VENUE
Guardianship of a person or estate of a minor or
incompetent may be instituted in the Court of First
Instance of the province, or in the justice of the peace
court of the municipality, or in the municipal court
chartered city where the minor or incompetent persons
resides, and if he resides in a foreign country, in the
Court of First Instance of the province wherein his
property or the party thereof is situated; provided,
however, that where the value of the property of such
minor or incompetent exceeds that jurisdiction of the
justice of the peace or municipal court, the proceedings
shall be instituted in the Court of First Instance.
ORDER OF PREFERENE IN APPOINTMENT OF
GUARDIAN (IN ABSENCE OF PARTIES)
1. Surviving grandparent
1. Oldest brother or sister of the minor over 21 years of
age unless unfit or disqualified
2. Actual custodian of the minor over 21 years of age
3. Any other person whom the court deems would
serve the best interest of the minor.
OPPOSITION: WHO MAY FILE
1. Any interested person by written opposition
2. The social worker ordered to make the case study
report, may intervene on behalf of the minor if he
finds that the petition for guardianship should be
denied
GROUNDS FOR OPPOSITION
1) Majority of the minor
2) Unsuitability of the person for whom letters are
prayed.
GENERAL POWERS AND DUTIES OF GUARDIAN OF A
MINOR
Resident minor: Care and custody of the person of his
ward and management of his property, or only
management of his property.
Non-resident minor: Management of all his property
within the Philippines
TERMINATION OF GUARDIANSHIP
Modes:
• Petition that competency of ward be adjudged
• Removal of Guardianship
• Resignation
• Marriage/Voluntary emancipation of ward
D. WRIT OF HABEAS CORPUS
It is a proceeding which provides for 2 stages whereby:
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1. a person restrained of his liberty may be released
from any kind of illegal detention; or
2. are detained from the control of those who are
entitled to their custody.
NATURE
Petition for habeas corpus is like a proceeding in rem as it
is an inquisition by the government, at the suggestion and
instance of an individual, most probably, but still in the
name and capacity of the sovereign. It is also constituted
for the purpose of fixing the status of a person. There can
be no judgment entered against anybody since there is no
real plaintiff and defendant. (Alimpos v. CA, 106 SCRA 159)
PURPOSE
To inquire into all manner of involuntary restraint, the
legality of detention, and, if the detention is found to be
illegal, to require the release of the detainee. (Manguila v.
Judge Pangilinan, 2013)
SCOPE
Writ of Habeas Corpus extends to all cases of:
1. illegal confinement or detention by which any
person is deprived of his liberty; or
2. when the rightful custody of any person is
withheld from the person entitled thereto. (Sec.
1, Rule 102)
CONCEPT OF RESTRAINT
Actual and effective restraint is required, not merely
nominal or moral. (Zagala v. Ilustre, 48 Phil. 282)
However, actual physical restraint is not always required;
any restraint which will prejudice freedom of action is
sufficient. (Moncupa v. Enrile et al., 1986)
General rule: Inquiry into the cause of detention will
proceed only where restraint exists. Thus, the release of
detained person, whether permanent or temporary,
makes the petition for habeas corpus moot.
Exceptions:
1. Doctrine of Constructive Restraint
Restraints attached to release which precludes
freedom of action, in which case the Court can still
inquire into the nature of the involuntary restraint.
2. Violation of freedom from threat by the apparent
threat to life, liberty and security of their person
from the following facts:
a. Threat of killing their families if they
tried to escape
b. Failure of the military to protect
them from abduction
c. Failure of the military to conduct effective
investigation (Secretary of National Defense v.
Manalo, 568 SCRA 1)
NOTE: Temporary release may constitute restraint when:
1. Where a person continued to be unlawfully denied
one or more of his constitutional rights
2. Where there is present denial of due process
3. Where the restraint is not merely involuntary but
appear to be unnecessary
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4. Where a deprivation of freedom originally valid has NOTE: The return or statement shall be:
become arbitrary. (Moncupa v. Enrile et al., 1986) 1. Signed by the person who makes it; and
2. Sworn to by the person who makes it:
JURISDICTION IN ISSUANCE OF WRIT a. if the prisoner is not produced
1. Supreme Court, the Court of Appeals, or any b. In all other cases
member thereof in the instances authorized by law i. Unless, the return is made and signed by
(enforceable anywhere in the Philippines) a sworn public officer in his official
2. Regional Trial Court, or a judge thereof (enforceable capacity.
only within his judicial district)
3. Family Court, in case of petition for custody of WHEN RETURN CONSIDERED EVIDENCE, AND WHEN
minors and the issuance of the writ in relation to ONLY A PLEA (Sec. 13, Rule 102)
custody of minors (Section 20, AM 03-04-04-SC, Re:
Proposed Rule on Custody of Minors and Writ of Custody of Prisoner is Restraint of Prisoner’s
Habeas Corpus in Relation to Custody of Minors) Pursuant to Law Liberty is by any Private
Authority
WHO MAY FILE PETITON (Sec. 3, Rule 102)
1. The party for whose relief it is intended; or The return shall be The return shall be
2. By some person on his behalf considered prima facie considered only as a plea
evidence of the cause of of the facts therein set
NOTE: ‘Some person’ means any person who has a legally restraint forth, and the party
justified interest in the freedom of the person whose claiming the custody
liberty is restrained or who shows some authorization to must prove such facts
make the application. (Velasco v. CA, 1995)

CONTENTS OF PETITION
The petition, signed and verified either by the party for
whose relief it is intended, or by some person on his DISTINGUISH PEREMPTORY WRIT FROM
behalf, shall set forth: PRELIMINARY CITATION
1. That the person in whose behalf the application is
Peremptory Writ Preliminary Citation
made is imprisoned or restrained on his liberty;
2. The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or Unconditionally Requires the respondent
uncertain, such officer or person may be described commands the to appear and show cause
by an assumed appellation, and the person who is respondent to have the why the peremptory writ
served with the writ shall be deemed the person body of the detained should not be granted.
intended; person before the court
3. The place where he is so imprisoned or restrained, if at a time and place
known; therein specified.
4. A copy of the commitment or cause of detention of
such person, if it can be procured without impairing (Lee Yick Hon v. Collector of Customs, G.R. No. L-16779,
the efficiency of the remedy; or, if the imprisonment March 30, 1921)
or restraint is without any legal authority, such fact
shall appear. (Sec. 3, Rule 102) WHEN NOT PROPER/APPLICABLE
1. The Writ of Habeas Corpus is not in the nature of a
CONTENTS OF THE RETURN (Sec. 10, Rule 102) writ of error. It cannot be used as a substitute for the
The officer who makes the return or the person who has trial court’s function.
custody of the prisoner, shall state: 2. Where the petitioner has the remedy of appeal or
1. Whether he has or has not the party in his custody certiorari, Writ of Habeas Corpus cannot take place
or power, or under restraint; of appeal, or certiorari.
2. If he has the party in his custody or power, or under 3. The Writ of Habeas Corpus cannot be used to
restraint, the authority and the true and whole cause investigate and consider questions of error that
thereof, set forth at large, with a copy of the writ, might be raised relating to procedure or on the
order execution, or other process, if any, upon which merits.
the party is held; 4. It cannot be used for asserting or vindicating the
3. If the party is in his custody or power or is denial of right to bail. (Galvez v. CA, 1994)
restrained by him, and is not produced, particularly
the nature and gravity of the sickness or infirmity of
WHEN WRIT DISALLOWED/DSCHARGED
such party by reason of which he cannot, without
(Sec. 4, Rule 102)
danger, be bought before the court or judge;
4. If he has had the party in his custody or power, or
1. The person alleged to be restrained of his liberty is:
under restraint, and has transferred such custody or
a. In the custody of an officer under process
restraint to another, particularly to whom, at what
issued by a court or judge or by virtue of a
time, for what cause, and by what authority such
judgment or order of a court of record, and
transfer was made.

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b. that the court or judge had jurisdiction to issue
the process, render the judgment, or make the
order.
2. If the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any
informality or defect in the process, judgment, or
order
3. The person is charged with or convicted of an
offense in the Philippines, or suffers imprisonment
under a lawful judgment.
4. If it appears that the prisoner was lawfully
committed, and is plainly and specifically charged in
the warrant of commitment with an offense
punishable by death (Rule 102, Section 14)
5. Even if arrest of a person is illegal, the following
supervening events may bar release:
a. Issuance of a judicial process (Sayo v. Chief of
Police of Manila, G.R. No. L-2128, May 12, 1948)
b. Filing of a complaint before a trial court which
issued a hold departure order and denied
motion to dismiss and to grant bail (Velasco v.
CA, G.R. No. 118644, July 7, 1995)
c. Filing of an information for the offense for
which the accused is detained, bars the
availability of the writ of habeas corpus (Velasco
v. CA, G.R. No. 118644, July 7, 1995)
PETITION FOR CUSTODY OF MINORS
WHO MAY FILE THE PETITION
A verified petition for the rightful custody of a minor may
be filed by any person claiming such right.
WHERE TO FILE THE PETITION
Family Court of the province or city:
1. where the petitioner resides or
2. where the minor may be found.
CONTENTS OF THE PETITION (Section 4)
The verified petition (accompanied by a certificate
against forum shopping, which the petitioner must sign
personally) shall allege the following:
1. The personal circumstances of the petitioner and of
the respondent;
2. The name, age and present whereabouts of the
minor and his or her relationship to the petitioner
and the respondent;
3. The material operative facts constituting deprivation
of custody; and
4. Such other matters which are relevant to the
custody of the minor.
VERIFIED ANSWER (Section 7)
The respondent’s verified answer to the petition must be
filed within 5 days after service of summons and a copy
of the petition.
MOTION TO DISMISS (Section 6)
● General Rule: A motion to dismiss the petition is not
allowed
○ NOTE: Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer.
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● Exception: A Motion to Dismiss may be filed on the
ground of lack of jurisdiction over the subject matter
or over the parties.
CASE STUDY AND DUTY OF SOCIAL WORKER (Section
8)
The court may order a social worker to make a case study
of the minor and the parties and to submit a report and
recommendation to the court at least 3 days before the
scheduled pre-trial, upon the filing of the verified answer
or the expiration of the period to file it.
PRE TRIAL
1. Failure to file the pre-trial brief or to comply with
its required contents shall have the same effect as
failure to appear at the pre-trial (Section 10)
2. If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed (Section 11)
Unless: his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner.
3. If the respondent has filed his answer but fails to
appear at the pre-trial, the petitioner shall be
allowed to present his evidence ex parte. The Court
renders judgment on the basis of the pleadings and
the evidence presented. (Section 9)
NOTICE OF PRE-TRIAL
15 days after the filing of the answer or the expiration of
the period to file answer, the court shall issue an order:
● fixing a date for the pre-trial conference
● directing the parties to file and serve their
respective pre-trial briefs to the adverse party
at least 3 days before the date of pre-trial; and
● requiring the respondent to present the minor
before the court.
CONTENTS OF PRE-TRIAL BRIEF
1. A statement of the willingness of the parties to enter
into agreements that may be allowed by law,
indicating its terms;
2. A concise statement of their respective claims
together with the applicable laws and authorities;
3. Admitted facts and proposed stipulations of facts;
4. The disputed factual and legal issues;
5. All the evidence to be presented, briefly stating or
describing its nature and purpose;
6. The number and names of the witnesses and their
respective affidavits which shall serve as the affiant's
testimony on direct examination; and
7. Such other matters as the court may require to be
included in the pre-trial brief.
PROVISIONAL ORDER AWARDING CUSTODY AND
ORDER OF PREFERENCE
After an answer has been filed or after expiration of the
period to file it, the court may issue a provisional order
awarding custody of the minor.
Order of preference shall be observed in the award of
custody:
1. Both parents jointly;
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2. Either parent, taking into account all relevant
considerations, especially the choice of the minor
over seven years of age and of sufficient
discernment, unless the parent chosen is unfit;
3. The grandparent, or if there are several
grandparents, the grandparent chosen by the minor
over seven years of age and of sufficient
discernment, unless the grandparent chosen is unfit
or disqualified;
4. The eldest brother or sister over twenty-one years
of age, unless he or she is unfit or disqualified;
5. The actual custodian of the minor over twenty-one
years of age, unless the former is unfit or
disqualified; or
6. Any other person or institution the court may deem
suitable to provide proper care and guidance for the
minor.
BEST INTEREST OF THE MINOR
In awarding custody, the court shall consider the best
interests of the minor and shall give paramount
consideration to his material and moral welfare.
NOTE: “Best interest of the minor” refers to the totality
of the circumstances and conditions as are most
congenial to the survival, protection, and feelings of
security of the minor encouraging to his physical,
psychological and emotional development.
INTERIM RELIEFS
1. Temporary Visitation Rights
● The court, in its order, awards provisional
custody appropriate visitation rights to the
non-custodial parent or parents,
○ UNLESS: the court finds said parent or
parents unfit or disqualified.
● The temporary custodian shall give the court
and non custodial parent or parents at least 5
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than 3 days provided it does not prejudice
the visitation rights of the non-custodial parent
or parents.
2. Hold Departure Order
The minor child subject of the petition shall not be
brought out of the country without prior order from
the court while the petition is pending.
● The court, motu proprio or upon application
under oath, may issue ex parte a hold departure
order, addressed to the Bureau of Immigration
and Deportation, directing it not to allow the
departure of the minor from the Philippines
without the permission of the court.
● The Family Court issuing the hold departure
order shall furnish DFA and the Bureau of
Immigration and Deportation of the DOJ a copy
of the hold departure order within 24 hours
from its issuance and through the fastest
available means of transmittal.
Recall of Hold Departure Order
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The court may recall the hold departure order motu
proprio, or upon verified motion of any of the parties
after summary hearing, as may be necessary for the
best interests of the minor.
3. Protection Order
The court may issue a Protection Order requiring
any person:
A. To stay away from the home, school, business,
or place of employment of the minor, other
parent or any other party, or from any other
specific place designated by the court;
B. To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody of
the minor is awarded;
C. To refrain from acts of commission or omission
that create an unreasonable risk to the health,
safety, or welfare of the minor;
D. To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated periods;
E. To permit a designated party to enter the
residence during a specified period of time in
order to take personal belongings not contested
in a proceeding pending with the Family Court;
and
F. To comply with such other orders as are
necessary for the protection of the minor.
JUDGMENT
The court shall render judgment awarding the custody of
the minor to the proper party considering the best
interests of the minor.
● If both parties are unfit to have the care and custody
of the minor, the court may designate either:
○ the paternal or maternal grandparent of the
minor, or
○ his oldest brother or sister, or
○ any reputable person to take charge of such
minor
● or commit him to any suitable home for children.
APPEAL
General Rule: No appeal from the decision shall be
allowed
Exception: the appellant has filed a motion for
reconsideration or new trial within 15 days from notice of
judgment.
An aggrieved party may appeal from the decision by filing
a Notice of Appeal within 15 days from notice of the denial
of the motion for reconsideration or new trial and serving
a copy thereof on the adverse parties.
CONFIDENTIALITY OF PROCEEDINGS
The hearings on custody of minors may, at the discretion
of the court, be closed to the public and the records of
the case shall not be released to non-parties without its
approval.
WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY
OF MINORS
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Green Notes 2019
APPLICABILITY
The writ applies where rightful custody over a minor is
withheld from a person lawfully entitled thereto, and
where the grant of custody to the latter serves the best
interest of the minor child.
WHO MAY FILE
It may be filed by any person claiming such right.
WHERE TO FILE
The petition for a writ of habeas corpus involving custody
of minors is filed with:
1. Family Court (enforceable within its judicial region
to which the Family Court belongs)
2. Regular court in the absence of the presiding judge
of the Family Court
● BUT: the regular court shall refer the case to
the Family Court as soon as its presiding judge
returns to duty)
3. Appropriate regular courts in places where there are
no Family Courts.
4. Supreme Court, Court of Appeals, or with any of its
members (enforceable anywhere in the Philippines)
RETURN OF THE WRIT
The writ is returnable to the Family Court, or to any
regular court within the judicial region where the
petitioner resides or where the minor may be found, for
hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue
on custody of minors.
NOTE: The best interest of the child prevails over any
agreement on custody. Any such agreement is void for
being contrary to Article 213 of the Family Code. In this
case, the child was below seven years when such
agreement was executed. But since the child had in the
meantime turned 15, it is now the best interest of the
child which becomes the standard for custody. (Dacasin v.
Dacasin, G.R. No. 168785, February 5, 2010)
E. CHANGE OF NAME (RULE 103)
A change of name is a special proceeding to establish the
status of a person involving his relation with others, that
is, his legal position in, or with regard to, the rest of the
community. (Republic v. CA, 209 SCRA 189)
NATURE
It is a proceeding in rem and as such, strict compliance
with jurisdictional requirements, particularly on
publication, is essential to vest the court with jurisdiction.
NOTE: Change of name is a privilege and not a right. For
this purpose, the only name that may be changed is the
true or official name as recorded in the civil register.
GROUNDS FOR CHANGE OF NAME
To justify a request for change of name, petitioner must
show not only some proper or compelling reason, but
also that he will be prejudiced by the use of his true and
official name. (Festin)
Among the grounds for change of name which have been
held valid are:
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a) When the name is ridiculous, dishonorable, or
extremely difficult to write or pronounce
b) When the change results as a legal consequence, as
in legitimation
c) When the change will avoid confusion
d) When one has continuously used and been known
since childhood by a Filipino name, and was unaware
of alien parentage
e) A sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without
prejudicing anybody
f) When the surname causes embarrassment and there
is no showing that the desired change of name was
for a fraudulent purpose or that the change of name
would prejudice public interest
(In re: Petition for change of name and/or
correction/cancellation of entry in civil registry of Julian
Lin Carusalan Wang, 2005)
CORRECTION DISTINGUISHED FROM CHANGE OF
NAME
Correct: make or set a right, remove errors
Change: replace something with another
CLERICAL ERROR
Error which is visible to the eye or obvious to the
understanding; mistake in copying or writing; misspelling
or misstatement
CONSEQUENCES OF CHANGE OF NAME
• Merely changes the word/s by which the person is
identified
• Does not change, eliminate, nor create family rights
and duties where none exists before
WHEN PROCEEDINGS BECOME ADVERSARIAL
• When the other party has been warned and given
opportunity to oppose or contest the petition.
• This is satisfied by issuing notices to proper party
and publication (Lucas v. Lucas, G.R. No. 190710, June
6, 2011)
F. CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY (Rule 108)
NATURE
A petition for correction is an action in rem. The decision
on the petition binds not only the parties thereto but the
whole world. Notice is thru publication. It is the
publication of such notice that brings the whole world as
a party in the case and vests the court with jurisdiction to
hear and decide it.
NOTE: Rule 108 may also be filed to recognize foreign
judgment
TWO-NOTICE RULE
1. Notice given to persons named in the petition
(Rule 108, Section 4)
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2. Notice through publication, deemed given to

persons not named but have interest in the
petition (Rule 108, Section 5)

REQUISITES WHEN SUBSEQUENT PUBLICATION OF

NOTICE OF HEARING CURES THE PETITION’S LACK
OR FAILURE TO IMPLEAD AFFECTED PARTIES
1. Earnest efforts were made by Petitioners in
bringing to court all possible interested parties;
2. The parties themselves initiated the corrections
proceedings;
3. No actual or presumptive awareness of the
existence of the interested parties; or
4. When a party is inadvertently left out.
(Almojuela v. Republic of the Philippines, 2016)

ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108

Under Rule 108 Sec. 2 the entries are:

a) Births
b) Marriages
c) Deaths
d) Legal separations
e) Judgments of annulments of marriage
f) Judgments declaring marriages void from the
beginning
g) Legitimations
h) Adoptions
i) Acknowledgments of natural children
j) Naturalization
k) Election, loss, recovery of citizenship
l) Civil interdiction
m) Judicial determination of filiation
n) Voluntary emancipation of a minor
o) Changes of name

G. CLERICAL ERROR LAW ( R.A. NO.

9048)
CORRECTIONS THAT CAN BE MADE
• Clerical and typographical errors in any civil
registry document, except corrections involving
sex, age, nationality and status
• Change of first name

WHO MAY FILE

Only by a person who has direct and personal interest in
the correction of the first name

VENUE
Local Civil Registrar where the record containing the
clerical error or first name to be corrected is kept.

CONDITIONS FOR CHANGE OF FIRST NAME

(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
(2) The new first name or nickname has been habitually
and continuously used by the petitioner and he has been
publicly known by that first name or nickname in the
community; or,
(3) The change will avoid confusion.

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A. GENERAL MATTERS

CRIMINAL JURISDICTION
Criminal jurisdiction is the authority of the court to hear
and try a particular offense and impose punishment for it.

REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION:
1. Jurisdiction over the subject matter
2. Jurisdiction over the territory
3. Jurisdiction over the person of the accused

JURISDICTION OVER THE SUBJECT MATTER

The offense should be one which the court is by law
authorized to take cognizance of.

Jurisdiction over the subject matter is conferred by law

and not by the Rules of Court. The conferment must be

CRIMINAL clear and it cannot be presumed.

DETERMINATION OF JURISDICTION OVER THE

PROCEDURE SUBJECT MATTER:
1. By the allegations in the complaint or
information, and not by the evidence presented
during trial.
2. By the penalty imposable by law on the offense,
and not the penalty actually imposed after trial.
3. By the law in effect at the time of the institution
of the criminal action, and not the law in effect
at the time of the commission of the offense.
4. Principle of Adherence of Jurisdiction or
Continuing Jurisdiction

JURISDICTION OVER THE TERRITORY

The offense must have been committed or any one of its
essential ingredients (transitory offense) should have
taken place within the territorial jurisdiction of the court.

Territorial jurisdiction is determined by the geographical

limits of the territory over which the court presides.

In criminal cases, venue is jurisdictional and a court is

bereft of jurisdiction to try an offense committed outside
of its limited territory.

If the court has no territorial jurisdiction, it would still be

deemed as acting without jurisdiction even if, under the
law, the offense is one within its subject matter
jurisdiction.

JURISDICTION OVER THE PERSON OF THE ACCUSED

The person charged with the offense must have been
arrested or apprehended, with or without a warrant, or
has voluntary appeared or submitted himself to the
jurisdiction of the court.

Voluntary submission is accomplished by seeking an

affirmative relief, or by filing a motion or other pleading
requiring the exercise of the court’s jurisdiction, or
appearing for arraignment or entering trial.

NOTE: Making a special appearance to question the

jurisdiction of the court over the person of the accused is
not voluntary appearance.

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JURISDICTION OVER THE SUBJECT MATTER VIS-À-

Custody of the law is not necessarily being under the VIS JURISDICTION OVER THE ACCUSED
jurisdiction of the court. Being in the custody of the law
signifies restraint on the person, who is thereby deprived Jurisdiction Over the Jurisdiction Over the
of his own will and liberty, binding him to become Subject Matter Person of the Accused
obedient to the will of the law. Custody of the law is Jurisdiction over the Jurisdiction over the person
literally custody over the body of the accused. offense charged. charged.

CUSTODY OF THE LAW VIS-À-VIS JURISDICTION It is conferred by law. It is acquired by a warrant

OVER THE PERSON:
Custody of the Law
One can be under the
custody of the law but not
yet subject to the
jurisdiction of the court
over his person.
Not required for the
adjudication of reliefs
sought except in
applications for bail which
requires that the applicant
be under the custody of
the law before the
application may be acted
upon.
NOTE:
An application for or
admission to bail does not
bar the accused from
challenging the validity of
his arrest or the legality of
the warrant issued
therefor, or from assailing
the regularity or
questioning the absence of
a preliminary investigation
of the charge against him,
provided that he raises
them before entering his
plea.
Jurisdiction Over the
Person of the Accused
One can be subject to the
jurisdiction of the court
over his person, and yet
not be in the custody of
the law.
Required for the
adjudication of reliefs
sought.
of arrest, by voluntary
appearance or submission
to the court, or by consent
of the accused or failure to
object to the court’s
jurisdiction.
General Rule: An An objection can be made
objection that the through a special
court has no appearance to question the
jurisdiction over the jurisdiction of the court
subject matter may over the person of the
be raised or accused. If he fails to make
considered motu a timely objection, he will
proprio at any stage be deemed to have waived
of the proceedings or the same.
on appeal.
Exception: A party
may be estopped
from questioning the
jurisdiction of the
court for reasons of
public policy when he
initially invokes the
court’s jurisdiction
and then later on
repudiates the same.
(Tijam v.
Sibonghanoy, 1968)

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JURISDICTION OF CRIMINAL COURTS
MTC, MeTC, MCTC
Exclusive original jurisdiction
Except in cases falling within the
exclusive jurisdiction of the RTC and
Sandiganbayan:
(1) Violations of city or municipal
ordinances committed within
their respective territorial
jurisdiction (Sec. 32(1), B.P. 129);
(2) Offenses punishable with
imprisonment not exceeding
six (6) years, irrespective of the
amount of fine, and regardless
of other imposable accessory
or other penalties, including
the civil liability arising from
such offenses or predicated
thereon, irrespective of kind,
nature, value, or amount
thereof (Sec. 32(2), B.P. 129);
(3) Offenses involving damage to
property through criminal
negligence (Sec. 32(2), B.P. 129);
Summary Procedure
(4) Violations of traffic laws, rules,
or regulations;
(5) Violations of rental law;
(6) Cases where the penalty
prescribed by law for the
offense charged is
imprisonment not exceeding
six (6) months, or a fine not
exceeding P1,000, or both,
irrespective of other imposable
penalties, accessory or
otherwise, or of the civil
liability arising therefrom;
(7) Offenses involving damage to
property through criminal
negligence where the
imposable fine does not exceed
P10,000;
(8) Violations of B.P. 22 (A.M. 00-
11-01-SC, 2003);
Special Jurisdiction
(9) Application for bail in criminal
cases in the absence of all RTC
judges in a province or city.
(Sec. 35, B.P. 129)
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RTC
Exclusive original jurisdiction
Except in cases falling within the
exclusive and concurrent jurisdiction
of the Sandiganbayan:
(1) All criminal cases not within the
exclusive jurisdiction of any
court, tribunal or body (Sec. 20
B.P. 129);
Appellate jurisdiction
(2) All cases decided by the MTC
within its territorial jurisdiction
(Sec. 22, B.P. 129);
Special jurisdiction
(3) Criminal cases as designated by
the SC;
Jurisdiction under specific laws
(4) Criminal and civil aspects of
written defamation (Art. 360,
RPC);
(5) Criminal cases where one or
more of the accused is below 18
years of age but not less than 15
years, or where one or more of
the victims is a minor at the time
of the commission of the offense
(R.A. 9344);
(6) Cases against minors cognizable
under the Dangerous Drugs Act,
as amended (R.A. 8369);
(7) Violations of R.A. 7610;
(8) Violations of P.D. 957 (Sale of
Subdivision Lots and
Condominiums);
(9) Cases of domestic violence
against women and children (R.A.
8369);
(10) Violations of intellectual
property rights (A.M. 03-03-03-
SC);
(11) Money laundering cases (R.A.
9160), except those committed
by public officers and private
persons who are in conspiracy
with such public officer and who
shall be under the jurisdiction of
the Sandiganbayan.
Criminal Procedure
Sandiganbayan
Exclusive original jurisdiction
(1) Violations of R.A. 3019 (Anti-Graft and
Corrupt Practices Act), and R.A. 1379
(Forfeiture of Property Unlawfully
Acquired), and Title VII, Book II, RPC
(Crimes Committed by Public Officers)
where one or more of the accused
are officials occupying the following
positions, whether in a permanent,
acting or interim capacity, at the time
of the commission of the offense:
a. Officials of the executive branch
occupying the positions of
regional director and higher
(Grade “27” and higher),
specifically including:
i. Provincial governors, vice-
governors, members of the
sangguniang panlalawigan,
and provincial treasurers,
assessors, engineers, and
other provincial department
heads;
ii. City mayors, vice-mayors,
members of the sangguniang
panlungsod, city treasurer,
assessors, engineers and other
city department heads;
iii. Officials of the diplomatic
service occupying the position
of consul and higher;
iv. Philippine army and air force
colonels, naval captains and all
officers of higher rank;
v. PNP while occupying the
position of provincial director
and senior superintendents or
higher;
vi. City and provincial
prosecutors and their
assistants, and officials and
prosecutors in the Office of
the Ombudsman and special
prosecutor;
vii. Presidents, directors or
trustees, or managers of
GOCCs, state universities or
educational institutions or
foundations;
b. Members of Congress and officials
thereof classified as Grade “27”
and up;
c. Members of the Judiciary;
d. Chairmen and members of
Constitutional Commissions;
e. All other national and local
officials classified as Grade “27”
and higher;
(2) Other offenses or felonies whether
simple or complexed with other
crimes committed by those
mentioned in (a) in relation to their
office;
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(3) Civil and criminal cases filed pursuant

to and in connection with Executive
Orders 1, 2, 14 and 14-A;
(4) Petitions for the issuance of the writs
of mandamus, prohibition, certiorari,
habeas corpus, injunction, and other
ancillary writs and processes in aid of
its appellate jurisdiction and over
petitions of similar nature, provided
that jurisdiction over these petitions
shall not be exclusive of the SC;

Exclusive appellate jurisdiction

(5) Final judgments, resolutions or
orders of the RTC whether in the
exercise of its original or appellate
jurisdiction.
Exclusive jurisdiction
(6) Private individuals who are charged
as co-principals, accomplices or
accessories with the public officers or
employees shall be tried jointly in the
proper courts which exercise
exclusive jurisdiction over them.

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CASES COGNIZABLE BY SANDIGANBAYAN 7. Where court has no jurisdiction over the

The jurisdiction of the Sandiganbayan is not confined to
violations of the Anti-Graft and Corrupt Practices Act. It
has jurisdiction over offenses or violations under R.A. 1379
and Chapter II, Sec. 2, Title VII, Book II of the RPC.
The salary grade of “27” or higher has no reference to
provincial governors, vice governors or members of the
sangguniang panlalawigan, sangguniang panlungsod,
directors or managers of GOCCs, city mayors, vice
mayors, city treasurers, assessors, engineers, trustees of
state universities, and other officials enumerated in Sec.
4(a)(1) of P.D. 1606. Those enumerated are subject to the
jurisdiction of the Sandiganbayan regardless of salary
grades. (Inding v. Sandiganbayan, 2004)
It is of no moment that the position of petitioner was
merely classified as salary grade 26. While the first part of
Sec. 4 of P.D. 1606 covers only officials of the executive
branch with the salary grade 27 and higher, the second
part thereof “specifically includes” other executive
officials whose positions may not be of grade 27 and
higher but who are, by express provision of law, placed
under the jurisdiction of said court. (Geduspan v. People,
2005)
Compensation is not an essential element of a public
office and is merely incidental to the public office.
(Serana v. Sandiganbayan, 2008)
To make an offense one committed in relation to the
office, the relation has to be such that, in the legal sense,
the offense cannot exist without the office. (Montilla v.
Hilario, 1951)
offense;
8. Where it is a case of persecution rather than
prosecution;
9. Where the charges are manifestly false and
motivated by vengeance;
10. Where there is no prima facie case against the
accused and a motion to quash on that ground
has been denied;
11. Where preliminary injunction has been issued
by the SC to prevent the threatened unlawful
arrest of petitioner.
B. PROSECUTION OF OFFENSES
(RULE 110)
CRIMINAL ACTIONS
The parties to criminal action are the People of the
Philippines and the accused. The private offended party is
regarded merely as a witness for the state, and his
interest is limited to the civil liability.
General Rule: If there is a dismissal of a criminal case or
an acquittal of the accused, it is only the Office of the
Solicitor General (OSG) that may bring an appeal before
the CA or SC on the criminal aspect representing the
People. (People v. Nano, 1992)
Exception: In cases elevated to the Sandiganbayan and
from the Sandiganbayan to the SC, the Office of the
Ombudsman, through its special prosecutor, shall
represent the People, except in cases filed pursuant to
E.O. Nos. 1, 2, 14 and 14-A, issued in 1986. (Sec. 4, R.A. 8249)

Even if the position is not an essential ingredient of the
offense charged, if the information avers the intimate
connection between the office and the offense, this
would bring the offense within the definition of an
offense “committed in relation to the public office.”
(Sanchez v. Demetriou, 1993)
WHEN INJUNCTION MAY BE ISSUED TO
RESTRAIN CRIMINAL PROSECUTION
The private complainant or the offended party may file an
appeal or a special civil action without the intervention of
the OSG but only insofar as the civil liability of the
accused is concerned.
HOW INSTITUTED
The institution of a criminal action depends upon
whether or not the offense is one which requires a
preliminary investigation.

General Rule: The prosecution of a criminal case may not Preliminary investigation is required for offenses where
be enjoined by prohibition or injunction, whether the penalty prescribed by law is at least four (4) years,
preliminary or final, because public interest requires that two (2) months and one (1) day without regard to the fine.
criminal acts be immediately investigated and prosecuted
for the protection of society (Domingo v. Sandiganbayan, How Instituted
2000). When By filing the complaint with the proper
preliminary officer for the purpose of conducting
Exceptions: investigation is the preliminary investigation.
1. When necessary for the protection of the required
constitutional rights of the accused;
2. When necessary for the orderly administration When Either by:
of justice or to avoid oppression or multiplicity preliminary (1) Filing the complaint or
of suits; investigation is information directly with the
3. Where there is a prejudicial question which is not required MTC, MeTC and MCTC; or
subjudice; (2) Filing the complaint with the
4. When acts of the officer are without or in office of the prosecutor.
excess of authority;
5. Where the prosecution is under an invalid law, NOTE: There is no direct filing of a complaint or
ordinance or regulation; information with the RTC because its jurisdiction covers
6. When double jeopardy is clearly apparent; offenses which require preliminary investigation.

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parents, grandparents or guardian, the State shall initiate

EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD
The institution of the criminal action interrupts the
running of the prescriptive period of the offense charged
unless otherwise provided by special laws.
The running of the period of prescription is interrupted
with the filing of the action even if the court in which the
action was first filed is without jurisdiction.
the criminal action in her behalf.
If the offended party is a minor, she has the right to
initiate the prosecution of the offense independently of
her parents, grandparents or guardian except if she is
incompetent or incapable of doing so. If the minor fails to
initiate the same, the complaint may be filed by the
minor’s parents, grandparents or guardian.

WHO MAY FILE FOR NON-PRIVATE CRIMES The offended party must not have expressly pardoned the
Persons authorized to file a complaint (Sec. 3, Rule 110, offender.
Rules of Court):
1. The offended party; DEFAMATION
2. Any peace officer; or The defamation under the Rules consists in the
3. Other public officer charged with the imputation of the offenses of adultery, concubinage,
enforcement of the law violated. seduction, abduction and acts of lasciviousness.

Persons authorized to file an information (Sec. 4, Rule 110, Only the offended party may initiate the criminal action.
Rules of Court):
1. City or provincial prosecutor and their CRIMINAL ACTIONS; WHEN ENJOINED
assistants; or General Rule: Criminal prosecutions may not be
2. Duly appointed special prosecutors. restrained or stayed by injunction, preliminary or final
(Domingo v. Sandiganbayan, 2000).
REMEDIES OF THE OFFENDED PARTY IF THE
PROSECUTOR REFUSES TO FILE AN INFORMATION Exceptions:
1. To afford adequate protection to the
1. Mandamus, in case of grave abuse of discretion; constitutional rights of accused;
2. A new complaint before the court having 2. When necessary for the orderly administration
jurisdiction over the offense; of justice or to avoid oppression or multiplicity
3. Take up the matter with the DOJ Secretary in of actions;
accordance with the Revised Administrative 3. When there is prejudicial question which is
Code; subjudice;
4. Institute an administrative charge against the 4. When the prosecution is under an invalid law,
prosecutor; ordinance or regulation;
5. Criminal action against the prosecutor with the 5. When the court has no jurisdiction over the
corresponding civil action for damages. offense;
6. When it is a case of persecution;
WHO MAY FILE FOR PRIVATE CRIMES 7. When the charges are manifestly false and
Private crimes may only be prosecuted by a complaint motivated by lust for vengeance;
filed by the private offended party (Sec. 5, Rule 110, Rules 8. When there is clearly no prima facie case
of Court). against accused and a motion to quash on the
ground has been denied.
WHAT ARE PRIVATE CRIMES
COMPLAINT
1. Adultery and concubinage; A complaint is a sworn written statement charging a
2. Seduction, abduction, and acts of person with an offense, subscribed by the offended party,
lasciviousness; and any peace officer, or other public officer charged with the
3. Defamation. enforcement of the law violated.

ADULTERY AND CONCUBINAGE INFORMATION

The complaint must have been filed by the offended An information is an accusation in writing charging a
spouse against both guilty parties, unless one of them is person with an offense, subscribed by the prosecutor and
no longer alive. filed with the court.

The offended party must not have expressly or impliedly If the information was signed and filed by one who had no
consented to the offense or has pardoned the offenders. authority to sign and file the same, the dismissal of the
information would not be a bar to a subsequent
SEDUCTION, ABDUCTION, AND ACTS OF prosecution under a subsequent valid information.
LASCIVIOUSNESS Jeopardy does not attach where an accused pleads guilty
The complaint must have been filed by the offended party to a defective indictment.
or her parents, grandparents or guardian.
DISTINCTIONS BETWEEN A COMPLAINT AND
If the offended party dies or becomes incapacitated INFORMATION:
before she can file the complaint and she has known Complaint Information
A sworn written statement. An accusation in writing.

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Charges a person with an offense.
Subscribed by the offended
party, any peace officer, or
other public officer Subscribed by the
charged with the prosecutor.
enforcement of the law
violated.
If a preliminary
investigation is required, it
is filed with the prosecutor.
If no preliminary
Filed with the court.
investigation is required, it
is filed either with the
prosecutor or with the
court.
Must be sworn, hence,
Requires no oath.
under oath.
Filed in the name of the People of the Philippines and
against all persons who appear to be responsible for the
offense involved.
CONTROL OF PROSECUTION
General Rule: All criminal actions commenced by a
complaint or information shall be prosecuted under the
direction and control of the public prosecutor. (Sec. 5,
Rule 110, Rules of Court)
Exceptions:
1. When the prosecutor assigned is not available,
the action may be prosecuted by the offended
party, any peace officer, or public officer
charged with the enforcement of the law
violated.
2. When the offense is a violation of a special law,
the same may be prosecuted by the public
prosecutor with the assistance of a special
prosecutor from an administrative agency of
special competence.
3. A private prosecutor may solely prosecute the
criminal action if he is authorized in writing by
either the Chief of the Prosecution Office or the
Regional State Prosecutor. The written
authorization must be approved by the court.
NOTE: The authority of the private prosecutor in the 3rd
exception may be revoked or withdrawn.
Whenever an offended party intervenes in the
prosecution of a criminal action, his intervention must
always be subject to the direction and control of the
prosecuting official. (Lee Pue Lion v. Chue Pue Chin Lee ,
2013)
The criminal action is prosecuted under the direction and
control of the public prosecutor, which requires that the
prosecutor must be present during the proceedings.
(People v. Beriales, 1976)
SUFFICIENCY OF COMPLAINT OR INFORMATION
A complaint or information is deemed sufficient if it
contains the following:
1. The name of the accused; if the offense is
committed by more than one person, all of them
shall be included;
2. The designation of the offense given by statute;
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Criminal Procedure
3. The acts or omissions complained of as
constituting the offense;
4. The name of the offended party;
5. The approximate date of the commission of the
offense; and
6. The place where the offense was committed.
(Sec. 6, Rule 110)
The test for sufficiency of the complaint or information is
whether the crime is described in intelligible terms with
such particularity as to apprise the accused, with
reasonable certainty, of the offense charged to enable
him to suitably prepare for his defense.
Substantial defects in the information cannot be cured by
evidence which would jeopardize the right of accused to
be informed of the true nature of the offense he is being
charged with (Ilo v. Court of Appeals, 1960).
General Rule: Objections relating to the form of the
complaint or information cannot be made for the first
time on appeal. The accused-appellant should, before
arraignment, file either for a motion for bill of particulars
or a motion to quash. Failure to do so would amount to a
waiver of his objections to any format defect in the
information.
Exception: Where the objection is based on lack of
jurisdiction over the subject matter, the same may be
raised or considered motu proprio by the court at any
stage of the proceedings or on appeal.
NAME OF THE ACCUSED
The rules in designating the name of the accused are as
follows (Sec. 7, Rule 110):
1. The name and surname must be stated, or any
appellation or nickname by which he has been
or is known.
2. If his name cannot be ascertained, he must be
described under a fictitious name accompanied
by a statement that his true name is unknown.
3. If, later, his true name is known, his true name
shall be inserted in the complaint or
information and in the records of the case.
In offenses against property, if the name of the offended
party is unknown, the property must be described with
such particularity as to properly identify the offense
charged.
If the offended party is a juridical person, it is sufficient to
state its name, or any name or designation by which it is
known or by which it may be identified.
DESIGNATION OF THE OFFENSE
In designating the offense, the following rules must be
observed:
1. The name given to the offense by statute must
be stated in the complaint or information. If the
statute gives no designation, then reference
shall be made to the section or subsection
punishing it.
2. An averment of the acts or omissions
constituting the offense must be included in the
designation.
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3. The complaint or information shall specify the
qualifying and aggravating circumstances of the
offense.
The specific acts need not be described in detail as it is
enough that the offense be described with sufficient
particularity to make sure the accused fully understands
what he is being charged with. (Guy v. People, 2009)
Even if there is no designation of the offense, the
information is not necessarily vitiated if the facts alleged
clearly recite the facts constituting the crime charged.
The accused cannot be convicted of a crime, even if duly
proven, unless the crime is alleged or necessarily
included in the information files against him. What
controls is not the title of the information or the
designation of the offense but the actual facts recited in
the information.
The accused may be convicted of a crime more serious
than that named in the title or preliminary part if such
crime is covered by the facts alleged in the body of the
information and its commission is established by
evidence (Buhat v. CA, 1996).
NEGATIVE AVERMENTS
General Rule: Where the statute penalizes generally the
acts therein defined and is intended to apply to all
persons indiscriminately, the information is sufficient
even if does not allege that accused falls within the
excepted situation.
Exception: Where the statute alleged to have been
violated applies only to a specific class of persons and to
special conditions, the information must allege facts
establishing that the accused falls within the specific
class affected.
CAUSE OF THE ACCUSATION
The acts or omissions complained of must be alleged in
such form as is sufficient to enable a person of common
understanding to know what offense is intended to be
charged and enable the court to know the proper
judgment. The information must allege clearly and
accurately the elements of the crime charged to inform
the accused of the nature of the accusation against him.
The following must be averred in the information:
1. The offense being charged;
2. The acts or omissions complained of as
constituting the offense; and
3. The qualifying and aggravating circumstances.
DATE OF THE COMMISSION OF THE OFFENSE
It is not necessary to state the precise date the offense
was committed except when the date if commission is a
material element of the offense. The offense may, thus, be
alleged to have been committed on a date as near as
possible to the actual date of its commission.
PLACE OF COMMISSION OF THE OFFENSE
The complaint or information is sufficient if it can be
understood from its allegations that the offense was
committed or some of the essential ingredients occurred
at some place within the jurisdiction of the court, unless
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Criminal Procedure
the particular place where it was committed constitutes
an essential element of the offense or is necessary for its
identification (Sec. 10, Rule 110).
DUPLICITY OF THE OFFENSE
Duplicity presupposes that there is a joinder of two or
more separate and distinct offenses in one and the same
information or complaint.
General Rule: A complaint or information must charge
only one offense.
Exception: When the law prescribes a single punishment
for various offenses, such as for:
1. Complex crimes;
2. Special complex crimes;
3. Continuous crimes;
4. Crimes susceptible of being committed in
various modes; and
5. Crimes of which another offense is an
ingredient.
Duplicity of the offense is ground for a motion to quash.
An objection to a complaint or information which charges
more than one offense must be timely interposed before
trial (Sec. 3, Rule 120). Failure to object on the ground of
duplicity of the offense constitutes a waiver and the
accused may be found guilty of as many offenses as those
charged and proved during the trial.
AMENDMENT OF THE COMPLAINT OR INFORMATION
An amendment is the correction of an error or an
omission in a complaint or an information. It is effected
by adding or striking out an allegation or the name of any
party, or by correcting a mistaken or inadequate
allegation or description in any other respect.
WHEN AN AMENDMENT MAY BE MADE
1. Before plea - With or without leave of court
2. After plea - With leave of court
AMENDMENT BEFORE PLEA
Without leave of When the amendment is only in
court form or substance.
When the amendment:
(1) Downgrades the
nature of the offense
With leave of court charged; or
(2) Excludes any accused
from the complaint or
information.
AMENDMENT AFTER PLEA
Any formal amendment may only be made under two (2)
conditions:
1. Leave of court must be secured; and
2. The amendment does not cause prejudice to
the rights of the accused. (Sec. 14, Rule 110)
The following are mere formal amendments:
1. A new allegation which relates to the range of
penalty that the court might impose in the
event of conviction.
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2. One which does not charge another offense May involve either
Involves only substantial
distinct from that already charged. formal or substantial
changes.
3. Additional allegations which do not alter the changes.
prosecution’s theory of the case. If it is made before
4. One which does not adversely affect any plea and the
substantial right of accused. amendment is only as
5. One that merely adds specification to eliminate It must be with leave of
to form or in
vagueness in the information and not to court.
substance, it can be
introduce new and material facts, and merely effected without leave
states with additional precision something of court.
which is already contained in the original If only as to form, no Another preliminary
information. preliminary investigation is required
6. A mere change in the date of the commission of investigation and and the accused has to
the crime, if the disparity is not great. (Kummer retaking of the plea is plead anew to the new
v. People, 2013) needed. information.
7. A mere change in the offense charged, with no It refers to the same
changes being made in the recital of the facts offense charged in It involves a different
constituting the offense charged or in the the original offense which does not
determination of the jurisdiction of the court information or to an include or is not
(Pacoy v. Cajigal, 2007). offense necessarily necessarily included in
included in the the original charge.
Any substantial amendments are not allowed at this stage, original charge.
except if the same is beneficial to the accused.
NOTE: Since the substitution of the complaint or
WHEN AN AMENDMENT IS FORMAL OR SUBSTANTIAL information involves a different offense, the accused
Formal Amendment Substantial Amendment cannot claim double jeopardy.
It does not change the It is when a defense, under
nature of the crime alleged the original complaint or VENUE OF CRIMINAL ACTIONS
in the information, does information, is no longer In criminal cases, venue is jurisdictional and the court has
not affect the essence of available after the no jurisdiction to try an offense committed outside its
the offense, cause surprise, amendment is made, and territorial jurisdiction. It cannot be waived, changed by
or deprive the accused of when any evidence the agreement of the parties, nor can it be consented to by
an opportunity to meet the accused might have would the defendant.
new averment. be inapplicable to the
complaint or information, The venue is determined by the allegations in the
as amended. complaint or information, and the place of the
commission of the crime must be proven during trial.
It does result in any The rights of the accused
prejudice to the other are prejudiced. General Rule: The action must be instituted and tried in
party. the courts of the municipality or territory where the
offense was committed or where any of its essential
Except when a fact supervenes which changes the nature ingredients occurred.
of the crime charged in the information or upgrades it to
a higher crime, there is a need for another arraignment of Exceptions:
the accused under the amended information. 1. Felonies under Art. 2 of the RPC
- Cognizable by the Philippine courts even if
SUBSTITUTION OF THE COMPLAINT OR committed outside the territory of the
INFORMATION Philippines
A complaint or information may be substituted if it 2. When the SC orders a change of venue or place
appears at any time before judgment that a mistake has of trial to avoid a miscarriage of justice
been made in charging the proper offense. In such a case, 3. Complex crimes
the court shall dismiss the original complaint or - The RTC of any province in which any one of
information upon the filing of a new one charging the the essential elements of the offense had been
proper offense, provided the accused shall not be placed committed has jurisdiction to take cognizance
in double jeopardy (Pacoy v. Hon. Cajigal, 2007) of the offense.
4. Transitory or Continuing Offense (i.e. B.P. 22
LIMITATIONS TO THE RULE ON SUBSTITUTION: cases)
1. No judgment has been rendered yet. - The venue is in the place where one of its
2. The accused cannot be convicted of the offense essential elements was committed.
charged or of any other offense necessarily 5. Offenses committed on board a vessel in the
included therein. course of its voyage
3. The accused should not be placed in double - The action may be instituted and tried in the
jeopardy. court of the first port of entry, or in the court of
the municipality or territory where the vessel
Amendment Substitution passed during the voyage.

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- The places of departure and arrival are not
included as proper venues.
6. When the case is cognizable by the
Sandiganbayan
7. Libel
- The action may be instituted in:
(a) The RTC of the city or province where the
libelous article is printed and first published;
(b) If the offended party is a private individual,
where the said individual actually resided at the
time of the commission of the offense;
(c) If the offended party is a public official, where
the latter holds office at the time of the
commission of the offense;
8. Piracy
- The venue of piracy has no territorial limits.
INTERVENTION OF THE OFFENDED PARTY IN THE
PROSECUTION OF THE CRIMINAL ACTION
General Rule: The offended party has the right to
intervene by counsel in the prosecution of the criminal
action, where the civil action for recovery of civil liability
is instituted in the criminal action.
Exceptions:
1. Where from the nature of the crime and the law
defining and punishing it, no civil liability arises
in favor of the offended party; or
2. Where the offended party has waived his right
to civil indemnity, has expressly reserved his
right to institute a civil action or has already
instituted said action.
NOTE: The institution of an independent civil action does
not deprive the offended party of the right to intervene in
the civil action (i.e. quasi-delicts). By virtue of its
independent character, the civil liability arising from the
independent civil action is entirely separate and distinct
from the civil liability under the RPC.
The appointment of a private prosecutor is done by the
offended party and is the mode by which he intervenes in
the prosecution of the offense. However, such
intervention is always subject to the direction and control
of the public prosecutor.
C. PROSECUTION OF CIVIL ACTION
(RULE 111)
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
WITH CRIMINAL ACTION
General Rule: When a criminal action is instituted, the
civil action for recovery of civil liability arising from the
offense shall be deemed instituted with the criminal
action. The information need not state the civil liability.
Exceptions:
1. When the offended party waives the civil action;
2. When the offended party reserves his right to
institute a separate civil action;
3. When the offended party institutes a civil action
prior to the criminal action;
4. In instances when no civil damage results from
an offense (e.g. espionage, violation of
neutrality, flight to an enemy country, and
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Criminal Procedure
crime against popular representation). In such
cases, no intervention of the offended party is
allowed as there are no private offended parties;
or
5. Independent civil actions and quasi-delicts
under Arts. 32, 33, 34 and 2176 of the Civil Code.
WHEN THE RESERVATION OF THE CIVIL ACTION IS
MADE
1. Before the prosecution starts to present its
evidence; and
2. Under circumstances affording the offended
party a reasonable opportunity to make such
reservation.
WHEN RESERVATION NOT ALLOWED
1. In B.P. 22 cases (Sec. 1(b), Rule 111, Rules of Court);
2. In cases cognizable by the Sandiganbayan (P.D.
1606, as amended by Sec. 4, R.A. 8249); and
3. Tax cases (Sec. 7(b)(1), R.A. 9282).
NOTE: While there is no right to reserve the filing of a
separate civil action in B.P. 22 cases, there may still be a
waiver of the civil action or the institution of the civil
action prior to the criminal action.
COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY
CLAIM IN A CRIMINAL ACTION
No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case. Any
cause of action which could have been the subject thereof
may be litigated in a separate civil action. (Sec. 1(a), Rule
111, Rules of Court)
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY
A single act or omission that causes damage to an
offended party may give rise to two (2) separate civil
liabilities:
1. Civil liability ex delicto
- One arising from the criminal offense.
2. Independent civil liability
- One that may be pursued independently of
the criminal proceedings.
- It may or may not be based on an
obligation arising from the act complained
of as a felony.
Only the civil liability of the accused arising from the
crime charged is deemed included in a criminal action.
Civil actions referred to in Arts. 32, 33, 34 and 2176 of the
Civil Code may be filed independently and separately
from the criminal case at the same time, without
suspension of either proceeding.
Recovery of civil liability under Articles 32, 33, 34 and 2176
of the Civil Code arising from the same act or omission
may be prosecuted separately even without reservation.
The reservation and waiver refer only to the civil action
for the recovery of civil liability arising from the offense
charged (DMPI Employees Credit Cooperative v. Velez,
2001).
Even if a civil action is filed independently, the offended
party may still intervene in the criminal prosecution in
order to protect the remaining civil interest therein
(Philippine Rabbit Bus Lines v. People, 2004).
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Neither is there a prejudicial question if the civil and
criminal action can, according to law, proceed
independently of each other. In no case, however, may
the offended party recover damages twice for the same
act or omission charged in the criminal action (People v.
Consing, Jr., 2003).
PROHIBITION ON DOUBLE RECOVERY
In no case may the offended party recover damages twice
for the same act or omission charged in the criminal
action (Sec. 3, Rule 111, Rules of Court).
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
After the filing of the criminal action, the civil action
which has been reserved cannot be instituted until final
judgment has been rendered in the criminal action.
If the civil action is instituted before filing of the criminal
action and the criminal action is subsequently
commenced, the pending civil action shall be suspended
until final judgment in the criminal action has been
rendered, as long as no judgment on the merits has yet
been entered in the civil action.
Exceptions:
1. In cases of independent civil actions based on
Arts. 32, 33, 34 and 2176 of the Civil Code;
2. Where the civil action presents a prejudicial
question;
3. Where the civil action is consolidated with the
criminal action; and
4. Where the civil action is not one intended to
enforce civil liability arising from the offense.
EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON
HIS CRIMINAL LIABILITY
Death of the accused prior to final judgment extinguishes
his criminal liability (People v. Paras, 2014).
EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON
HIS CIVIL LIABILITY
The case is dismissed
Accused dies before without prejudice to any
arraignment civil action against the
estate of the deceased.
Accused dies after
The civil liability arising
arraignment and during
from the crime is
the pendency of the
extinguished.
criminal action
The above rule does not apply to independent civil action
and civil liabilities arising from sources of obligation not
arising from the offense charged. They may be continued
against the estate, legal representative, or heirs after
proper substitution.
OTHER RULES ON NON-EXTINGUISHMENT OF
LIABILITIES
1. Novation does not extinguish criminal liability.
2. The extinction of the penal action does not
carry with it the extinction of the civil action
(Sec. 2, Rule 111).
Exception: When the acquittal is made on the
ground that the accused is not the author of
the act or omission complained of
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Criminal Procedure
3. Payment of civil liability does not extinguish
criminal liability.
4. A 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 civil
action.
5. The acquittal in a criminal case does not carry
with it relief from administrative liability.
PREJUDICIAL QUESTION
A prejudicial question is that which arises in a case, the
resolution of which is the logical antecedent of the issue
involved therein, and the cognizance of which pertains to
another tribunal. It is determinative of the criminal case,
but the jurisdiction to try and resolve it is lodged in
another tribunal. It is based on a fact distinct and
separate from the crime but is so intimately connected
with the crime that it determines the guilt or innocence
of the accused.
REQUISITES FOR A PREJUDICIAL QUESTION
1. The civil case must be instituted prior to the
criminal action;
2. The civil case involves facts intimately related
to those upon which the criminal prosecution
would be based;
3. The issue in the civil case is determinative of
the issue in the criminal case;
4. Jurisdiction to try said question must be lodged
in another tribunal.
WHEN A PREJUDICIAL QUESTION MAY NOT BE
INVOKED:
1. When both cases are criminal;
2. When both are civil;
3. When both cases are administrative;
4. When one case is administrative and the other
civil; or
5. When one case is administrative and the other
criminal.
The issue that leads to a prejudicial question is one that
arises in the civil case and not in the criminal case. It is
the issue in the civil case which needs to be resolved first
before it is determined whether or not the criminal case
should proceed or whether or not there should be a
judgment of acquittal or conviction. As such, it is the
criminal case that should be suspended.
SUSPENSION OF THE CRIMINAL ACTION BY REASON
OF PREJUDICIAL QUESTION
A petition for the suspension of the criminal action is
required. The same cannot be suspended motu proprio by
the court or the investigating prosecutor. As such, the
determination of the pendency of a prejudicial question
should be made at the first instance in the criminal
action, and not before the SC. (IBP v. Atienza, 2010)
The petition for suspension is filed with:
1. The office of the prosecutor conducting the
preliminary investigation; or
2. When the criminal action has been filed in court
for trial, in the same court at any time before
the prosecution rests (Sec. 6, Rule 111, Rules of
Court).
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The filing for a petition for suspension does not require
that the criminal case be already filed in court. It is
sufficient that the case be in the stage of preliminary
investigation as long as there has already been a
previously instituted civil case. (Riano)
General Rule: If the civil action is commenced before the
institution of the criminal action, the civil action shall be
suspended in whatever stage it may be found before
judgment on the merits, once the criminal action is
commenced.
Exception: When there is a prejudicial question.
The rule authorizing the suspension of the criminal action
by reason of a prejudicial question does not prescribe the
dismissal of the criminal action.
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH CRIMINAL ACTION
General Rule: There are no filing fees required for actual
damages claimed unless required by the Rules. (Sec. 1(a),
Rule 111)
Filing fees are paid only when the offended party claims
moral, nominal, temperate or exemplary damages, other
than actual damages. When the amount of such damages
is specified, the filing fees shall be paid upon the filing of
the criminal action in court. If no amount is specified but
any of such damages is subsequently awarded, the filing
fees shall constitute a first lien on the judgment awarding
such damages. (Sec. 1(a), Rule 111)
Exception: In criminal actions for violation of B.P. 22, the
amount of the check involved shall be considered as the
actual damages for which no separate civil action is
allowed and the filing fees shall be based on the amount
of the check (Sec. 1(b), Rule 111, Rules of Court). In estafa
cases, the filing fees shall be paid based on the amount
involved (A.M. 04-2-04).
D. PRELIMINARY INVESTIGATION
A preliminary investigation is an inquiry or proceeding
the purpose of which is to determine whether there is
sufficient ground to engender a well-founded belief that a
crime has been committed and that the respondent is
probably guilty thereof, and should be held for trial (Sec. 1,
Rule 112).
NATURE OF RIGHT
A preliminary investigation is “merely inquisitorial, and it
is often the only means of discovering the persons who
may reasonably be charged with a crime, to enable the
prosecutor to prepare his complaint or information. It is
not a trial of the case on the merits” and does not place
the persons against whom it is taken in jeopardy.
(Paderanga v. Drilon, 1991)
The holding of a preliminary investigation is not required
by the Constitution. The right thereto is of a statutory
character and may be invoked only when specifically
created by statute (Marinas v. Siochi, 1981). But while the
right is statutory rather than constitutional, since it has
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Criminal Procedure
been established by statute, it becomes a component of
due process in criminal justice. (Duterte v. Sandiganbayan,
1998)
The right to preliminary investigation is a personal right
which may be waived expressly or impliedly for failure to
invoke the right prior to or at the time of the plea.
(Benedicto v. CA, 2001)
The absence of a preliminary investigation does not affect
the jurisdiction of the court or invalidate the information
if no objection was raised by the accused (People v.
Madraga, 2000).
The conduct of preliminary investigation is an executive
function that the courts cannot interfere with in the
absence of grave abuse of discretion (Salapuddin v. CA,
2013). Such function is lodged, at the first instance, with
the public prosecutor and ultimately, with the Secretary
of Justice.
PURPOSES OF PRELIMINARY INVESTIGATION:
1. To inquire concerning the commission of a
crime and the connection of the accused with
it, in order that he may be informed of the
nature and character of the crime charged
against him, and, if there is probable cause for
believing him guilty, that the State shall take the
necessary steps to bring him to trial.
2. To secure the innocent against hasty, malicious,
and oppressive prosecutions, and to protect
him from an open and public accusation of
crime, from the trouble, expense, and anxiety of
a public trial, and also to protect the State from
useless and expensive trials (Sausi v. Querubin,
1975).
3. To preserve the evidence and keep the
witnesses within the control of the State.
4. To determine the amount of bail, if the offense
is bailable (Callo-Claridad v. Esteban, 2013).
PROBABLE CAUSE FOR THE FILING OF A COMPLAINT
Probable cause pertains to facts and circumstances
sufficient to support a well-founded belief that a crime
has been committed and the accused is probably guilty
thereof.
Probable cause does not mean actual and positive cause
nor does it import absolute certainty. It is merely based
on opinion and reasonable belief and need not be based
on clear and convincing evidence of guilt. It requires
more than bare suspension but less than evidence to
justify a conviction.
A finding of probable cause may rest upon evidence
which is not legally competent in a criminal trial. Thus, it
may be based on hearsay so long as there is a substantial
basis for crediting the hearsay. (Estrada v. Office of the
Ombudsman, 2015)
The validity and merits of a party’s defense and
accusation, as well as the admissibility of testimonies and
evidence, are better ventilated during the trial proper and
not during a preliminary investigation. (Shu v. Dee, 2014)
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WHO MAY CONDUCT DETERMINATION OF 2. The person lawfully arrested without a warrant
EXISTENCE OF PROBABLE CAUSE for an offense which requires a preliminary
The following are authorized to conduct a preliminary investigation may ask for a preliminary
investigation (Sec. 2, Rule 112): investigation before the complaint or
information is filed. However, the following
1. Provincial or city fiscal and their assistants; rules shall apply:
2. National and Regional state prosecutors; a. The person arrested must sign a waiver in
3. Other officers as may be authorized by law. writing of the provisions of Art. 125 of the
- The COMELEC for election offenses RPC (delay in the delivery of detained
punishable under the Omnibus Election persons to the proper judicial authorities) in
Code; the presence of his counsel;
- The Ombudsman for any illegal, unjust, b. The preliminary investigation must be
improper or inefficient act or omission of any terminated within fifteen (15) days from its
public officer or employee, office or agency; inception. (Sec. 10, DOJ Rules on Inquest)
- The PCGG with the assistance of the OSG and
other government agencies. NOTE: The accused subject of a valid warrantless arrest
cannot ask for a preliminary investigation if the penalty
NOTE: The House of Representatives has already involved is less than four (4) years, two (2) months and
approved House Bill No. 7375 which seeks to abolish the one (1) day.
PCGG as of May 15, 2018. This, however, is yet to be
signed into law. If an information or complaint has already been filed, the
person arrested may still ask for a preliminary
Judges of first level courts are not allowed to conduct investigation within five (5) days from the time he learns
preliminary investigations (A.M. No. 05-8-26-SC). The of its filing.
includes judges from the MTC, MCTC and RTC.
If the accused asks for a preliminary investigation, the
CASES REQUIRING A PRELIMINARY INVESTIGATION same may be conducted by the Inquest Officer himself or
A preliminary investigation is required to be conducted by any other Assistant Prosecutor to whom the case may
before the filing of a complaint or information for an be assigned. (Sec. 10, Part II, Manual for Prosecutors)
offense where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day without The waiver of the provisions of Art. 125 of the RPC does
regard to the fine. (Sec. 1, Rule 112) not preclude the person arrested from applying for bail
(Sec. 6, Rule 112, Rules of Court) since the person arrested
INQUEST is still under detention. This rule also applies even if no
An inquest is an informal and summary investigation information has yet been filed against him. (Sec. 17(c), Rule
conducted by a public prosecutor in criminal cases 114, Rules of Court)
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the An application for bail must be filed before and issued by
purpose of determining whether or not said persons the court in the province, city, or municipality where the
should remain under custody and correspondingly be person arrested is held.
charged in court. (Sec. 1, DOJ Rules on Inquest)
Inquest proceedings are proper only when the accused
General Rule: A preliminary investigation is required to be has been lawfully arrested without a warrant.
conducted before the filing of a complaint or information
for an offense where the law prescribes a penalty of at Inquest Preliminary Investigation
least four (4) years, two (2) months, and one (1) day Required for an offense
without regard to the fine. (Sec. 1, Rule 112) Required when the where the law prescribes a
accused has been lawfully penalty of at least four (4)
Exception: In cases where there is a valid warrantless arrested and detained years, two (2) months, and
arrest involving an offense which requires a preliminary without a warrant. one (1) day without regard
investigation, the accused shall be required to undergo an to the fine.
inquest instead of a preliminary investigation. This Purpose is to determine
proceeding is required before a complaint or information Purpose is to determine whether there is sufficient
may be filed against the person arrested. (Sec. 6, Rule 112, whether or not the person ground to engender a well-
Rules of Court as amended by A.M. No. 05-08-26-SC) detained should remain founded belief that a crime
under custody (legality of has been committed and
Exceptions to the exception: the arrest) and then that the respondent is
1. In the absence or unavailability of an inquest charged in court. probably guilty thereof,
prosecutor in the place where the person was and should be held for trial.
arrested, an inquest may be dispensed with and Not waivable. Waivable.
a complaint may be filed directly with the Conducted by a public
Conducted by a public
proper court on the basis of the affidavit of the prosecutor who is assigned
prosecutor or other
offended party or arresting officer or person. inquest duties as an
officers authorized by law.
(Sec. 6, Rule 112, Rules of Court as amended by Inquest Officer.
A.M. No. 05-08-26-SC) The inquest conducted The investigation
must be for the offense for conducted must be for the

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which the detainee was
arrested.
The accused may apply for
bail since he is already
under the custody of the
law.
offense for which the
complaint was filed.
The accused may apply for
bail as a matter of right as
long as the offense for
which he is charged is one
not punishable by death,
reclusion perpetua, or life
imprisonment.
a. File the information himself; or
b. Direct another assistant prosecutor or
state prosecutor to do so without
conducting another preliminary
investigation. (Sec. 4, Rule 112)
4. Within fifteen (15) days from receipt of the
assailed resolution, the aggrieved party may file a
motion for reconsideration. (Sec. 3, NPS Rule on
Appeal)

RESOLUTION OF THE INVESTIGATING PROSECUTOR
1. If the investigating prosecutor finds probable
cause to hold the respondent for trial, he shall
prepare both a resolution and information. The
information shall contain a certification by the
investigating officer under oath in which he
shall certify to the following:
a. He or an authorized officer has personally
examined the complainant and his
witnesses;
b. There is reasonable ground to believe that
a crime has been committed;
c. The accused is probably guilty thereof;
d. The accused was informed of the
complaint and of the evidence submitted
against him; and
e. He was given an opportunity to submit
controverting evidence. (Sec. 4, Rule 112,
Rules of Court)
2. If the investigating prosecutor finds no probable
cause, he shall recommend the dismissal of the
complaint.
An information shall still be considered valid despite the
absence of a certification for the reason that such
certification is not an essential part of the information
itself. (Alvizo v. Sandiganbayan, 1993) What is not allowed
is the filing of an information without a preliminary
investigation having been conducted.
REVIEW
1. Within five (5) days from the issuance of the
resolution, the record of the case shall be
forwarded to the Chief State Prosecutor,
Regional State Prosecutor, Provincial/City
Prosecutor, or to the Ombudsman or his deputy.
(Sec. 4, Rule 112)
Note: The prior written authority or approval
of the said officers are required before any
complaint or information may be filed or
dismissed.
2. Within ten (10) days from receipt of the
resolution, the Chief State Prosecutor, Regional
State Prosecutor, Provincial/City Prosecutor, or
the Ombudsman or his deputy may reverse or
affirm the resolution and shall immediately
inform the parties of such action. (Sec. 4, Rule 112)
3. Where the investigating prosecutor recommends
the dismissal but his recommendation is
disapproved by the Chief State Prosecutor,
Regional State Prosecutor, Provincial/City
Prosecutor, or the Ombudsman or his deputy on
the ground that probable cause exists, the latter
may:
5. Within fifteen (15) days from denial of the motion
for reconsideration, the aggrieved party may
appeal to the Secretary of Justice. (Sec. 1, NPS
Rule on Appeal)
6. The appeal before the Secretary of Justice shall
not hold or prevent the filing of the
corresponding information in court, unless the
Secretary of Justice directs otherwise. However,
the appellant and prosecutor may hold in
abeyance the proceedings in court pending
resolution of the appeal. (Sec. 9, NPS Rule on
Appeal)
Note: While an appeal before the Secretary of
Justice does not prevent the filing of the
information before the court, the
proceedings itself may nonetheless be held in
abeyance.
7. The proper party, upon motion, may ask for the
suspension of the arraignment if the petition for
review of the resolution of the prosecutor is still
pending. (Sec. 11(c), Rule 116)
8. The resolution of the Secretary of Justice may be
assailed by a petition for certiorari under Rule 65
of the Rules of Court before the CA on the
ground of grave abuse of discretion amounting
to lack or excess of jurisdiction, and not a
petition for review under Rule 43 of the same
Rules. (Salapudin v. CA, 2013)
TAX AND TARIFF CASES
For tax and tariff cases, a petition for certiorari under
Rule 65 may be filed before the CTA. (BOC v. Devanadera,
2015)
ADMINISTRATIVE APPEALS
1. Administrative appeals of the resolution of the
Secretary of Justice may be brought before the
Office of the President under the following
conditions:
a. The offense involved is punishable by
reclusion perpetua to death;
b. New and material issues are raised which
were not previously presented before the
DOJ and were not, hence, ruled upon;
c. The prescription of the offense is not due
to lapse within six (6) months from notice
of the questioned resolution; and
d. The appeal or petition for review is filed
within thirty (30) days from notice.
2. Within fifteen (15) days from notice of an
adverse decision by the Office of the President,

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a verified petition for review under Rule 43 of an independent assessment of the merits of such motion
the Rules of Court may be taken to the CA. as it has already acquired jurisdiction over the case. While
3. The party aggrieved by the judgment, final the Secretary’s ruling is persuasive, it is not binding on
order or resolution of the CA may file a petition the courts. (Lanier v. People, 2014)
for review on certiorari under Rule 45 of the
Rules of Court to the SC. The issuance of a warrant of arrest implies the existence
of a finding of probable cause by the court.
NOTE: While judicial pronouncements do not allow an
appeal to the CA under Rule 43 of the Rules of Court from The option to order the prosecutor to present additional
the resolution of the Secretary of Justice, the appeal evidence is not mandatory. The court’s first option is for
referred to in such pronouncements pertains only to a it to immediately dismiss the case if the evidence on
judicial appeal, and not an administrative appeal. record clearly fails to establish probable cause. (Mendoza
v. People, 2014)
RULINGS OF THE OMBUDSMAN IN CRIMINAL CASES
In criminal cases, the ruling of the Ombudsman shall be The order of the court dismissing a case for lack of
elevated to the SC by way of Rule 65 of the Rules of Court probable cause is a final order since it disposes of the
on the ground of grave abuse of discretion amounting to case, terminates the proceedings, and leaves the court
lack or excess of jurisdiction. with nothing further to do with respect to the case.
(Cajipe v. People, 2014) As such, the proper remedy is an
WHEN WARRANT OF ARREST MAY ISSUE appeal, and not a petition for certiorari.
Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the WHEN WARRANT OF ARREST IS NOT NECESSARY
resolution of the prosecutor. Thereafter, he may take the 1. When a complaint or information has already
following actions: been filed pursuant to a lawful warrantless
arrest (Sec. 5(c), Rule 112);
If the evidence fails to The case shall be 2. When the accused is charged for an offense
establish probable cause dismissed. punishable only by fine (Sec. 5(c), Rule 112); or
A warrant of arrest shall be 3. When the case is subject to the Rules on
issued. However, if the Summary Procedure (Sec. 16, 1991 Rules on
judge is satisfied that there Summary Procedure) unless he fails to appear
If the evidence establishes is no necessity for placing whenever required. (Uy v. Javellana, 2012)
probable cause the accused under custody,
he may issue summons CASES NOT REQUIRING A PRELIMINARY
instead of an arrest INVESTIGATION
warrant. A criminal case within the scope of the Revised Rule on
If a complaint or Summary Procedure does not require a preliminary
information was already investigation prior to the filing of the same. A criminal
filed pursuant to a lawful A commitment order shall case within the scope of this Rule shall be commenced
warrantless arrest or a be issued instead of a either by:
previous valid arrest warrant of arrest. 1. Filing a complaint or information in the MTC; or
2. In Metro Manila and other chartered cities,
pursuant to other legal
filing an information, except when the offense
processes
cannot be prosecuted de officio.
An order for the
If the evidence engenders submission of additional
Where a preliminary investigation is not required because
a doubt as to the existence evidence within five (5)
the imposable penalty is less than four (4) years, two (2)
of probable cause days from notice shall be
months and one (1) day, a criminal action may be initiated
issued.
by:
1. Filing a complaint directly with the prosecutor;
Once a criminal complaint or information is filed in court,
or
any disposition of the case or dismissal or acquittal or
2. Filing a complaint or information with the MTC.
conviction of the accused rests within the exclusive
jurisdiction, competence, and discretion of the trial court.
For cases under the Revised Rules on Summary
(Crespo v. Mogul, 1987)
Procedure, no warrant shall be issued except where
accused fails to appear after being summoned.
While the judge may rely on the fiscal’s resolution, the
same is not conclusive on him as the issuance of an arrest
If the complaint is filed with the prosecutor involving an
warrant calls for the exercise of judicial discretion. The
offense punishable by imprisonment of less than 4 years,
judge may require the submission of affidavits of
2 months and 1 day, the procedure in Sec. 3(a), Rule 112 of
witnesses to aid him in arriving at the proper conclusion,
the Rules of Court shall be observed.
or he may require the fiscal to conduct further
preliminary investigation or reinvestigation.
If the complaint is filed with the MTC, the same
procedure under Sec. 3(a), Rule 112 of the Rules of Court
When a motion to withdraw an information on the
shall be observed.
ground of lack of probable cause based on a resolution of
the Secretary of Justice is filed, the trial court shall make

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REMEDIES OF THE ACCUSED IF THERE WAS NO (OR
AN IRREGULARITY) PRELIMINARY INVESTIGATION
1. Question the regularity or absence of a
preliminary investigation before he enters his
plea;
2. Insist on a preliminary investigation;
3. File a motion for reinvestigation or motion to
remand the case to the office of the prosecutor
to conduct a preliminary investigation;
4. File a motion for judicial determination of
probable cause;
5. File a certiorari, if refused; or
6. Raise lack of PI as error on appeal.
The absence of a preliminary investigation does not affect
the court’s jurisdiction over the case nor does it impair
the validity of the information or otherwise, renders it
defective. (Enriquez v. Sarmiento, Jr., 2006)
The absence of a preliminary investigation is not a ground
for the quashal of a complaint or information as the same
is not included in the enumeration of the grounds for a
motion to quash under Sec. 3, Rule 117 of the Rules of
Court.
If the accused timely objects to the absence of a
preliminary investigation, the court should not dismiss
the information. Instead, the case should be remanded to
the prosecutor for the investigation to be conducted.
(Larrañaga v. CA, 1998)
The trial court, instead of dismissing the information,
should hold in abeyance the proceedings and order the
public prosecutor to conduct a preliminary investigation.
After the filing of the complaint/information in court
without a PI, the accused may within 5 days from the time
he learns of its filing, ask for a PI with the same right to
adduce evidence in his defense as provided in Rule 112 of
the Rules of Court (Sec. 6, Rule 112).
E. ARREST (RULE 113)
ARREST
An arrest is the taking of a person into custody in order
that he may be bound to answer for the commission of an
offense. (Sec. 1, Rule 113)
An arrest implies control over the person under custody
and, as a consequence, a restraint on his liberty to the
extent that he is not free to leave on his own volition.
HOW MADE
1. By actual restraint of the person to be arrested.
2. By his submission to the custody of the person
making the arrest. (Sec. 2, Rule 113)
An arrest implies control over the person under custody
and, as a consequence, a restraint on his liberty to the
extent that he is not free to leave on his own volition.
Neither the application of actual force, manual touching
of the body, or physical restraint, nor a formal declaration
of arrest, is required for arrest to exist. It is enough that
there be an intention on the part of one of the parties to
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Criminal Procedure
arrest the other, and that there be an intent on the part
of the other to submit. (Luz v. People, 2012)
Upon a lawful arrest, the following may be confiscated
from the person arrested (search incidental to a lawful
arrest):
1. Objects subject of the offense or used or
intended to be used in the commission of the
crime;
2. Fruits of the crime;
3. Those which might be used by the arrested
person to commit violence or to escape;
4. Dangerous weapons and those which may be
used as evidence in the case.
WHEN A WARRANTLESS ARREST IS LAWFUL
General Rule: No peace officer or person has the power or
authority to arrest anyone without a warrant except in
those cases expressly authorized by law.
Exceptions:
1. In flagrante delicto arrest (Sec. 5(a), Rule 113);
2. Hot pursuit (Sec. 5(b), Rule 113);
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another (Sec. 5(c), Rule 113);
4. When a person previously lawfully arrested has
escaped or is rescued, any person may
immediately pursue or retake him without a
warrant at any time and in any place within the
country (Sec. 13, Rule 113); and
5. When an accused released on bail attempts to
depart from the Philippines without permission
of the court where the case is pending (Sec. 23,
Rule 114).
IN FLAGRANTE DELICTO EXCEPTION
An arrest in flagrante delicto is done when, in the
presence of a peace officer or a private person, the
person to be arrested has committed, is actually
committing, or is attempting to commit an offense. (Sec.
5, Rule 113,)
REQUISITES OF A VALID IN FLAGRANTE DELICTO
ARREST
1. The person to be arrested must execute an
overt act indicating that he has just committed,
is actually committing, or is attempting to
commit a crime; and
2. Such overt act is done in the presence or within
the view of the arresting officer. (People v.
Collado, 2013)
In this type of warrantless arrest, the person making the
arrest himself witnesses the crime and, hence, has
personal knowledge of the commission of the offense.
(People v. Villareal, 2013)
Mere “suspicion” and “reliable information" alone, absent
any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, are
not sufficient to constitute probable cause that would
justify an in flagrante delicto arrest. (People v. Delos Reyes,
2011)
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An overt act is deemed to be committed in the presence
of a peace officer or a private person when:
1. He sees the offense, although at a distance;
2. Hears the disturbance created, and proceeds at
once to the scene thereof (People v. Del Rosario,
1999); or
3. The offense is continuing or has been
committed at the time the arrest was made.
(People v. Evaristo, 1992)
A warrantless arrest allowed under Rule 113 of the Rules
of Court is not justified unless the accused was caught in
flagrante or a crime was about to be committed or had
just been committed. The evidence of probable cause
should be determined by the judge and not by law-
enforcement agents. (People v. Aminnudin, 1988)
Examples of an in flagrante delicto arrest are those made
after an entrapment or a buy-bust operation.
Flight per se is not synonymous with guilt and must not
always be attributed to one’s consciousness of guilt. It is
not a reliable indicator of guilt without other
circumstances.
HOT PURSUIT EXCEPTION
A hot pursuit arrest may be made when an offense has in
fact just been committed, and the peace officer or private
person has probable cause to believe based on personal
knowledge of facts and circumstances that the person to
be arrested has committed it. (Sec. 5(b), Rule 113)
REQUISITES OF A VALID HOT PURSUIT ARREST
1. An offense has just been committed; and
2. The person making the arrest has personal
knowledge of facts indicating that the person to
be arrested has committed it.
This exception, unlike an in flagrante delicto arrest, does
not require the arresting officer or person to personally
witness the commission of the offense. In fact, the
offense is not committed in his presence although said
offense “has just been committed.” The tenor of the rule
emphasizes the immediacy of the arrest reckoned from
the commission of the crime.
The Court, in the following cases, ruled that the
requirement of “immediacy” between the time of the
commission of the crime and the time of the arrest is
absent, hence, constitutes an illegal arrest:
1. A warrantless arrest made one year after the
offense was allegedly committed.
2. A warrantless arrest effected the day after the
commission of the crime.
3. A warrantless arrest made six (6) days after the
commission of the crime.
4. A warrantless arrest made three (3) days after
the commission of the crime.
The personal knowledge of facts as contemplated under
the hot pursuit exception requires that the same must be
based on probable cause, which means an actual belief or
reasonable grounds of suspicion. (Abelita v. Doria, 2009)
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The grounds are reasonable when the suspicion that the
person to be arrested is probably guilty of committing the
offense is based on actual facts or is supported by
circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested.
(Abelita v. Doria, 2009)
In Flagrante Delicto Hot Pursuit
The person making the
The person making the arrest knows for a fact that
arrest witnesses the crime. a crime has been
committed.
The person arrested must be delivered to the nearest
police station or jail.
If the arrest was effected without warrant, the arresting
officer must comply with the provisions of Art. 125 of the
RPC, otherwise, he may be held criminally liable for delay
in the delivery of detained persons or arbitrary detention.
RULES ON ILLEGALITY OF ARREST
1. An accused who enters his plea of not guilty and
participates in the trial waives the illegality of
the arrest. Objection must be raised before
arraignment, otherwise it is deemed waived.
2. An arrest may be cured by filing of an
information in court and the subsequent
issuance by the judge of a warrant of arrest.
(Lumbos v. Judge Baliguat, A.M. No. MTJ-06-1641)
METHOD OF ARREST
An arrest may be made by:
1. An officer with a warrant;
2. An officer without a warrant; or
3. A private person.
ARREST BY AN OFFICER WITH A WARRANT
1. When a warrant of arrest is issued by a judge,
the warrant is delivered to the proper law
enforcement agency for execution.
2. The head of the office to whom the warrant of
arrest was delivered shall cause the warrant to
be executed within ten (10) days from receipt.
3. Within ten (10) days after the expiration of the
period, the officer to whom it was assigned for
execution shall make a report to the judge who
issued the warrant.
4. In case of failure to execute the warrant, he
shall state the reasons for its non-execution.
(Sec. 4, Rule 113, Rules of Court)
NOTE: The judge is not precluded from issuing another
warrant of arrest even after the expiration of the first
warrant of arrest,. What is merely required is that a
report should be made by the officer to whom it was
assigned for execution within ten (10) days.
General Rule: When making an arrest by virtue of a
warrant, the officer must inform the person to be
arrested of:
1. The cause of his arrest; and
2. The fact that a warrant has been issued for his
arrest.
Exception: The information need not be given if:
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1. The person to be arrested escapes or flees;
2. The person to be arrested forcibly resists before
the officer has the opportunity to so inform
him; or
3. When the giving of such information will imperil
the arrest. (Sec. 7, Rule 113)
The officer need not have the warrant in his possession at
the time of the arrest. However, after the arrest, the
warrant shall be shown to the person arrested as soon as
practicable, if the person arrested so requires. (Sec. 7, Rule
113)
ARREST BY AN OFFICER WITHOUT A WARRANT
General Rule: When making an arrest without a warrant,
the officer must inform the person to be arrested of:
1. His authority; and
2. The cause of his arrest.
Exception: The information need not be given if:
1. The person to be arrested is engaged in the
commission of an offense;
2. The person to be arrested is in the process of
being pursued immediately after the
commission of the offense;
3. The person to be arrested escapes or flees; or
4. The person to be arrested forcibly resists before
the officer has the opportunity to so inform
him; or
5. When the giving of such information will imperil
the arrest.
The rules applicable to an arrest with a warrant also apply
to an arrest without a warrant. Hence, the officer may
summon assistance to effect the arrest, break into a
building or enclosure or break out from the same. (Secs.
11-12, Rule 113)
ARREST BY A PRIVATE PERSON
An arrest is made by a private person is called a citizen’s
arrest.
General Rule: When a private person makes an arrest, he
shall inform the person to be arrested of:
1. His intention to arrest him; and
2. The cause of his arrest.
Exception: The information need not be given if:
1. The person to be arrested is engaged in the
commission of an offense;
2. The person to be arrested is in the process of
being pursued immediately after the
commission of the offense;
3. The person to be arrested escapes or flees; or
4. The person to be arrested forcibly resists before
the officer has the opportunity to so inform
him; or
5. When the giving of such information will imperil
the arrest.
RIGHTS AND DUTIES OF OFFICERS OR PRIVATE
PERSONS IN EFFECTING AN ARREST
Under all types of arrest, the officer or private person
shall have the duty to deliver the person to the nearest
police station or jail without unnecessary delay. (Sec. 3,
Rule 113)
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No person arrested shall be subject to greater restraint
than is necessary for his detention. (Sec. 2, Rule 113)
The right and duty of an officer to effect an arrest carries
with it the authority to orally summon as many person as
he deems necessary to assist him in effecting the arrest.
Every person so summoned by an officer is required to
give the assistance requested provided he can do so
without detriment to himself. (Sec. 10, Rule 113) The duty
of a person summoned does not arise when rendering
assistance would cause harm to himself.
If the person to be arrested is, or is reasonably believed to
be, within any building or enclosure, the officer is
authorized, in order to make an arrest, to break into any
building or enclosure if he is admittance thereto, after
announcing his authority and purpose. (Sec. 11, Rule 113)
After entering such building or enclosure, he may break
out from said place if necessary, to liberate himself from
the same place. (Sec. 12, Rule 113)
NOTE: The right to break in or break out of any building
or enclosure does not apply to private persons effecting
an arrest.
An arrest may be made on any day and at any time of the
day or night. (Sec. 6, Rule 113)
REQUISITES OF A VALID WARRANT OF ARREST
1. The warrant shall be issued only upon finding of
probable cause to be determined personally by
the judge; and
2. The determination must be made after
examination under oath or affirmation of the
complainant and the witnesses he may produce.
(Sec. 2, Art. III, 1987 Constitution)
PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT
OF ARREST
Probable cause for the issuance of a warrant of arrest is
defined as “such facts and circumstances which would
lead a reasonably discreet and prudent man to believe
that an offense has been committed by the person sought
to be arrested.” (Ocampo v. Abando, 2014)
Neither absolute certainty nor clear and convincing
evidence of guilt is required. As long as the evidence
shows a prima facie case against the accused, the trial
court has sufficient ground to issue a warrant for his
arrest. (People v. Tan, 2009)
Personal examination by the judge of the complainant
and his witnesses under oath is not mandatorily required.
Instead the judge may opt to personally evaluate the
report and supporting documents submitted by the
prosecutor or he may disregard the prosecutor’s report
and require the submission of supporting affidavits of
witnesses. (Soliven v. Makasiar, 1988)
Where a preliminary investigation has previously been
conducted, the court does not have the duty to
personally examine the complainant and his witnesses in
writing and under oath and in the form of searching
questions and answers. This type of examination is done
only in a case where there is a direct filing of the
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complaint or information with the MTC since no previous 3. The right to be informed of the above rights
preliminary investigation has been conducted. (Sec. 2(b), R.A. 7438); and
4. The right to be visited by the immediate
KINDS OF DETERMINATION OF members of his family, by his counsel, or by any
non-governmental organization, national or
PROBABLE CAUSE international (Sec. 2(f), R.A. 7438).
1. Executive
In the absence of a lawyer, no custodial investigation shall
- Made by the prosecutor
be conducted and the suspected person can only be
2. Judicial
detained by the investigating officer in accordance with
- Made by the judge
the provisions of Art. 125 of the RPC. Any waiver of the
said provision shall be in writing and signed by the person
DETERMINATION OF PROBABLE CAUSE MADE BY THE
arrested, detained or under custodial investigation in the
PROSECUTOR VIS-À-VIS PROBABLE CAUSE MADE BY presence of his counsel.
THE JUDGE
Any extrajudicial confession made shall also be in writing
Executive Judicial and signed by the person, detained or under custodial
Determined The public investigation in the presence of his counsel, or in the
The judge.
by prosecutor. latter’s absence, upon a valid waiver, and in the presence
The of any of the parents, older brothers and sisters, his
Determined The preliminary
preliminary spouse, the municipal mayor, the municipal judge, district
during examination/inquiry.
investigation. school supervisors, or priest or minister of gospel as
To determine chosen by him.
whether there
exists CUSTODIAL INVESTIGATION
probable To determine Custodial investigation is when the investigation ceases
cause to whether there exists to be a general inquiry into an unsolved crime and the
believe that probable cause to interrogation is then aimed on a particular suspect who
Purpose
the accused is issue a warrant of has been taken into custody and to whom the police
guilty of the arrest against the would then direct interrogatory questions that tend to
offense accused. elicit incriminating statements. (Luspo v. People, 2014)
charged and
should be held Custodial investigation includes the practice of issuing an
for trial. "invitation" to a person who is investigated in connection
Pertains to with an offense he is suspected to have committed,
facts and without prejudice to the liability of the "inviting" officer
circumstances Pertains to facts and for any violation of law.
sufficient to circumstances which
support a would lead a MIRANDA RIGHTS
well-founded reasonably discreet A person under custodial investigation must be informed
Probable belief that a and prudent man to of the following rights:
cause crime has believe that an 1. He has a right to remain silent;
been offense has been 2. Any statement he makes can and will be used
committed committed by the against him in a court of law;
and the person sought to be 3. He has the right to talk to an attorney before
accused is arrested. being questioned and to have his counsel
probably present when being questioned; and
guilty thereof. 4. If he cannot afford an attorney, one will be
Effect if provided before any questioning if he so
An desires.
probable
information is An arrest warrant is 5. Any of the waiver of the right to counsel must
cause is
filed with the issued. be made in writing and in the presence of
found to
court. counsel.
exist

Even those who voluntarily surrendered before a police

RIGHTS OF A PERSON ARRESTED
The rights of a person arrested, detained or under
custodial investigation pursuant to R.A. 7438 are as
follows:
1. The right to be assisted by counsel at all times
(Sec. 2(a), R.A. 7438);
- If he cannot afford the services of his own
counsel, he must be provided by the
investigating officer with a competent and
independent counsel.
2. The right to remain silent (Sec. 2(b), R.A. 7438);
officer must be apprised of their Miranda rights. (People v.
Chavez, 2014)
EXCLUSIONARY RULE
Violations of the Miranda rights render the evidence
obtained inadmissible.
COVERAGE OF EXCLUSIONARY RULE
1. Extrajudicial confession; or
2. Admissions made during the custodial
investigation. (People v. Malimit, 1996)

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Investigation before bantay-bayan/tanod is in the
nature of A custodial investigation
The Bantay Bayan may be deemed a law enforcer within
the purview of the Constitution. The nature of Bantay
Bayan is a group of male residents which are organized to
maintain peace and order ancillary to the police.
Therefore, the exclusionary rule applies on confessions
made before a barangay tanod/Bantay Bayan. (People v.
Lauga, 2010)
EFFECT OF AN ILLEGAL ARREST
The legality of an arrest affects only the jurisdiction of the
court over the person of the accused. The illegality of the
arrest, therefore, cannot in itself, be the basis for
acquittal. (People v. Yau, 2014)
Any objection involving a warrant of arrest or the
procedure by which the court acquired jurisdiction of the
person of the accused must be made before he enters his
plea; otherwise, the objection is deemed waived. (People v.
Velasco, 2013)
The Court has held that even if a timely objection is made
to the warrantless arrest, the illegality of the arrest
cannot deprive the State of its right to prosecute the
guilty when all other facts on record point to the
accused’s culpability. Indeed, an illegal arrest of an
accused is not a sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after a
trial free from error. (People v. Yau)
When a person fails to make a timely objection to an
illegal arrest, only the right to assail the arrest is waived.
He does not waive the right to question the admissibility
of the evidence seized by virtue of the illegal arrest.
Once a person has been duly charged in court, he may no
longer question his detention by a petition for habeas
corpus. His remedy is to quash the information and/or
the warrant of arrest. (Dwikarna v. Domingo, 2004)
EFFECT OF ADMISSION TO BAIL ON OBJECTIONS TO
AN ILLEGAL ARREST
An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the
legality of the warrant issued, provided that he raises the
objection before he enters his plea. The objection shall be
resolved by the court as early as practicable but not later
than the start of the trial of the case. (Sec. 26, Rule 114,
Rules of Court)
IMMUNITY FROM ARREST
The persons that may not be subject to arrest are:
1. A senator or member of the House of
Representatives in all offenses by not more than
six (6) years imprisonment, when the Congress
is in session. (Sec. 11, Art. VI, 1987 Constitution)
- This privilege will not apply when the
offense is punishable by imprisonment of
more than six (6) years even if Congress is
in session. (People v. Jalosjos, 2000)
- The privilege likewise does not apply if
Congress is not in session.
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2. Sovereigns and other chiefs of state,
ambassadors, ministers plenipotentiary,
ministers resident, and charge d’affaires.
3. Duly accredited ambassadors, public ministers
of a foreign country, their duly registered
domestics (Sec. 4, R.A. 75), subject to the
principle of reciprocity. (Sec. 7, R.A. 75)
F. BAIL (RULE 114)
Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required
under the conditions specified by the Rules. (Sec. 1, Rule
114)
NATURE
Since bail is the security for the release of a person under
custody of the law, it does not cover the civil liability of
the accused in the same criminal case. The money
deposited as bail may, however, be applied to the
payment of fines and costs while the excess, if any, shall
be returned to the accused or to whoever made the
deposit. (Sec. 14, Rule 114)
The right to bail is a constitutional right which springs
from the presumption of innocence accorded to the
accused (Paderanga v. CA, 1995).
The presumption of innocence is rooted in the guarantee
of due process, and is safeguarded by the constitutional
right to be released on bail, and further binds the court to
wait until after trial to impose any punishment on the
accused. (Enrile v. Sandiganbayan, 2015)
A person, before conviction, shall be accorded the right to
bail (Sec. 13, Art. III, 1987 Constitution), unless he is
charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong. (Sec. 7, Rule 114)
The test is not whether the evidence establishes guilt
beyond reasonable doubt but rather whether it shows
evident guilt or a great presumption of guilt. (People v.
Cabral, 1999)
WHO MAY APPLY FOR BAIL
Any person in custody who is not yet charged in court
may apply for bail with any court in the province, city, or
municipality where he is held. (Sec. 17(c), Rule 114)
A person deprived of his liberty by virtue of his arrest or
voluntary surrender may apply for bail as soon as he is
deprived of his liberty, even before a complaint or
information is filed against him. He need not wait for his
arraignment before filing a petition for bail. (Serapio v.
Sandignabayan, 2003)
A person undergoing inquest proceedings may apply for
bail since he is already under the custody of the law.
Where the accused was charged for murder without the
benefit of a preliminary investigation and trial had already
began over his objections, the accused remains entitled
to be released on bail as matter of right pending the
preliminary investigation. (Go v. CA, 1992)
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NOTE: The filing of the petition for bail does not
constitute a waiver of the accused’s right to a preliminary
investigation.
WHERE THE APPLICATION FOR BAIL IS MADE
The application for bail shall be made with any court in
the province, city or municipality where the person
arrested is held.
WHO FURNISHES THE BAIL
The bail may be furnished by the bail applicant himself or
by the bondsman. (Sec. 1, Rule 114)
RIGHTS AND OBLIGATIONS OF THE BONDSMAN
1. The bondsman shall surrender the accused to
the court for execution of the final judgment.
(Sec. 2(d), Rule 114)
2. For the purpose of surrendering the accused,
the bondsman may:
a. Arrest him; or
b. Upon written authority endorsed on a
certified copy of the undertaking, cause
him to be arrested by a police officer or
any other person of suitable age and
discretion. (Sec. 23, Rule 114)
3. An accused released on bail may be re-arrested
without the necessity of a warrant of he
attempts to depart from the Philippines without
permission of the court where the case is
pending. (Sec. 23, Rule 114)
The authority of the bondsman to arrest or cause the
arrest of the accused stems from the principle that once
the obligation of bail is assumed, the bondsman or surety
becomes the jailer of the accused and is subrogated to all
the rights and means which the government possess to
make his control over him effective. (US v. Addison and
Gomez, 1914)
FORMS OF BAIL
1. Corporate surety
2. Property bond
3. Cash deposit
4. Recognizance
CORPORATE SURETY
Corporate surety is bail furnished by a corporation,
whether domestic or foreign, and which is licensed as a
surety and authorized to act as such. The bond must be
subscribed jointly by the accused and an officer of the
corporation duly authorized by the board of directors.
(Sec. 10, Rule 114)
PROPERTY BOND
A property bond is an undertaking constituted as a lien
on the real property given as security for the amount of
the bail.
1. Within ten (10) days from the approval of the
bond, the accused shall cause the annotation on
the certificate of title on file with the Registry of
Deeds.
2. If the land is unregistered, it is annotated in the
Registration Book on the space provided
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Criminal Procedure
therefor in the Register of Deeds of the
province or city where the land lies.
3. The registration shall be made on the
corresponding tax declaration in the office of
the provincial, city and municipal assessor
concerned.
4. Within ten (10) days from the performance of
the above acts, the accused shall submit his
compliance to the court.
5. His failure to do so shall be sufficient cause for
the cancellation of the property bond, his re-
arrest and detention. (Sec. 11, Rule 14)
CASH DEPOSIT
The accused or any person acting in his behalf may
deposit in cash the amount of bail fixed by the court or
recommended by the prosecutor who investigated or
filed the case.
1. The cash deposit shall be made with:
a. The nearest collector of internal
revenue;
b. The provincial, city, or municipal
treasurer; or
c. The clerk of court where the case is
pending.
2. The accused shall be discharged from custody
upon submission of the certificate of deposit
and a written undertaking showing compliance
with the requirements of the Rules of Court.
3. The money deposited shall be considered as bail
and applied to the payment of fine and costs.
4. The excess, if any, shall be returned to the
accused or to whoever made the deposit. (Sec.
14, Rule 114)
NOTE: The deposit can only be made with the persons
enumerated in the rule. A judge is not one of those
authorized to receive a deposit of cash bail; nor should
such cash be kept in the judge’s office, much less in his
own residence. (Naui v. Mauricio, 2003)
RECOGNIZANCE
A recognizance is an obligation of record entered into
before some court or magistrate duly authorized to take
it, with the condition to do some particular act, the most
usual condition in criminal cases being the appearance of
the accused for trial.
A person in custody may be released on recognizance
whenever allowed by law or by the Rules of Court. The
release may be either on the recognizance of the accused
himself or that of a responsible person. (Sec. 15, Rule 114)
WHEN RELEASE ON RECOGNIZANCE IS ALLOWED
1. When the offense charged is for violation of an
ordinance, a light felony, or a criminal offense,
the imposable penalty of which does not exceed
six (6) months imprisonment and/or a fine of
P2,000, under the circumstances provided in
R.A. 6036;
2. Where a person has been in custody for a
period equal to or more than the minimum of
the imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case,
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the court may allow his release on his own
recognizance, or on reduced bail, at the
discretion of the court (Sec. 26, Rule 114, Rules of
Court);
3. Where the accused has applied for probation,
pending finality of the judgment, but no bail was
filed or the accused is incapable of filing one
(P.D. 968, Sec. 7; Sec. 24, Rule 114, Rules of Court);
4. In case of a youthful offender held for physical
and mental examination, trial, or appeal, if he is
unable to furnish bail and under the
circumstances envisaged in P.D. 603, as
amended (Espiritu v. Jovellanos, 1997);
5. In summary procedure, when the accused has
been arrested for failure to appear when
required. His release shall be either on bail or
on recognizance by a responsible citizen
acceptable to the court (Sec. 16, 1991 Revised
Rule on Summary Procedure).
NOTE: In summary procedure, the release of the accused
cannot be effected on his own recognizance.
Bail Bond Recognizance
It is an obligation under It is an obligation of
seal given by accused with record, entered into before
one or more sureties, made some court or magistrate
payable to the proper duly authorized to take it,
officer with the condition with the condition to do
to be void upon some particular act.
performance by the
accused of such acts as he
may legally be required to
perform.
CUSTODY OF THE LAW IN APPLICATIONS FOR BAIL
BY THE ACCUSED
Custody of the law is required before the court can act on
an application for bail, but is not required for the
adjudication of other reliefs sought by the defendant. The
mere application for bail constitutes a waiver of the
defense of lack of jurisdiction over the person of the
accused. (Miranda v. Tuliao, 2006)
While the mere application for bail constitutes
submission to the jurisdiction of the court, the grant of
bail requires not mere jurisdiction over the person of the
applicant but “custody” over his person. (Miranda v.
Tuliao, 2006)
A cash bail bond may be authorized without need of the
accused’s personal appearance before the court on the
ground of physical incapacity and as a matter of humane
consideration. (Defensor-Santiago v. Vasquez, 1993)
ARRAIGNMENT BEFORE THE GRANT OF BAIL NOT
REQUIRED
The grant of bail should not be conditioned upon the
prior arraignment of the accused. In cases where bail is
authorized, bail should be granted before arraignment;
otherwise, the accused will be precluded from filing a
motion to quash which is to be done before arraignment.
If the information is quashed and the case is dismissed,
there would be no need for the arraignment of the
accused. (Lavides v. CA, 2000)
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Criminal Procedure
EFFECT OF FAILURE TO APPEAR AT THE TRIAL
The failure of the accused to appear at the trial without
justification despite due notice shall be deemed a waiver
of his right to be present and the trial may proceed in
absentia. (Sec. 2(c), Rule 114, Rules of Court)
If the bail bond was given by a bondsman or a person
other than the accused and the latter fails to appear, the
bondsman may arrest the accused for the purpose of
surrendering him or he may cause the accused to be
arrested by a police officer or any other person of
suitable age and discretion upon written authority
endorsed on a certified copy of the undertaking. (Sec. 23,
Rule 114)
BAIL TO GUARANTEE APPEARANCE OF WITNESSES
Bail does not only apply to a person who has transgressed
the law or is perceived to have done so. It may likewise
apply to a material witness even if he is not under
detention. In such cases, however, prior custody of the
law is not required.
When the court is satisfied, upon proof or oath, that a
material witness will not testify when required, it may,
upon motion of either party, order the witness to post
bail in such sum as may be deemed proper. When the
material witness refuses to post bail, he shall be
committed to prison until he complies or is legally
discharged after his testimony has been taken. (Sec. 14,
Rule 119)
General Rule: Custody of the law is required before the
court can act on an application for bail.
Exceptions: Custody of the law is not required where the
bail is to secure the appearance of:
1. A material witness when the court is satisfied,
upon proof or oath, that he will not testify when
required (Sec. 14, Rule 119); or
2. Other witnesses when there is a substitution of
a criminal information (Sec. 14, Rule 110).
When the court is satisfied, upon proof or oath, that a
material witness will not testify when required, it may,
upon motion of either party, order the witness to post
bail in such sum as may be deemed proper. When the
material witness refuses to post bail, he shall be
committed to prison until he complies or is legally
discharged after his testimony has been taken. (Sec. 14,
Rule 119)
Bail for the Accused Bail for Witnesses
Custody of the law is Custody of the law is not
required. required.
An application for bail is A motion is filed by either
filed by the accused, unless party and when granted,
made by recognizance. the court orders the
witness to post bail.
Failure to apply for bail is Failure to post bail will
deemed a waiver of the result to the witness’
accused’s right to bail. imprisonment until he
complies or until his
testimony has been taken.
KINDS OF BAIL
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1. Bail as a matter of right
2. Bail as a matter of discretion
BAIL AS A MATTER OF RIGHT; EXCEPTIONS
General Rule: All persons, before conviction, shall be
accorded the right to bail. (Sec. 13, Art. III, 1987
Constitution)
Exceptions:
1. When the accused is charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, and the evidence
of his guilt is strong. (Sec. 7, Rule 114)
2. The right to bail is not available in the military.
(Comendador v. Villa, 1991)
- The right to a speedy trial is given
more emphasis in the military where
the right to bail does not exist.
- There would be no violation of the
equal protection clause since the said
guaranty requires equal treatment
only of persons or things similarly
situated, and not where the subject of
the treatment is substantially different
from others.
3. Persons facing extradition. (U.S. Government v.
Purganan, 2002)
Exception to the exception: After a potential extraditee has
been arrested or placed under the custody of the law, bail
may be applied for and granted only upon a clear and
convincing showing that:
1. Once granted bail, the applicant will not be a
flight risk or a danger to the community; and
2. There exist special, humanitarian and
compelling circumstances including, as a matter
of reciprocity, those cited by the highest court
in the requesting state when it grants
provisional liberty in extradition cases therein.
(U.S. Government v. Purganan, 2002)
NOTE: The exercise of the State’s power to deprive an
individual of his liberty is not necessarily limited to
criminal proceedings. Hence, the right to bail is not
limited to criminal proceedings and may apply to
extradition proceedings, which are sui generis and not
criminal in nature. In fact, bail has been allowed in this
jurisdiction to persons in detention during the pendency
of administrative proceedings, taking into cognizance the
obligation of the Philippines under international
conventions to uphold human rights. (Government of
Hongkong Special Administrative Region v. Olalia, Jr.,
2007)
Bail is a matter of right in the following situations:
1. Before conviction by the MeTC, MTC, MTCC, or
MCTC;
2. After conviction by the MeTC, MTC, MTCC, or
MCTC; or
3. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment (Sec. 4, Rule 114).
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Criminal Procedure
NOTE: All criminal cases within the competence of the
MeTC, MTC, MTCC, or MCTC are bailable as a matter of
right because these courts have no jurisdiction to try
cases punishable by death, reclusion perpetua or life
imprisonment.
When the accused is a minor, he is entitled to bail
regardless of whether the evidence of guilt is strong.
EXTRADITION
Extradition is the removal of an accused from the
Philippines with the object of placing him at the disposal
of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal
investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law
of the requesting state or government. (Sec. 2(a), P.D.
1069)
REMEDY WHEN BAIL IS DENIED
1. File a petition for certiorari if the trial court
committed grave abuse of discretion amounting
to excess or lack or jurisdiction in issuing the
said order. (People v. Gomez, 2000)
2. File for mandamus to compel the grant of bail
which is a matter of right.
When bail is a matter of right, the same cannot be denied.
The probability that the accused will escape or not
appear in the trial is not a ground for denial of the right to
bail. It is, however, a reason for the court to increase the
bail bond to assure his appearance. (San Miguel v.
Maceda, 2007)
In instances where bail is a matter of right and the bail to
be granted is based on the recommendation of the
prosecution as stated in the information or complaint,
hearing is not necessary.
BAIL AS A MATTER OF DISCRETION
Bail is a matter of discretion when the accused has been
convicted in the RTC of an offense not punishable by
death, reclusion perpetua or life imprisonment. (Sec. 5,
Rule 114)
When bail is a matter of discretion, the following rules
apply:
1. A hearing must be conducted whether or not
the prosecution refuses to present evidence;
and
2. The prosecutor must be notified to require him
to submit his recommendation.
NOTE: The notice of hearing applies in all cases whether
bail is a matter of right or a matter of discretion. (Zuño v.
Cabebe 2004)
The discretion of the court may be exercised only after
the hearing called to ascertain the degree of guilt of the
accused for the purpose of whether or not he should be
granted provisional liberty. This hearing is indispensable.
Said hearing may be either summary or otherwise, in the
discretion of the court. (Enrile v. Sandiganbayan, 2015)
When the penalty imposed is death, reclusion perpetua or
life imprisonment, bail should be denied, regardless of the
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stage of the prosecution, because this means that the
evidence of guilt against him is not just strong. His guilt
has actually been proven beyond reasonable doubt.
WHERE APPLICATION FOR BAIL IS TO BE FILED AFTER
CONVICTION BY THE RTC
Such finding will simply authorize the court to use a less
stringent sound discretion approach. (Leviste v. CA, 2010)
The court is not authorized to deny or cancel bail ex
parte. The rule requires “notice to the accused”. (Sec. 5,
Rule 114)

If the original record has The resolution of the RTC denying or cancelling the bail
not been transmitted to may be reviewed by the CA motu proprio or on motion of
the CA, and even if a notice any party after notice to the adverse party in either case.
Filed with the RTC (Sec. 5, Rule 114)
of appeal has already been
filed. (Sec. 5, Rule 114; Sec. 6,
Rule 120) SUMMARY OF RULES FOR BAIL
If the original record has When Where filed
already been transmitted Before or General Rule: Court
to the CA. after where the case is
conviction pending.
Filed with the CA If the decision of the RTC by the
convicting the accused MeTC, Exception: If the judge
changed the nature of the MTC, MTCC thereof is absent or
offense from non-bailable or MCTC. unavailable, then it
to bailable. (Sec. 5, Rule 114) should be filed with any
Before RTC, MeTC. MTC. or
Bail as a
If the court grants the application for bail, the accused conviction MCTC judge.
matter of
may be allowed to continue on provisional liberty during by the RTC
the pendency of the appeal under the same bail. This rule, right of an NOTE: In case the
however, is subject to the consent of the bondsman. (Sec. offense not exception applies, the
5, Rule 114) punishable judge must forward all
by death, relevant documents to
WHEN APPLICATION FOR BAIL AFTER CONVICTION reclusion the court where the
SHALL BE DENIED BY THE RTC perpetua, or case is pending.
life
1. If the penalty imposed is death, reclusion imprisonme
perpetua or life imprisonment since the nt.
conviction indicates strong evidence of guilt With the RTC if the
Upon
based on proof beyond reasonable doubt (People original record has not
conviction
v. Nitcha, 1995); and been transmitted to the
by the RTC
2. If the penalty imposed by the RTC is not any CA, and even if a notice
of an
above but merely imprisonment exceeding six of appeal has already
offense not
(6) years, if the prosecution shows the following Bail as a been filed.
punishable
or other similar circumstances (bail negating matter of
by death,
circumstances): discretion With the CA the original
reclusion
a. Recidivism, quasi-recidivism or record has been
perpetua, or
habitual delinquency or commission transmitted or when the
life
of a crime aggravated by the nature of the offense
imprisonme
circumstance of reiteration; changes from non-
nt.
b. Previous escape from legal bailable to bailable.
confinement, evasion of sentence, or
violation of the conditions of bail
without valid justification; DENIAL OF BAIL:
c. Commission of the offense while 1. When the penalty imposed is death, reclusion
under probation, parole or conditional perpetua or life imprisonment and evidence of
pardon; guilt is strong
d. Probability of flight if released on bail; 2. For members of the military.
or 3. Even if the penalty imposed by the RTC is not
e. Undue risk that another crime may be any of the above but merely imprisonment
committed during pendency of the exceeding six (6) years, and upon showing by
appeal. (Sec. 5, Rule 114, Rules of Court) the prosecution of the following:
3. After judgment has become final, unless the a) Recidivism, quasi-recidivism, or habitual
accused applied for probation before delinquency or commission of a crime
commencing to serve sentence within the aggravated by reiteration;
purview of probation law. b) Previous escape from legal confinement,
evasion of sentence, or violation of the
A finding that none of the five (5) circumstances is conditions of bail without valid
present will not automatically result in the grant of bail. justification;

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c) Committed of an offense while under

probation, parole or conditional pardon; NOTE: The imposition of the death penalty is now
d) Probability of flight; prohibited. In lieu of the death penalty, the penalty of
Undue risk that another crime may be reclusion perpetua or life imprisonment is now imposed.
committed during the pendency of the
appeal. If the law at the time of commission does not impose
death penalty, the subsequent amendment of the law
HEARING OF APPLICATION FOR BAIL IN CAPITAL increasing the penalty cannot apply to the case,
OFFENSES (offenses punishable by death, reclusion otherwise it would be considered as ex post facto.
perpetua, or life imprisonment)
A hearing for the application for bail is to be conducted If the law at the time of the application for bail has
when a person is in custody for the commission of an amended the prior law which imposed the death penalty
offense punishable by death, reclusion perpetua, or life by reducing such penalty, the law favorable to the
imprisonment. In the hearing, the prosecution has the accused shall have retroactive application.
burden of showing that the evidence of guilt is strong.
(Sec. 8, Rule 114) CAPITAL OFFENSE NOT BAILABLE
General Rule: Capital offense or those punishable by
In a petition for bail, the following duties must be reclusion perpetua, or life imprisonment are not bailable
complied with by the trial judge (Narciso v. Santa when evidence of guilt is strong.
Romana-Cruz, 2000):
1. The prosecutor must be notified of the hearing Exception: If the accused charged with a capital offense is
of the application for bail or he must be a minor. (Sec. 25, Juvenile Justice Welfare Act)
required to submit his recommendation;
2. A hearing of the application for bail must be HEARING TO DETERMINE PROBABLE CAUSE VIS-À-
conducted regardless of whether or not the VIS HEARING FOR BAIL
prosecution refuses to present evidence to The bail hearing is separate and distinct from the initial
show that the guilt of the accused is strong for hearing to determine the existence of probable cause.
the purpose of enabling the court to exercise its (Gacal v. Infante, 2011)
sound discretion;
3. The judge must decide whether the evidence of Hearing to
guilt is strong based on the summary of Determine Hearing for Bail
evidence of the prosecution; and Probable Cause
4. If the guilt of the accused is not strong, the Only takes place
accused must be discharged upon the approval after the
of the bail bond. Otherwise, the petition should When it Takes place prior proceedings for the
be denied. takes place to all proceedings. determination of
5. Within forty-eight (48) hours after the hearing, the existence of
the court shall issue an order containing a brief probable cause.
summary of the evidence adduced before it, Conducted to
followed by its conclusion of whether or not the determine whether
evidence of guilt is strong. or not there is
sufficient ground
NOTE: The conclusion made by the judge shall not be to engender a
regarded as a pre-judgment on the merits of the case. Conducted to
well-founded
(Sec. 6(d), A.M. No. 12-11-2-SC) determine if the
Purpose belief that a crime
evidence of guilt is
has been
Even when there is no petition for bail, a hearing should week or not.
committed and
still be held. (Gacal v. Infante, 2011) that the accused is
probably guilty
The public prosecutor’s recommendation for bail, thereof.
including the amount thereof, is not material in deciding If the court finds
whether to conduct the mandatory hearing or not. The the existence of If granted, an
prosecutor’s recommendation, albeit persuasive, does not probable cause, a amount will be
necessarily bind the trial judge, in whom alone the Effect warrant of arrest fixed by the court
discretion to determine whether to grant bail or not is or commitment and the accused
vested. (Gacal v. Infante, 2011) order will be shall be discharged.
issued.
CAPITAL OFFENSE
A capital offense is an offense which, under the law GUIDELINES IN FIXING THE AMOUNT OF BAIL
existing at the time of its commission and at the time of 1. Excessive bail shall not be required. (Sec. 13, Art.
the application for admission to bail, may be punished III, 1987 Constitution)
with death. (Sec. 6, Rule 114) 2. The judge shall fix a reasonable amount of bail
considering primarily, but not limited to, the
The capital nature of an offense is determined by the following factors:
penalty prescribed by law and not the penalty to be
actually imposed. (Bravo v. De Borja, 1985)

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a. Financial ability of the accused to give
bail;
b. Nature and circumstances of the
offense;
c. Penalty for the offense charged;
d. Character and reputation of the
accused;
e. Age and health of the accused;
f. Weight of the evidence against the
accused;
g. Probability of the accused appearing
at the trial;
h. Forfeiture of other bail;
i. The fact that the accused was a
fugitive from justice when arrested;
and
j. Pendency of other cases where the
accused is on bail.
In fixing bail, the amount should be high enough to assure
the presence of the accused when such presence is
required but no higher than is reasonably calculated to
fulfill this purpose. (Villaseñor v. Abano, 1967)
The inability of the accused to secure bail in a certain
amount is not solely to be considered and this fact does
not by itself make bail excessive. When an accused has no
means to bail himself out, any amount fixed, no matter
how small would fall into the category of excessive bail.
(Villaseñor v. Abano, 1967)
REMEDIES IN FIXING THE AMOUNT OF BAIL
If the accused does not have the financial ability to post
the amount of bail that the court initially fixed, he may:
1. Move for its reduction; and
2. Submit for that purpose such documents or
affidavits as may warrant the reduction he
seeks. (Sec. 3, A.M. No. 12-11-2 SC)
The order fixing the amount of bail is not appealable. (Sec.
4, A.M. No. 12-11-2 SC)
DURATION OF THE BAIL
The undertaking under the bail shall be effective upon
approval, and unless cancelled, shall remain in force at all
stages of the case until promulgation of judgment of the
RTC, irrespective of whether the case was originally filed
in or appealed to it. (Sec. 2(a), Rule 114)
The bail bond posted by the accused can only be used
during the 15-day period to appeal and not during the
entire period of appeal. For the accused to continue his
provisional liberty on the same bail bond, consent of the
bondsman is necessary. (Magaddatu v. CA, 2000)
RELEASE OR TRANSFER OF PERSON IN CUSTODY
General Rule: No person under detention by legal process
shall be released or transferred.
Exceptions:
1. Upon order of the court; or
2. When he is admitted to bail. (Sec. 3, Rule 114)
WHEN BAIL IS NOT REQUIRED
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Criminal Procedure
As a rule, bail is not required when the law or the Rules of
Court so provide (Sec. 16, Rule 114).
The following are instances where the accused may be
released immediately without applying for bail:
1. When he has been in custody for a period equal
to or more than the possible maximum
imprisonment prescribed for the offense
charged, without prejudice to the continuation
of the trial or the proceedings on appeal.
2. When the maximum penalty to which the
accused may be sentenced is destierro, in which
case he shall be released after thirty (30) days of
preventive imprisonment.
3. In cases filed with the MTC or MCTC for an
offense punishable by imprisonment of less
than four (4) years, two (2) months, and one (1)
day, and the judge is satisfied that there is no
necessity for placing the accused under
custody. In which case summons may be issued
instead of a warrant of arrest. (Sec. 8(b), Rule
112). Since no arrest is made, bail is not required.
4. Under the circumstances provided in R.A. 603,
when the offense charged is for violation of an
ordinance, a light felony, or a criminal offense,
the imposable penalty of which does not exceed
six (6) months imprisonment and/or a fine of
P2,000 or both where it is established that he is
unable to post the required cash or bail bond.
INCREASE OR REDUCTION OF BAIL
Even after the accused is admitted to bail, the amount of
bail may either be increased or reduced by the court
upon good cause (Sec. 20, Rule 114)
When the amount is increased, the accused may be
committed to custody if he does not give bail in the
increased amount within a reasonable period. (Sec. 20,
Rule 114)
Where the offense is bailable as a matter of right, mere
probability that accused will escape, or even if he had
previously escaped while under detention, does not
deprive him of his right to bail. The remedy is to increase
the amount of bail, provided such amount would not be
excessive. (Sy Guan v. Amparo, 1947)
If, upon the filing of the complaint or information, the
accused is released without bail, he may later be required
to give bail in the amount fixed by the court, whenever at
any subsequent stage of the proceedings a strong
showing of guilt appears to the court. If he does not give
bail, he may be committed into custody. (Sec. 20, Rule 114)
FORFEITURE OF BAIL
1. When the presence of the accused is required,
his bondsmen shall be notified to produce him
before the court on a given date and time (Sec.
21(b), Rule 114).
2. If he fails to appear, his bail shall be declared for
forfeited.
3. The bondsmen shall be given thirty (30) days
within which to:
a. Produce the body of their principal or
give the reason for his non-
production; and
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b. Explain why the accused did not 2. Dismissal of the case; or

appear before the court when first
required to do so.
4. If the bondsmen fail in the two requirements, a
judgment shall be rendered against the
bondsmen, jointly and severally, for the amount
of the bail.
5. The bondsmen may move for the mitigation of
their liability. However, the court shall not
reduce nor mitigate the said liability unless the
accused has been surrendered or is acquitted.
(Sec. 21, Rule 114)
6. Aside from the forfeiture, the court may issue a
bench warrant for the arrest of the accused.
The thirty (30) day period granted to bondsmen to
comply with the requisites for lifting of the order of
forfeiture cannot be shortened by the court but may be
extended for good cause shown.
An order of forfeiture differs from the judgment on the
bond. An order of forfeiture is interlocutory and merely
requires the bondsmen to show cause why judgment
should not be rendered against them for the amount of
the bond. On the other hand, the judgment on the bond is
issued if the accused is not produced within the 30-day
period. (Mendoza v. Alarma, 2008)
Order of Forfeiture Order of Confiscation
Conditional and
Judgment ultimately
interlocutory, there being
determining the liability of
something more to be
the surety thereunder, and
done such as the
therefore final and
production of accused
execution may issue at
within thirty (30) days as
once; not independent of
provided by the Rules; not
the order of forfeiture
appealable.
BENCH WARRANT
A bench warrant is a writ issued directly by a judge to a
law enforcement officer, for the arrest of a person who:
1. Has been held in contempt;
2. Has disobeyed a subpoena; or
3. Has to appear at a hearing or trial. (Sec. 9, Rule
71)
When a person released on bail fails to appear on the day
fixed for the hearing, the court may issue a bench
warrant or may order the bond for his appearance be
forfeited and confiscated, or both. (Magleo v. De Juan-
Quinagoran, 2014)
CANCELLATION OF BAIL
Bail may be cancelled upon:
1. Application of the bondsmen; or
2. Automatic cancellation.
CANCELLATION BY APPLICATION OF THE BONDSMEN
Bail may be cancelled upon application of the bondsmen
with due notice to the prosecutor upon:
1. Surrender of the accused; or
2. Proof of his death. (Sec. 22, Rule 114)
AUTOMATIC CANCELLATION
The bail may be deemed automatically cancelled upon:
1. Acquittal of the accused;
3. Execution of the judgment of conviction.
Cancellation by Application
Automatic Cancellation
of the Bondsmen
Cancelled upon the
Cancelled by application. happening of certain
events.
Due notice to the prosecutor
No notice is required.
is required.
Grounds:
1. Acquittal of the
Grounds: accused;
1. Surrender of the 2. Dismissal of the
accused; or case; or
2. Proof of his death. 3. Execution of the
judgment of
conviction.
HOLD DEPARTURE ORDER
A hold departure order is a directive that commands the
Commissioner of Immigration (COI) to prevent a traveler
from leaving the territorial jurisdiction of the Philippines,
and implemented upon:
1. Instruction by the President;
2. Order of the Secretary of Justice; or
3. Order of a court of competent jurisdiction.
(Ledesma, An Outline of Philippine Immigration
and Citizenship Laws)
Application not a bar to objections in illegal arrest, lack of
or irregular preliminary investigation
An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the
legality of the warrant issued therefor, or from assailing
the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he
raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later
than the start of the trial of the case. (Sec. 26, Rule 114)
The Secretary of Justice may issue a hold departure order
in any of the following instances:
1. Against the accused, irrespective of nationality,
in criminal cases falling within the jurisdiction
of courts below the RTC;
2. Against the alien whose presence is required
either as a defendant, respondent, or witness in
a civil or labor case pending litigation, or any
case before an administrative agency of the
government;
3. The Secretary of Justice may likewise issue the
said order against any person, either motu
proprio, or upon the request by the head of a
Department of the Government, the head of a
constitutional body or commission, the Chief
Justice of the SC for the Judiciary, the Senate
President or the House Speaker for the
Legislature, when the adverse party is the
Government or any of its agencies or
instrumentalities, or in the interest of national
security, public safety or public health. (Sec. 1,
DOJ Cir. No. 41-10)

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The validity of a hold departure order extends up to five
(5) years from the date of its issuance.
Bondsmen can prevent accused from leaving country by
arresting him or asking for him to be re-arrested by a
police officer upon written authority. (Sec. 23, Rule 114)
The accused may be prohibited from the leaving country
during the pendency of his case (People v. Uy Tuising,
1935; Manotoc v. CA 1986). If the accused released on bail
attempts to depart from the Philippines without the
permission of the court where his cases is pending, he
may be re-arrested without warrant. (Sec. 23, Rule 113)
A hold departure order may be issued only by the RTCs in
criminal cases within their exclusive jurisdiction. (SC
Circular No. 39-97)
BUREAU OF IMMIGRATION WATCH LIST
A watch list order is an alarm issued by the COI that
requires immigration personnel at authorized ports of
entry or departure to immediately notify the appropriate
government or law enforcement agency concerned of the
entry or intended departure of a traveler whose presence:
1. Is required in civil, criminal or administrative
proceedings; or
2. Poses or may pose a threat to national security,
public health or public safety. (Ledesma, An
Outline of Philippine Immigration and
Citizenship Laws)
The Secretary of Justice may issue a watch list order
under any of the following instances:
1. Against the accused, irrespective of nationality,
in criminal cases pending trial before the RTC;
2. Against the respondent, irrespective of
nationality in criminal cases pending
preliminary investigation, petition for review, or
motion for reconsideration before the DOJ or
any of its provincial or city prosecution offices;
3. The Secretary of Justice may likewise issue the
said order against any person, either motu
proprio, or upon the request of any government
agency, including commissions, task forces or
similar entities created by the Office of the
President, pursuant to the "Anti-Trafficking in
Persons Act of 2003" (R.A. No. 9208) and/or in
connection with any investigation being
conducted by it, or in the interest of national
security, public safety or public health. (Sec. 2,
DOJ Cir. No. 41-10)
The validity of a watch list order extends up to sixty (60)
days from date of issuance.
NO BAIL AFTER FINAL JUDGMENT
General Rule: Finality of judgment terminates the criminal
proceeding. Bail becomes of no avail. The judgment
contemplated is a judgment of conviction. The judgment
is final if accused does not appeal the conviction.
Exception: If accused applies for probation he may be
allowed temporary liberty under his existing bail bond, or
if no bail was filed, or is incapable of filing one, he may be
released on recognizance to the custody of a responsible
member of the community.
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The application for probation must be filed within the
period of perfecting an appeal. Such filing operates as a
waiver of the right to appeal. The accused in the
meantime, is entitled to be released on bail or
recognizance (Sec. 4, P.D. 968, as amended).
G. ARRAIGNMENT AND PLEA (RULE
116)
ARRAIGNMENT
Arraignment is the formal mode and manner of
implementing the constitutional right of accused to be
informed of the nature and cause of the accusation
against him. It is an indispensable requirement of due
process. (Taglay v. Daray, 2012)
The absence of arraignment results in the nullity of the
proceedings before the trial court. If the accused has not
been arraigned, he cannot be tried in absentia. (Sec. 14(2),
Art. III, 1987 Constitution)
Arraignment may be made even after the case has been
submitted for decision, and will be considered cured
where the accused’s counsel participated in the trial
without any objection that his client had yet to be
arraigned. Furthermore, the fact that his counsel was able
to cross-examine the prosecution witnesses is a clear
indication that he was fully aware of the charges against
him. (People v. Atienza, 1995)
Before arraignment, the court shall:
1. Inform the accused of his right to counsel;
2. Ask him if he desires to have one; and
3. Must assign a counsel de officio to defend him,
unless the accused:
a. Is allowed to defend himself in person;
or
b. Has employed a counsel of his choice.
(Sec. 6, Rule 116)
In localities where members of the bar are not available,
the court may appoint any person, resident of the
province and of good repute for probity and ability, to
defend the accused. 9Sec. 7, Rule 116)
PLEA
Plea pertains to the matter which the accused, on his
arraignment, alleges in answer to the charge against him.
The accused may plead guilty or not guilty.
OPTIONS OF THE ACCUSED BEFORE ARRAIGNMENT
AND PLEA
1. Bill of particulars
2. Suspension of the arraignment, only if:
a. The accused appears to be suffering from
an unsound mental condition which
effectively renders him unable to fully
understand the charge against him and to
plead intelligently thereto;
b. There exists a prejudicial question; and
c. There is a petition for review of the
resolution of the prosecutor which is
pending at either the DOJ, or the Office of
the President.
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NOTE: The period of suspension shall
not exceed sixty (60) days counted from
the filing of the petition with the
reviewing office. (Sec. 11(c), Rule 116)
3. Motion to quash;
4. Challenge the validity of arrest or legality of the
warrant issued or assail the regularity or
question the absence of preliminary
investigation of the charge.
ARRAIGNMENT UNDER AN AMENDED OR
SUBSTITUTED INFORMATION
Where the accused has already been arraigned and
subsequently, the information was substantially amended,
an arraignment on the amended information is
mandatory. (Cabangbangan v. Concepcion, 1954)
Where there is a mere formal amendment, there is no
need for another preliminary investigation and the
retaking of the plea of the accused. (Teehankee, Jr.
Madayag, 1992)
WHERE AND HOW MADE
1. The accused must be arraigned before the court
where the complaint or information was filed or
assigned for trial. (Sec. 1(a), Rule 116)
2. The arraignment is made in open court by the
judge or clerk by furnishing the accused with a
copy of the complaint or information, reading
the same in the language or dialect known to
him, and asking him whether he pleads guilty or
not guilty (Sec. 1(a), Rule 116)
3. The accused must be present at the
arraignment and must personally enter his plea.
(Sec. 1(b), Rule 116)
4. The private offended party is required to appear
at the arraignment for the following purposes:
a. Plea bargaining;
b. Determination of civil liability; and
c. Other matters requiring his presence.
(Sec. 1(f), Rule 116)
5. In case of failure of the offended party to appear
despite due notice, the court may allow the
accused to enter a plea of guilty to a lesser
offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone. (Sec. 1(f), Rule 116)
6. The arraignment and plea shall be made of
record, but failure to do so shall not affect the
validity of the proceedings. (Sec. 1(b), Rule 116)
WHEN MADE
1. The arraignment shall be held within thirty (30)
days from the date the court acquires
jurisdiction over the person of the accused,
unless a shorter period is provided by a special
law or a Supreme Court circular. (Sec. 1(g), Rule
116)
2. Where a plea of guilty is not entered, the
accused shall have at least fifteen (15) days to
prepare for the trial, and he/she shall state
whether he/she interposes a negative or
affirmative defense.
3. When the accused is under preventive
detention, his case shall be raffled and its
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records transmitted to the judge to whom the
case was raffled within three (3) days from the
filing of the information or complaint. The
accused shall then be arraigned within ten (10)
days from the date of the raffle and the pre-trial
conference of his case shall be held within ten
(10) days after arraignment. (Sec. 1(e), Rule 116)
In computing the period, the following shall be excluded:
1. The time of the pendency of the motion to
quash;
2. The time for the pendency of a bill of
particulars; or
3. Other causes justifying suspension of the
arraignment. (Sec. 1(g), Rule 116)
WHEN SHOULD A PLEA OF “NOT GUILTY” BE
ENTERED
1. When the accused so pleaded;
2. When he refuses to plead;
3. Where, after a plea of guilt, he presents
exculpatory evidence in which case the guilty
plea shall be deemed withdrawn;
4. When the accused admits the facts in the
information but alleges that he performed the
acts as a matter of defense or with lawful
justification;
5. When the plea of guilt is indefinite, ambiguous,
or not absolute;
6. When he enters a conditional plea of guilt; or
7. When there is a withdrawal of an improvident
plea of guilt.
PLEA OF GUILTY AS A JUDICIAL CONFESSION
General Rule: An unconditional plea of guilt is a judicial
confession, hence an admission of all the material facts
alleged in the information, including the aggravating
circumstances alleged. (People v. Gravino, 1983)
Exceptions: The rule on the admission of aggravating
circumstances will not apply of:
1. The circumstances are disproved by the
evidence;
2. Where the plea of guilty was compelled by
violence or intimidation;
3. When accused did not fully understand the
meaning and consequences of his plea;
4. Where the information is insufficient to sustain
conviction of the offense charged;
5. Where the information does not charge an
offense, any conviction thereunder being void;
or
6. Where the court has no jurisdiction.
PLEA BARGAINING
Plea bargaining is a process whereby the accused and the
prosecution work a mutually satisfactory disposition of
the case subject to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to only
one or some of the counts of a multi-count indictment in
return for a lighter sentence that that for the graver
charge. (Daan v. Sandiganbayan, 2008)
REQUISITES FOR A PLEA OF GUILTY TO A LESSER
OFFENSE
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The accused may plead guilty to a lesser offense
provided:
1. The lesser offense is necessarily included in the
offense charged; and
2. The plea must be with the consent of both the
offended party and the prosecutor. (Sec. 2, Rule
116)
The consent of the offended party will not be required if
said party, despite due notice, fails to appear during the
arraignment. (Sec. 1(f), Rule 116)
If accused entered a plea to a lesser offense without the
consent of the offended party and the prosecutor and he
was convicted, his subsequent conviction of the crime
charged would not place him in double jeopardy.
The acceptance of an offer to plead guilty to a lesser
offense is a matter addressed entirely to the sound
discretion of the trial court. (Daan v. Sandiganbayan,
2008)
An offense is necessarily included in another when some
of the essential elements or ingredients of the former as
alleged in the complaint or information constitute the
latter and vice versa. (Daan v. Sandiganbayan, 2008)
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A
LESSER OFFENSE
The accused may plead guilty to a lesser offense at or
after arraignment, and after his prior plea of guilty is
withdrawn, provided that the same be made before trial.
(Sec. 2, Rule 116)
It has been held, however, that it may also be considered
during the trial proper and even after the prosecution has
finished presenting its evidence and rested its case. (Daan
v. Sandiganbayan, 2008)
After arraignment but before trial, the accused may still
be allowed to plead guilty to a lesser offense after
withdrawing his plea of not guilty. No amendment of the
complaint or information is necessary.
PLEA OF GUILTY TO A CAPITAL OFFENSE, WHAT THE
COURT SHOULD DO
A capital offense is one, which, under the law existing at
the time of the commission and of the application for
admission to bail, may be punished with death. (Sec. 6,
Rule 114) At present, the death penalty is no longer
imposed but the definition has been retained in the Rules
of Court.
When accused pleads guilty to a capital offense, the court
shall:
1. Conduct a searching inquiry to ascertain:
a. The voluntariness of the plea; and
b. Whether or not the accused has full
comprehension of the consequences
of his plea;
2. Require the prosecution to prove:
a. The guilt of the accused; and
b. The precise degree of his culpability;
and
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Criminal Procedure
3. Ask the accused if he desires to present
evidence in his behalf and allow him to do so if
he desires. (Sec. 3, Rule 116)
SEARCHING INQUIRY
It is essential that a searching inquiry is conducted after
the accused pleads guilty to a capital offense, and the
following guidelines must be complied with in making
such inquiry:
1. Ascertain from the accused himself the
voluntariness of the plea and:
a. How he was brought into the custody
of the law;
b. Whether he had the assistance of a
competent counsel during the
custodial and preliminary
investigations; and
c. Under what conditions he was
detained and interrogated during the
investigations.
2. Ask the defense counsel a series of questions as
to whether he had conferred with, and
completely explained to the accused the
meaning and consequences of a plea of guilty;
3. Elicit information about the personality profile
of the accused (e.g. age, socio-economic status,
and educational background);
4. Inform the accused the exact length of
imprisonment or nature of the penalty under
the law and the certainty that he will serve such
sentence.
5. Inquire if the accused knows the crime with
which he is charged and fully explain to him the
elements of the crime which is the basis of his
indictment.
6. All questions posed to the accused should be in
a language known and understood by the latter.
7. The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The
accused must be required to narrate the
tragedy or reenact the crime or furnish its
missing details. (People v. Pastor, 2002)
Where the court failed to conduct the searching inquiry,
the plea of guilt is deemed made improvidently and
rendered inefficacious. (People v. Gumimba, 2007)
Although there is no definite and concrete rule as to how
a trial judge may go about the manner of conducting a
proper "searching inquiry," it would be well for the court
to require the accused to fully narrate the incident that
spawned the charges against him, or by making him
reenact the manner in which he perpetrated the crime, or
by causing him to furnish and explain to the court missing
details of significance. (People v. Bello, 1999)
The trial court should also be convinced that the accused
has not been coerced or placed under a state of duress
either by actual threats of physical harm coming from
malevolent or avenging quarters. Likewise, a series of
questions directed at defense counsel as to whether or
not said counsel had conferred with, and completely
explained to the accused the meaning of a plea and its
consequences, would be a well-taken step along those
lines. (People v. Estomaca, 1996)
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PLEA OF GUILTY TO A NON-CAPITAL OFFENSE Suspension of the arraignment is allowed, only if:
When the accused pleads guilty to a non-capital offense, 1. The accused appears to be suffering from an
the court may receive evidence from the parties to unsound mental condition which effectively
determine the penalty to be imposed. (Sec. 4, Rule 116) renders him unable to fully understand the
charge against him and to plead intelligently
No searching inquiry is required nor can the accused that thereto;
the same be conducted in order to determine the 2. There exists a prejudicial question; and
voluntariness and full comprehension of the 3. There is a petition for review of the resolution
consequences of his plea. (People v. Madraga, 2000) of the prosecutor which is pending at either the
DOJ, or the Office of the President.
IMPROVIDENT PLEA
An improvident plea is one given without proper When a judge is informed or discovers that an accused is
information as to all circumstances affecting it and is apparently in a present condition of insanity or imbecility,
based upon a mistaken assumption or misleading it is within his discretion to investigate the matter, and if
information or advice. (Black’s Law Dictionary) it be found that by reason of such affliction the accused
could not, with the aid of counsel, make a proper defense,
An improvident plea is when the trial court failed in its it is the duty of the court to suspend the proceedings and
duty to conduct the prescribed “searching inquiry” into commit the accused to a proper place of detention until
the voluntariness and full comprehension of the plea of his faculties are recovered (People v. Alcalde, 2002).
guilty, hence, the said plea is rendered inefficacious.
(People v. Gumimba, 2007) H. MOTION TO QUASH (RULE 117)
There are three (3) conditions that the trial court should
MOTION TO QUASH
do in order to forestall the entry of an improvident plea of
A motion to quash is a mode by which an accused assails
guilty by the accused, namely:
the validity of a criminal complaint or information filed
1. The court must conduct a searching inquiry
against him for sufficiency on its face in point of law, or
into the voluntariness and full comprehension
for defects which are apparent in the face of the
by the accused of the consequences of his plea;
information.
2. The court must require the prosecution to
present evidence to prove the guilt of the
The term “to quash” means “to annul, vacate or
accused and the precise degree of his
overthrow,” implying that quashing an information does
culpability; and
not necessarily mean its dismissal. (People v.
3. The court must ask the accused whether he
Sandiganbayan, 2004)
desires to present evidence on his behalf, and
allow him to do so if he so desires (People v.
WHEN FILED
Spidol, 2004).
A motion to quash may be made at any time before the
accused enters his plea. (Sec. 1, Rule 117)
At any time before the judgment of conviction becomes
final, the court may permit an improvident plea of guilty
General Rule: A motion to quash is an omnibus motion
to be withdrawn and be substituted by a plea of not
since all objections available at the time the motion is
guilty. (Sec. 5, Rule 116)
filed should be invoked, otherwise, it shall be deemed a
waiver of the said objections.
Convictions based on an improvident plea of guilty are set
aside only if such plea is the sole basis of the judgment.
Exception: The following objections are not waived (Sec. 9,
(People v. Solamillo, 2003) Where the court relied on
Rule 117):
sufficient and credible evidence to convict the accused,
1. The facts charged do not constitute an offense
the same will be sustained. (People v. Ceredon, 2008)
(Sec. 3(a), Rule 117);
2. The court trying the case has no jurisdiction
The withdrawal of plea of guilt is a matter of sound
over the offense charged (Sec. 3(b), Rule 117);
discretion of the trial court. (People v. Lambrino, 1958).
3. The criminal action or liability has been
extinguished (Sec. 3(g), Rule 117); and
INSTANCES OF IMPROVIDENT PLEA
4. Double jeopardy. (Sec. 3(i), Rule 117)
1. When the plea of guilty was compelled by
violence or intimidation;
A motion to quash presupposes that the accused
2. When the accused did not fully understand the
hypothetically admits the facts alleged, hence, the court
meaning and consequences of his plea;
in resolving the motion cannot consider facts contrary to
3. When there is insufficient information to
those alleged in the information or which do not appear
sustain conviction of the offense charged;
on the face of the information, except those admitted by
4. When the information does not charge an
the prosecution. (Milo v. Salanga, 1987)
offense, hence, any conviction thereunder is
void;
A motion to quash is generally not allowed in a summary
5. When the court has no jurisdiction;
procedure except on the ground of lack of jurisdiction
6. When there was a failure to conduct searching
over the subject matter or failure to comply with the
inquiry, if necessary.
barangay conciliation proceedings. (Sec. 19, Rule on
Summary Procedure)
GROUNDS FOR SUSPENSION OF ARRAIGNMENT

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EFFECTS OF SUSTAINING THE MOTION TO QUASH

FORM AND CONTENTS OF THE MOTION TO QUASH General Rule: An order sustaining a motion to quash is not
1. The motion shall be in writing; a bar to another prosecution for the same offense. Hence,
2. The motion shall be signed by the accused or the court may order that another complaint or
his counsel; and information be filed.
3. The motion shall distinctly specify the factual
and legal grounds thereof. (Sec. 2, Rule 117) Exception: Another complaint or information cannot be
filed when the ground relied upon for sustaining the
GROUNDS FOR A MOTION TO QUASH motion is either:
1. The facts charged do not constitute an offense; 1. The extinction of the criminal liability; or
2. The court trying the case has no jurisdiction 2. Double jeopardy.
over the offense charged;
3. The court trying the case has no jurisdiction If the motion to quash is based on the alleged defect of
over the person of the accused; the complaint or information, and the defect can be
4. The officer who filed the information had no cured, the court can order that an amendment be made
authority to do so; (Sec. 4, Rule 117). However, the prosecution:
5. The motion does not conform substantially to 1. Fails to make the amendment; or
the prescribed form; 2. If despite the amendment, the complaint or
6. More than one offense is charged except when information suffers from the same defect, the
a single punishment for various offenses is court shall grant the motion to quash. (Sec. 4,
prescribed by law; Rule 117, Rules of Court)
7. The criminal action or liability has been
extinguished; If the court orders that another complaint or information
8. It contains averments which, if true, would be filed, the accused, who may be in custody, shall not be
constitute a legal excuse or justification; discharged or released, except if he is admitted to bail.
9. The accused has been previously convicted or (Sec. 5, Rule 117) If such order is not made, or if having
acquitted of the offense charged, or the case been made, another information is not filed within a time
against him was dismissed or otherwise to be specified in the order, or within such time as the
terminated without his express consent. (Sec. 3, court may allow, accused, if in custody, shall be
Rule 117) discharged therefrom, unless he is also in custody on
some other charge.
MOTION TO QUASH VIS-À-VIS DEMURRER TO
EVIDENCE If the motion to quash is sustained upon any of the
Motion to Quash Demurrer to Evidence following grounds, the court must state, in its order
(Rule 117) (Rule 119) granting the motion, the release of accused if he is in
Filed after the prosecution custody or the cancellation of his bond if he is on bail:
Filed before the accused 1. That a criminal action or liability has been
rests its case (Sec. 23, Rule
enters a plea. extinguished;
119), hence, during trial.
2. That the complaint contains averments which, if
No prior leave of court is Either with or without
true, would constitute a legal excuse or
required. leave of court.
justification; or
Grounds under Sec. 3, Rule Ground is for insufficiency
3. That the accused has been previously convicted
117 of the Rules of Court. of evidence.
or acquitted of the offense charged.
Based on matters found on Based on matters outside
the face of the complaint the complaint or
If the ground upon which the motion to quash was
or information. information.
sustained is that the court has no jurisdiction over the
When granted, a dismissal
offense, the better practice is for the court to remand or
of the case will not
forward the case to the proper court.
necessarily follow as the When granted, it amounts
court may order the filing to an acquittal.
Exception to the rule that sustaining the motion to quash
of a new complaint or
aS not a bar to another prosecution
information.
An order sustaining the An order granting a General Rule: An order sustaining a motion to quash is not
motion is generally not a demurrer is a resolution of a bar to another prosecution for the same offense. Hence,
bar to another prosecution. the case on the merits. the court may order that another complaint or
information be filed.
REMEDY FROM A DENIAL OF THE MOTION TO QUASH
General Rule: The movant should go to trial without Exception: Another complaint or information cannot be
prejudice to reiterating the special defenses invoked in filed when the ground relied upon for sustaining the
the motion to quash. A petition for certiorari under Rule motion is either:
65 or prohibition is not the proper remedy. 1. The extinction of the criminal liability; or
2. Double jeopardy.
Exception: If the court, in denying the motion to quash,
acted with grave abuse of discretion amounting to lack or DOUBLE JEOPARDY
excess of jurisdiction. (Lazarte v. Sandiganbayan, 2009) Double jeopardy refers to the jeopardy of punishment for
the same offense and presupposes two separate criminal

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prosecutions (Garcia v. Sandiganbayan, 2009). Also called
as “res judicata in prison grey,” the right against double
jeopardy prohibits the prosecution for a crime of which
he has been previously convicted or acquitted (Caes v.
IAC, 1989)
NOTE: Res judicata is a doctrine in civil law, and thus, has
no bearing in criminal proceedings even if double
jeopardy has been described as “res judicata in prison
grey.” (Trinidad v. Office of the Ombudsman, 2007)
This criminal law concept of double jeopardy stems from
the constitutional provision that “no person shall be twice
put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another
prosecution for the same act.” (Sec. 21, Art. III, 1987
Constitution)
The Constitution does not prohibit placing a person in
jeopardy. What it prohibits is putting an accused in
“double jeopardy” in which he is put in danger of
conviction and punishment for the same offense more
than once.
Double jeopardy presupposes that:
1. A first jeopardy has already attached prior to
the second jeopardy;
2. The first jeopardy has already been terminated
either because the accused has already been
convicted, or acquitted, or the case against him
has been dismissed or terminated without his
express consent.
REQUISITES OF DOUBLE JEOPARDY
Double jeopardy attaches only:
1. Upon a valid indictment;
- There must be a valid complaint or
information or formal charge sufficient in
form and substance to sustain a conviction.
Sec. 7, Rule 117)
2. Before a competent court;
3. After arraignment;
4. When a valid plea has been entered; and
5. When the defendant was acquitted or
convicted, or the case was dismissed or
otherwise terminated without the express
consent of the accused.
- The mere filing of two informations or
complaints charging the same offense does
not yet afford the accused the occasion to
complain that he is being placed in double
jeopardy. (Tangan v. People, 1987)
When all the requisites are present, they constitute a bar
to a second prosecution for:
1. The same offense, or
2. An attempt to commit the said offense, or
3. A frustration of the said offense, or
4. Any offense which necessarily includes or is
necessarily included in the first offense
charged.
Not every dismissal with the consent of the accused
would preclude the invocation of the protection against
double jeopardy. Double jeopardy will apply even if the
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dismissal made with the express consent of the accused,
or upon his own motion, if the dismissal, which will have
the effect of acquittal, is predicated on either of two
grounds:
1. Insufficiency of evidence; or
2. Denial of the right to speedy trial. (People v.
Declaro, 1989)
The invocation of the right to speedy trial should be
preceded by insisting on a trial. (Andres v. Cacdac, 1982)
The same criminal act may give rise to two or more
separate and distinct offenses. No double jeopardy
attaches as long as there is a variance between the
elements of the two offenses charged. (Braza v.
Sandiganbayan, 2013)
The rule on double jeopardy does not apply to
administrative cases. (Icasiano v. Sandiganbayan, 1992)
Dismissal of the criminal case does not result in the
dismissal of the administrative case because there exists a
difference between those two remedies. (Office of the
Ombudsman v. Medrano, 2008)
A preliminary investigation is merely inquisitorial, is an
executive function, and is not a trial of the case on the
merits, its only purpose being to determine whether a
crime has been committed and whether there is probable
cause to believe that the accused is guilty therefor. As
such, it does not place the person against whom it is
taken in jeopardy. (Tandoc v. Resultan, 1989)
Double jeopardy does not attach where the criminal trial
was a sham. (Galman v. Sandiganbayan, 1986)
There is no double jeopardy when the accused are being
prosecuted for an act or incident punished by four
national statutes and not by an ordinance and a national
statute. (Loney v. People, 2006)
FINALITY-OF-ACQUITTAL DOCTRINE
As a rule, an acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately final
and cannot be appealed because of double jeopardy.
(People v. Sandiganbayan, 2010)
The State is proscribed from appealing the judgment of
acquittal through either a regular appeal under Rule 41 of
the Rules of Court, or an appeal by certiorari on pure
questions of law under Rule 45 of the same Rules. (People
v. Nazareno, 2009)
The finality-of-acquittal doctrine recognizes that the
accused is entitled to repose as a direct consequence of
the finality of his acquittal. The purposes of the doctrine
are:
1. To prevent the State from using its criminal
processes as an instrument of harassment
against the accused;
2. It serves to preclude the State from successively
retrying the accused in the hope of securing a
conviction; and
3. It prevents the State from retrying the accused
again in the hope of securing a greater penalty.
(Villareal v. Aliga, 2014)
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DISMISSAL VIS-À-VIS ACQUITTAL
Acquittal is always based on the merits; dismissal does
not decide the case on the merits nor does it mean that
the defendant is not guilty. (People v. Salico, 1949)
If an act is punished by a law and an ordinance, even if
they are considered as different offenses, conviction or
acquittal under either shall constitute a bar to another
prosecution for the same act. (Manantan v. CA, 2001)
If a single act is punished by two different provisions of
law or statutes, but each provision requires proof of an
additional fact which the other does not so require,
neither conviction nor acquittal in one will bar a
prosecution for the other. (Perez v. CA, 1988)
TESTS FOR DETERMINING WHETHER THE TWO
OFFENSES ARE IDENTICAL
1. Same offense test
2. Same evidence test
SAME OFFENSE TEST
General Rule: There is an identity between two offenses
not only when the second offense is exactly the same as
the first, but also when the second offense is an attempt
to or frustration of, or is necessarily included in the
offense charged in the first information. (Carmelo v.
People, 1950)
Exceptions:
1. The graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge.
2. The facts constituting the graver charge
became known or were discovered only after a
plea was entered in the former complaint or
information.
3. The plea of guilty to the lesser offense was
made without consent of the prosecutor and of
the offended party; except when the offended
party failed to appear during the arraignment.
In any of these instances are present, such period of the
sentence as may have been served by accused under the
former conviction shall be credited against and deducted
from the sentence he has to serve should he be convicted
under the subsequent prosecution.
SAME EVIDENCE TEST
Whether the facts as alleged in the second information, if
proved, would have been sufficient to sustain the former
information, or from which accused may have been
acquitted or convicted. (People v. Silva, 1962)
PROVISIONAL DISMISSAL
The concept of a provisional dismissal contemplates that
the dismissal of the criminal action is not permanent and
can be revived within the period set by the Rules of
Court.
The provisional dismissal of the case does not operate as
an acquittal since its dismissal was made with the express
consent of the accused, thus, there is no double jeopardy.
Saldariega v. Panganiban, 2015)
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REQUISITES OF A VALID PROVISIONAL DISMISSAL
1. There must be express consent of the accused;
and
2. There must be notice to the offended party.
Only upon compliance of the above requisites can the
time-bar rule operate.
The express consent of the accused in order to bar him
from subsequently asserting that the revival of the
criminal case will place him in double jeopardy for the
same offense or for an offense necessarily included
therein. Express consent to a provisional dismissal is
given either viva voce or in writing. (People v. Lacson,
2003)
TIME-BAR RULE
1. The provisional dismissal of offenses punishable
by imprisonment not exceeding six (6) years or
a fine of any amount, or both, shall become
permanent one (1) year after issuance of the
order without the case having been revived.
2. The provisional dismissal of offenses punishable
by imprisonment of more than six (6) years shall
become permanent two (2) years after issuance
of the order without the case having been
revived. (Sec. 8, Rule 117)
ADDITIONAL RULES ON PROVISIONAL DISMISSAL
In the following instances, the court can provisionally
dismiss the action with the express consent of the
accused:
1. When the delays are due to the absence of an
essential witness whose whereabouts are
unknown or cannot be determine and,
therefore, are subject to exclusion in
determining compliance with the prescribed
time limits which cause the trial to exceed one
hundred eighty (180) days;
2. When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence although his
whereabouts are known, provided:
a. The hearing in the case has been
previously twice postponed due to the
non-appearance of the essential
witness and both the witness and the
offended party, if they are two
different persons, have been given
notice of the setting of the case for
third hearing, which notice contains a
warning that the case would be
dismissed if there is a continuous
absence;
b. There is proof of service of the notices
of hearings or subpoena at their last
known postal or e-mail addresses or
mobile phone numbers. (Sec. 10, A.M.
No. 12-11-2-SC)
The public or private prosecutor shall first present during
the trial the essential witness or witnesses to the case
before anyone else. (Riano)
An essential witness is one whose testimony dwell on the
presence of some or all of the elements of the crime and
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whose testimony is indispensable to the conviction of the
accused. (Riano)
General Rule: Where the case was dismissed
“provisionally” with the consent of accused, he cannot
invoke double jeopardy in another prosecution therefor
or where the case was reinstated on a motion for
reconsideration by the prosecution. (People v. Lacson,
2003)
Exceptions: Where the dismissal was actually an acquittal
based on:
1. Lack or insufficiency of the evidence; or
2. Denial of the right to speedy trial.
REVIVAL OF CASE PROVISIONALLY DISMISSED
In an action for violation of the Comprehensive
Dangerous Drugs Act, the case was provisionally
dismissed due to failure of prosecution’s principal witness
to attend series of hearing, the state may cause the
revival of the case provided it is done within the period
provided under Sec. 8(2), Rule 117 of the Rules of Court.
(Saldariega v. Panganiban, 2015)
EFFECT OF DISMISSAL OF THE CASE AGAINST THE
PRINCIPALS TO THE ACCOMPLICES
In an action against accomplices under the Anti Hazing
Law, the dismissal of the case against the principals does
not ipso facto result in the dismissal of the case against
the accomplices especially when the occurrence of the
crime has in fact been established. (People v. Bayabos,
2015)
I. PRE-TRIAL (RULE 119)
PRE-TRIAL
A pre-trial is a proceeding conducted before trial of the
case for the purpose of considering certain matters.
A pre-trial is mandatory in all civil (Sec. 2, Rule 18) and
criminal cases (Sec. 1, Rule 118).
Pre-trial is mandatory in all criminal cases cognizable by
the following courts:
1. Sandiganbayan;
2. RTC;
3. MeTC, MTCC, MTC, and MCTC. (Sec. 1, Rule 118)
WHEN HELD
1. Within thirty (30) days after arraignment;
2. Within ten (10) days if the accused is under
preventive detention;
3. Where the direct testimonies of the witnesses
are to be presented through judicial affidavits,
the court shall give the prosecution not more
than twenty (20) days from arraignment within
which o prepare and submit their judicial
affidavits in time for the pre-trial conference.
(Sec. 8(c), A.M. No. 12-11-2-SC)
MATTERS TO BE CONSIDERED DURING PRE-TRIAL
CONFERENCE
1. Plea bargaining;
2. Stipulation of facts;
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3. Marking for identification of evidence of the
parties;
4. Waiver of objections to admissibility of
evidence;
5. Modification of the order of trial if the accused
admits the charge but interposes a lawful
defense; and
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil aspects
of the case (Sec. 1, Rule 118).
PLEA BARGAINING
Plea bargaining is a process whereby the accused and the
prosecution work a mutually satisfactory disposition of
the case subject to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to only
one or some of the counts of a multi-count indictment in
return for a lighter sentence that that for the graver
charge. (Daan v. Sandiganbayan, 2008)
REQUISITES FOR A PLEA OF GUILTY TO A LESSER
OFFENSE
The accused may plead guilty to a lesser offense
provided:
1. The lesser offense is necessarily included in the
offense charged; and
2. The plea must be with the consent of both the
offended party and the prosecutor. (Sec. 2, Rule
116)
The consent of the offended party will not be required if
said party, despite due notice, fails to appear during the
arraignment. (Sec. 1(f), Rule 116)
If accused entered a plea to a lesser offense without the
consent of the offended party and the prosecutor and he
was convicted, his subsequent conviction of the crime
charged would not place him in double jeopardy.
The acceptance of an offer to plead guilty to a lesser
offense is a matter addressed entirely to the sound
discretion of the trial court. (Daan v. Sandiganbayan,
2008)
An offense is necessarily included in another when some
of the essential elements or ingredients of the former as
alleged in the complaint or information constitute the
latter and vice versa. (Daan v. Sandiganbayan, 2008)
PRE-TRIAL AGREEMENT
All agreements and admissions made or entered during
the pre-trial conference shall be:
1. Reduced in writing; and
2. Signed by the accused and counsel.
Failure to comply with the above requirements renders
inadmissible the said admissions against the accused. (I-
B(8), A.M. 03-1-09-SC)
All proceedings during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed by the
parties and/or their counsels. (I-B(5), A.M. 03-1-09-SC)
NON-APPEARANCE AT PRE-TRIAL
If the counsel for the accused or the prosecutor does not
appear at the pre-trial conference and does not offer an
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acceptable excuse for his lack of cooperation, the court 1. From the filing of the complaint, to the conduct
may impose proper sanctions or penalties. (Sec. 3, Rule of CAM (Court-Annexed Mediation) and JDR
118, Rules of Court) during the pre-trial stage; and
2. Pre-trial proper to trial and judgment.
PRE-TRIAL ORDER
Within ten (10) days after the termination of the pre-trial, The JDR judge, to whom the case has been originally
the trial judge shall issue a Pre-trial Order setting forth: raffled, shall preside over the first stage in order to
1. The actions taken during the pre-trial conduct the CAM and JDR. If the mediation did not
conference; succeed, the JDR judge cannot preside over the trial of
2. The facts stipulated; the same case.
3. The admissions made;
4. The evidence marked; After the arraignment, the court shall forthwith set the
5. The number of witnesses to be presented; and pre-trial conference within 30 days from the date of
6. The schedule of the trial. arraignment, and issue an order informing the parties
that no evidence shall be allowed to be presented and
The Pre-trial Order shall bind the parties, limit the trial to offered during the trial other than those identified and
matters not disposed of and control the course of the marked during the pre-trial except when allowed by the
action during trial, unless modified by the court to court for good cause shown. In mediatable cases, the
prevent manifest injustice. (I-B(10), A.M. 03-1-09-SC) judge shall refer the parties and their counsel to the PMC
unit for purposes of mediation if available. (AM No. 03-1-
To prevent manifest injustice, the Pre-trial Order may be 09)
modified by the court, upon its own initiative or at the
instance of any party. Unlike in civil cases, modifications CASES SUBJECT TO MEDIATION FOR JDR
of the pre-trial order in criminal cases may be made even 1. All civil cases, settlement of estates, and cases
during trial. (1997 Bar) covered by the Rules on Summary Procedure,
except those which by law may not be
PRE-TRIAL IN A CIVIL CASE VIS-À-VIS PRE-TRIAL IN A compromised;
CRIMINAL CASE 2. Cases cognizable by the Lupong Tagapamayapa;
3. The civil aspect of B.P. 22 cases;
Pre-trial in a Criminal 4. The civil aspect of quasi-offenses under Title 14
Pre-trial in a Civil Case of the RPC;
Case
Proceeded by a motion ex No motion is required to 5. The civil aspect of estafa and libel;
parte. be filed. 6. The civil aspect of theft. (Riano)

Ordered after arraignment J. TRIAL (RULE 119)

Set after the motion is
filed.
The sanction for non-
appearance is imposed on
the non-appearing party.
Pre-trial briefs must be
submitted.
and within thirty (30) days
after the court acquires INSTANCES WHEN PRESENCE OF ACCUSED IS
jurisdiction. REQUIRED BY LAW
1. At arraignment and plea, whether of innocence
The sanction for non- or guilt;
appearance is imposed on 2. During trial, whenever necessary for
the counsel of the accused identification purposes; and
or the prosecutor. 3. At the promulgation of sentence, unless it is for
a light offense, in which case, the accused may
Pre-trial briefs are not appear by counsel or representative (People v.
required. De Grano, 2009).

Admissions must be in NOTE: The accused must be present at the arraignment

There is no strict warning writing and signed, and must personally enter his plea. (Sec. 1(b), Rule 116)
on admissions made. otherwise, it is
inadmissible. WHEN TRIAL SHALL COMMENCE
1. Trial shall be set not later than thirty (30) days
Referral of some cases for court annexed mediation and from the termination of the pre-trial
judicial dispute resolution conference.
2. After a plea of not guilty is entered, the accused
JUDICIAL DISPUTE RESOLUTION shall be given at least fifteen (15) days to prepare
Judicial Dispute Resolution (JDR) is a concept seeking to for trial. (Sec. 1, Rule 119)
resolve mediatable cases through mediation and
conciliation at the level of the judge, thereby increasing REQUISITES BEFORE A TRIAL CAN BE SUSPENDED ON
the satisfaction of litigants in the court process and also ACCOUNT OF THE ABSENCE OF A WITNESS
helping to decongest the dockets of the judiciary. It is 1. The essential witness is absent or unavailable;
also done in order to expedite the resolution of cases. 2. The witness must be an essential witness.
(Casilan v. Gancatco, 1958)
Judicial proceedings is divided into two stages:

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To justify the delay, the witness must be an “essential”
witness or one who is “indispensable, necessary or
important in the highest degree.” (Black’s Law Dictionary)
ABSENCE OF A WITNESS
An essential witness is considered absent in either of the
following situations:
1. His whereabouts are unknown; or
2. His whereabouts cannot be determined by due
diligence. (Sec. 3(b), Rule 119)
UNAVAILABILITY OF A WITNESS
A witness is considered unavailable, even if his
whereabouts are known, provided that his presence for
the trial cannot be obtained by due diligence. (Sec. 3(b),
Rule 119)
CONTINUOUS TRIAL
As a rule, once commenced, the trial shall continue from
day to day as far as practicable until terminated but it
may be postponed for a reasonable period of time for
good cause. In setting the case for continuous trial, the
court shall consult with the prosecutor and defense
counsel. (Sec. 2, Rule 119)
TRIAL PERIOD
The entire trial period shall not exceed one hundred
eighty (180) days from the first day of trial, except as
otherwise authorized by the SC. (Sec. 2, Rule 119)
POSTPONEMENT OR CONTINUANCE OF TRIAL
A postponement or continuance is subject to judicial
discretion. The factors to be considered for granting a
continuance are:
1. Whether or not the failure to grant a
continuance would likely make a continuation
of such proceeding impossible or result in a
miscarriage of justice; or
2. Whether or not the case, taken as a whole, is so
novel, unusual and complex, due to the number
of accused or the nature of the prosecution, or
that it is unreasonable to expect adequate
preparation within the periods of time
established therein. (Sec. 4, Rule 119)
The rule prohibits continuance based on the following
grounds:
1. Congestion of the court’s calendar;
2. Lack of diligent preparation; or
3. Failure to obtain available witnesses on the part
of the prosecutor. (Sec. 4, Rule 119)
ORDER OF TRIAL
1. The prosecution shall present its evidence to:
a. Prove the charge; and
b. Prove the civil liability in the proper
case.
2. The accused may then present his evidence to:
a. Prove his defense; and
b. Prove the damages he sustained, if
any, arising from the issuance of a
provisional remedy in the case.
3. The prosecution may present it rebuttal
evidence, unless the court allows it to present
additional evidence bearing on the main issue;
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4. The accused may present sur-rebuttal evidence,
unless the court allows it to present additional
evidence bearing on the main issue;
5. Upon submission of the evidence of the parties,
the case shall be deemed submitted for
decision, unless the court directs them to argue
orally or to submit written memoranda. (Sec. 11,
Rule 119)
REVERSE TRIAL
The order of the trial may be modified when the accused
admits the act or omission charged in the complaint or
information but interposes a lawful defense. (Sec. 11(e),
Rule 119)
TRIAL IN ABSENTIA
An accused need not always be present in every hearing
although it is his right to be present, if he so desires, from
arraignment to the rendition of the judgment. This right
stems from his constitutional right to meet the witnesses
against him face-to-face and other rights under the Bill of
rights.
While the right to be present may be waived, it does not
necessarily mean that the accused may be tried in his
absence (trial in absentia).
Such waiver of the accused’s right to be present in trial
does not mean that he is released from his obligation
under the bond to appear in court whenever so required.
Once an accused escapes from prison or confinement, he
loses his standing in court and is deemed to have waived
any right to seek relief from the court unless he
surrenders or submits to the jurisdiction of the court.
(People v. Licayan, 2002)
REQUISITES WHEN THE ACCUSED MAY BE TRIED IN
ABSENTIA
1. The accused has already been arraigned;
2. The accused has been duly notified of the trial
or hearings; and
3. The absence of the accused or his failure to
appear is unjustified. (Sec. 14(2), Art. III, 1987
Constitution)
REMEDY WHEN THE ACCUSED IS NOT BROUGHT TO
TRIAL WITHIN THE PRESCRIBED PERIOD
If the accused is not brought to trial in accordance with
the time limit set by Sec. 6, Rule 119 of the Rules of Court,
the information may be dismissed upon motion of the
accused, and on the ground of the denial of his right to
speedy trial. However:
1. The accused has the burden of proving the
ground for his motion; and
2. The prosecutor shall have the burden of going
forward with the evidence to establish that the
delay belongs to the exclusion of time
mentioned in Sec. 3, Rule 119 of the Rules of
Court.
In case of dismissal on the ground of denial of the right to
speedy trial, the dismissal shall be subject to the rules on
double jeopardy. (Sec. 9, Rule 119)
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To be afforded such dismissal, the court shall take into
consideration the following factors:
1. Duration of the delay;
2. Reasons for the delay;
3. Assertion of his right to speedy trial; and
4. Prejudice caused to him by such delay. (Mari
and People v. Hon. Gonzales, 2011)
NOTE: This motion must be filed before trial; otherwise, it
shall be considered waived.
DELAYS TO BE EXCLUDED IN COMPUTING THE
PERIOD FOR COMMENCEMENT OF TRIAL
Such delays include, but are not limited to, the following:
1. Delay resulting from an examination of the
physical and mental condition of the accused;
2. Delay resulting from proceedings with respect
to other criminal charges against the accused;
3. Delay resulting from extraordinary remedies
against interlocutory orders;
4. Delay resulting from pre-trial proceedings;
provided that the delay does not exceed thirty
(30) days;
5. Delay resulting from orders of inhibition, or
proceedings relating to change of venue of
cases or transfer from other courts;
6. Delay resulting from a finding of the existence
of a prejudicial question;
7. Delay reasonably attributable to any period, not
to exceed thirty (30) days, during which any
proceeding concerning the accused is actually
under advisement;
8. Delay resulting from the absence or
unavailability of an essential witness;
9. Delay resulting from the mental incompetence
or physical inability of the accused to stand
trial;
10. Delay from the date the charge was dismissed
to the date the time limitation would commence
to run as to the subsequent charge had there
been no previous charge if the information is
dismissed upon motion of the prosecution and,
thereafter, a charge is filed against the accused
for the same offense;
11. Delay which is reasonable, when the accused is
joined for trial with a co-accused over whom
the court has not acquired jurisdiction, or, as to
whom the time for trial has not run and no
motion for separate trial has been granted;
12. Delay resulting from a continuance granted by
any court motu proprio, or on motion of either
the accused or his counsel, or the prosecution,
if the court granted the continuance on the
basis of its findings set forth in the order that
the ends of justice served by taking such action
outweigh the best interest of the public and the
accused in a speedy trial. (Sec. 3, Rule 119)
DISCHARGE OF ACCUSED TO BECOME A STATE
WITNESS
General Rule: When two or more accused are jointly
charged for an offense, they shall be tried jointly, unless
the court, in its discretion, and upon motion of the
prosecutor orders a separate trial for one or more of the
accused. (Sec. 16, Rule 119)
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Exception: One or more of the accused tried jointly with
the others may be discharged with their consent so that
they may be witnesses for the state. For this purpose, the
prosecutor shall comply with the following:
1. File a motion for the discharge of the accused;
and
2. File the motion before the prosecution rests its
case. (Sec. 17, Rule 119)
Upon hearing of the motion, the court shall require the
prosecution to present evidence and the sworn
statement of each proposed state witness. The court shall
then conduct a hearing in support of the discharge. (Sec.
17, Rule 119, Rules of Court)
The prosecution may discharge an accused as a state
witness under its prosecutorial prerogative. However,
once the information has been filed in court, the witness
may only be discharged when the court allows it.
REQUISITES FOR DISCHARGE OF ACCUSED TO
BECOME A STATE WITNESS:
1. Two or more accused are jointly charged;
2. The motion for discharge is filed by the
prosecutor 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 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 the 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. (Sec. 17, Rule 119, Rules
of Court)
The witness need not be the least guilty. It is sufficient
that he or she should not appear to be the most guilty.
(Jimenez, Jr. v. People, 2014)
The absence of any of the requisites for the discharge of a
particeps criminis is a ground for objection to the motion
for his discharge. However, such objection must be raised
before the discharge is ordered.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE
WITNESS
If the motion is granted:
1. The evidence adduced during the discharge
hearing shall automatically form part of the
trial. (Sec. 17, Rule 119)
2. The discharge of the accused shall amount to an
acquittal and shall be a bar to another
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prosecution for the same offense, except if the
accused fails or refuses to testify against his co-
accused in accordance with his sworn
statement constituting the basis for his
discharge. (Sec. 18, Rule 119)
4. Failure to testify refers exclusively to
defendant’s will or fault.
3. Where an accused becomes a state witness on
the promise of immunity, but later retracts and
fails to keep his part of the agreement, his
confession of his participation in the
commission of the crime is admissible as
evidence against him.
If the motion is denied:
1. The accused’s sworn statement shall be
inadmissible in evidence. (Sec. 17, Rule 119)
2. The proposed state witness shall be prosecuted
like his co-accused.
It is not required that the state witness’ testimony convict
the accused. Regardless of the judgment, the accused
who becomes a state witness shall enjoy immunity.
STATE WITNESS RULE
Where a motion for the discharge of the witness as an
accused pursuant to the witness protection program was
granted by the trial court judge, no grave abuse of
discretion could be ascribed against the judge provided
that the testimony of the accused is a matter of absolute
necessity, that his testimony is substantially
corroborated, and that he does not appear to be the most
guilty (Jimenez v. People, 2014).
DEMURRER TO EVIDENCE
A demurrer to evidence is an objection of one of the
parties to the effect that the evidence his adversary
produced is insufficient in point of law, whether true or
not, to make out a case or sustain the issue. (People v.
Sandiganbayan, 2015)
Sufficient evidence for purposes of frustrating a
demurrer thereto is such evidence in character, weight or
amount as will legally justify the judicial or official action
demanded according to the circumstances.
To be considered sufficient, the evidence must prove:
1. The commission of the crime; and
2. The precise degree of participation therein by
the accused.
WHEN FILED
A demurrer to evidence is actually a motion to dismiss
that is filed by the accused after the prosecution has
rested its case. (Sec. 23, Rule 119)
NOTE: Not every motion to dismiss is a demurrer to
evidence. If the motion to dismiss is not grounded upon
the insufficiency of the evidence, then it is not a
demurrer under Rule 119 of the Rules of Court. In
determining whether the motion filed is a demurrer to
evidence or just a motion to dismiss, the following must
be considered:
1. The allegations in it must be made in good faith;
2. The stage of the proceeding at which it is filed;
and
Lasallian Commission on Bar Operations
Criminal Procedure
3. The primary objective of the party filing it.
It may be filed in civil cases (Rule 33) or in special
proceedings. (Sec. 2, Rule 72)
A demurrer to evidence filed before the prosecution rests
its case is premature. (Magleo v. De Juan-Quinagoran,
2014)
NOTE: The court may, on its own initiative, dismiss the
action without waiting for a demurrer from the accused
also on the ground of insufficiency of evidence. However,
the court shall do so only after giving the prosecution the
opportunity to be heard. (Sec. 23, Rule 119)
KINDS OF A DEMURRER TO EVIDENCE BY THE
ACCUSED
1. With leave of court
2. Without leave of court
DEMURRER TO EVIDENCE WITH LEAVE OF COURT
1. A motion for leave of court to file a demurrer to
evidence shall be filed by the accused,
specifically stating the grounds therefor and
shall be filed within a non-extendible period of
five (5) days after the prosecution rests its case.
2. The prosecution may oppose the motion within
a non-extendible period of five (5) days from its
receipt. (Sec. 23, Rule 119)
3. If granted, the accused shall file the demurrer
to evidence within a non-extendible period of
ten (10) days from notice.
4. The prosecution may oppose the motion within
a similar period from its receipt. (Sec. 23, Rule
119)
5. If the demurrer is granted, the case is dismissed
and the same shall amount to an acquittal.
(Mupas v. People, 2011)
6. If the demurrer is denied, the accused may
present evidence in his defense (Sec. 23, Rule
119), then to appeal if he is convicted.
DEMURRER TO EVIDENCE WITHOUT LEAVE OF
COURT
1. If granted, the case is dismissed and the effect
is an acquittal.
2. If denied, the accused waives the right to
present evidence and submits the case for
judgment on the basis of the evidence for the
prosecution. (Sec. 23, Rule 119, Rules of Court)
Filed Without Leave of
Filed with Leave of Court
Court
The accused may still The accused waives his
adduce evidence in his right to present evidence
defense.
Assists in determining Submits the case for
whether demurrer was judgment on the basis of
filed to merely stall the the prosecution’s evidence.
proceedings.
EFFECT OF A DEMURRER TO EVIDENCE
If the demurrer is granted:
1. It shall amount to the accused’s acquittal to the
crime charged.
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2. It cannot be appealed because it would place

the accused in double jeopardy. CONTENTS OF A JUDGMENT OF ACQUITTAL
3. The order granting a demurrer is reviewable 1. Whether or not the evidence of the
only by certiorari under Rule 65 of the Rules of prosecution:
Court upon showing that it was issued with a. Absolutely failed to prove the guilt of
grave abuse of discretion amounting to lack or the accused; or
excess of jurisdiction. b. Merely failed to prove his guilt beyond
reasonable doubt;
K. JUDGMENT (RULE 120) 2. A determination if the act or omission from
which the civil liability might arise did not exist.
(Sec. 2, Rule 120)
JUDGMENT
A judgment is an adjudication by the court that the
A verdict of acquittal is immediately final and executory
accused is guilty or not guilty of the offense charged and
upon its promulgation. The State may not seek its review
the imposition on him of the proper penalty and civil
without placing the accused in double jeopardy. (Barbers
liability, if any. (Sec. 1, Rule 120)
v. Laguio, Jr., 2001)
REQUISITES OF A JUDGMENT
If the accused was acquitted based on reasonable doubt,
The formal requisites of a judgment are:
his civil liability arising from the crime charged, which has
1. It must be written in the official language;
caused damaged to another, can still be proven by a lower
2. It must be personally and directly prepared and
quantum of evidence. (Lontoc v. MD Transit, 1988)
signed by the judge;
3. It must contain clearly and distinctly a
An acquittal of an accused based on reasonable doubt
statement of:
does not bar the offended party from filing a separate
a. The facts; and
civil action based on other sources of obligation. (People
b. The law upon which it is based. (Sec. 1, Rule
vs. Bayotas, 1994)
120)
Since a judgment of acquittal is immediately executory,
Judgement rendered by a judge who did not hear the case
the court cannot thereafter issue a judgment against the
does not render the judgment erroneous, especially
bondsman who failed to bring the accused to court
where the evidence on record is sufficient to support its
during trial. (Belfast Surety and Insurance Co., Inc. v.
conclusion. (People v. Alfredo, 2010)
People, 1982)
A petition for mandamus is proper to compel the judge to
DUPLICITOUS COMPLAINT OR INFORMATION
put in writing the decision because it is his duty to do so.
A duplicitous complaint or information is one where
there are two or more offenses in a single information or
The jurisdictional requirements before a judgment may
complaint.
be validly rendered in a criminal case are:
1. Jurisdiction over the subject matter;
General Rule: A complaint or information must charge
(1) Jurisdiction over the territory; and
only one offense.
(2) Jurisdiction over the person of the accused.
Exception: When the law prescribes a single punishment
for various offenses, such as for:
KINDS OF JUDGMENT
1. Complex crimes;
A judgment may be rendered for the:
2. Special complex crimes;
1. Conviction of the accused; or
3. Continuous crimes;
2. Acquittal of the accused.
4. Crimes susceptible of being committed in
various modes; and
CONTENTS OF A JUDGMENT OF CONVICTION
5. Crimes of which another offense is an
ingredient.
1. The legal qualification of the offense
constituted by the acts committed by the
Duplicity of the offense is ground for a motion to quash.
accused;
An objection to a complaint or information which charges
2. The aggravating and mitigating circumstances
more than one offense must be timely interposed before
which attended the commission of the offense;
trial (Sec. 3, Rule 120, Rules of Court).
3. The participation of the accused in the offense
whether as:
Failure to object on the ground of duplicity of the offense
a. Principal;
constitutes a waiver and the accused may be found guilty
b. Accomplice; or
of as many offenses as those charged and proved during
c. Accessory.
the trial. (Riano)
4. The penalty imposed upon the accused;
5. The civil liability or damages caused by his
VARIANCE DOCTRINE
wrongful act or omission, if any, unless the
General Rule: The accused may be convicted only of the
enforcement of the civil liability by a separate
crime with which he is charged as this is based on his
civil action has been reserved or waived. (Sec. 2,
right to be informed of the nature of the offense with
Rule 120)
which he is charged.

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Exception: The rule on variance.
The variance referred to in Sec. 4, Rule 120 of the Rules of
Court is a situation where:
1. The offense proved is different from the offense
charged in the complaint or information; and
2. The offense as charged is either included in the
offense proved or necessarily includes the
offense proved.
Pursuant to the variance doctrine, the accused may be
convicted of the offense proved which is included in the
offense charged, or the offense charged which is included
in the offense proved. (Sec. 4, Rule 120)
Variance between the allegation and the proof cannot
justify a conviction for either the offense charged or the
offense proved unless either is included in the other. (Sec.
4, Rule 120)
WHEN AN OFFENSE INCLUDES OR IS INCLUDED IN
ANOTHER
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. (People v. Pareja,
2014)
General Rule: If what is proved by the prosecution
evidence is an offense which is included in the offense
charged in the information, accused may validly be
convicted of the offense proved.
Exception: Where facts supervened after the filing of
information which change the nature of the offense.
While a criminal negligent act is not a simple modality of
a willful crime but a distinct crime in itself, designated as
a quasi-offense, a conviction for a criminal negligent act
can be under an information exclusively charging the
commission of a willful offense, upon the theory that the
greater includes the lesser offense (Samson v. CA, 1958).
An accused who had committed a lesser offense
includible within the offense charged cannot be
convicted of a lesser offense if it has already prescribed.
(Francisco v. CA, 1983)
JUDGMENT IN CASE OF VARIANCE BETWEEN THE
ALLEGATION AND PROOF
1. When the offense proved is less serious than,
and is necessarily included in, the offense
charged, the defendant shall be convicted of the
offense proved.
2. When the offense proved is more serious than,
and includes the offense charged, the defendant
shall be convicted of the offense charged.
3. When the offense proved is neither included in,
nor does it include, the offense charged and is
different therefrom, the court should dismiss
the action and order the filing of new
Lasallian Commission on Bar Operations
Criminal Procedure
information charging the proper offense. (Sec. 4,
Rule 120)
PROMULGATION OF JUDGMENT
Promulgation is an official proclamation or
announcement of the judgment or order.
General Rule: The judgment is promulgated by reading it
in the presence of the accused and any judge of the court
in which it was rendered.
Exception:
1. If the conviction is for a light offense, the
judgment may be pronounced in the presence
of his counsel or representative.
2. The judgment may be promulgated by the clerk
of court if the judge is absent or outside the
province or city. (Sec. 6, Rule 120)
3. If the accused is confined or detained in
another province or city, the judgment may be
promulgated by the executive judge of the RTC
having jurisdiction over the place of
confinement or detention upon request of the
court which rendered judgment. (Sec. 6, Rule
120)
The judgment or sentence does not become a judgment
or sentence in law until it:
1. Is read and announced to the defendant; or
2. Has become a part of the record of the court.
(U.S. v. CFI of Manila, 1913)
When there is no promulgation of judgment, no right to
appeal accrues.
PRESENCE OF THE ACCUSED IN PROMULGATION
General Rule: The accused must be present at the
promulgation of sentence.
Exception: If it is for a light offense, in which case, the
accused may appear by counsel or representative (People
v. De Grano, 2009).
INSTANCES OF PROMULGATION OF JUDGMENT IN
ABSENTIA
If the accused fails to appear at the scheduled
promulgation of judgment despite notice, the
promulgation shall not be suspended; instead, it shall be
made by:
1. Recording the judgment in the criminal docket;
and
2. Serving him a copy thereof at his last known
address or through his counsel.
If the judgment is for conviction, and the failure of the
accused to appear was without justifiable cause, the
consequences are more severe. He shall:
1. Lose the remedies available in the Rules of
Court against the judgment; and
2. The court shall order his arrest.
However, he shall be given a chance to avail of the
remedies against judgment as long as within fifteen (15)
days from promulgation of judgment, he surrenders and
files a motion for leave of court to avail of the remedies.
He shall state the reason for his absence and, if he proves
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the absence was justified, he shall be allowed to avail of
the remedies within fifteen (15) day from notice. (Sec. 6,
Rule 120)
When the accused on bail fails to present himself at the
promulgation of a judgment of conviction, he is
considered to have lost his standing in court. Without any
standing in court, the accused cannot invoke its
jurisdiction to seek relief. (Jaylo v. Sandiganbayan, 2015)
NOTIFICATION OF THE PROMULGATION
General Rule: The notice shall be given by the clerk of
court to the accused personally or through his bondsman
or warden and counsel.
Exception: If the accused was tried in absentia because he
jumped bail or escaped from prison, the notice to him
shall be served at his last known address. (Sec. 6, Rule 120)
MODIFICATION OF JUDGMENT
A judgment of conviction may be modified or set aside by
the court:
1. Upon motion of the accused; and
2. Before the judgment becomes final or before
appeal is perfected. (Sec. 7, Rule 120)
NOTE: The judgment cannot be modified or set aside
motu proprio.
The prosecutor cannot ask for a modification or the
setting aside of a judgment of conviction because the
rules clearly provide that a modification or setting aside
of a judgment of conviction may be done by the court
only upon motion of accused.
A judgment of acquittal becomes final immediately after
promulgation and it cannot be recalled for correction or
amendment.
WHEN JUDGMENT BECOMES FINAL
1. When the period for perfecting an appeal has
lapsed;
2. When the sentence has been partially or totally
satisfied or served;
3. When the accused expressly waives in writing
his right to appeal; and
4. When the accused has applied for probation.
(Sec. 7, Rule 120)
The trial court can validly amend the civil portion of its
decision within fifteen (15) days from promulgation
thereof even though an appeal had already been
perfected by the accused from a judgment of conviction.
PROBATION
Appeal and probation are mutually exclusive remedies,
hence, applying for probation is necessarily deemed a
waiver of one’s right to appeal. Implicit in an application
for probation is an admission of guilt. (Almero v. People,
2014)
REMEDIES BEFORE A JUDGMENT OF CONVICTION
BECOMES FINAL
1. Modification of judgment (Sec. 7, Rule 120);
2. Reopening of proceedings (Sec. 24, Rule 119);
3. Motion for new trial (Sec. 1, Rule 121);
Lasallian Commission on Bar Operations
Criminal Procedure
4. Motion for reconsideration (Sec. 1, Rule 120);
5. Appeal from the judgment (Rule 122).
L. NEW TRIAL OR
RECONSIDERATION (RULE 121)
MOTION FOR NEW TRIAL OR RECONSIDERATION
A motion for new trial or motion for reconsideration is
filed by the accused when judgment has been rendered
adverse to him.
GROUNDS FOR NEW TRIAL
1. Errors of law have been committed during trial;
2. Irregularities prejudicial to the substantial
rights of the accused have been committed
during the trial; or
3. New and material evidence has been
discovered. (Sec. 2, Rule 121, Rules of Court)
In this jurisdiction, the court has ordered a new trial in
criminal cases on grounds not mentioned in the statute,
such as the retraction of a witness, negligence or
incompetency of counsel, improvident plea of guilty,
disqualification of an attorney de officio to represent the
accused in the trial court, and where a judgment was
rendered on a stipulation of facts entered into by both
the prosecution and the defense. (Jose v. CA, 1976)
Mistakes or errors of counsel in the conduct of his case
are not grounds for new trial. This rule is the same
whether the mistakes are the result of ignorance,
inexperience, or incompetence. (U.S. v. Umali, 1910)
If the incompetence, ignorance or inexperience of
counsel is so great and the error committed as a result
thereof is so serious that the client, who otherwise has a
good cause, is prejudiced and denied his day in court,
litigation may be reopened. (Hilario v. People, 2008)
GROUNDS FOR RECONSIDERATION
1. Errors of law in the judgment which requires no
further proceedings; and
2. Errors of fact in the judgment which also
requires no further proceedings. (Sec. 3, Rule
121)
REQUISITES FOR A NEW TRIAL ON THE GROUND OF
NEWLY-DISCOVERED EVIDENCE
1. The evidence must have been discovered after
the trial;
2. It could not have been previously discovered
and produced at the trial even with the exercise
of reasonable diligence;
3. It is a new and material evidence; and
4. It should not be merely cumulative,
corroborative or impeaching.
5. If introduced and admitted, it would probably
change the judgment. (Sec. 2, Rule 121)
FORM OF THE MOTIONS
The motion for new trial or reconsideration shall:
1. Be in writing; and
2. State the grounds on which it is based;
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3. Be given to the prosecutor through notice. (Sec.
4, Rule 121)
If based on newly-discovered evidence, the motion must
be supported by affidavits of witnesses by whom such
evidence is expected to be given or by duly authenticated
copies of documents which are proposed to be
introduced in evidence. (Sec. 4, Rule 121)
WHO MAY FILE
The accused may file a motion for new trial or motion for
reconsideration of the judgment adverse to him. The
court, however, may also, at its own instance, grant a new
trial or a reconsideration of the judgment but with the
consent of the accused. (Sec. 1, Rule 121)
WHEN FILED
The motion for new trial or motion for reconsideration
must be filed before the judgment of conviction becomes
final or within fifteen (15) days from promulgation of
judgment. Once the judgment becomes final, pleas for
new trial or reconsideration can no longer be
entertained. (Tadeja v. People, 2013)
WHEN HEARING IS REQUIRED
A hearing shall be conducted when the motion for new
trial calls for a resolution of a question of fact. The court
may hear evidence on the motion by affidavits or
otherwise. (Sec. 5, Rule 121)
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
In all cases, the original judgment shall be set aside or
vacated and a new judgment shall be rendered
accordingly.
Other effects that would depend upon the ground availed
of:
1. When a new trial is granted on the grounds of
errors of law or irregularities during the trial, all
proceedings and evidence affected thereby shall
be set aside and taken anew. The court may, in
the interest of justice, allow the introduction of
additional evidence.
2. When a new trial is granted on the ground of
newly-discovered evidence, the evidence
already adduced shall stand. The newly-
discovered evidence, together with other
evidence which the court may allow in the
interest of justice, shall be taken and considered
together with the evidence already in the
record. (Sec. 6, Rule 121)
APPLICATION OF NEYPES DOCTRINE IN CRIMINAL
CASES
The Neypes rule gives the movant a fresh period of fifteen
(15) days within which to file an appeal, counted from
receipt of the order dismissing a motion for new trial or
motion for reconsideration
The fresh period rule shall also apply to:
1. Rule 40 of the Rules of Court governing appeals
from the Municipal Trial Courts to the Regional
Trial Courts;
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Criminal Procedure
2. Rule 42 of the Rules of Court on petitions for
review from the Regional Trial Courts to the
Court of Appeals;
3. Rule 43 of the Rules of Court on appeals from
quasi-judicial agencies to the Court of Appeals;
and
4. Rule 45 of the Rules of Court governing appeals
by certiorari to the Supreme Court.
The fresh period rule applies to appeals in criminal cases,
particularly to Sec. 6, Rule 122 of the Rules of Court. (Yu v.
Tatad, 2011)
M. APPEAL (RULES 122, 123, 124, AND
125)
APPEAL
The right to appeal is not a natural right nor a part of due
process but merely a statutory privilege. As a
consequence, the right to appeal may be exercised only in
the manner and in accordance with the provisions of law.
(Estarija v. People, 2009)
From a judgment convicting the accused, two appeals
may accordingly be taken:
1. The accused may seek a review of said
judgment, as regards both actions; or
2. The complainant may appeal with respect only
to the civil action, either because the lower
court has refused or failed to award damages, or
because the award made is unsatisfactory to
him.
WHO MAY APPEAL
General Rule: Any party may appeal from a judgment or
final conviction.
Exception: When the accused will be placed in double
jeopardy. (Sec. 1, Rule 122)
Exception to the exception: When the accused himself
appeals from a judgment of conviction; in which case he
waives the protection on the prohibition against double
jeopardy. (Philippine Rabbit v. People, 2004)
When the accused appeals from a final conviction, he
runs the risk of being sentenced to a penalty higher than
that imposed by the trial court. (Philippine Rabbit v.
People, 2004)
If there is a dismissal of a criminal case or an acquittal of
the accused, it is only the Office of the Solicitor General
(OSG) that may bring an appeal before the CA or SC on
the criminal aspect representing the People. (People v.
Nano, 1992)
In cases elevated to the Sandiganbayan and from the
Sandiganbayan to the SC, the Office of the Ombudsman,
through its special prosecutor, shall represent the People,
except in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-
A, issued in 1986. (Sec. 4, R.A. 8249)
The private complainant or the offended party may file an
appeal or a special civil action without the intervention of
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the OSG but only insofar as the civil liability of the be stayed as to the appealing party. (Sec. 11(c),
accused is concerned. Rule 122)

EFFECT OF AN APPEAL The benefit of the stay of execution afforded to a co-

1. An appeal throws the case wide open for review accused, who timely files an appeal, cannot be extended
and the reviewing tribunal can correct errors or to those who failed to file the same. The period to appeal
even reverse the trial court’s decision on shall continue to run against the accused who failed to
grounds other than those that the parties raised appeal even if his co-accused appealed. (Lubrica v. People,
as error. (Guy v. People, 2009) 2007)
2. When the accused appeals from a final
conviction, he waives the protection on the Final Judgment Final Order
prohibition against double jeopardy and runs It is one which disposes of
the risk of being sentenced to a penalty higher the whole subject matter
than that imposed by the trial court. (Philippine It is one which would or terminates a particular
Rabbit v. People, 2004) become final if no appeal is issue leaving nothing to be
3. Upon perfection of the appeal, the execution of taken. done but to enforce by
the judgment or final order appealed from shall execution what has been
determined.

WHERE AND HOW TO APPEAL

Judgment appealed from Where to appeal How to appeal Where filed

MTC, MeTC or MCTC
Sandiganbayan (if the accused
MTC, MeTC, MCTC or RTC
employee and the act is duty-
RTC (in the exercise of its
original jurisdiction)
RTC (in the exercise of its
appellate jurisdiction)
RTC (in the exercise of its SC (if it involves pure questions
original jurisdiction)
CA or Sandiganbayan
With the court which
rendered the judgment or
final order appealed from
RTC Notice of appeal
and by serving a copy
thereof upon the adverse
party.
is a government official or
With the Sandiganbayan
related)
With the court which
rendered the judgment or
CA (if it involves questions of final order appealed from
Notice of appeal
fact and of law) and by serving a copy
thereof upon the adverse
party.
CA (if it involves questions of Petition for Review under
With the CA
fact and of law) Rule 42 of the Rules of Court
Petition for Review on
Certiorari under Rule 45 of With the SC
of law)
the Rules of Court
Petition for Review under
SC Certiorari under Rule 45 of With the SC
the Rules of Court

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Neither the Constitution nor the Rules of Criminal
Procedure exclusively vests in the Supreme Court the
power to hear cases on appeal in which only an error of
law is involved (Tan v. People, 2002).
Error of Judgment Error of Jurisdiction
One which the court may One which renders an
commit in the exercise of order or judgment void or
its jurisdiction. voidable.
It is reviewable by
It is reviewable by appeal.
certiorari.
WHEN APPEAL IS TO BE TAKEN
An appeal must be taken within fifteen (15) days from:
1. Promulgation of judgment; or
2. Notice of the final order appealed from.
This period for perfecting an appeal shall be suspended
from the time a motion for new trial or reconsideration is
filed until notice of the order overruling the motion has
been served upon the accused or his counsel at which
time the balance of the period begins to run. (Sec. 6, Rule
122)
SERVICE OF NOTICE OF APPEAL
General Rule: Notice of appeal should be served upon the
adverse party or his counsel by personal service.
Exceptions:
1. If this type of service cannot be made, service
may be done by registered mail or by
substituted service; or
2. If the appellee waives his right to a notice that
an appeal has been taken.
The appellate court may, in its discretion, entertain an
appeal notwithstanding failure to give such notice if the
interests of justice so require. (Sec. 5, Rule 122)
TRANSMISSION OF THE PAPERS TO THE APPELLATE
COURT (RTC)
1. Within five (5) days from the filing of the notice
of appeal, the clerk of court with whom the
notice of appeal was filed must transmit to the
clerk of court of the appellate court the
complete record of the case, together with the
notice of appeal. The original and the three (3)
copies of the transcript of stenographic notes
shall also be transmitted. A copy of the
transcript shall remain in the lower court. (Sec.
8, Rule 122)
2. If the appellate court is the RTC, the clerk of
court of the RTC shall notify the parties of the
receipt of the complete record of the case,
transcripts and exhibits. (Sec. 9(b), Rule 122)
3. Within fifteen (15) days from receipt of said
notice, the parties may submit memoranda or
briefs, or may be required by the RTC to do so.
4. The RTC shall then decide the case on the basis
of the entire records of the case and of such
memoranda or briefs as may have been filed.
(Sec. 9(c), Rule 122)
NOTE: If the case is appealed to the CA, the CA shall have
the power to try cases and conduct hearings, receive
evidence and perform all acts necessary to resolve factual
Lasallian Commission on Bar Operations
Criminal Procedure
issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and
conduct new trial and further proceedings. (Sec. 12, Rule
124)
WITHDRAWAL OF APPEAL
Despite the perfection of an appeal, the RTC or MTC may
allow the appellant to withdraw his appeal before the
record has been forwarded by the clerk of court to the
proper appellate court. When the appeal is withdrawn,
the judgment becomes final. (Sec. 12, Rule 122, Rules of
Court)
If the withdrawal is sought when the case is already on
appeal, the RTC may allow the appellant to withdraw his
appeal provided:
1. A motion to withdraw is filed; and
2. The motion is filed before the RTC renders
judgment on appeal.
When the appeal is allowed to be withdrawn, the
judgment of the court of origin will now become final and
the case shall be remanded to the court of origin for
execution. (Sec. 12, Rule 122)
EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
General Rule: An appeal taken by one or more of several
accused shall not affect those who did not appeal.
NOTE: In such cases, as to the appealing party, the
execution of judgment appealed from is stayed upon the
perfection of the appeal. As to the co-accused who did
not appeal, the judgment of the trial court insofar as it
relates to him becomes final and the appellate court has
no power to interfere with it. (Salvatierra v. CA, 1996)
Exception: Insofar as the judgment of the appellate court
is favorable and applicable to those who did not appeal or
to those who withdrew his appeal. (People v. Gandia,
2008)
Despite the above exception, the execution of the
judgment or final order appealed from shall be stayed as
to the appealing party only. (Sec. 11(c), Rule 122)
APPEAL FROM THE CIVIL ASPECT
The appeal of the offended party from the civil aspect
shall not affect the criminal aspect of the judgment or
order appealed from. (Sec. 11 (b), Rule 122)
EFFECT OF DEATH OF AN ACCUSED PENDING THE
APPEAL OF HIS CONVICTION
The death of the accused will extinguish his personal
criminal liability, however, his pecuniary liability can only
be extinguished when his death occurs before final
judgment. (People v. Bayotas, 2000)
ORDER DENYING DEMURRER TO EVIDENCE
As a general rule, there can be no appeal or
certiorari on the denial of the demurrer to evidence,
since it is an interlocutory order which does not pass
judgment on the merits of the case. However, a party can
still avail of the remedy of certiorari if the court which
denied the same committed grave abuse of discretion
amounting to lack or excess of jurisdiction. (Macapagal-
Arroyo v. Sandiganbayan, 2017)
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AUTOMATIC APPEAL IN CRIMINAL CASES
In cases where the penalty imposed is death, reclusion
perpetua or life imprisonment, appeal to the SC or CA is a
matter of right. A review of the trial court’s judgment of
conviction is automatic and does not depend on the
whims of the convicted felon. It is mandatory and leaves
the reviewing court without any option.
INTERMEDIATE REVIEW BY COURT OF APPEALS IN
CASES OF AUTOMATIC REVIEW
The proper course of action would be to remand these
cases to the appellate court for the conduct of an
intermediate review and not directly appeal them to the
Supreme Court. The Court of Appeals has aptly been
given the direct mandate to review factual issues. The
Supreme Court , in the exercise of its rule-making power,
can grant an additional intermediate appeal or review in
favor of the accused. (People v. Mateo, 2004)
GROUNDS FOR DISMISSAL OF APPEAL
1. The People/State cannot appeal when it will
put the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in
a new and independent cause but extends also
to appeal in the same case by the prosecution
after jeopardy had attached.
2. The prosecution cannot appeal from a judgment
of acquittal.
3. Appeal from dismissal of case upon filing of
demurrer by the accused.
4. Dismissal due to the mistake of the trial court
ruling that it had no jurisdiction (People v.
Duran, 1960).
5. Appeal by People to correct an imposable
penalty ruled by TC or to include in a judgment
a penalty erroneously omitted is improper.
N. SEARCH AND SEIZURE (RULE 126)
SEARCH WARRANT AND SEIZURE
A search warrant is an order in writing issued in the name
of the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to search
for personal property described therein and bring it
before the court. (Sec. 1, Rule 126)
A seizure is the physical taking of a thing into custody.
NATURE
The laws and rules governing a search warrant is based
upon the constitutional mandate that a search and
seizure must be carried out through or on the strength of
a judicial warrant predicated upon the existence of
probable cause. In the absence of such warrant, the
search and seizure becomes unreasonable. (Comerciante
v. People, 2015)
A search warrant is not a criminal action nor does it
represent a commencement of a criminal prosecution. It
is not a proceeding against a person but is solely for the
discovery and to get possession of personal property. It is
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Criminal Procedure
a special and peculiar remedy, drastic in nature, and
made necessary because of public necessity. (United
Laboratories, Inc. v. Isip, 2005)
Since a search warrant is not a criminal action, any
aggrieved party may question an order quashing the same
without need for the conformity of the public prosecutor.
(Worldwide Web Corporation v. People, 2014)
The Constitution requires that no warrant shall issue but
upon probable cause, to be determined by the judge, and
that the warrant shall particularly describe the things to
be seized.
SEARCH WARRANT VIS-À-VIS ARREST WARRANT
Search Warrant Arrest Warrant
Concerned with the Concerned with the
seizure of personal seizure of a person so he
property subject of the may be made to answer for
offense, stolen or the commission of an
embezzled property, fruits offense.
of the offense, or those
intended to be used to
commit an offense.
Probable cause is the Probable cause requires
existence of sufficient facts sufficient facts that would
and circumstances to show tend to show that a crime
that particular things has been committed and
connected with a crime are that a particular person
found in a specific location. committed it.
It is valid for ten (10) days only.
It is generally served in the It may be served on any
day time, unless there be a day and at any time of the
direction in the warrant day or night.
that it may be served at
any time of the day or
night.
It does not require the It presupposes the
existence of a criminal case existence of a pending
and may be issued prior to criminal case that gave rise
the filing of a case. to the warrant.
WHERE AN APPLICATION FOR A SEARCH WARRANT IS
FILED
General Rule: An application for a search warrant shall be
filed before any court within whose territorial jurisdiction
a crime was committed. (Sec. 2(a), Rule 126)
Exceptions:
1. The application may be made before any court
within the judicial region where the crime was
committed if the place of the commission of the
crime is known;
2. The application may be filed before any court
within the judicial region where the warrant
shall be enforced;
NOTE: For the first two exceptions, filing in
such courts requires compelling reasons
stated in the application. (Pilipinas Shell
Petroleum Corporation v. Romars
International Gases Corporation, 2015)
3. The application shall be made only in the court
where the criminal action is pending, if the
criminal action has already been filed. (Sec. 2(b),
Rule 126)
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An application for a search warrant is heard ex-parte. It is
neither a trial nor part of the trial. (Santos v. Pryce Gases,
2007) It must also be under oath and may not be done in
public.
REQUISITES FOR THE ISSUANCE OF A SEARCH
WARRANT
1. It must be issued upon probable cause;
2. The probable cause must be determined by the
judge himself;
3. In the determination of probable cause, the
judge must examine, under oath or affirmation,
the complainant and such witnesses he may
produce; and
4. The warrant issued must particularly describe
the place to be searched and persons or things
to be searched. (People v. Tuan, 2010)
PROBABLE CAUSE IN SEARCH WARRANTS
Probable cause in the issuance of a search warrant means
such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an
offense has been committed and that objects sought in
connection with the offense are in the place sought to be
searched. (Century Chinese Medicine Co. v. People, 2013)
The determination of probable cause is wholly dependent
on the finding of trial judges in the process of exercising
their judicial function. (World Wide Web Corporation v.
People, 2014)
Probable cause is concerned with probability, not
absolute or even moral certainty. The prosecution need
not present at this stage proof beyond reasonable doubt.
(Century Chinese Medicine Co. v. People, 2013)
When a finding of probable cause for the issuance of a
search warrant is made by a trial judge, the finding is
accorded respect by reviewing courts, as long as there
was substantial basis for that determination. (World Wide
Web Corporation v. People, 2014)
A search warrant can only be issue upon probable cause
in connection with one specific offense.
The legality of a seizure can be contested only by the
party whose rights have been impaired thereby. The
objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties.
PERSONAL EXAMINATION BY THE JUDGE OF THE
APLICANT AND WITNESSES
1. The examination must be personally conducted
by the judge;
2. The examination must be in the form of
searching questions and answers;
3. The complainant and the witnesses shall be
examined on those facts personally known to
them;
4. The statements must be in writing and under
oath; and
5. The sworn statements of the complainant and
the witnesses, together with the affidavits
submitted, shall be attached to the record. (Sec.
5, Rule 126)
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The applicant or his witnesses must have personal
knowledge of the circumstances surrounding the
commission of the offense being complained of. “Reliable
information” is insufficient. Mere affidavits are not
enough, and the judge must depose in writing the
complainant and his witnesses. (Yao, Sr. v. People, 2007)
A deposition taken by Deputy Clerk of Court does not
comply with the requirement. (Bache & Co. Phil. Inc. v.
Ruiz, 1971)
The examination must be probing and exhaustive, not
merely routinary, general, peripheral, perfunctory or pro
forma. (Yao, Sr. v. People, 2007)
PARTICULARITY OF THE PLACE OR PERSON TO BE
SEARCHED AND THE ITEMS TO BE SEIZED
The Rules do not require that the search warrant must
name the person who occupies the described premises.
The search warrant is issued for the search of specifically
described premises only and not for the search of a
person. The failure to name the owner or occupant of the
property does not invalidate the warrant. (Quelnan v.
People. 2007)
The place to be searched cannot be changed, enlarged
nor amplified by the police. (Al-Ghoul v. CA, 2001)
The purpose of the rule requiring a particular description
of the things to be searched is to limit the things to be
seized to those described in the search warrant and to
leave the officers of the law no discretion regarding what
articles they shall seize. (Uy Kheytin v. Villareal, 1920)
Warrants which do not describe the things to be seized
with the required particularity are called general
warrants.
The particularity of the description of the place to be
searched and the things to be seized is required
“wherever and whenever it is feasible.” A search warrant
need not describe the items to be seized in precise and
minute detail. (World Wide Web Corporation v. People,
2014)
The use of a generic term or a general description in a
warrant is allowed only when a more specific description
of the things to be seized is not available. (Uy v. BIR, 2000)
GENERAL WARRANTS
A general warrant is a search or arrest warrant that is not
particular as to the person to be arrested or the property
to be seized. It is one that allows the seizure of one thing
under a warrant describing another and gives the officer
executing the warrant the discretion over which items to
take, (Worldwide Web Corporation v. People, 2014)
A general warrant is not valid as it infringes on the
constitutional mandate requiring a particular description
of the things to be seized. (Sec. 2, Art. III, 1987
Constitution)
TEST TO DETERMINE PARTICULARITY
1. Whether the description therein is as specific as
the circumstances will ordinarily allow;
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2. Whether the description expresses a conclusion
of fact which the warrant officer may be guided
in making the search and seizure;
3. Whether the things described are limited to
those which bear direct relation to the offense
for which the warrant is being issued.
The executing officer’s prior knowledge as to the place
intended in the search warrant is relevant. (Yao, Sr. v.
People, 2007)
TIME OF MAKING SEARCH
General Rule: A search warrant must be served in the day
time.
Exception: A search may be made at any time of the day
or night when it is positively asserted in the affidavit that
the property is on the person or in the place ordered to
be searched. (Alvares v. CFI of Tayabas, 1937)
DURATION OF THE VALIDITY OF A SEARCH WARRANT
A search warrant shall be valid for ten (10) days from its
date. Thereafter, it shall be void. (Sec. 10, Rule 126)
A search warrant cannot be used every day of said period
and once articles have already been seized under the
warrant, it cannot be used again for another search and
seizure, except when the search conducted on one day
was interrupted, in which case the same may be
continued under the same warrant the following day if
not beyond the ten (10) day period. (Uy Kheytin v.
Villareal, 1920)
MANNER OF MAKING SEARCH
General Rule: The search shall be made in the presence of
the lawful occupant of the house, room or any other
premises, or any member of the lawful occupant’s family.
Exception: In their absence, the search shall be made in
the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality.
The officer seizing the property must give a detailed
receipt for the same to the lawful occupant of the
premises in whose presence the search and seizure were
made, or in the absence of such occupant, must, in the
presence of at least two (2) witnesses of sufficient age and
discretion residing in the same locality, leave a receipt in
the place in which he found the seized property. (Sec. 11,
Rule 126)
The officer may break open any outer or inner door or
window of a house or any part of a house or anything
therein, if:
1. The officer gives notice of his purpose and
authority;
2. He is refused admittance to the place of
directed search despite notice;
3. The purpose is to execute the warrant or to
liberate himself or any person lawfully aiding
him when unlawfully detained. (Sec. 7, Rule 126)
A public officer or employee who exceeds his authority or
uses unnecessary severity in executing the warrant is
liable under Art. 129 of the RPC (search warrants
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maliciously obtained and abuse in the service of those
legally obtained).
PERSONAL PROPERTY TO BE SEIZED
The property subject of a search warrant is personal
property and not real property. A search warrant may be
issued for the search and seizure of the following:
1. Personal property subject of the offense;
2. Personal property stolen or embezzled and
other proceeds, or fruits of the offense; or
3. Personal property used or intended to be used
as a means of committing an offense. (Sec. 3,
Rule 126)
The law does not require that the property to be seized
should be owned by the person against whom the search
warrant is directed. Ownership is of no consequence, it
being sufficient that the person against whom the
warrant is directed has control and possession of the
property sough to be seized. (Yao, Sr. v. People, 2007)
EXCEPTIONS TO THE SEARCH WARRANT
REQUIREMENT
General Rule: The procurement of a search warrant is
required before a law enforcer can validly search or seize
the person, house, papers, or effects of any individual;
otherwise, such search and seizure becomes
unreasonable.
Exceptions:
In times of war within the area of military operation;
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in plain view (plain view
doctrine);
3. Search of a moving vehicle (Carroll doctrine);
4. Consented warrantless search;
5. Customs search;
6. Stop and frisk (Terry searches);
7. Exigent and emergency circumstances;
8. Search of vessels and aircraft; and
9. Inspection of buildings and other premises for
the enforcement of fire, sanitary and building
regulations. (People v. Vasquez, 2014)
In the abovementioned exception, what constitutes a
reasonable or unreasonable search or seizure is purely a
judicial question, determinable from the uniqueness of
the circumstance involved. (Valeroso v. CA, 2009)
SEARCH INCIDENTAL TO A LAWFUL ARREST
Requisites:
1. The arrest must be lawful;
2. The search and seizure must precede a valid
arrest; and
3. The search must be within the permissible area;
The search-incidental-to-a-lawful-arrest exception
applies when a person who is lawfully arrested may be
searched for:
1. Dangerous weapons;
2. Anything which may have been used in the
commission of an offense; or
3. Anything which constitute proof in the
commission of an offense.
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There must be a valid search and seizure pursuant to an
equally valid arrest, which must precede the search. For
this purpose, the law requires that there be first a lawful
arrest before a search can be made – the process cannot
be reversed. (Omar v. People, 2015)
The purpose of this rule is to protect the law enforcers
from injury that may be inflicted on them by a person
they have lawfully arrested and to prevent evidence being
destroyed by the arrestee. (People v. Calantiao, 2014)
A motorist flagged down by a policeman for not wearing a
helmet is not deemed arrested since he was only given a
traffic citation and the penalty for the ordinance is only a
fine. Hence the subsequent search of the motorcyclist
was illegal and the items seized were inadmissible in
evidence. (Luz v. People, 2012)
In a buy-bust operation conducted to entrap a drug
pusher, law enforcement agents may seize the marked
money found on the person of the pusher immediately
after the arrest even without arrest and search warrants.
(People v. Musa, 1993)
A search and seizure incidental to a lawful arrest is not
limited to things related to the reason for the arrest. If, in
the course of the search, evidence is found constituting
proof of another offense, the tenor of the rule, as stated,
does not prevent the seizure of the evidence.
The warrantless search must be made either on the
person of the person arrested or within the permissible
area within the latter’s reach, or within the area of his
immediate control. (Valeroso v. CA, 2009)
PLAIN VIEW DOCTRINE
Under the plain view doctrine, objects falling in the plain
view of an officer who has a right to be in the position to
have that view are subject to seizure and may be
presented as evidence.
Requisites:
1. The law enforcement officer in search of the
evidence has a prior justification for an
intrusion or is in a position from which he can
view a particular area;
2. The discovery of the evidence in plain view is
inadvertent; and
3. It is immediately apparent to the officer that the
item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.
(Abelita III v. Doria, 2009)
The requirement of inadvertence means that the officer
must not have known in advance of the location of the
evidence and discovery is not anticipated. (United
Laboratories v. Isip, 2005)
The plain view doctrine does not apply where the police
officers did not just accidentally discover the evidence
but actually searched for it. (Valeroso v. CA, 2009)
“Plain view” justifies mere seizure of evidence without
further search. (People v. Aruta, 1998)
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Criminal Procedure
An object is in plain view if it is plainly exposed to sight.
People v. Nuevas, 2007)
To be immediately apparent, the rule does not require an
unduly high degree of certainty as to the incriminating
character of the evidence. It requires merely that the
seizure be presumptively reasonable assuming that there
is probable cause to associate the property with criminal
activity; that a nexus exists between a viewed object and
criminal activity. (United Laboratories v. Isip, 2005)
The plain view doctrine may not be used to extend a
general exploratory search from one object to another
until something incriminating at last emerges. (Valeroso v.
CA, 2009)
SEARCH OF MOVING VEHICLES
Warrantless search of a moving vehicle is justified on the
ground that it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be
sought. (People v. Tuazon, 2007)
Peace officers are limited only to routine checks where
the examination of a vehicle is limited to visual
inspection. When a vehicle is stopped and subject to
extensive search, such would be permissible only if the
officers made it upon probable cause. (People v. Libnao,
2003)
Checkpoints are not illegal per se. Under exceptional
circumstances, as where the survival of organized
government is on the balance, or where the lives and
safety of the people are in grave peril, checkpoints may
be allowed and installed by the government. (Valmonte v.
De Villa, 1990)
Searches conducted in checkpoints are valid for as long
as they are warranted by exigencies of public order and
are conducted in a way least intrusive to motorists.
(People v. Vinecario, 2004)
CONSENTED WARRANTLESS SEARCH
Requisites:
1. The right against obtrusive searches must exist;
2. The person involved had knowledge of the
existence of such right; and
3. The said person had an actual intention to
relinquish the right. (People v. Nuevas, 2007)
Consent to a search must be shown by clear and
convincing evidence. It is the State which has the burden
of proving, by clear and positive testimony, that the
necessary consent was obtained and that it was freely
and voluntarily given. (Valdez v. People, 2007)
STOP AND FRISK
A valid “stop” by an officer requires that he has a
reasonable and articulable belief that criminal activity has
happened or is about to happen.
The “frisk” made after the “stop” must be done because of
a reasonable belief that the person stopped is in
possession of a weapon that will pose a danger to the
officer and others. It must be a mere pat down outside
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the person’s outer garment and not unreasonably
intrusive.
OTHER SEARCHES
A canine/dog sniff test by a police dog specially trained
to detect the presence of drugs is not considered a
“search” as it is intended to reveal only the presence or
absence of drugs and, thus, a warrant is generally not
required. (U.S. v. Place, 1983)
The use of a thermal imaging device or a device that is
not in general public use, to explore details of a private
home that would previously have been unknowable
without physical intrusion, is considered a “search” and is
presumptively unreasonable without a warrant. (Kyllo v.
U.S., 2001)
DUTIES AND LIABILITIES OF OFFICERS
1. The officer making the search shall:
a. Deliver the property seized to the
judge who issued the warrant; and
b. Together with the delivery of the
property, also deliver a duly verified
inventory under oath of the property
seized. (Sec. 12(a), Rule 126)
2. The judge issuing the search warrant shall
a. Ascertain if the return has been made
within ten (10) days after the issuance
thereof;
b. If no return has been made, summon
the person to whom the warrant was
issued and require him to explain why
no return was made;
c. If the return has been made, ascertain
whether Sec. 11, Rule 126 of the Rules
of Court (giving of a receipt for the
property seized) was complied with
and require that the property be
delivered to him. He must also
ascertain that Sec. 12(a), Rule 126 of
the Rules of Court (delivery of the
property seized and true inventory) has
been complied with. (Sec. 12(b), Rule
126)
3. The custodian of the log book on search
warrants shall:
a. File and keep the return on the search
warrant in the log book on search
warrants; and
b. Enter therein the date of the return,
the result, and other actions of the
judge. (Sec. 12, Rule 126)
A violation of the officer or of the custodian to comply
with the above rules shall constitute contempt of court.
(Sec. 12, Rule 126)
If the judge fails to require the officers executing the
warrant to make an accurate and complete inventory of
the things seized and to submit the same to him, he shall
be considered guilty of gross ignorance of the law. (Betoy
v. Coliflores, 2006)
EFFECT OF AN ILLEGAL SEARCH AND SEIZURE
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If the evidence is obtained through an unlawful search,
the seized item is inadmissible in evidence against the
accused. (Villanueva v. People, 2014)
The illegality of a search and seizure occurs, not only
from the failure to obtain a warrant when required, but
also from the failure to comply with the procedures for
obtaining a warrant and in the execution of the same.
Such failure will result in the application of the
exclusionary rule.
The exclusionary rule prevents, upon motion or objection,
the admission of evidence illegally obtained. The evidence
procured on the occasion of an unreasonable search and
seizure is deemed tainted for being a fruit of the
poisonous tree, thus must be excluded as evidence.
Violations of the Miranda rights render the evidence
obtained inadmissible.
NOTE: Waiver of an illegal warrantless arrest does not
carry with it a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest.
Officers of certain corporations, from which documents,
papers and things were seized by means of search
warrants, have no cause of action to assail the legality of
the seizures because said corporations have personalities
distinct and separate from those of said officers.
The legality of the search warrant should be addressed to
the court issuing the search warrant and not to any other
court to foster judicial stability. (Pagkalinawan v. Gomez,
1967)
REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE
1. Resist the search;
2. File a criminal action against the public officer
or employee as he is criminally liable under Art.
129 of the RPC (search warrants maliciously
obtained and abuse in the service of those legally
obtained);
3. File a motion to quash the search warrant;
4. File a motion to suppress the evidence;
5. File a motion to return the seized items; or
6. File for replevin, if the items are legally
possessed.
O. PROVISIONAL REMEDIES IN
CRIMINAL CASES (RULE 127)
NATURE
Provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action. (Sec. 1,
Rule 127)
NOTE: As a rule, when a criminal action is instituted, the
civil action for the recovery of the civil liability arising
from the offense charged shall be deemed instituted with
the criminal action, except when there is a reservation,
waiver, or filing of a separate civil action. Since there is a
civil action that goes with the criminal action, provisional
remedies may be availed of in connection with the civil
action.
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OBJECTIVES
To avail of a provisional remedy in a criminal action:
1. It must be one with a corresponding civil • To protect and advance the constitutional right
liability; of persons to a speedy disposition of their
2. The civil action must be one arising from the criminal cases
offense charged; and • To reinforce and to give teeth to the existing
3. The civil action must be instituted in the said rules on criminal procedure and other special
criminal action. rules prescribing periods for court action and
those that promote speedy disposition of
WHEN NOT AVAILABLE criminal cases
1. The offended party has waived the civil claim;
• To introduce innovations and best practices for
2. The offended party has reserved the civil claim;
3. The offended party has already instituted a the benefit of the parties
separate civil action; or
HEARING DAYS AND CALENDAR CALL
4. The criminal action carries with it no civil
liability.
Trial shall be held from Monday to Thursday, and courts
shall call the cases at exactly 8:30am and 2:00pm.
If the civil action has been waived, reserved or instituted
separately, the provisional remedy should be applied for
Hearings on motions, arraignment and pre-trial, and
in the separate civil action instituted.
promulgation of decisions shall be held on the mornings
of Fridays
KINDS OF PROVISIONAL REMEDIES
1. Attachment
MOTION FOR INHIBITION
2. Preliminary injunction
3. Receivership
The motion shall be resolved immediately or within two
4. Replevin
calendar days from filing.
5. Support pendent lite
PROHIBITED MOTIONS
PRELIMINARY ATTACHMENT
Preliminary attachment is available when the civil action • Motion for judicial determination of probable
is properly instituted in the criminal action and:
cause
1. When the accused is about to abscond from the
• Motion for preliminary investigation filed
Philippines;
2. When the criminal action is based on a claim for beyond the 5 day reglementary period in
money or property embezzled or fraudulently inquest proceedings or when preliminary
misapplied or converted to the use of the investigation is required or allowede in inquest
accused who is a public officer, officer of a proceedings but accused failed to participate
corporation, attorney, factor, broker, or by any despite due notice
other person in a fiduciary capacity, or for a • Motion for reinvestigation of the prosecutor
willful violation of duty; recommending the filing of information once
3. When the accused has concealed, removed, or the information has been filed before the court
disposed of his property, or is about to do so; o if motion is filed without prior leave of
and court
4. When the accused resides outside the o when PI is not required under Sec. 8,
Philippines. (Sec. 2, Rule 127, Rules of Court) Rule 112
o when the regular preliminary
When the preliminary attachment is based on a claim for
investigation is required and has
money or property embezzled or fraudulently misapplied
actually been conducted, and the
or converted to the use of the accused, there is no need
to show that the accused has concealed, removed, or grounds relied upon in the motion are
disposed of his property or is about to do so. Instead, it not meritorious, such as issues of
must be shown that: credibility, admissibility of evidence,
1. The criminal case is founded upon a claim that innocence of the accused, or lack of
money or property was embezzled, fraudulently due process when the accused was
misapplied or converted to the use of the actually notified.
accused; and • Motion to quash information when ground is
2. The accused occupies any of the positions not one of those stated in Sec. 3, Rule 117
mentioned in Sec. 2, Rule 127 of the Rules of • Motion for bill of particulars when it does not
Court or that he committed a willful violation of conform with the Rules
duty. (Sec. 2, Rule 127)
• Motion to suspend arraignment based on
grounds not stated under Sec. 11, Rule 116
P. REVISED GUIDELINES ON • Motion to suspend criminal action on the
CONTINUOUS TRIAL (A.M. NO. 15- ground of prejudicial question, when no civil
06-10-SC) case has been filed

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MOTION FOR POSTPONEMENT
GR: Prohibited
Exception: Acts of God, force majure, physical inability of
the witness to appear or testify
Moving party will still be warned that presentation of
evidence must still be finished during agreed upon dates.
ARRAIGNMENT AND PRE-TRIAL
Once the court gains jurisdiction over the person of the
accused, arraignment and pre-trial shall be set within 10
calendar days from the date of the court’s receipt of the
case for a detained accused, and 30 calendar days over a
non-detained accused
FLOW
Regular Rules
• Arraignment/Pretrial (up to 30 days)
• Presentation of the Prosecution’s and
Accused’s Evidence (up to 180 days from
Pretrial)
• Promulgation ( 90 days from submission of case
for decision)
Drug Cases
• Trial (To be finished not later than 60 days from
filing of the information)
• Decision ( 15 days from submission of case for
resolution)
Environmental Cases
• Arraignment/Pretrial (up to 30 days)
• Trial (up to 3 months from Pretrial)
• Memo (up to 30 days)
• Decision (within 60 days from last day to file
memoranda)
Intellectual Property Cases
• Arraignment/Pretrial (up to 30 days)
• Presentation of the Prosecution’s and
Accused’s Evidence (60 days for each party)
• Memo (up to 30 days)
• Decision (within 60 days from last day to file
memoranda)
BAIL
Shall be heard and resolved within a non-extendible
period of 30 calendar days from first hearing (20 for drug
cases), without need for submission of memoranda and
oral arguments
Lasallian Commission on Bar Operations
Criminal Procedure
Q. THE RULE ON CYBERCRIME
WARRANTS (A.M. NO. 17-11-03-SC)
NATURE
The rule supplements the existing rules of Criminal
Procedure.
WHERE TO FILE APPLICATION FOR WARRANT
For violations of Section 4 and 5 of RA 10175: filed before
the law enforcement authorities before any of the
designated cybercrime courts of the province or the city
where the offense or any of its elements has been/is
being/will be committed, or where any part of the
computer system used is situated or where any of the
damage caused to a natural or juridical person took place
(Note: Cybercrime courts in QC, Manila, Makati, Pasig,
Cebu, Iloilo, Davao City, CDO have special authority to act
on applications and issue warrants which are enforceable
nationwide and outside the Philippines)
For violations of Section 6 of RA 10175: Within the regular
or special RTCs of the territorial jurisdiction.
EFFECTIVE PERIOD: 10 days, extendable by another 10
days
PRESERVATION OF COMPUTER DATA
The integrity of the traffic data and subscriber’s
information shall be kept, retained, and preserved for a
minimum period of 6 months from the date of the
transaction.
Content data shall be saved for 6 months from the date of
receipt of the order from law enforcement authorities
requiring preservation.
WARRANT TO DISCLOSE COMPUTER DATA (WDCD)
A WDCD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing
the latter to issue an order to disclose and accordingly,
require any person or service provider to disclose or
submit subscriber’s information, traffic data or relevant
data in his/her/its possession or control.
If the judge finds probable cause, he shall issue a WDCD.
WARRANT TO INTERCEPT COMPUTER DATA (WICD)
A WICD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing
the latter to carry out any or all of the following activities:
(a) listening to, (b) recording, (c) monitoring, or (d)
surveillance of the content of communications, including
procuring of the content of computer data, either
directly, through access and use of a computer system or
indirectly, through the use of electronic eavesdropping or
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tapping devices, at the same time that the

communication is occurring.

WARRANT TO SEARCH, SEIZE AND EXAMINE

COMPUTER DATA (WSSECD)

A Warrant to Search, Seize and Examine Computer Data

(WSSECD) is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities, authorizing
the latter to search the particular place for items to be
seized and/or examined.

WARRANT TO EXAMINE COMPUTER DATA (WECD)

Upon acquiring possession of a computer device or

computer system via a lawful warrantless arrest, or by
any other lawful method, law enforcement authorities
shall first apply for a warrant before searching the said
computer device or computer system for the purpose of
obtaining for forensic examination the computer data
contained therein. The warrant therefor shall be
denominated as a Warrant to Examine Computer Data
(WECD).

DEPOSIT AND CUSTODY OF SEIZED COMPUTER DATA

Upon filing for a return for any of the warrants, all

computer data thereof shall be simultaneously deposited
in a sealed package with the same court that issued the
warrant. It shall be accompanied by a complete and
verified inventory of all the other items seized in relation
thereto, and by the affidavit of the duly authorized law
enforcement officer containing:
1. The date and time of the disclosure, interception, search,
seizure, and/or examination of the computer data, as the
case may be. If the examiner or analyst has recorded
his/her examination, the recording shall also be
deposited with the court in a sealed package and stated in
the affidavit;
2. The particulars of the subject computer data, including
its hash value;
3. The manner by which the computer data was obtained;
4. Detailed identification of all items seized in relation to the
subject computer data, including the computer device
containing such data and/or other parts of the computer
system seized, indicating the name, make, brand, serial
numbers, or any other mode of identification, if available;
5. The names and positions of the law enforcement
authorities who had access to the computer data from
the time of its seizure until the termination of the
examination but prior to depositing it with the court, and
the names of officers who will be delivering the seized
items to the court;
6. The name of the law enforcement officer who may be
allowed access to the deposited data. When the said
officer dies, resigns of severs tie with the office, his/her
successor may, upon motion, be granted access to the
deposit; and
7. A certification that no duplicates or copies of the whole
or any part thereof have been made, or if made, all such
duplicates or copies are included in the sealed package
deposited, except for the copy retained by law
enforcement authorities

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Remedial Law Evidence

A. GENERAL CONCEPTS

Evidence is the means, sanctioned by these rules, of

ascertaining in a judicial proceeding the truth respecting
a matter of fact. (Sec. 1, Rule 128)

PROOF vs. EVIDENCE

Proof Evidence
Merely the probative effect the means, sanctioned
of evidence and is the by these rules, of
conviction or persuasion of ascertaining in a judicial
the mind resulting from a proceeding the truth
consideration of the evidence respecting a matter of
(29 Am Jur 2d, Evidence, S2) fact (Sec.1, Rule 128, RoC)
The effect or result of
Medium of proof
EVIDENCE evidence

BURDEN OF PROOF vs. BURDEN OF

EVIDENCE

Burden of Proof or “onus probandi”, defined: Obligation

imposed upon a party who alleges the existence of facts
necessary for the prosecution of his action or defense to
establish the same by the requisite quantum of evidence.

Proof - The establishment of a requisite degree of belief

in the mind of the trier of fact as to the fact in issue.

Burden of Proof Burden of Evidence

Does not shift and Shifts from party to
remains throughout the party depending upon
entire case exactly the exigencies of the
where the original case in the course of the
pleadings placed it. trial
Generally determined by
the developments of the
trial, or by the provisions
of substantive law or
Generally determined by procedural rules which
the pleadings filed by the may relieve the party
party. from presenting
evidence on the facts
alleged. (ex.
Presumptions, judicial
notice)

Upon Whom Burden of Proof Rests:

Criminal
Civil Cases
Cases
The burden
of proof is
On the party who would be defeated if
always with
no evidence were given on either side.
the
prosecution
Has the burden of proof to Note: It is
show the truth of his required
allegations if the defendant that courts
Plaintiff
raises a negative defense. determine
(w/ respect to his first if the
complaint) evidence of
Defendant Has the burden of proof if the

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he raises an affirmative prosecution

defense on the complaint has at least Where the evidence in a criminal case is evenly balanced,
of the plaintiff. shown a the constitutional presumption of innocence tilts the
(w/ respect to his prima facie scales in favor of the accused. (People v. Lagmay)
counterclaim) case before
considering
B. ADMISSIBILITY
the
evidence of
the Evidence is admissible when it is relevant to the issue and
defense. is not excluded by the law or these rules.
*If
Cross w/ respect to his cross established REQUISITES
Claimant claim – then the 1. Evidence is relevant; and
burden is 2. Evidence is competent or not excluded by the
shifted rules
upon the
accused to RELEVANT, MATERIAL, AND COMPETENT EVIDENCE
prove Relevant - evidence having any value in reason as tending
otherwise to prove any matter provable in an action.

Burden of Evidence - The logical necessity on a party Test: The logical relation of the evidentiary fact to the fact
during a particular time of the trial to create a prima facie in issue, whether the former tends to establish the
case in its favor or to destroy that created against him by probability or improbability of the latter or induces belief
presenting evidence. in its existence or non-existence

In BOTH civil and criminal cases: The burden of evidence Material- evidence directed to prove a fact in issue as
lies w/ the party who asserts an affirmative allegation. determined by the rules of substantive law and pleadings.

Civil Cases Criminal Cases Test:

Plaintiff Prosection 1. W/N the fact it intends to prove is an issue or
Must prove the its not.
affirmative allegations 2. W/N a fact is in issue: Determined by
Must prove the substantive law, pleadings, pre-trial order and
in the indictments
affirmative allegations by admissions or confessions on file.
(elements of the crime
in his complaint 3. Evidence may be relevant BUT may be
and the attending
circumstances) immaterial.
Defendant Defense
As to the justifying, Competent- one that is not excluded by the Rules,
In his counterclaim and statutes or the Constitution. (Sec 3, Rule 128)
exempting, mitigating,
in his affirmative
and absolutory
defenses RELEVANCE OF EVIDENCE AND COLLATERAL
circumstances
MATTERS
FACTUM PROBANS AND FACTUM PROBANDUM Relevance is a matter of relationship between the
evidence and the fact in issue. (Riano)
Factum Probans Factum Probandum
The evidentiary fact or the Ultimate fact or the fact
“There is no precise and universal test of relevancy
fact by which the factum sought to be established
provided by law. However, the determination of whether
probandum is to be
particular evidence is relevant rests largely at the
established.
discretion of the court, which must be exercised
Refers to the materials Refers to the proposition; according to the teachings of logic and everyday
which established the Elements of the cause of
experience” (People v. Galleno, 1998)
proposition action
COLLATERAL MATTERS
Ex. If P claims to have been injured by the negligence of D
A matter is collateral when it is on a “parallel or diverging
who denies having been negligent.
line,” merely “additional” or “auxiliary” (Black’s Law
Dictionary, 5th Ed., p. 237)
Factum probandum: The negligence of D and the causal
connection between such negligence, and the injuries of
GENERAL RULE: Collateral Matters are not allowed
P taken as a whole
EXCEPTION: When it tends in any reasonable degree to
establish the probability or improbability of the fact in
Factum probans: The totality of the evidence toprove the
issue. (Sec. 4, Rule 128)
liability
TYPES OF ADMISSIBILITY
1. Multiple admissibility
- Admissible for 2 or more purposes
- May mean either:
EQUIPOSE RULE

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a. The evidence is admissible for several

purposes; or
b. An evidence is not admissible for one
purpose but may be admitted for a
different purpose
2. Conditional admissibility
- Admissibility of evidence, where the
evidence at the time of its offer appears to
be immaterial or irrelevant, subject to the
condition that relevancy would later on be
shown.
- Qualification: No bad faith on the part of
the proponent
3. Curative admissibility
- Admissibility of an inadmissible evidence to
answer the opposing party’s previous
introduction of inadmissible evidence if it
would remove any unfair prejudice caused
by the admission of the earlier inadmissible
evidence.
- The right of the party to introduce
incompetent evidence in his behalf where
the court has admitted the same kind of
evidence adduced by the adverse party.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
CIRCUMSTANTIAL
DIRECT EVIDENCE
EVIDENCE
Evidence which indirectly
proves a fact in issue
through an inference
Proves a fact without a need
which the fact finder
to make an inference from
draws from the evidence
another fact
established (People
Matito, GR No. 144405,
February 24, 2004)
EXCLUSIONARY RULES
Evidence obtained and confiscated on the occasion of
unreasonable searches and seizures are deemed tainted
and should be excluded for being the proverbial fruit of a
poisonous tree. In other words, evidence obtained from
unreasonable searches and seizures shall be inadmissible
in evidence for any purpose in any proceeding. (Ambre v.
People)
Exception: Search and seizure may be made without a
warrant and the evidence obtained therefrom may be
admissible in the following instances: (1) search incident
to a lawful arrest; (2) search of a moving motor vehicle; (3)
search in violation of customs laws; (4) seizure of
evidence in plain view; (5) when the accused himself
waives his right against unreasonable searches and
seizures; and (6) stop and frisk situations. (People v.
Molina)
JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS (rule 129)
WHAT NEED NOT BE PROVED:
1. Facts which a court shall or may take judicial
notice. (Secs. 1 and 2, Rule 129)
2. Judicial admissions. (Sec. 4, Rule 129)
3. Facts which may be presumed from proven
facts.
JUDICIAL NOTICE
The cognizance of certain facts which judges may
v.
properly take and act on without proof because they are
already known to them (People v. Tundag, 2000)

Judicial Notice is based on convenience and expediency.

POSITIVE AND NEGATIVE EVIDENCE
POSITIVE EVIDENCE
When witness affirms in
the stand that a certain
state of facts does exist or
that a certain event
happened
It relieves the parties from the necessity of introducing
evidence to prove the fact noticed.
NEGATIVE EVIDENCE
The taking of judicial notice is a matter of expediency and
When the witness states that
convenience for it fulfills the purpose that the evidence is
an event did not occur or
intended to achieve, and in this sense, it is equivalent to
that the state of facts alleged
proof. (Land Bank of the Philippines vs. Yatco Agricultural
to exist does not actually
Enterprises, 2014)
exist

Presence of something Absence of something Judicial Notice relieves the parties from the necessity of
introducing evidence to prove the fact noticed (Francisco,
Evidence, 1996)
Positive evidence is, as a general rule, more credible than
negative evidence. The reason for this rule is that the
WHEN COURT MAY TAKE JUDICIAL NOTICE
witness who testifies to a negative may have forgotten
1. During trial;
what actually occurred, while it is impossible to
2. After trial and before judgment;
remember what never existed. (Gomez v. Gomez- Samson, 3. On Appeal
GR No. 156284, 2007)
WHEN JUDICIAL NOTICE MANDATORY
1. Existence and territorial extent of states;
2. Their political history, forms of government and
COMPETENCE AND CREDIBLE EVIDENCE symbols of nationality;
COMPETENCY CREDIBILITY 3. The law of nations;
4. The admiralty and maritime courts of the world
Not excluded by the Rules, statutes Worthiness of
and their seals;
or the Constitution belief

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5. The political constitution and history of the
Philippines;
6. the official acts of the legislative, executive and
judicial departments of the Philippines
7. The laws of nature;
8. The measure of time; and
9. The geographical divisions.
Note: Enumeration on Mandatory Judicial Notice is
EXCLUSIVE
RULE ON JUDICIAL NOTICE OF DECISIONS OF
COURTS
GENERAL RULE: ALL courts are required to take judicial
notice of the decisions of the Supreme Court.
Lower courts are to take JN of decisions of higher courts
(ex. CA) BUT NOT of the decisions of coordinate trial
courts NOR even of a decision or the facts involved in
another case tried by the same court
EXCEPTION: Parties introduce the same in evidence. (The
court, as a matter of convenience, decides to do so.)
RULE ON ADJUDICATION OF CASES PENDING
GENERAL RULE: Courts are not authorized to take
judicial notice in the adjudication of cases pending before
them, of the contents of other cases, even when such
cases have been tried or are pending in the same court,
and notwithstanding the fact that both cases may have
been tried or are actually pending before the same judge.
(Prieto v. Arroyo, Jr., 1965)
EXCEPTION: In the absence of objection, and as a matter
of convenience to all parties, a court may properly treat
all or any part of the original record of a case filed in its
archives as read into the record of a case pending before
it, when, with the knowledge of the opposing party,
reference is made to it for that purpose, by name and
number or in some other manner by which it is
sufficiently designated; or when the original record of the
former case or any part of it, is actually withdrawn from
the archives by the court's direction, at the request or
with the consent of the parties, and admitted as a part of
the record of the case then pending.
It is clear, though, that this exception is applicable only
when, "in the absence of objection," "with the knowledge
of the opposing party," or "at the request or with the
consent of the parties," the case is clearly referred to or
"the original or part of the records of the case are actually
withdrawn from the archives" and "admitted as part of
the record of the case then pending." (Tabuena vs. CA,
1991)
WHEN JUDICIAL NOTICE DISCRETIONARY
Courts may take judicial notice on:
1. Matters which are of public knowledge,
2. Matters which are capable of unquestionable
demonstration, or
3. Matters which ought to be known to judges
because of their judicial functions
For the court to take Judicial Notice, three material
requisites should be present:
1. The matter must be one of common and general
Lasallian Commission on Bar Operations
Evidence
knowledge;
2. It must be well and authoritatively settled and
not doubtful or uncertain;
3. It must be known to be within the limits of the
jurisdiction of the court. (State Prosecutors v,
Muro, 1994)
It is not essential that matters of Judicial Notice be
actually known to the judge. The judge may, at his
discretion, inform himself in any way which may seem
best to him, and act accordingly.
JUDICIAL ADMISSIONS
An admission, verbal or written, made by a party in the
course of the proceedings in the same case, does not
require proof. The admission may be contradicted only by
showing palpable mistake or that no such admission was
made. (Sec. 4, Rule 129, Rules of Court)
ELEMENTS OF JUDICIAL ADMISSIONS
1. Must be made by a party to the case
2. Must be made in the course of the proceedings
in the same case
3. No particular form is required, may be oral or
written (Riano)
JUDICIAL ADMISSIONS MAY BE MADE
1. In the pleadings filed by the parties
2. In the course of the trial either by verbal or
written manifestations or stipulations
3. In other stages of the judicial proceeding, as in
pre-trial of the case
Note: Depositions, written interrogatories, or requests for
admission are also considered judicial admissions.
TO BE CONSIDERED A JUDICIAL ADMISSION
GENERAL RULE: It must be made in the SAME case in
which it is offered
EXCEPTION: It may be made in another case or another
court, provided:
1. It be proved as in the case of any other fact
2. If the judicial admission was made in a judicial
proceeding, it is entitled to greater weight.
3. It is pertinent to the issue involved
4. There must be no objection
EXCEPTION TO THE EXCEPTION:
1. The said admissions were made only for
purposes of the first case as in the rule on
implied admissions and their effects under Rule
26
2. The same were withdrawn with the permission
of the court therein
3. The court deems it proper to relieve the party
therefrom.
EFFECT OF JUDICIAL ADMISSIONS
Judicial Admissions do not require proof. (Sec. 4, Rule 129)
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
GENERAL RULE: Judicial Admissions cannot be
contradicted by the admitter who is the party himself.
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Remedial Law
EXCEPTION: May be contradicted when:
1. Such is made through palpable mistake;
2. No such admission was made; or
3. In the case of a pre-trial admission in a civil
case, to prevent manifest injustice (Sec 7, Rule
118)
4. In criminal cases, if the pre-trial admission was
reduced to writing and signed by the accused
and his counsel (Secs 2 and 4, Rule 118)
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCE
GENERAL RULE: Foreign laws do not prove themselves
nor can a court take judicial notice of them. Like any
other fact, they must be alleged and proved. (Garcia-
Recio v. Garcia, 2001)
EXCEPTION: When foreign laws may be the subject of
judicial notice
1. When the local court is evidently familiar with
the foreign law.
2. When the foreign law refers to the law of
nations. (Sec. 1, Rule 129)
3. When the court takes judicial notice of a
published treatise, periodical or pamphlet on a
subject of law as a learned treatise. (Sec. 46,
Rule 130)
4. When the foreign statute is accepted by the
Philippine government. (Republic v. Guanzon, 61
SCRA 360)
5. When a foreign judgment containing foreign law
is recognized for enforcement. (Sec. 48, Rule 39)
6. If the foreign law refers to common law
doctrines and rules from which many of our
laws were derived. (Alzua v. Johnson, 21 Phil.
308)
HOW WRITTEN FOREIGN LAW MAY BE PROVED
Requirements in Sec 24 and 25 of rule 132 must be
complied with:
1. By an official publication
2. By a duly attested and authenticated copy
thereof.
Philippine courts cannot take judicial notice of foreign
laws. They must be alleged and proved as any other fact.
In the absence of such proof, the foreign law is presumed
to be the same as Philippine law. (Yao Kee v. Sy-Gonzales,
1988)
DOCTRINE OF PROCESSUAL PRESUMPTION
Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume
that the foreign law is the same as our local or domestic
or internal law. (Del Socorro v. Van Wil Sem, 2014)
HOW UNWRITTEN FOREIGN LAW MAY BE PROVED
Rule 130, Sec 46: A published treatise, periodical or
pamphlet on a subject of such law or a testimony of a
written expert.
LAW OF NATIONS
Lasallian Commission on Bar Operations
Evidence
Article II, The 1987 Philippine Constitution
SEC. 2. The Philippines renounces war as an instrument
of national policy, adopts the generally accepted
principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
The Philippines…”adopts the generally accepted
principles of international law as part of the law of the
land..” (Sec. 2, Art. II, 1987 Constitution)
MUNICIPAL ORDINANCES
GENERAL RULE: Courts of justice are required to take
Judicial Notice of the laws
EXCEPTION: In case of ORDINANCES, the rule is
different
1. MTCs: Required to take JN of the ordinances of
the municipality or city wherein they sit.
2. RTC however, they must take such JN ONLY
when:
a. Required to do so by statute (ex. city
charter); and
b. In a case on appeal before them and
wherein the inferior court took JN of an
ordinance involved in said case. (only to
determine the propriety of taking JN)
c. Appellate courts may also take JN of
municipal and city ordinances not only
where the lower courts took JN BEC these
are facts capable of unquestionable
demonstration.
d. For the same reason, Courts may take
judicial notice of administrative
regulations.
C. OBJECT (REAL) EVIDENCE
(RULE 130, A)
Nature of Object Evidence
Object evidence includes any article or object which may
be known or perceived by the use of any of the senses of:
hearing (auditory), touch (tactile), taste (gustatory) or
smell (olfactory), and sight
It may include:
• Examination of the anatomy of a person or any
substance taken therefrom
• Conducting tests, demonstration or
experiments
• Examination of representative portrayals of the
object in question provided the same are
properly authenticated (ex. maps, diagrams,
sketches, pictures, audio-visual records)
• Documents – only if the same are presented for
the following purposes:
1. To prove the existence or condition or
the nature of the handwritings thereon;
2. To determine the age of the paper used
or the blemishes or alterations thereon
Note: Such real evidence may be amplified by
interpretations afforded by testimonial evidence
especially by experts (x-ray interpreted by doctors)
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DOCUMENTS ARE CONSIDERED:
1. Object Evidence – if their Purpose is to prove
their existence or condition, or the nature of
the handwritings thereon or to determine the
age of the paper used, or the blemishes or
alterations thereon.
2. Documentary Evidence - if their purpose is to
establish the contents or tenor thereof.
REQUISITES FOR ADMISSIBILITY OF OBJECT
EVIDENCE:
1. Must be relevant
2. Must be Authenticated
3. Must be made by competent witness
4. Object must be formally offered in evidence
NOTE: Authentication consists of showing that the object
is the object that is involved in the underlying event.
CATEGORIES OF OBJECT EVIDENCE
As to Presentation in Court:
1. Exhibition or Production - The exhibition or
production of object inside or outside the
courtroom;
2. View of an Object or Scene - the inspection of
the object outside the courtroom
3. Experiments - making of an experiment
As to Authentication of an Object:
1. Unique Objects – readily identifiable; objects
with unique marks
2. Objects made Unique - made readily
identifiable; objects which acquired unique
characteristics
3. Non-Unique Objects – not readily identifiable;
objects with no identifying marks and cannot be
marked
DEMONSTRATIVE EVIDENCE
It is a tangible object that represents or illustrates a
matter of importance in the litigation (i.e. maps, diagrams,
summaries and other materials created especially for the
litigation)
To be admissible, it must show that the object fairly
represents or illustrates what is alleged to illustrate.
REQUISITES FOR OCULAR INSPECTION OR VIEW OF
AN OBJECT OR SCENE:
1. Object is relevant
2. Party cannot bring the object in the courtroom
(ex. Immovable or inconvenient to remove)
A view or Ocular Inspection conducted by the judge
without notice to or the presence of the parties is invalid
since an OI is part of the trial.
Whether or not an Ocular Inspection is to be made lies in
the discretion of the court. (Remedial Law Compendium
Vol. II, Regalado)
D. DOCUMENTARY EVIDENCE
(RULE 130, B)
Lasallian Commission on Bar Operations
Evidence
DEFINITION
Documents as evidence consist of writings or any
material containing letters, words, numbers, figures,
symbols or other modes of written expressions offered as
proof of their contents. (Sec. 2, Rule 130)
CATEGORIES OF DOCUMENTS
1. Writings; or
2. Any material containing letters, words, numbers,
figures, symbols
DOCUMENT
A deed, instrument or other duly authorized paper by
which something is proved, evidenced or set forth.
DOCUMENTARY EVIDENCE
That which is furnished by written instruments,
inscriptions and documents of all kinds.
REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY
EVIDENCE:
1. The document must be relevant;
2. The evidence must be authenticated;
3. The document must be authenticated by a
competent witness; and
4. The document must be formally offered in
evidence.
BEST EVIDENCE RULE
The rule stipulates that in proving the terms of a written
document the original of the document must be
produced in court. (Heirs of Prodon v. Heirs of Alvarez,
2013)
PURPOSE OF THE BEST EVIDENCE RULE
To prevent fraud, perjury; and to exclude uncertainties in
the contents of a document
WHEN APPLICABLE
GENERAL RULE: The rule excludes any evidence other
than the original writing to prove the contents thereof
(Rule 130, Sec. 3)
NOTE: Best Evidence Rule is applied to Documentary
Evidence ONLY (where the contents of a writing is the
subject of judicial inquiry; best evidence is the original
writing itself). It operates as a rule of exclusion.
EXCEPTIONS:
1. When the original has been lost or destroyed, or
cannot be produced in court, without bad faith
on the part of the offeror;
2. 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;
3. 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
4. When the original is a public record in the
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custody of a public officer or is recorded in a
public office.
Effect: The non-production of the original document
gives rise to the presumption of suppression of evidence.
(Sec 3, Rule 131)
MEANING OF ORIGINAL OF DOCUMENT
It is one the contents of which are the subject of inquiry.
WHEN “OTHER COPIES OF A DOCUMENT” ARE
CONSIDERED ORIGINALS (SEC. 4)
1. It includes regular entries in journals and
ledgers.
2. A signed carbon copy executed at the same time
as the original is known as a “duplicate original”
and may be introduced w/o the original
RULES ON CARBON COPIES CONSIDERED AS
ORIGINALS
Documents prepared in several copies through the use of
carbon sheets are considered originals, PROVIDED that
the writing of a contract upon the outside sheet,
including the signature of the party sought to be charged
thereby, produces a facsimile upon the sheets beneath,
such signature being thus reproduced by the SAME
stroke of the pen
Even if the signature was made through separate acts or
separate occasions, ALL the CARBON COPIES are
considered originals
RULES ON TELEGRAMS AND CABLES
Whether or not the dispatch sent or the dispatch
received is the best evidence of the message (depends on
the issue)
1. IF the issue is the contents of the telegrams as
received by the addressee, original dispatch
received is the best evidence as sent by the
sender the original is the message delivered
2. IF the issue is the inaccuracy of the
transmission
BOTH the sent and received dispatch are originals.
SECONDARY EVIDENCE
1. WHEN ORIGINAL IS UNAVAILABLE.
REQUISITES FOR INTRODUCTION OF SECONDARY
EVIDENCE IN CASE OF LOSS OR DESTRUCTION:
1. Prove the existence or due execution of the
original;
2. Show cause for its unavailability; and
3. Show the absence of bad faith on the part of the
offeror to which the unavailability of the
original can be attributed.
NOTE: Proof of loss or destruction alone is not sufficient
foundation. The due execution besides the loss has to be
shown. Also, the offeror must show that exerted efforts
were made to locate the original; that the search was
thorough and diligent
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Evidence
2. WHEN ORIGINAL IS WITH THE ADVERSE
PARTY
REQUISITES FOR INTRODUCTION OF SECONDARY
EVIDENCE WHEN THE ORIGINAL IS WITH THE
ADVERSE PARTY:
1. The original exists;
2. The document is under the custody or control
of the adverse party;
3. Proponent of the Secondary Evidence has given
the adverse party reasonable notice to produce
the original document; and
4. Adverse party failed to produce the original
document despite reasonable notice.
3. WHEN ORIGINAL CONSISTS OF NUMEROUS
ACCOUNTS
REQUISITES FOR INTRODUCTION OF SECONDARY
EVIDENCE WHEN THE ORIGINAL CONSISTS OF
NUMEROUS ACCOUNTS:
1. The original consists of numerous accounts or
other documents;
2. They cannot be examined in court without
great loss of time; and
3. The fact sought to be established from them is
only the general result of the whole.
(Sec.3(c), Rule 130)
Voluminous records must, however, be made accessible
to the adverse party so that the correctness of the
summary of the voluminous records may be tested on
cross examination. (Compania Maritima v. Allied Free
Workers Union, 77 SCRA 24)
4. WHEN ORIGINAL IS A PUBLIC RECORD
REQUISITES FOR INTRODUCTION OF SECONDARY
EVIDENCE WHEN THE ORIGINAL IS A PUBLIC
RECORD:
1. Original is in the custody of a public officer or is
recorded in a public office;
2. Prove contents by:
a. Certified True Copy issued by the public
officer in custody thereof; or
b. Official Publication
PAROL EVIDENCE RULE
Parol Evidence – Oral or verbal evidence; that which is
given by word of mouth; the ordinary kind of evidence
given by witnesses in court. In a particular sense, and
with reference to contracts, deeds, wills, and other
writings, parol evidence is the same as extraneous
evidence, or evidence aliunde. (Black’s Law Dictionary, 5th
Ed. , pp. 1005-1006)
REQUISITES FOR APPLICABILITY
1. A valid contract;
2. Terms of the agreement must be reduced to
writing;
3. Dispute is between parties and their
successors-in-interest;
4. Grounds for applicability must be put in issue in
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the pleadings; and

5. There is a dispute as to the terms of the PAROLE EVIDENCE RULE BEST EVIDENCE RULE
agreement.

WHEN PAROL EVIDENCE CAN BE INTRODUCED Contemplates a situation

GENERAL RULE: When the terms of an agreement have where the original writing
Presupposes that the
been reduced to writing, it is considered as containing all is not available and/or
original document is
the terms agreed upon and there can be, between the there is a dispute as to
available in court
parties and their successors in interest, no evidence of w/n the said writing is the
such terms other than the contents of the written original
agreement.
Written agreements only Any document
EXCEPTION: When a party puts in issue in his pleading:
1. An intrinsic ambiguity, mistake or imperfection
in the written agreement; Prohibits the introduction
Prohibits the varying of the
2. The failure of the written agreement to express of secondary evidence
terms of the written
the true intent and agreement of the parties regardless of w/n it varies
agreement
thereto; the contents of the original
3. The validity of the written agreement; or
4. The existence of other terms agreed to by the
parties or their successors in interest after the Applies ONLY to
execution of the written agreement. documents which are
Applies to all kinds of
contractual in nature or
writings
EXCEPTION TO THE EXCEPTION: Parol Evidence may “written agreement (EXC. It
still be admitted even if the required matters are not put applies to wills)
in issue by the pleadings:
1. If such facts are invoked in his answer (since it Can be invoked ONLY
also puts it in issue) when there is a
Can be invoked by ANY
2. When parol evidence is NOT OBJECTED to controversy bet. the parties
party regardless of w/n
(waiver of right to object inadmissibility) to the written agreement
such party has participated
and their privies or any
in the writing involved.
Note: The Exceptions above are also the Grounds for party directly affected
presenting Parol Evidence thereby

Only the contracting

INTEGRATED AGREEMENTS May be challenged by
parties may challenge the
Parol Evidence Rule applies only to integrated (finalized) anyone
document
agreements, intended by both parties as the final and
exclusive written memorial of their agreement to exclude any evidence
that will vary, modify or Exclude any evidence to
COLLATERAL ORAL AGREEMENTS change contents of the prove content
Parol Evidence Rule may also apply to collateral oral written agreement
agreements:
1. When the CA is not inconsistent with the terms
of the written contract;
2. When the CA has not been integrated in and is INTERPRETATION OF DOCUMENTS
independent of the written contract as where it
is suppletory to the original contract; The language of a writing is to be interpreted according
3. When the CA is subsequent to or novatory of to its execution, unless the parties intended otherwise.
the written contract;
4. When the CA constitutes a condition precedent However, when an instrument consists partly of written
which determines whether the written contract words and partly of a printed form, AND the two are
may become operative or effective. inconsistent, the former controls the latter.

WHEN PAROL EVIDENCE NOT APPLICABLE EXPERTS AND INTERPRETERS TO BE USED IN

1. When at least 1 party to the suit is not a party or
privy to the written instrument in question and
does not base a claim or assert a right
originating in the instrument.
2. A stranger may introduce extrinsic evidence
against the written agreement.
PAROL EVIDENCE RULE V. BEST EVIDENCE RULE
EXPLAINING CERTAIN WRITINGS WHEN:
1. The characters in which an instrument is
written are difficult to be deciphered, or
2. The language is not understood by the court,
the evidence of persons skilled in deciphering
the characters, or who understand the language
is admissible to declare the characters or the
meaning of the language.
OF TWO CONSTRUCTIONS, WHICH PREFERRED
When the terms of an agreement have been intended in a
different sense by the different parties to it:

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Remedial Law
• That sense is to prevail against either party in
which he supposed the other understood it, and
when different constructions of a provision are
otherwise equally proper;
• That is to be taken which is the most favorable
to the party in whose favor the provision was
made.
CONSTRUCTION IN FAVOR OF NATURAL RIGHT
When an instrument is equally susceptible of two
interpretations, one in favor of natural right AND the
other against it, the former is to be adopted.
INTERPRETATION ACCORDING TO USAGE
An instrument may be construed according to usage, in
order to determine its true character.
E. TESTIMONIAL EVIDENCE
(RULE 130, C)
QUALIFICATIONS OF A WITNESS
GENERAL RULE: All persons who can perceive, and in
perceiving, can make known their perception to others,
may be witnesses.
The following shall not be a ground for disqualification:
1. Religious or political belief,
2. interest in the outcome of the case, or
3. conviction of a crime
Note: A witness must only possess all the qualifications
and none of the disqualifications. (Marcos v. Heirs of
Navarro, 2013)
EXCEPTIONS: When law provides otherwise, such as:
1. Disqualification by reason of mental capacity
or immaturity (Sec. 21, Rule 130)
2. Disqualification by reason of marriage (Sec. 22,
Rule 130)
3. Disqualification by reason of death or insanity
of the adverse party (Sec. 23, Rule 130)
4. Disqualification on the ground of privileged
communication (Sec. 24, Rule 130)
The fact that a person is mentally handicapped, alone
does not prevent her from giving testimony especially if
the testimony was candid, straightforward, and coherent
(People v. Baid, 2000)
COMPETENCY VERSUS CREDIBILITY OF A WITNESS
COMPETENCY OF A CREDIBILITY OF A
WITNESS WITNESS
Has nothing to do with the
Matter of law
rules
As regards the
qualifications and the Refers to the weight and
capacity of a witness to trustworthiness or
perceive and make his reliability of the testimony
perception known
Lasallian Commission on Bar Operations
Evidence
DISQUALIFICATIONS OF A WITNESS
1. By reason of mental capacity or immaturity;
2. By reason of marriage;
3. By reason of death or insanity of the adverse
party; and
4. By reason of privileged communications
1. DISQUALIFICATION BY REASON OF MENTAL
CAPACITY OR IMMATURITY
The following cannot be witnesses:
1. Those whose mental condition renders them
incapable of intelligently making known their
perception to others at the time of their
examination; and
2. Children whose mental immaturity renders
them incapable of perceiving facts and relating
them to others truthfully
COMPETENCY OF A CHILD WITNESS
Every child is presumed qualified to be a witness.
However, the court shall conduct a competency
examination of a child, motu proprio or on motion of a
party, when it finds that substantial doubts exists
regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
Note: The court may set other conditions on the taking of
the deposition that it finds just and appropriate, taking
into consideration the best interests of the child, the
constitutional rights of the accused, and other relevant
factors. (Rule on Examination of a Child Witness)
2. DISQUALIFICATION BY REASON OF
MARRIAGE: RULE ON MARITAL
DISQUALIFICATION (SPOUSAL IMMUNITY)
GENERAL RULE: During the marriage, neither the
husband nor the wife may testify for or against the other
without the consent of the affected spouse
EXCEPTIONS: Rule on Disqualification does NOT Apply
1. When the testimony was made outside the
marriage
2. In a civil case by one spouse against another
3. In a criminal case for a crime committed by one
spouse against the other or the latter’s direct
descendants or ascendants (Sec. 22, Rule 130)
REASON: The crime may be considered as having been
committed against the spouse and hence, the conjugal
harmony sought to be protected no longer exists.
LIMITED ONLY TO DIRECT ASCENDANTS AND
DESCENDANTS + SPOUSE:
1. When the offense directly attacks or vitally
impairs the conjugal relation. (People v.
Castañeda, 88 SCRA 562)
2. When the marital relations are so strained,
there is no more consideration for applying
the said rule. Such as in cases of rape
of the child, the crime is tantamount to a crime
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against the wife. (Ordonio v. Daquigan, 62 SCRA
270)
3. When there is imputation of a crime by one
spouse against the other
Note: “Direct Ascendants and Descendants” = Parents and
Children ONLY
NATURE OF PROHIBITION:
Absolute disqualification or prohibition against the
spouse’s testifying to any fact affecting the other spouse
however the fact may have acquired
REQUISITES IN ORDER FOR MARITAL
DISQUALIFICATION RULE TO APPLY:
1. The marriage is valid and existing at the time of
the offer of testimony; and
2. The other spouse is a party to the action.
Note: Disqualification applies where the marriage
between the parties is voidable.
WHO MAY OBJECT:
Only the other spouse who is a party to the case.
Objections to the competency of the witness-spouse may
also be waived. (Ex. Testimony against a spouse is a
waiver of a testimony in rebuttal)
RATIONALE FOR HAVING SUCH RULE:
Considering the identity of interest between the spouses,
there is a consequent danger of committing perjury. Also,
the rule is in order to guard marital confidence and to
prevent domestic disunion
3. DISQUALIFICATION BY REASON OF DEATH
OR INSANITY OF ADVERSE PARTY
SURVIVORSHIP DISQUALIFICATION RULE OR DEAD
MAN STATUTE:
Constitutes only a partial disqualification: A witness is not
completely disqualified BUT is only prohibited from
testifying in certain matters specified
DISQUALIFICATION ONLY APPLIES TO:
A civil case or special proceeding over the estate of a
deceased or insane person
INCOMPETENCY TO TESTIFY APPLIES:
Whether or not the deceased died before or after the
commencement of the action against him provided he is
dead at the time of the testimony. The material time is
when the testimony is sought to be given.
REQUISITES:
1. The witness offered for examination is a party
plaintiff, or the assignor of said party, or a
person in whose behalf a case is prosecuted;
2. The case is against the executor or
administrator or other representative of a
person deceased or of unsound mind;
Lasallian Commission on Bar Operations
Evidence
3. The case is upon a claim or demand against the
estate of such person who is deceased or of
unsound mind
4. The testimony to be given is on matter of fact
occurring before the death, of such deceased
person or before such person became of
unsound mind.
THE RULE DOES NOT APPLY:
1. In Land registration cases instituted by the
decedent’s representatives (since the
oppositors are considered defendants and may
therefore testify against the petitioner)
2. In Cadastral cases – since there is no plaintiff or
defendant
3. When the testimony is offered to prove a claim
less than what is established under a written
document or is intended to prove a fraudulent
transaction against the deceased
Provided, such fraud is first established by evidence
aliunde.
APPLICATION:
To apply the rule, the testimony must be against the
estate.
WHEN THE DISQUALIFICATION IS WAIVED – WHEN
THE DEFENDANT:
1. Does not timely object to the admission of such
evidence;
2. Testifies on the prohibited matters or cross
examines thereon; or
3. Offers evidence to rebut such prohibited
testimony
REASON FOR THE RULE:
1. To prevent perjury
2. To protect the estate from fictitious claims
3. To give the parties an equal opportunity to
present evidence
The object and purpose of this Statute is to close the lips
of the party plaintiff when death has closed the lips of the
party defendant, in order to remove from the surviving
party the temptation to falsehood and the possibility of
fictitious claims against the deceased. (Goni v. CA, 144
SCRA 222, 1968)
The protection under the Dead Man’s Statute is deemed
waived when the counsel cross-examines the party who
is claiming against the estate.
4. DISQUALIFICATION BY REASON OF
PRIVILEGED COMMUNICATION
(a) HUSBAND AND WIFE (MARITAL PRIVILEGE)
REQUISITES FOR THE DISQUALIFICATION BY REASON
OF MARITAL PRIVILEGE TO APPLY:
1. There is a valid marital relation;
2. The privilege is invoked with respect to a
confidential communication between the
spouses during said marriage;
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3. The spouse against whom such evidence is

being offered has not given his or her consent
to such testimony.
Note: Marital Privilege applies to any form of confident
disclosure—written or unwritten. The privilege belongs to
the communicating spouse, not to the other one.
INSTANCES WHEN THE PRIVILEGE CANNOT BE
CLAIMED:
1. With respect to communications made prior to
the marriage of the spouses
2. With respect to communication not intended to
be kept in confidence (ex. dying declaration of a
husband to his wife as to who was his assailant
since it is intended to be reported) (US v.
Antipolo, 37 Phil 726)
3. When the information is overheard by a third
party whether he acquired the information
legally or not. (A 3rd person is not covered by
the prohibition) Provided: There is no collusion
between the 3rd person and one of the spouses.
4. In a conspiracy between spouses to commit a
crime - since it is not the intention of the law to
protect the commission of a crime.
5. When the spouses are living separately and
there is an active hostility. But if there is a
chance to reconcile, then this privilege will
apply;
6. When waived
Note: Any information received during the marriage is
presumed to be confidential. Privileged marital
communication extends even after death or divorce of
spouses.
REQUISITES FOR THE DISQUALIFICATION BASED ON
ATTORNEY-CLIENT (A-C) PRIVILEGE TO APPLY:
1. There is an attorney and client relation;
2. The privilege is invoked with respect to a
confidential communication between them in
the course of professional employment;
3. The client has not given his consent to the
attorney’s testimony. (Sec. 24, b, Rule 130)
Communications with third persons may still be deemed
confidential when done with the agents of either the
attorney or the client.
The client owns the privilege and therefore he alone can
invoke it.
Prohibition is also applicable even to a counsel de oficio.
CONFIDENTIAL COMMUNICATION
The attorney must have been consulted in his
professional capacity EVEN if no fee has been paid.
Lawyer need not be in active practice.
To constitute professional employment, it is not essential
that the client employed the attorney professionally on
any previous occasion. It is not necessary that any
retainer be paid, promised, or charged; neither is it
material that the attorney consulted did not afterward
handle the case for which his service had been sought.
(Haduja v. Madianda, 2007)
Communications to an attorney are not privileged where
they are voluntary made after he has refused to accept
employment.

Waiving Sec 22 does not prevent the spouse from It includes preliminary communications made for the
invoking Sec 24 and vice versa. So even if the information purpose of creating the A-C relationship. (But if it is not
is not confidential, the spouse may still invoke Sec 22., for the purpose of creating the A-C relationship – it will
which is an absolute disqualification. not be protected even if the client subsequently hires the
same attorney)
This should NOT be confused with “Marital
Disqualification” Includes verbal statements as well as documents or
papers entrusted to the attorney
Marital Disqualification Marital Privilege
INSTANCES WHEN THE A-C PRIVILEGE DOES NOT
(Sec. 22, Rule 130) (Sec. 24a, Rule 130 )
APPLY:
Prohibits only as to 1. Intended to be made public;
Prohibits adverse
knowledge obtained 2. Intended to be communicated to others;
testimony regardless of
through marital 3. Intended for an unlawful purpose;
source
relations 4. Received from third person not acting in behalf
Exists whether the or as agent of the client;
Applicable only when the
husband or wife is a 5. Made in the presence of third parties who are
party to an action is the
party to the action or strangers to the attorney-client relationship.
spouse
not
Ceases upon death or Continues even after THE PERIOD TO BE CONSIDERED IS:
divorce death or divorce The date when the privileged communication was made
Privilege belongs to either Privilege belongs to the by the client to the attorney in relation to either a crime
spouse communicating spouse committed in the past or with respect to a crime
Includes all facts, Only protects those intended to be committed in the future.
occurrence or information information received
obtained even prior the during the marriage Note: Privilege remains even after termination of
marriage relationship.

The lawyer-client confidentiality privilege and lawyer's

(b) ATTORNEY – CLIENT PRIVILEGE loyalty to his client is evident in the duration of the

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protection, which exists not only during the relationship,
but extends even after the termination of the
relationship. (Regala v. Sandiganbayan, 1996)
BUT COMMUNICATION REGARDING:
1. A crime already committed - is privileged
communication
2. Contemplated criminal acts or in aid or
furtherance thereof - is not covered.
THE A-C PRIVILEGE DOES NOT ATTACH:
1. When the attorney is a conspirator
2. When all the attorney has to do is to either
affirm or deny the secret revealed by the client
to the court
3. When the information is voluntarily given after
the attorney has refused to accept employment.
(c) PHYSICIAN – PATIENT PRIVILEGE
Purpose: It is intended to facilitate confidential disclosure
by a patient to a physician of all facts and symptoms w/o
apprehension to the end that the physician may form a
correct opinion and may safely treat his patient.
REQUISITES FOR THE DISQUALIFICATION BASED ON
PHYSICIAN-PATIENT (P-P) PRIVILEGE TO APPLY
1. The physician is authorized to practice
medicine, surgery, or obstetrics;
2. The information was acquired or the advice or
treatment was given by him in his professional
capacity for the purpose of treating and curing
the patient;
3. The information, advice or treatment, if
revealed, would blacken the reputation of the
patient;
4. The privilege is invoked in a civil case, whether
patient is a party or not (Sec. 24, Rule 130)
Note: It is not necessary that the P-P relationship was
created through the voluntary act of the patient. Death of
the patient does not extinguish the relation.
The privilege extends to all forms of communications as
well as to the professional observations and examinations
of the patient
THE P-P PRIVILEGE DOES NOT ATTACH WHEN:
1. The communication was not given in
confidence;
2. The communication is irrelevant to the
professional employment;
3. The communication was made for an unlawful
purpose, as when it is intended for the
commission or concealment of a crime;
4. The information was intended to be made
public;
5. There was a waiver of the privilege either by
provisions of contract or law.
6. Under Rule 28 of the Rules of Court
The results of the physical and mental examination of a
person, when ordered by the court, are intended to be
made public, hence not privileged.
Lasallian Commission on Bar Operations
Evidence
Death does not extinguish the patient-physician privilege.
Thus, result of autopsies or post mortem examinations
are generally intended to be divulged in court.
THE PRIVILEGE MAY ALSO BE WAIVED:
1. Section 4 of said Rule 28: if the party examined
obtains a report on said examination or takes
the deposition of the examiner, he thereby
waives any privilege regarding any other
examination of said physical or mental
condition conducted or to be conducted on him
by any other physician.
2. Waiver of the privilege by contract may be
found in stipulations in life insurance policies.
Note: If the child is the patient, the parent may claim the
privilege.
(d) PRIEST – PENITENT PRIVILEGE
REQUISITES FOR THE DISQUALIFICATION BASED ON
MINISTER/PRIEST-PENITENT PRIVILEGE TO APPLY:
1. That the same were made pursuant to a
religious duty enjoined in the course of
discipline of the sect or denomination to which
they belong; and
2. They must be confidential and penitential in
character. (Sec. 24, Rule 130)
Covers only confessions of sins with a view of obtaining
pardon and spiritual advice or assistance. Thus,
communications made in the course of religious
discipline but in contemplation of a crime are not
privileged.
Note: It is the person making the confession who can
invoke the privilege.
(e) PRIVILEGED COMMUNICATION TO PUBLIC
OFFICERS (STATE SECRETS)
REQUISITES FOR THE DISQUALIFICATION BASED ON
PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS
TO APPLY:
1. That it was made to the public officer in official
confidence;
2. That public interest would suffer by the
disclosure of such communication, as in the
case of State secrets.
Note: This privilege is not for the protection of the public
officer but for the protection of the public interest. Thus,
when no public interest will be prejudiced - this rule will
NOT apply.
EXCEPTIONS:
1. That which is useful to vindicate the innocence
of an accused person, or lessen the risk of false
testimony, or
2. Essential to the proper disposition of the case;
or
3. The benefit to be gained by a correct
disposition of the litigation was greater than
any injury which could inure to the relation by a
disclosure of the information
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(f) OTHER INSTANCES OF PRIVILEGE
1. RA 53 as amended by RA 1477, the publisher,
editor or duly accredited reporter of any
newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the
source of any news report or information
appearing in said publication unless the court or
a House or committee of Congress finds that
such revelation is demanded by the Security of
the State.
2. Art. 233 of the Labor Code - All information and
statements made at conciliation proceedings
shall be treated as privileged communications
and shall not be used as evidence in the NLRC,
and conciliators and similar officials shall not
testify in any court regarding any matter taken
up at the conciliation proceedings conducted by
them.
3. Voters cannot be compelled to reveal their
ballots
4. Trade Secrets will be covered by this privilege
5. Informer’s Privilege: Prosecutor is not to be
compelled to dispose the identity of the
informer unless the informer is already known
to the accused and when the identity of the
informer is vital.
6. Those covered in the Secrecy of Bank Deposits
Law
7. EO 464: Executive Privilege
8. Income Tax returns
9. Anti-Graft Cases
TESTIMONIAL PRIVILEGE
PARENTAL AND FILIAL PRIVILEGE RULE
It is not a rule of disqualification but is a privilege NOT to
testify.
PARENTAL PRIVILEGE
Parent cannot be compelled to testify against his child or
direct descendants
FILIAL PRIVILEGE
Child may not be compelled to testify against his parents
or other direct ascendants
RULE UNDER THE FAMILY CODE
GENERAL RULE: No descendant may be compelled to
testify against his parents and grandparents
EXCEPTION:
1. if such testimony is indispensable in
prosecuting a crime against the descendant; or
2. by one parent against the other (Art. 215, The
Family Code)
Both parental and filial privileges are granted to any
person. Persons may voluntary testify, but if they choose
to refuse, the rule protects them.
REASON FOR THE RULE:
The reason for the rule is to preserve “family cohesion”
Note: The privilege may now be invoked in both civil and
criminal cases.
Lasallian Commission on Bar Operations
Evidence
ADMISSIONS AND CONFESSIONS
ADMISSIONS
Any statement of fact made by a party against his interest
or unfavorable to the conclusion for which he contends
or is inconsistent with the facts alleged by him.
It may be verbal or written, express or tacit, or judicial or
extrajudicial. (Remedial Law Compendium Vol. II,
Regalado)
EXPRESS ADMISSIONS
Those made in definite, certain and unequivocal language.
Implied ADMISSIONS
Those which may be inferred from the acts, declarations
or omission of a party. Therefore, an admission may be
implied from conduct, statement of silence of a party.
RES INTER ALIOS ACTA RULE
“Res Inter Alios Acta Alteri Noceree Non Debet”
Things done between strangers ought not to injure those
who are not parties to it.
CONSISTS OF TWO PARTS:
1. Sec 28, Rule 130 (Admission by a Third Party)
2. Sec 34, Rule 130 (Similar Acts as Evidence)
EXCEPTION: When the 3rd person is a:
1. A partner, agent, joint owner, joint debtor, or
has a joint interest with the party (Sec. 29, Rule
130)
2. A co-conspirator (Sec. 30, Rule 130); or
3. A privy of the party (Sec. 31, Rule 130)
The res inter alios rule ordains that the rights of a party
cannot be prejudiced by an act, declaration, or omission
of another. An extrajudicial confession is binding only
upon the confessant and is not admissible against his co-
accused. The reason for the rule is that, on a principle of
good faith and mutual convenience, a man’s own acts are
binding upon himself, and are evidence against him. So
are his conduct and declarations. Yet it would not only
be rightly inconvenient, but also manifestly unjust, that a
man should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by the
acts of strangers, neither ought their acts or conduct be
used as evidence against him. (People vs Raquel, 265 SCRA
248, 1996)
i. ADMISSION BY A PARTY
A voluntary acknowledgement in express terms or by
implication by a party interest or by another by whose
statement he is legally bound, against his interest, of the
existence or truth of a fact in dispute material to the
issue.
Admission by a party may be given in evidence against
him. (Sec. 26, Rule 130)
REQUISITES FOR ADMISSIONS TO BE ADMISSIBLE
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1. They must involve matters of fact and not of

law;
2. They must be categorical and definite;
3. They must be knowingly and voluntarily made;
4. They must be adverse to the admitter’s
interests, otherwise it would be self-serving and
inadmissible.
OTHER FORMS OF ADMISSIONS:
Verbal or written, express or tacit, judicial or extrajudicial
1. Judicial: One made in connection w/ a judicial
proceedings (conclusive – does not require
proof)
2. Extrajudicial: Any other admissions (Sec 26 to
32) (Rebuttable – requires proof)
iii. ADMISSION BY A CO-PARTNER OR AGENT
The act or declaration of a partner or agent of the party
within the scope of his authority and during the existence
of the partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested
with the party. (Sec. 29, Rule 130)
RATIONALE:
What is done by an agent is done by the principal

REQUISITES FOR THIS EXCEPTION TO APPLY:

1. That the partnership, agency, or joint interest is
established by evidence other than the act or
DECLARATIONS declaration – Partnership relation must be
ADMISSIONS BY A PARTY
AGAINST INTEREST shown;
2. The act or declaration is within the scope of the
Need not be made against partnership, agency or joint interest with regard
the proprietary or Must have been made to a non-partnership affair: The fact that each
pecuniary interest of the against the proprietary partner has individually made a substantially
party, although of course, or pecuniary interest of similar admission does not render the aggregate
it will greatly enhance its the party admission competent against the firm.
probative weight if it be so 3. Such act or declaration must have been made
made during the existence of the partnership, agency
or joint interest.
Made by the party himself
Must have been made
and is a primary evidence Statements made after the partnership has been
by a person who is
and competent though he dissolved do not fall within the exception.
either deceased or
be present in court and
unable to testify
ready to testify BUT if they are made in connection with the winding up
of the partnership – such admission is STILL admissible.
Must have been made
ante litem motam
Can be made anytime iv. ADMISSION BY A CONSPIRATOR
(spoken before a lawsuit
is brought)
The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
ii. ADMISSION BY A THIRD PARTY evidence against the co-conspirator after the conspiracy
is shown by evidence other than such act of declaration.
GENERAL RULE: The rights of a party cannot be (Sec. 30, Rule 130)
prejudiced by an act, declaration, or omission of another.
(Sec. 28, Rule 130) Application of the requirement that the conspiracy exists
must primarily be proved by evidence other than the
BASIS OF THE GENERAL RULE: conspirator’s admission.
A party is not bound by any agreement to which he has
no knowledge and to which he has not given his consent. Applies ONLY to extrajudicial acts or statements
His rights cannot be prejudiced by the declaration, act or
omission of another exception by virtue of a particular NOT to judicial admission as to a testimony given on the
relation between them. witness stand at the trial where the party adversely
effected has the opportunity to cross examine the
EXCEPTION: When the 3rd person is a: declarant.
1. A partner, agent, joint owner, joint debtor, or
has a joint interest with the party (Sec. 29, Rule REQUISITES FOR ADMISSIBILITY:
130) 1. Such conspiracy is shown by evidence aliunde -
2. A co-conspirator (Sec. 30, Rule 130); or Conspiracy must be established by prima facie
3. A privy of the party (Sec. 31, Rule 130) proof in the judgment of the court;
2. The admission was made during the existence
BASIS OF THE EXCEPTION: of the conspiracy - After the termination of a
A third party may be so united in interest with the party- conspiracy, the statements of one conspirator
opponent that the other person’s admissions may be may not be accepted as evidence against any of
receivable against the party himself. The term “privy” is the other conspirators;
the orthodox catchword for the relation. 3. The admission related to the conspiracy itself.

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Should relate to the common object.
EXISTENCE OF THE CONSPIRACY MAY BE INFERRED:
1. From the acts of the accused
2. From the confessions of the accused
3. Or by prima facie proof thereof
Note: If there is no independent evidence of the
conspiracy – the extrajudicial confession CANNOT be
used against his co-accused (res inter alios rule applies to
both EXJ and J admissions)
Here, there is no need to produce direct evidence -
independent circumstantial evidence will suffice.
QUANTUM OF EVIDENCE TO PROVE CONSPIRACY:
Clear and convincing evidence
RULES ON EXTRAJUDICIAL ADMISSIONS MADE BY A
CONSPIRATOR AFTER THE CONSPIRACY HAD
TERMINATED AND BEFORE THE TRIAL:
GENERAL RULE: NOT admissible
EXCEPTION: Admissible against the co-conspirator IF:
1. Made in the presence of the co-conspirator
who expressly or impliedly agreed therein – as
there is tacit admission under Sec 32
2. Where the facts stated in said admission are
confirmed in the individual extrajudicial
confessions made by the co-conspirators after
their apprehension (interlocking confessions)
3. As a circumstance to determine the credibility
of a witness
4. As circumstantial evidence to show the
probability of the co-conspirator’s participation
in the offense.
IN ORDER THAT THE EXTRAJUDICIAL STATEMENTS
OF A CO-ACCUSED MAY BE TAKEN INTO
CONSIDERATION IN JUDGING THE TESTIMONY OF A
WITNESS IT IS NECESSARY THAT:
1. The statements are made by several accused,
2. The same are in all material respects identical;
and,
3. There could have been no collusion among said
co-accused in making such statements.
v. ADMISSION BY PRIVIES
Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the
former. (Sec. 31, Rule 130)
PRIVITY
Mutual succession of relationship to the same rights of
property.
PRIVIES
Those who have mutual or successive relationship to the
same right of property or subject matter (i.e. personal
representatives, heirs, devises, legatees, assigns,
voluntary grantees, or judgment creditors)
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Evidence
TO BE ADMISSIBLE, THE FOLLOWING REQUISITES
MUST CONCUR:
1. There must be a relation of privity between the
party and the declarant;
2. The admission was made by the declarant, as
predecessor in interest, while holding the title
to the property;
3. The admission is in relation to said property.
The privity in estate may arise by succession, by acts
mortis causa or by acts inter vivos.
vi. ADMISSION BY SILENCE
It is an act or declaration made in the presence and
within the hearing or 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. (Sec. 32, Rule
130)
TO BE ADMISSIBLE THE FOLLOWING REQUISITES
MUST CONCUR:
1. He must have heard or observed the act or
declaration of the other person;
2. He must have had the opportunity to deny it
3. He must have understood the statement;
4. He must have an interest to object, such that he
would naturally have done so, as if the
statement was not true;
5. The facts are within his knowledge;
6. The fact admitted or the inference to be drawn
from his silence is material to the issue. (People
v. Pabrua, 1990)
THE RULE ON ADMISSION BY SILENCE APPLIES:
1. Where a person was surprised in the act; or
2. Even if he is already in the custody of the police.
Note: Applies to both civil and criminal cases.
NO ADMISSION BY SILENCE WHEN:
1. Silence of an accused under custodial
investigation
2. Where the failure to answer was caused by
constraint, or
3. The party was not aware at the time that he had
an interest, or
4. The party believed that he had no interest or
was only indirectly affected
CONFESSIONS
A categorical acknowledgement of guilt made by an
accused in a criminal case, w/o any exculpatory
statement or explanation. (Regalado)
The declaration of an accused acknowledging his guilt of
the offense charged, or of any offense necessarily
included therein, may be given in evidence against him.
(Sec. 33, Rule 130)
IF the accused admits the act BUT alleges a justification –
it is merely an admission
ADMISSIONS CONFESSIONS
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Do not directly involve Stating or 3. A plan, system or scheme;

acknowledgment of the guilt acknowledging that he 4. A specific habit; or
of the accused or the had committed or 5. Established customs, usages and the like
criminal intent to commit participated in the
the offense with which he is commission of a crime Basis: Evidence must be confined to the point in issue in
charged. the case on trial. Evidence of collateral offenses must not
Usually applied in criminal Declaration made at be received as substantive evidence of the offense on
statements of fact by the any time trial.
accused
Purpose: To compel the defendant to meet charges of
which the indictment gives him no information, confuses
Confession of Judgment in Civil Cases = Admission of him in his defense, raises a variety of issues, and thus
Liability diverts the attention of the court from the charge
immediately before it.
FORMS OF CONFESSION:
1. Oral and under oath EXAMPLES OF THE EXCEPTIONS:
2. In writing (need not be under oath) 1. Evidence of another crime is admissible in a
prosecution for robbery:
Note: Sec 33 refers to EX-J Confessions • When it has the tendency to identify the
accused or show his presence at the scene
TYPES OF CONFESSIONS of the crime
1. Judicial Confession: • NOT where the evidence is to prove a
One made before a court in which the case commission of another crime wholly
is pending and in the course of legal independent of that which is on trial.
proceedings therein 2. Previous acts of negligence, is admissible to
• By itself, can sustain conviction, even for a show knowledge or intent.
capital offense
• But for Capital Offenses: there must be
evidence presented other than the plea of TESTIMONIAL KNOWLEDGE
guilty, also proof that such plea was made
voluntarily and w/ full comprehension A witness can testify only to those facts which are from
2. Extrajudicial (EX-J) Confession: his personal knowledge; that is, which are derived from
One made in any other place or occasion his own perception. (Sec. 36, Rule 130)

GENERAL RULE: Cannot sustain a conviction

EXCEPTION: Unless corroborated by evidence of the HEARSAY AND EXCEPTIONS TO THE
corpus delicti HEARSAY RULE
REQUIREMENTS FOR THE ADMISSIBILITY OF
EXTRAJUDICIAL CONFESSIONS HEARSAY RULE
1. The confession must involve an express and GENERAL RULE: A witness can testify only to those facts
categorical acknowledgment of guilt; which he knows of his personal knowledge, derived from
2. The facts admitted must be constitutive of a his own personal perception.
criminal offense;
3. The confession must have been given
DOCTRINE OF INDEPENDENTLY RELEVANT
voluntarily;
STATEMENTS
4. the confession must have been intelligently
A witness may testify to the statements made by a person
made, the accused realizing the importance or
if, for instance, the fact that such statements were made
legal significance of this act;
by the latter would indicate the latter’s mental state or
5. There must have been no violation of Section 12,
physical condition; Independent of whether the facts
Art. III of the 1987 Constitution. (Rights in
stated are true, they are relevant since they are the facts
custodial investigation)
in issue or are circumstantial evidence of the facts in
issue. (Regalado)

PREVIOUS CONDUCT AS EVIDENCE MEANING OF HEARSAY

GENERAL RULE: Evidence that one did or did not do a
certain thing at one time is not admissible to prove that
he did or did not do the same or similar thing at another
time. (Sec. 34, Rule 130)
EXCEPTION: Where the evidence or similar acts may
prove:
1. A specific intent or knowledge;
2. Identity;
Evidence not proceeding from personal knowledge of the
witness, but from the mere repetition of what he has
heard others say. (Black’s Law Dictionary, 5th Ed.)
Affidavit is merely hearsay evidence as hearsay where its
affiant/maker did not take the witness stand. (Dantis v.
Maghinang, 2013)
REASON FOR EXCLUSION OF HEARSAY EVIDENCE

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Due to the trustworthiness and reliability of hearsay

evidence. Because such evidence: The reason upon which incomplete declarations are
1. was not given under oath or solemn affirmation; generally excluded, or if admitted, accorded little or no
and weight, is that since the declarant was prevented (by
2. was not subject to cross-examination by death or other circumstance) from saying all that he
opposing counsel to test the perception, wished to say, what he did say might have been qualified
memory, veracity and articulateness of out-of- by the statements which he was prevented from making.
court declarant or actor upon whose reliability That incomplete declaration is not therefore entitled to
on which the worth of the out-of-court the presumption of truthfulness which constitutes the
testimony depends. basis upon which dying declarations are received. In this
case, the dying declaration was not complete.(People v De
• EXCEPTIONS TO THE HEARSAY RULE: Joya, 203 SCRA 343)
1. Dying Declaration (Sec. 37, Rule 130)
2. Declaration Against Interest (Sec. 38) A statement may nor be admissible as a dying declaration,
3. Pedigree (Sec. 39) but may be admissible as part of res gestae (People v.
4. Family Tradition (Sec. 40) Hernandez; People v. Laquinon)
5. Common Reputation (Sec. 41)
6. Part of Res Gestae (Sec. 42)
7. Entries Made in the Ordinary Course of 2. DECLARATION AGAINST INTEREST
Business (Sec. 43)
8. Official Records (Sec. 44) It is the declaration made by a person deceased, or
9. Commercial List (Sec. 45) unable to testify, against the interest of the declarant, if
10. Prior Testimony (Sec. 47) the fact is asserted in the declaration was at the time it
was made so far contrary to declarant's own interest, that
a reasonable man in his position would not have made the
1. DYING DECLARATION (DD) declaration unless he believed it to be true.

Statements made by a person after the mortal wound has THERE IS A VITAL DISTINCTION BETWEEN
been inflicted under the belief that the death is certain, ADMISSIONS AGAINST INTEREST AND
stating the fact concerning the cause of and the DECLARATIONS AGAINST INTEREST:
circumstances surrounding the attack. (People v. Velasco • Admissions against interest are those made by a
Jr., 2007) party to a litigation or by one in privity with or
identified in legal interest with such party, and
Also known as “Ante Mortem Statements” or “Statement are admissible whether or not the declarant is
in Articulo Mortis” available as a witness.
• Declarations against interest are those made by
REQUISITES FOR DD TO BE ADMISSIBLE: a person who is neither a party nor in privity
1. That the death is imminent and the declarant is with a party to the suit, are secondary evidence,
conscious of such fact; and constitute an exception to the hearsay rule.
2. That the declaration refers to the cause and the (Lazaro vs. Agustin, 2010)
surrounding circumstances of such death;
3. That the declaration refers to the facts which the
victim is competent to testify to; DECLARATIONS ADMISSIONS AGAINST
4. That the declaration is offered in a case wherein the AGAINST INTEREST INTEREST
declarant’s death is subject of the inquiry (the victim
necessarily must have died); Made by a party to a
Made by a person who
5. That the statement must be complete in itself. litigation or by one in
is neither a party nor in
privity with or identified
privity with a party to
In order for a dying declaration to be held admissible, in legal interest with
the suite.
four requisites must concur: first, the declaration must such party
concern the cause and surrounding circumstances of the Secondary Evidence Primary Evidence
declarant's death; second, at the time the declaration was Exception to the Covered by the Hearsay
made, the declarant must be under the consciousness of Hearsay Rule Rule
an impending death; third, the declarant is competent as Admissible ONLY when
Admissible w/n the
a witness; and fourth, the declaration must be offered in a the declarant is
declarant is available as
criminal case for homicide, murder, or parricide, in which UNavailable as a
a witness
the declarant is the victim. (People v Serenas & Labad, witness
2010) Must be made ante May be made at any
litem motam (before the time before/during the
A dying declaration to be admissible must be complete in controversy) trial
itself. To be complete in itself does not mean that the May be admitted
declarant must recite everything that constituted the res against
Used ONLY against the
gestae of the subject of his statement, but that his himself/successor in
party admitting.
statement of any given fact should be a full expression of interest and against 3rd
all that he intended to say as conveying his meaning in parties
respect of such fact.

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REQUISITES IN ORDER FOR A STATEMENT TO BE
ADMISSIBLE AS A DAI
1. the declarant must not be available to testify;
2. the declaration must concern a fact cognizable
by the declarant; and
3. the circumstances must render it improbable
that a motive to falsify existed. (Fuentes v. CA,
1996)
REASONS FOR SUCH ADMISSION:
1. Necessity
- such declarations are the only mode of
proof available
2. Trustworthiness
- persons do not make statements that are
disadvantageous to themselves without
substantial reason to believe that the
statements are true. Self-interest induces
men to be cautious in saying anything
against themselves.
INTEREST COVERED:
1. Proprietary interest
2. Penal interest
3. Pecuniary interest
Note: It is essential that at the time of the statement, the
declarant’s interest affected is actual/real/apparent not
merely contingent/future/conditional
SELF- SERVING DECLARATION: Statements favorable to
or intended to advance the interests of the declarant
• It is inadmissible as being hearsay if the
delcarant is unavailable as a witness
• Opposite of DAI
The general rule is stated to be that the declaration of a
person other than accused confessing or tending to show
that he committed the crime are not competent for
accused on account of the hearsay doctrine. However, if a
man deliberately acknowledged himself to be the
perpetrator of a crime and exonerated the person
charged with the crime, and there was other evidence
indicative of the truthfulness of the statement, the
accused man should not be permitted to go to prison or
to the electric chair to expiate a crime he never
committed. (People v. Toledo, 1928)
3. ACT OR DECLARATION ABOUT PEDIGREE
PEDIGREE
Includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these fast
occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with
pedigree.
REQUISITES IN ORDER THAT PEDIGREE MAY BE
PROVED BY ACTS OR DECLARATIONS OF RELATIVES
1. The declarant is dead or unable to testify
2. The pedigree must be in issue
3. The declarant must be a relative of the person
whose pedigree is in issue
4. The declaration must be made before the
controversy arose
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Evidence
5. The relationship between the declarant and the
person whose pedigree is in question must be
shown by evidence other than such declaration.
(Mendoza v. CA, Tunacao, 1991)
Pedigree May be Established or Proved By:
1. The act or declaration of a relative (Sec. 39)
2. The reputation or tradition existing in his family
(Sec. 40)
3. Entries in Family Bibles (Sec. 40)
4. With respect to marriage, by common
reputation in the community (Sec. 41)
Nevertheless, pedigree may be proved by other species of
direct primary evidence.
Note: The relationship must preliminarily be proved by
direct or circumstantial evidence.
No specific degree of relationship is required
BUT the weight to which such act or declaration is
entitled may be affected by the degree of relationship
Note: Reputation between the declarant and the person
subject of inquiry must be legitimate unless the issue is
the legitimacy itself.
4. FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
The reputation or tradition existing in a family previous
to the controversy, in respect to the pedigree of any one
of its members, may be received in evidence if the
witness testifying thereon be also a member of the family,
either by consanguinity or affinity.
Entries in family bibles or other family books or charts,
engravings on rings, family portraits and the like, may be
received as evidence of pedigree.
REQUISITES:
1. that there is a controversy in respect to the
pedigree of any of the members of a family;
2. that the reputation or tradition of the pedigree
existed previous to the controversy; and
3. that the witness testifying to the reputation or
tradition regarding the pedigree of the person
must be a member of the family of said person.
(People v. Opiana, 2001)
The word "pedigree" under Section 39 of the same Rule
includes relationship, family genealogy, birth, marriage,
death, the dates when and places where these facts
occurred and the names of relatives.
Note: A statement as to one’s date of birth and age as
learned from parents or relatives is an ante litem motam
declaration of family tradition
Such statement prevails over a mere opinion of a trial
judge BUT cannot prevail over a secondary statement of
the father
SECTION 39 SECTION 40
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Family reputation or NOTE: Here, character is permitted to be established by

Act or declaration against
pedigree
Witness need not be a
member of the family
Testimony is about what
declarant, who is dead or
unable to testify, said
concerning the pedigree
of the declarant’s family
Relation bet the declarant
and the person subject of the one to whom the fact
inquiry must be
established by
independent evidence
tradition regarding his common reputation
pedigree
Witness is a member of EVIDENCE OF NEGATIVE GOOD REPUTE
the family Where the foundation proof shows that the witness was
in such position that he would have heard reports
Testimony is about derogatory to one’s character, the reputation testimony
family reputation or may be predicated on the absence of reports of bad
tradition covering reputation or on the fact that the witness heard nothing
matters of pedigree. against the person.
The witness himself is
FAMILY TRADITION
Testimony made by a witness regarding a declaration
relates. No need to made by someone deceased, when both the witness and
establish relationship by the declarant are members of the same family, is
independent evidence. admissible as evidence of family tradition.

6. PART OF THE RES GESTAE

5. COMMON REPUTATION
The definite opinion of the community in which the fact
to be proved is known or exists. It means the general or
substantially undivided reputation, as distinguished from
a partial or qualified one, although it need not be
unanimous. (Regalado)
Evidence may be given upon trial of monuments and
inscriptions in public places as evidence of common
reputation; and entries in family Bibles or other family
books or charts; engravings on rings, family portraits and
the like, as evidence of pedigree.
REQUISITES FOR COMMON REPUTATION
1. The subject of inquiry must be facts of public or
general interest more than 30 years old,
respecting marriage or moral character;
2. The evidence must refer to facts ante litem
motam;
3. The facts may be established by:
a. Testimonial evidence of competent
witness;
b. Monuments and inscription in public
places;
c. Documents containing statements of
reputation.
COMMON REPUTATION OR GENERAL REPUTATION IS
ADMISSIBLE TO PROVE
1. Facts of public interest more than 30 years old
2. Facts of general interest more than 30 years old
3. Marriage
4. Moral Character
Note: Common reputation must have existed ante litem
motam
DEFINITION OF TERMS:
• Public Interest: Those of National Interest
• General Interest: Those affecting inhabitants of
a particular region or community
• Character: Inherent qualities of a person
• Reputation: Opinion of him by others (Should
be existing in his place of residence, but may
also exist in a place where he is known best)
Res Gestae which means “things done”.
Res gestae refers to statements made by the participants
or the victims of, or the spectators to, a crime
immediately before, during, or after its commission.
These statements are a spontaneous reaction or
utterance inspired by the excitement of the occasion,
without any opportunity for the declarant to fabricate a
false statement. An important consideration is whether
there intervened, between the occurrence and the
statement, any circumstance calculated to divert the
mind and thus restore the mental balance of the
declarant; and afford an opportunity for deliberation.
(People v. Calunsag, 2014)
FACTORS TO CONSIDER IN DETERMINING WHETHER
STATEMENTS OFFERED AS PART OF RES GESTAE
HAVE BEEN MADE SPONTANEOUSLY
1. the time that has lapsed between the
occurrence of the act or transaction and the
making of the statement;
2. the place where the statement is made;
3. the condition of the declarant when the
utterance is given;
4. the presence or absence of intervening events
between the occurrence and the statement
relative thereto; and
5. the nature and the circumstances of the
statement itself.
TWO GENERAL CLASSES OF DECLARATION:
1. Spontaneous statements: Statements in
connection with a startling occurrence relating
to that fact and in effect forming part thereof.
(Sec. 42, Rule 130)
2. Verbal Acts: Statements accompanying an
equivocal act, on the theory that they are the
verbal parts of the act to be explained. (Sec. 42,
Rule 130)
REQUISITES FOR RES
REQUISITES FOR RES
GESTAE NO 1:
GESTAE NO 2: VERBAL
SPONTANEOUS
ACTS
STATEMENTS
(1) The principal act, the (1) The res gestae or
res gestae, be a principal act or to

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startling occurrence; be characterized done immediately prior, during or subsequent to the

(2) The statements were must be equivocal; events.
made before the (2) Such act must be
delcarant had the material to the EXCEPTION:
opportunity to issue 1. If the declarant was unconscious – statements
contrive (3) The statements regarding the event will still be admissible
(3) The statements must must accompany 2. If the declarant did not have the opportunity to
refer to the the equivocal act. concoct or contrive a story – it is still admissible
occurrence in (4) The statements even if statement was made after hours
question and its give a legal
attending significance to the STATEMENTS OR OUTCRIES AS PART OF RES GESTAE
circumstances equivocal act ARE ADMISSIBLE:
(4) The statement must 1. To establish the identity of the assailant
be spontaneous. 2. To prove the complicity of another person in
The res gestae is the The res gestae is the the crime
startling occurrence equivocal act. 3. To establish an admission of liability on the part
Statements may be made Verbal act must be of the accused
prior, during or contemporaneous with
immediately after the or accompany the 7. ENTRIES IN THE COURSE OF BUSINESS
startling occurrence. equivocal act.
SHOP BOOK RULE (Sec. 43, Rule 130) REQUISITES:
REQUISITES FOR ADMISSIBILITY OF RES GESTAE: 1. The person who made the entry must be dead
The statement must be: or unable to testify.
1. Be Spontaneous; 2. The entries were made at or near the time of
2. Made while a startling occurrence is taking the transaction to which they refer;
place or immediately prior or subsequent; 3. The entrant was in a position to know the facts
3. Relates to the circumstances of the startling stated in the entries;
occurrence; and 4. The entries were made in his professional
4. Must be involuntary and simultaneously wrung capacity or in the performance of a duty
from the witness by the impact of the whether legal, contractual, moral or religious;
occurrence and
5. The entries were made in the ordinary or
REASONS FOR ADMISSION regular course of business or duty.
1. Necessity - Natural and spontaneous utterances
are more convincing than the testimony of a RULES FOR ADMISSIBILITY OF BUSINESS ENTRIES
person on the stand. 1. If the Entrant is Available as a Witness – the
2. Trustworthiness - The statement is made entries will be INADMISSIBLE as an exception
indistinctively. The facts speaking thru the party to the hearsay rule.
and not the party speaking thru the facts. • They may be used as a memo to refresh his
memory while testifying in the transaction
2. There is no necessity to bring into court all the
RES GESTAE IN clerks or employees who individually made the
CONNECTION entries.
DYING DECLARATIONS
WITH A 3. It is sufficient that the person who supervises
HOMICIDAL ACT the work of the employees testify:
• That the account was prepared under his
May be made by the Can be made only by the
supervision.
killer himself after or victim.
• That the entries were entered in the ordinary
during the killing OR
course of business.
that of a 3rd person.
4. There is no precise moment required when the
May precede or be Made only after the
entries should be made – it is sufficient if it is
made after the homicidal attack has been
made w/in a reasonable time while the memory
homicidal attack was committed.
of the facts is unimpaired.
committed.
Justification in the Trustworthiness based
PROBATIVE VALUE: Prima Facie of the facts stated
spontaneity of the upon in its being given in
therein
statement. awareness of impending
death.
8. ENTRIES IN OFFICIAL RECORDS
Note: If both elements for res gestae and dying
Those made in the performance of his duty by a public
declarations are present – they may be admitted as both.
officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law.
WHEN MUST THE STATEMENT OR ACT BE MADE:
GENERAL RULE: While the declarant was under the
REQUISITES FOR ADMISSIBILITY OF OFFICIAL
immediate influence of the startling occurrence. Hence,
RECORDS

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1. Entries were made by: If the certificate is transmitted to a public officer – it is

a. a public officer in the performance of his admissible w/o a need for prior authentication.
duties; or
b. by a person in the performance of a duty ENTRIES IN OFFICIAL RECORDS MAY BE PROVED (SEE
specially enjoined by law; SEC 24 AND 25 RULE 132)
2. The entrant had personal knowledge of the
facts stated by him or such facts were acquired PROBATIVE VALUE: prima facie of the facts stated
by him from reports made by persons under a therein
legal duty to submit the same; and
3. Such entries were duly entered in a regular The rule provides that entries in official records made in
manner in the official records. (Alvarez v. PICOP the performance of the duty of a public officer of the
Resources, 2009). Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the
REASONS FOR ADMISSION facts therein stated. The necessity of this rule consists in
1. Necessity the inconvenience and difficulty of requiring the official's
Practical impossibility of requiring the official’s attendance as a witness to testify to the innumerable
attendance as a witness to testify to the transactions in the course of his duty. The document's
innumerable transactions occurring in the trustworthiness consists in the presumption of regularity
course of his duty. of performance of official duty. (Dimaguila v. Monteiro,
2. Trustworthiness 2014)
there is a presumption of regularity in the
performance of official duty. The written entries in the clinical case are prima facie
evidence of the facts therein stated, the said entries
EXAMPLES OF OFFICIAL RECORDS: having been made in official records by a public officer of
• A register, a cash book, or an official return or the Philippines in the performance of his duty especially
certificate, enjoined by law, which is that of a physician in a
• motor vehicle accident report (if made in the government hospital. (People v. Leones, 117 SCR 382)
performance of the officer’s duties, at about the
time of the accident, based on information Entries in official records, as in the case of a police
given as personal knowledge) blotter, are only prima facie evidence of the facts therein
• Sheriff’s return (statement in the performance stated. They are not conclusive. The entry in the police
of a duty especially enjoined by law) – no need blotter is not necessarily entitled to full credit for it could
for the sheriff to testify be incomplete and inaccurate, sometimes from either
partial suggestions or for want of suggestions or
inquiries, without the aid of which the witness may be
ENTRIES IN THE ENTRIES IN OFFICIAL unable to recall the connected collateral circumstances
COURSE OF BUSINESS RECORDS necessary for the correction of the first suggestion of his
(SEC 43) (SEC 44) memory and for his accurate recollection of all that
pertain to the subject. It is understandable that the
Entries are made by a testimony during the trial would be more lengthy and
person who is dead or No such requirement detailed than the matters stated in the police blotter.
unable to testify (People v. Ortiz, 1996)
Needs authentication No need
Best evidence rule Exception to the best 9. COMMERCIAL LISTS
applies evidence rule
The entrant is a public For a document to quality as a commercial list, and hence
Entries are made
officer, or if a private be an exemption to the hearsay rule, the statement of
pursuant to a duty,
individual, must have matters contained in a periodical, may be admitted only
either legal, contractual,
acted pursuant to a legal "if that compilation is published for use by persons
moral or religious
duty engaged in that occupation and is generally used and
relied upon by them therein." (Meralco vs. Quisumbing,
Note: The entrant must have been competent with 2000)
respect to the facts stated in his entries.
REQUISITES FOR ADMISSIBILITY:
Entries made by a priest in the register of the facts of 1. it is a statement of matters of interest to
baptism are NOT admissible to prove the date of birth or persons engaged in an occupation;
its relation to persons 2. such statement is contained in a list, register,
periodical or other published compilation;
A priest is not competent to testify to the truth of these 3. said compilation is published for the use of
facts. persons engaged in that occupation, and
4. it is generally used and relied upon by persons
BUT church registries are ADMISSIBLE as evidence of the in the same occupation.(PNOC Shipping and
facts with respect to marriage solemnized by the priest Transport Corp. v. CA, 1998)
(BUT needs to be authenticated)
REASONS FOR ADMISSION:

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1. Necessity - Because of the unusual accessibility
of the persons responsible for the compilation
of matters contained in a list, register,
periodical or other published compilation and
tremendous inconvenience it would cause to
the court if it would issue summons to these
numerous individuals.
2. Trustworthiness - They have no motive to
deceive and they further realize that unless the
list, register, periodical or other published
compilation are prepared with care and
accuracy, their work will have no commercial
and probative value.
Ex. Mortality tables, annuity tables
10. LEARNED TREATIES
Learned Treaties i.e. published treatise, periodical or
pamphlet on a subject of history, law, science, or art as
tending to prove the truth of a matter stated therein.
REQUISITES FOR ADMISSIBILITY
1. That the court takes judicial notice thereof; or
2. The same are testified by a witness expert on
the subject
REASONS FOR ADMISSION
1. Necessity - Even if such person is legally
procurable, the expense is frequently
disproportionate.
2. Trustworthiness - Learned writers have no
motive to misrepresent. He is aware that his
work will be carefully scrutinized by the learned
members of his profession and that he may be
subject to criticisms and ultimately rejected as
an authority of the subject matter if his
conclusions are found to be invalid
Petitioners cited various scientific studies or articles and
websites culled from the Internet. However, the said
scientific studies and articles attached to the Petition
were not testified to by an expert witness, and are
basically hearsay in nature and cannot be given probative
weight. (Sec. Paje v. Cong. Casino, 2015)
11. TESTIMONY OR DEPOSITION AT A FORMER
TRIAL
REQUISITES FOR ADMISSIBILITY
1. The testimony or deposition of a witness
deceased or otherwise unable to testify;
2. The testimony was given in a former case or
proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the same matter;
5. The adverse party having had the opportunity
to cross-examine him. (Republic v.
Sandiganbayan, et al, 2011)
INABILITY TO TESTIFY
Inability proceeding from a grave cause, almost
amounting to death (ex. Losing one’s power of speech)
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Evidence
Subsequent failure or refusal to appear at the second
trial, or hostility since testifying at the first trial does NOT
amount to such inability (Griffith vs. Sauls, 77 Tex 630, 14
S.W. 230, 231; Sec. 37, Rule 123)
ACTIONS MAY BE ESSENTIALLY DIFFERENT
Testimony given in a civil case is admissible in a
subsequent criminal case PROVIDED the above requisites
are met.
REASONS FOR ADMISSION
1. Necessity - Former could no longer testify
2. Trustworthiness - Since such had been given in
a former action under oath, where witness was
or might have been cross examined (Republic v.
Sandiganbayan, et al. 2011)
The reasons for the admissibility of testimony or
deposition taken at a former trial or proceeding are the
necessity for the testimony and its trustworthiness.
However, before the former testimony or deposition can
be introduced in evidence, the proponent must first lay
the proper predicate therefor. (Republic v. Sandiganbayan,
et al., 2011)
RULE ON ADMISSIBILITY OF PRIOR JUDGMENT (NOT
TESTIMONY)
1. A judgment in a criminal proceeding cannot be
read in evidence in a civil action against a
person not a party thereto to establish any fact
therein
2. The matter is res inter alios and cannot invoked
as res judicata
3. It may only be admitted in a civil case by way of
inducement or to show a collateral fact relevant
to the issue in the civil action
4. It may not be admitted to prove the plaintiff’s
action or the defendant’s defense – it is not
binding upon the parties in the civil action
Ratio: Parties are not the same and different rules of
evidence are applicable to each
HOWEVER, in Miranda v. Malate: Judgment of conviction
in the absence of collusion between the accused and the
offended party is binding and conclusive to a person
subsidiarily liable with regard to his liability and to the
amount thereof.
OPINION RULE
OPINION
An inference or conclusion drawn from facts observed.
GENERAL RULE: Witnesses must give the facts. Their
opinion is INADMISSIBLE
EXCEPTIONS: Opinion of the Witness is Admissible (Sec.
49 &50, Rule 130)
1. On a matter requiring SPECIAL knowledge, skill,
experience or training which he is shown to
possess, that is when he is an expert (Sec. 49);
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2. Regarding the identity or the handwriting of a
person, when he has knowledge of the person
or handwriting, whether he is an ordinary or
expert witness (Sec. 50 a & b)
3. On the mental sanity of a person, if the witness
is sufficiently acquainted with the former or if
the latter is an expert witness (Sec. 50c)
4. On the emotion, behavior, condition, or
appearance of a person which he has observed;
and (Sec. 50d)
5. On ordinary matters known to all men of
common perception, such as the value of
ordinary household articles (Galian v. State
Assurance Co., Ltd.)
REASON FOR THE RULE:
It is for the court to form an opinion concerning the facts
in proof of which evidence is offered. Witnesses must
testify to facts w/in their knowledge and not their
opinions.
EXPERT WITNESS
one who belongs to the profession or calling to which the
subject matter of the inquiry relates and who possesses
special knowledge on questions on which he proposes to
express an opinion. (People v. Abriol, 2001)
Test: Whether the opinion called for will aid the fact
finder in resolving an issue
DEGREE OF SKILL OR KNOWLEDGE REQUIRED OF AN
EXPERT WITNESS
There is no definite standard of determining the degree
of skill or knowledge that a witness must possess in order
to testify as an expert.
IT IS SUFFICIENT THAT THE FOLLOWING FACTORS
ARE PRESENT:
1. Training and education
2. Particular, first hand familiarity with the facts of
the case
3. Presentation of authorities or standards upon
which his opinion is based.
REQUISITES FOR ADMISSIBILITY OF EXPERT
EVIDENCE - ONLY IF:
1. The matter to be testified to is one that requires
expertise, and
2. The witness had been qualified as an expert
VALUE OF AN EXPERT WITNESS:
It is NOT conclusive BUT purely advisory. The courts are
not bound by the expert’s findings.
RULES ON EXPERT TESTIMONY
1. Courts must consider all the circumstances of
the case (expert’s qualifications, experience and
degree of learning, the basic and logic of his
conclusions and other evidence on record)
2. The value of expert testimony depends largely
on the extent of the experience or studies of
such expert.
Note: An expert witness may base his opinion either on
the first-hand knowledge of the facts or on the basis of
hypothetical questions where the facts are presented to
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Evidence
him and on the assumption that they are true, formulates
his opinion on the hypothesis.
PROBATIVE VALUE OF EXPERT EVIDENCE
ONLY when the subject of inquiry is of such a technical
nature that a layman can possibly have no knowledge
thereof that courts must depend and rely upon experts.
Conflicting expert evidence have neutralizing effect on
contradictory conclusions. They generate doubt.
A non-expert private individual, may examine certain
contested documents, it is not necessarily null and void if
there are facts w/in his knowledge which may help the
court in the determination of the issue.
COURTS ARE NOT BOUND BY EXPERT’S TESTIMONY
Section 49, Rule 130 of the Revised Rules of Court states
that the opinion of a witness on a matter requiring special
knowledge, skill, experience or training, which he is
shown to possess, may be received in evidence. The use
of the word "may" signifies that the use of opinion of an
expert witness is permissive and not mandatory on the
part of the courts. Allowing the testimony does not mean,
too, that courts are bound by the testimony of the expert
witness. The testimony of an expert witness must be
construed to have been presented not to sway the court
in favor of any of the parties, but to assist the court in the
determination of the issue before it, and is for the court
to adopt or not to adopt depending on its appreciation of
the attendant facts and the applicable law. (Tabao v.
People, 2011)
ORDINARY OPINION EVIDENCE
That which is given by a witness who is of ordinary
capacity and who has by opportunity acquired a
particular knowledge which is outside the limits of
common observation and which may be of value in
elucidating a matter under consideration.
MAY BE RECEIVED IN EVIDENCE REGARDING:
1. The identity of a person about whom he has
adequate knowledge;
2. A handwriting with which he has sufficient
familiarity; and
3. The mental sanity of a person with whom he is
sufficiently acquainted.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person.
(Sec. 50, Rule 130)
SHORTHAND RENDERING OF FACTS
Instantaneous conclusions of the mind. The witness may
testify as to the emotion, behavior, condition or
appearance of a person
The court said that the genuineness of a handwriting may
be proved by (not mandatory): Witness who actually saw
the person writing the instrument, Witness familiar with
the handwriting and give his opinion thereto, opinion
being an exception to the opinion rule, Comparison by
the court of the questioned and admitted genuine
specimen, Expert evidence. In order to bring about an
accurate comparison and analysis, the standards of
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comparison must be as close as possible in point of time RATIO: The evidence of a person’s character does not
of the suspected signature. (Domingo v. Domingo, 2005) prove that such person acted in conformity with such
character or trait in a particular occasion.
EXPERT WITNESS RULE DISTINGUISHED FROM
ORDINARY WITNESS RULE CHARACTER EVIDENCE IN CRIMINAL CASES
GENERAL RULE: The prosecution may not prove the BAD
EXPERT ORDINARY Moral Character (MC) of the accused which is pertinent
WITNESS WITNESS to the moral trait involved in the offense charged.
(SEC. 49, RULE (SEC. 50, RULE
130) 130) EXCEPTION: The prosecution may prove BAD MC at the
Establish rebuttal stage - IF the accused, in his defense attempts to
Establish “Sufficient prove his GOOD MC.
possession of familiarity”,
QUALIFICATION special skill, “adequate GOOD or BAD MC of the offended party may always be
knowledge or knowledge” or proved if such evidence tends to establish the probability
training “Sufficient or improbability of the offense charged.
acquaintance”
Matter is as EXCEPTION TO THE EXCEPTION: Proof of the bad
Upon character of the victim is not admissible:
regards:
concurrence 1. In a murder case: If the crime was committed
the identity of a
of: through treachery and evident premeditation
person about
Subject 2. In a rape case: If through violence and
whom he has
requires that intimidation
adequate
court seeks 3. In prosecution for rape, evidence of
knowledge;
aid of men complainant’s past sexual conduct, opinion
A handwriting
specially thereof or of his/her reputation shall not be
with which he
skilled; admitted unless, and only to the extent that the
WHEN has sufficient
Witness is an court finds that such evidence is material and
ADMISSIBLE familiarity; and
expert who relevant to the case. (RA 8505)
The mental
possess the
sanity of a
special skill, RATIO: To avoid unfair prejudice to the accused who may
person with
knowledge or be convicted because of such character.
whom he is
experience
sufficiently
required; and CHARACTER EVIDENCE IN CIVIL CASES
acquainted.
Relevant to GENERAL RULE: Moral Character of either party can NOT
the matter in be proved
Evidence is
issue
relevant
Must be EXCEPTION: Unless it is pertinent to the issue of
HYPOTHETICAL Cannot be based character involved in the case
based on
QUESTIONS on such
such
Note: Here, the issue involved must be character. (Ex.
Civil actions for damages arising from the offenses of libel
slander or seduction)
CHARACTER EVIDENCE
IN BOTH CRIMINAL AND CIVIL CASES
CHARACTER BAD moral character of a witness may always be proved
The aggregate of the moral qualities which belong to and by either party but NOT evidence of his character,
distinguish an individual person. UNLESS it has been impeached.

CHARACTER REPUTATION
F. BURDEN OF PROOF AND
PRESUMPTIONS (RULE 131)
Possession of person of what a person is said,
certain qualities of mind, estimated, supposed
morals, distinguishing him or thought to be by BURDEN OF PROOF
Burden of Proof or “onus probandi”, defined: Obligation
from others others
imposed upon a party who alleges the existence of facts
Internal External
necessary for the prosecution of his action or defense to
Accepted reality by
Reality establish the same by the requisite quantum of evidence.
others
Substance Shadow
UPON WHOM BURDEN OF PROOF RESTS:
CRIMINAL
GENERAL RULE: Character evidence is NOT admissible CIVIL CASES
CASES
in evidence
The burden of
On the party who would be
proof is always
defeated if no evidence were given
with the
on either side.
prosecution

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Has the burden of Note: It is Whenever a party has, by his own declaration, act, or
proof to show the required that omission, intentionally and deliberately led another to
truth of his courts believe a particular thing true, and to act upon such
allegations if the determine first belief, he cannot, in any litigation arising out of such
defendant raises a if the evidence declaration, act or omission, be permitted to falsify it.
negative defense. of the (Sec. 2(a), Rule 131)
(w/ respect to his prosecution
complaint) has at least ESTOPPEL BY DEED
shown a prima The tenant is not permitted to deny the title of his
facie case landlord at the time of the commencement of the relation
PLAINTIFF before of landlord and tenant between them.
considering
the evidence The tenant is estopped from asserting a better title not
of the defense. only in himself but also in some third person including
*If established the State. (Borre v. CA, 1988)
– then the
burden is This estoppel applies even though the lessor had no title
shifted upon at the time the relation of [the] lessor and [the] lessee
the accused to was created, and may be asserted not only by the original
prove lessor, but also by those who succeed to his title." Once a
otherwise contact of lease is shown to exist between the parties, the
Has the burden of lessee cannot by any proof, however strong, overturn the
proof if he raises conclusive presumption that the lessor has a valid title to
an affirmative or a better right of possession to the subject premises
defense on the than the lessee. (Samelo v. Manotok Services, Inc., 2012)
DEFENDANT
complaint of the
plaintiff. DISPUTABLE PRESUMPTIONS
(w/ respect to his The following presumptions are satisfactory if
counterclaim) uncontradicted, but may be contradicted and overcome
CROSS w/ respect to his by other evidence:
CLAIMANT cross claim 1. That a person is innocent of crime or wrong;
2. That an unlawful act was done with an unlawful
intent;
PRESUMPTIONS 3. That a person intends the ordinary
An inference as to the existence or non-existence of a consequences of his voluntary act;
fact which courts are permitted to draw from the proof of 4. That a person take ordinary care of his
other facts. concerns;
5. That evidence willfully suppressed would be
Note: The basic facts constituting a presumption must adverse if produced;
first be proved. Otherwise, the presumption does not 6. That money paid by one to another was due to
arise. In the latter case, it is then incumbent upon the the latter;
party who has failed to prove these facts to present 7. That a thing delivered by one to another
competent evidence to establish his allegations. belonged to the latter;
8. That an obligation delivered up to the debtor
A presumption shifts the burden of going forward with has been paid;
the evidence. It imposes on the party against whom it is 9. That prior rents or installments had been paid
directed the burden of going forward with evidence to when a receipt for the later ones is produced;
meet or rebut the presumption. 10. That a person found in possession of a thing
taken in the doing of a recent wrongful act is
CONCLUSIVE PRESUMPTION the taker and the doer of the whole act;
1. Whenever a party has, by his own declaration, otherwise, that things which a person
act, or omission, intentionally and deliberately possesses, or exercises acts of ownership over,
led another to believe a particular thing true, are owned by him;
and to act upon such belief, he cannot, in any 11. That a person in possession of an order on
litigation arising out of such declaration, act or himself for the payment of the money, or the
omission, be permitted to falsify it; delivery of anything, has paid the money or
2. The tenant is not permitted to deny the title of delivered the thing accordingly;
his landlord at the time of the commencement 12. That a person acting in a public office was
of the relation of landlord and tenant between regularly appointed or elected to it;
them. 13. That official duty has been regularly performed;
14. That a court, or judge acting as such, whether in
CONCLUSIVE PRESUMPTIONS MAY EITHER BE: the Philippines or elsewhere, was acting in the
1. Estoppel in Pais lawful exercise of jurisdiction;
2. Estoppel by Deed 15. That all the matters within an issue raised in a
case were laid before the court and passed
upon by it; and in like manner that all matters
ESTOPPEL IN PAIS

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within an issue raised in a dispute submitted for
arbitration were laid before the arbitrators and
passed upon by them;
16. That private transactions have been fair and
regular;
17. That the ordinary course of business has been
followed;
18. That there was a sufficient consideration for a
contract;
19. That a negotiable instrument was given or
indorsed for a sufficient consideration;
20. That an indorsement of a negotiable instrument
was made before the instrument was overdue
and at the place where the instrument is dated;
21. That a writing is truly dated;
22. That a letter duly directed and mailed was
received in the regular course of the mail;
23. That after an absence of seven years, it being
unknown whether or not the absentee still lives,
he is considered dead for all purposes, except
for those of succession. The absentee shall not
be considered dead for the purpose of opening
his succession till after an absence of ten years.
If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient
in order that his succession may be opened.
The following shall be considered dead for all
purposes including the division of the estate
among the heirs:
a. A person on board a vessel lost during a sea
voyage, or an aircraft which is missing, who
has not been heard of for four years since
the loss of the vessel or aircraft;
b. A member of the armed forces who has
taken part in armed hostilities, and has
been missing for four years;
c. A person who has been in danger of death
under other circumstances and whose
existence has not been known for four
years;
d. If a married person has been absent for
four consecutive years, the spouse present
may contract a subsequent marriage if he
or she has a well-founded belief that the
absent spouse is already dead. In case of
disappearance, where there is danger of
death under the circumstances
hereinabove provided an absence of only
two years shall be sufficient for the
purpose of contracting a subsequent
marriage. However, in any case, before
marrying again, the spouse present must
institute a summary proceeding as
provided in the Family Code and in the
rules for a declaration of presumptive
death of the absentee, without prejudice to
the effect of reappearance of the absent
spouse.
24. That acquiescence resulted from a belief that
the thing acquiesced in was conformable to the
law or fact;
25. That things have happened according to the
ordinary course of nature and the ordinary
habits of life;
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Evidence
26. That persons acting as copartners have entered
into a contract of co-partnership;
27. That a man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
28. That property acquired by a man and woman
who are capacitated to marry each other and
who live exclusively with each other as husband
and wife without the benefit of marriage or
under a void marriage, has been obtained by
their joint efforts, work or industry.
29. That in cases of cohabitation by a man and a
woman who are not capacitated to marry each
other and who have acquired property through
their actual joint contribution of money,
property or industry, such contributions and
their corresponding shares including joint
deposits of money and evidences of credit are
equal.
30. That if the marriage is terminated and the
mother contracted another marriage within
three hundred days after such termination of
the former marriage, these rules shall govern in
the absence of proof to the contrary:
a. A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to have
been conceived during the former
marriage, provided it be born within three
hundred days after the termination of the
former marriage;
b. A child born after one hundred eighty days
following the celebration of the subsequent
marriage is considered to have been
conceived during such marriage, even
though it be born within the three hundred
days after the termination of the former
marriage.
31. That a thing once proved to exist continues as
long as is usual with things of that nature;
32. That the law has been obeyed;
33. That a printed or published book, purporting to
be printed or published by public authority, was
so printed or published;
34. That a printed or published book, purporting to
contain reports of cases adjudged in tribunals of
the country where the book is published,
contains correct reports of such cases;
35. That a trustee or other person whose duty it
was to convey real property to a particular
person has actually conveyed it to him when
such presumption is necessary to perfect the
title of such person or his successor in interest;
36. That except for purposes of succession, when
two persons perish in the same calamity, such
as wreck, battle, or conflagration, and it is not
shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the following
rules:
a. If both were under the age of fifteen years,
the older is deemed to have survived;
b. If both were above the age of sixty, the
younger is deemed to have survived;
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c. If one is under fifteen and the other above
sixty, the former is deemed to have
survived;
d. If both be over fifteen and under sixty, and
the sex be different, the male is deemed to
have survived; if the sex be the same, the
older;
e. If one be under fifteen or over sixty, and
the other between those ages, the latter is
deemed to have survived.
37. That if there is a doubt, as between two or more
persons who are called to succeed each other,
as to which of them died first, whoever alleges
the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be
considered to have died at the same time. (Sec.
3, Rule 131)
PRESUMPTION OF LEGITIMACY OR ILLEGITIMACY OF
A CHILD
There is no presumption of legitimacy or illegitimacy of a
child born after three hundred days following the
dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of
such child must prove his allegation. (Sec. 4, Rule 131)
G. PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESS
GENERAL RULE: The testimony of the witness must be
given in open court (Sec. 1, Rule 132)
EXCEPTION: Such requirement may be supplanted
1. In civil cases:
by depositions pursuant to and under the
limitations of Rules 23 and 24
2. In criminal cases:
by depositions or conditional examinations,
pursuant to Sec 12 to 15 Rule 119 and Rule 123, or
by the records of the preliminary investigation
Note: Mere presentation of the affidavits of prosecution
witnesses subject to cross-examination is not allowed by
the Rules of Court. (People vs. Estenzo, 1976)
But, summary procedures may be authorized by SC in
special cases (i.e. ejectment, violation of traffic laws, rules
and regulations, violation of the rental law). Also,
simplified procedures may be adopted by the SC which
may provide that affidavits or counter-affidavits may be
admitted in lieu of oral testimony. (Revised Rule on
Summary Procedure; Remedial Law Compendium Vol. II,
Regalado)
HOW ORAL EVIDENCE IS GIVEN
GENERAL RULE: It is usually given orally in open court.
Therefore, generally, the testimonies of witnesses cannot
be presented in affidavits.
EXCEPTION: Testimonies of witnesses may be given in
affidavits is under the Rules of Summary Procedure (BP
129)
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Evidence
Purpose: to enable the court to judge the credibility of
the witness by the witness’ manner of testifying, their
intelligence, and appearance.
Testimony of witnesses shall be given under oath or
affirmation.
TWO-FOLD OBJECT IN REQUIRING A WITNESS TO BE
SWORN:
1. By affecting the conscience of the witness to
compel him to speak the truth;
2. If he willfully falsifies that truth, that he may be
punished by perjury.
The right to have the witness sworn may be waived
If a party fails to object to the taking of the
testimony of a witness without the administration of
an oath, he will be deemed to have waived his
objection.
How Testimony of the Witness Should be Elicited
(1) By question of counsel
(2) The court may also propound questions
either on the direct or cross-examination
of the witness or suggest questions to
counsel.
Note: The testimony of a witness cannot be
considered self-serving if he is subjected to cross-
examination. Self-serving evidence is one made out
of court and is excluded on the same ground as
hearsay evidence, i.e. deprivation of the right of
cross examination (Co vs. CA, G.R. No. 52200,1980)
Questions propounded to a witness must:
(1) Not be indefinite or uncertain;
(2) Be relevant;
(3) Not be argumentative;
(4) Not for conclusion of law;
(5) Not call for opinion or hearsay evidence;
(6) Not call for illegal answer;
(7) Not call for self-incriminating testimony;
(8) Not be leading;
(9) Not be misleading;
(10) Not to tend reputation of witness;
(11) Not to be repetitions;
(12) Not call for a narration.
Nevertheless, the court itself may propound
questions either on the direct or cross-examination
of the witness or may suggest questions that should
be propounded by counsel. (People v. Santos, G.R.
No. 172322, 2006)
Rights and Obligations of a Witness
Rights of a Witness
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of
justice require;
(3) Not to be examined except only as to matters
pertinent to the issue;
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(4) Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to
degrade his reputation, unless it be to the very
fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must
answer to the fact of his previous final
conviction for an offense. (Sec. 3, Rule 132)
Obligations of a Witness
GENERAL RULE: A witness cannot refuse to answer
questions material to the inquiry even if it may tend
to establish a claim against him
EXCEPTION: He may validly refuse to answer:
(1) Under the right against self-incrimination
(If it will subject him to punishment for an
offense)
(a) Available in civil, criminal and administrative
cases;
(b) May be with reference to the offense involved
in the same case where he is charged or in
another case;
(c) It may be waived however in immunity
statutes wherein the witness is granted
immunity from criminal prosecution for
offenses admitted in his testimony.
(2) Under the right against self-degradation
(If it will have a direct tendency to degrade his
character)
Order in the Examination of Witnesses
The order in which an individual witness may be
examined is as follows:
1. Direct examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross-examination by the opponent. (Sec. 4,
Rule 132)
i. Direct Examination
It is the examination-in-chief of a witness by the
party presenting him on the facts relevant to the
issue. (Sec. 5, Rule 132)
ii. Cross Examination
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse
party. (Sec. 6, Rule 132)
It was held that a witness may be cross-examined
not only as to any matters stated in the direct
examination, but also as to any matter connected
therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
iii.
Purposes of Cross Examination
(1) To discredit the witness
(2) To discredit the testimony of the witness
(3) To clarify certain matters
(4) To elicit admissions from witnesses
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Evidence
Scope and Limits of Cross Examination
(1) American Rule - Restricts cross-
examination to facts which are connected
with the matters that have been stated in
the direct examination of the witness
(2) English Rule - A witness may be cross-
examined, not only upon matters testified
to by him on his direct examination, BUT
ALSO on all matters relevant to the issue
What Rule Do we Follow? – BOTH
GENERAL RULE: We follow the English Rule –
However, it does not mean that the party is making
the witness his own, as stated in Sec 5
EXCEPTION: We follow the American Rule (may only
be cross-examined on matters covered by direct
examination) when:
(1) The witness is an unwilling or hostile witness as
so declared by the court OR is an adverse party
(2) The witness is an accused who testifies as a
witness in his own behalf
Hostile Witness - One declared so by the court upon
adequate showing of his – adverse interest,
unjustified reluctance to testify or his having misled
the party into calling to the stand.
Misleading Facts (Questions which assumes facts not
on record), IF asked:
(1) On cross-examination: Objectionable for
being misleading
(2) On direct-examination: Objectionable for
lack of basis
Doctrine of Incomplete Testimony:
When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony is
rendered incompetent
GENERAL RULE: Such testimony should be stricken
from the record.
EXCEPTION: However, in criminal cases when the
prosecution witness was extensively cross-examined
on the material points (essential elements of the
crime) and thereafter failed to appear and cannot be
produced despite a warrant for his arrest – striking
out is not warranted (People v. Gorospe, 1984)
When direct-examination may be stricken out for
lack of cross-examination:
Depends on who is at fault:
• IF it is on the party presenting the witness – it
may be expunged
• IF it is on the adverse party - there can be no
forfeiture of direct testimony.
Re-Direct Examination
After the cross-examination, a witness may be re-
examined by the party calling him.
PURPOSE
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(1) To explain or supplement his answers given
during the cross-examination
On re-direct examination, questions on matters not
dealt with during the cross-examination, may be
allowed by the court in its discretion.(Sec. 7, Rule
132)
Principal Object: To prevent injustice to the witness
and the party who has called him by affording an
opportunity to the witness:
(1) To explain/amplify/reaffirm the testimony
which he has given on Cross-E
(2) To explain any apparent contradiction or
inconsistency in his statements
iv. Re-Cross Examination
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the
court in its discretion. (Sec. 8 Rule 132)
Purpose: To overcome the other party’s attempt to
rehabilitate a witness or to rebut damaging evidence
brought out on Cross-E
It is NOT a Matter of Right on Re-Cross-E for
Counsel to Touch on Matters NOT Brought on Re-
Direct-E
Re-Cross-E is limited to new matters brought out on
the Re-Direct-E and such matters as may be allowed
by the court.
Recalling Witness
Where all sides in the case have concluded their
examination of the witness, his recall for further
examination is discretionary with the court as the
interest of justice requires. (Sec. 9, Rule 132)
GENERAL RULE: After the examination of a witness
by both sides has been concluded, the witness,
CANNOT be recalled W/O leave of court (Sec.9, Rule
132)
EXCEPTION: Where such examination has not been
concluded or when a recall of the witness has been
expressly reserved – recall is a matter of right.
(Remedial Law Compendium Vol. II, Regalado)
Leading and Misleading Questions
Leading Question - One which suggests to the
witness the answer desired.
GENERAL RULE: It is not allowed
Ratio: It causes the witness to testify in accordance
with the suggestion rather than a genuine
recollection of events
EXCEPTIONS:
(1) On cross-examination
(2) On preliminary matters
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Evidence
(3) Difficulty in getting direct and intelligible
answers (i.e. from a witness who is ignorant, or
a child of tender years, or is of feeble mind, or a
deaf-mute)
(4) Unwilling or hostile witness
(5) Adverse party or an officer, director or a
corporation or partnership which is an adverse
party
Note: For Nos. 3 and 4: There is no need of a
preliminary showing of hostility before leading
questions can be asked
Leading questions have been allowed by the SC
when the witness is: immature, aged and infirm, in
bad physical condition, uneducated, ignorant
unaccustomed to court proceedings, feeble-minded,
confused, has slow comprehension, deaf and dumb,
unable to speak or understand English. (People v.
Dela Cruz, 2002)
As a general rule, leading questions are not allowed.
However, we have held that when the witness is a
child of tender years, it is proper for the court to
allow leading questions as it is usually difficult for a
child of such age to state facts without prompting or
suggestion. Leading questions are necessary to coax
the truth out of their reluctant lips. (People v. Del
Valle, 2002)
Note: A question that merely suggests a subject w/o
suggesting an answer or a specific thing is NOT a
leading question
Misleading Question - One which assumes facts not
in evidence or w/o sufficient basis or which assumes
testimony or proof which has not been given. – It has
little probative value
Misleading question is NOT allowed
Methods of Impeaching of Adverse Party’s Witness
Impeachment of a witness
It is a technique usually as part of cross-examination
to discredit a witness by attacking his credibility.
(Riano)
A witness may be impeached by the party against
whom he was called. (Sec.11, Rule 132)
A Party Can Impeach a Witness of the Adverse Party
BY:
(1) Contradictory evidence from testimony in same
case
(2) Evidence of prior inconsistent statement
(3) Evidence of bad character and
(4) Evidence of bias, interest, prejudice or
incompetence
(5) Evidence of mental, sensory derangement or
defect
(6) Evidence of conviction of an offense which
affects credibility of witness. (People v. Givera,
2001)
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GENERAL RULE: A party who voluntarily offers the
testimony of a witness in the case is, as a rule, bound
by the testimony of the said witness. (Remedial Law
Compendium Vol. II, Regalado)
EXCEPTIONS:
(a) In the case of a hostile witness;
(b) Where the witness is the adverse party or the
representative of a juridical person which is the
adverse party; and
(c) When the witness is not voluntarily offered but
is required by law to be presented by the
proponent, as in the case of subscribing
witnesses to a will.(Fernandez vs.Tantoco, 49
Phil. 380; Sec. 11, Rule 76).
How the Witness is Impeached by Evidence of
Inconsistent Statements
(Laying the predicate)
The statements must be related to him, with the
circumstances of the times and places and the
persons present, and he must be asked whether he
made such statements, and if so, allowed to explain
them. If the statements be in writing they must be
shown to the witness before any question is put to
him concerning them. (Sec. 13, Rule 132)
Contradictory Evidence - refers to other testimony
of the same witness, or other evidence presented by
him in the same case
Prior Inconsistent Statement - refers to statements
Public and Private Documents
oral or documentary, made by the witness sought to
be impeached on occasions other than trial in which
he is testifying.
Impeaching done by “laying the predicate”:
(1) By confronting him with such statements, with
the circumstances under which they were made
(2) By asking him whether he made such
statements and
(3) By giving him as chance to explain the
inconsistency
Note: Unless the witness is given the opportunity to
explain the discrepancies, the impeachment is
incomplete.
HOWEVER, such defect is deemed WAIVED if no
objection on that ground is raised when the
document involved is offered for admission
Ratio for Laying the Predicate
(1) To avoid unfair surprise to the adversary
(2) To save time (an admission will make extrinsic
proof unnecessary)
(3) To give the witness a chance to explain
The “laying the predicate” rule does not apply:
(1) If the prior inconsistent statement appears in a
deposition of the adverse party, and not a mere
witness, as such statements are in the nature of
admissions of said adverse party
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Evidence
(2) Where the previous statements of a witness are
offered as evidence of an admission, and not
merely to impeach him
Evidence of Good Character of a Witness
GENERAL RULE: evidence of good character of
witness is not admissible.
EXCEPTION: the character of the witness has been
impeached.
Note: This must be differentiated with the rule
related to the accused introducing evidence of his
good character and the prohibition on the part of
the accused to give evidence of bad character unless
as rebuttal by the prosecution.
Impeachment of witness by evidence of wrongful
acts
GENERAL RULE: impeachment of a witness by
evidence of his particular 
wrongful acts is
disallowed.
EXCEPTION: in relation to his prior conviction of an
offense through cross-examination and or by
presenting the record of his prior conviction.
Authentication and Proof of Documents
A condition precedent for the admissibility of
evidence. (Black’s Law Dictionary, 5th Ed., p. 121)
Classes of Documents
Public Documents: A document acknowledged
before persons authorized to administer oaths.
“Official Documents”.
Documents to be public must be:
(a) an official written act of a public officer;
(b) Notarial Documents (except last wills and
testaments)
(c) A foreign decision purporting to be the written
record of an act of an official body or tribunal of
a foreign country is a public writing.
Private Documents: all other writings; includes
commercial documents.
However, private documents required by law to be
entered in public records may be considered as
“public documents”
Note: If a private writing itself is inserted officially
into a public record, its record, its recordation or its
incorporation into the public record becomes a
public document BUT that does NOT make the
private writing itself a public document so as to
make it admissible w/o authentication.
For the purpose of their presentation in evidence,
certain transactions must be in a public document;
otherwise they will not be given any validity.
If the record is not kept in the Philippines, such
official publication or copy must be accompanied:
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(1) With a certificate that the attesting officer has
the legal custody thereof;
(2) Certificate stating, in substance:
(a) Copy is a correct copy of the original, or
(b) Specific part is a correct copy of the original
(3) Certificate issued by:
(a) any of the authorized Philippine embassy or
(b) consular officials stationed in the foreign
country in which the record is kept
(4) Authenticated by the seal of his office.
(Rotterdam v. Glow Laks Enterprises, Ltd., GR No.
156330, November 19, 2014)
Ratio: Not a mere technicality but is intended to
justify the giving of full faith and credit to the
genuineness of a document in a foreign country
Public documents are perfect evidence of the fact
which gave rise to their execution and of the date of
the latter, if the act which the officer witnessed and
certified to or the date written by him are not shown
to be false; but they are not conclusive evidence with
respect to the truthfulness of the statements made
therein by the interested parties. (Dupilas v.
Cabacungan, 30 Phil 354, 1917)
Any other private document need only be identified
as that which it is claimed to be.(Sec. 20, Rule 132,
Rules of Court)
Other Modes Of Authentication
(1) Doctrine of Self-Authentication – where the
facts in writing could only have been known by
the writer
(2) Rule of Authentication of the Adverse Party –
where the reply of the adverse party refers to
and affirms the transmittal to him and his
receipt of the letter in question, a copy of which
the proponent is offering as evidence.
When Evidence Of Authenticity Of A Private Writing
Is Not Required
An ancient document is said to be in the proper
custody if it is in the place in which and under the
care of the person with whom it would naturally be.
Requisites:
(1) Document is more than thirty years old
(2) Document is produced from a custody in which it
would naturally be found if genuine, and
(3) Document is unblemished by any alteration or
circumstances of suspicion

Ratio: The fact of its coming from the natural and

PUBLIC PRIVATE proper place tends to remove presumptions of fraud
DOCUMENTS DOCUMENTS and strengthen the belief of its genuineness
GENERAL RULE: NOT Self
Admissible in Authenticating. By merely producing the document: it establishes
evidence w/o It must be prima facie its own authenticity. The burden then
further proof of its proved relative shifts to the adverse party to prove otherwise.
genuineness and to its due How To Prove Genuineness Of A Handwriting
due execution execution and
genuineness, Means or methods by which the handwriting of a
As to person may be proven, which may be either by:
EXCEPTION: Where before it may be
Authenticity (1) Any witness who believes it to be the
a special rule of law received in
requires proof evidence handwriting of such person, and has seen the
thereof despite its person write; or
being a document (2) Any witness who has seen writing purporting to
acknowledged be his upon which the witness has acted or
(ex. Probate of been charge and has thus acquired knowledge
notarial wills) of the handwriting of such person, or
(3) By comparison made by a witness or the court,
Evidence even Binds only the
with writings admitted or treated as genuine by
against 3rd persons, parties who
the party against whom the evidence is offered,
of the fact which executed it or
or proved to be genuine to the satisfaction of
As to gave rise to its due their privies,
the judge.
Persons execution and to insofar as due
(Lopez v. CA, L-31494, 23 Jan 1978)
Bound the date of the execution and
latter date of the
Public Documents As Evidence; Proof Of Official
document
Records
concerned
Requisites:
When a Private Writing Requires Authentication;
(1) Documents consisting of entries in public
Proof of Private Writing
records
(2) Entries made by a public officer
Due execution and authenticity must be proved
(3) Entries made in the performance of a duty
either:
(a) By anyone who saw the document executed or
Public documents are admissible without further
written; or
proof of their due execution and genuineness
(b) By evidence of the genuineness of the signature
or handwriting of the maker.
Proof Of Official Record

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Whether the Record is Domestic or Foreign – It may
be Evidenced By:
(1) An official publication
(2) A copy thereof duly attested by the proper officers
Note: Absent the attestation of the proper officer, a
mere copy of the foreign document is not admissible
as evidence to prove the foreign law.
When the special power of attorney is executed and
acknowledged before a notary public or other
competent official in a foreign country, it cannot be
admitted in evidence UNLESS it is certified as such
in accordance with the foregoing provision of the
rules by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines
stationed in the foreign country in which the record
is kept of said public document and authenticated by
the seal of his office.
Attestation of a Copy
Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or
if he be the clerk of a court having a seal, under the
seal of such court. (Sec, 25, Rule 132, Rules of Court)
Public Record of a Private Document
An authorized public record of a private document
may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the
record, with an appropriate certificate that such
officer has the custody. (Sec. 27, Rule 132, Rules of
Court)
Note: If a private writing itself is inserted officially
into a public record, its record, its recordation or its
incorporation into the public record becomes a
public document BUT that does NOT make the
private writing itself a public document so as to
make it admissible w/o authentication.
Proof of Lack of Record
A written statement signed by an officer having the
custody of an official record or by his deputy that
after diligent search no record or entry of a specified
tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
contain no such record or entry. (Sec. 28, Rule 132,
Rules of Court)
HOW JUDICIAL RECORD IS IMPEACHED
Any judicial record may be impeached by evidence
of:
a. want of jurisdiction in the court or judicial
officer,
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Evidence
b. collusion between the parties, or
fraud in the party offering the record, in respect to
the proceedings. (Sec. 29, Rule 132, Rules of Court)
Proof of Notarial Documents
Every instrument duly acknowledged or proved and
certified as provided by law, may be presented in
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved.
(Sec. 30, Rule 132, Rules of Court)
Notarial Document
One which is duly acknowledged before a notary
public. (It is a public document)
The notary must be duly authorized and must have
notarized said document in accordance with the
Notarial Law.
Evidentiary Weight Of A Notarial Document
A notarial document celebrated with all the legal
requisites under a notarial certificate is evidence of a
higher character, and to overcome recitals, it is
incumbent upon the party challenging it to prove his
claim with clear and convincing evidence.
A notarized document carries the evidentiary weight
conferred upon it with respect to its due execution,
and it has in his favor the presumption of regularity
which may only be rebutted by evidence so strong
and convincing as to exclude all controversy as to
the falsity of the certificate. Absent such, the
presumption must be upheld. The burden of proof to
overcome the presumption of due execution of a
notarial document lies on the one contesting the
same. (Pan Pacific Industrial Sales Co. v. CA, 2005)
How to Explain Alterations in a Document
The party producing a document as genuine which
has been altered and appears to have been altered
after its execution, in a part material to the question
in dispute, must account for the alteration. He may
show that the alteration was made by another,
without his concurrence, or was made with the
consent of the parties affected by it, or was
otherwise properly or innocently made, or that the
alteration did not change the meaning or language of
the instrument. If he fails to do that, the document
shall not be admissible in evidence. (Sec. 31, Rules 132,
Rules of Court)
The rule requires that a party, producing a writing as
genuine but which is found altered after its
execution, in a part material to the question in
dispute, should account for the alteration, and if he
does that, may give the writing in evidence, but not
otherwise. In other words, a party presenting the
writing should have accounted for the alteration
when he introduced the paper in evidence, and not
endeavor to explain the alteration afterwards.
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The claim on appeal that the alteration in the writing evidence. Such offer shall be done orally unless
was innocent, or that the company should have been allowed by the court to be done in writing, (Sec. 35,
given an opportunity to explain because it was Rule 132, Rules of Court)
caught unaware that the court below would take the
incident against them as it did, is untenable. (Vda. De When to Make an Offer depending on its form:
Bonifacio v. BLT Bus Co., Inc., 34 SCRA 618, 1970) Testimonial/Oral Documentary and Object
Evidence Evidence
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL At the time the witness is After the party has
LANGUAGE called to testify presented his testimonial
evidence, before he rests
Documents written in an unofficial language shall Oral Evidence is Always Offered only once
not be admitted as evidence, unless accompanied Offered 2x:
with a translation into English or Filipino. To avoid Before the witness
interruption of proceedings, parties or their testified
attorneys are directed to have such translation Every time a question is
prepared before trial. (Sec. 33, Rule 132, Rules of asked of him (implied
Court) offer)

OFFER OF EVIDENCE Procedure Before Documentary and Object Evidence

Can be Considered by the Court
The court shall consider no evidence which has not
been formally offered. The purpose for which the (1) Marking
evidence is offered must be specified. ( Sec. 34, Rule To facilitate their identification. May be made
132, Rules of Court) during pre-trial or trial.

GENERAL RULE: The court shall consider no (2) Identification

evidence, which has not been formally offered. The Proof that the document being presented is the
purpose for which the evidence is offered must be same one referred to by the witness in his
specified. testimony
EXCEPTION: If there was repeated reference
thereto in the course of the trial by adverse party’s (3) Authentication
counsel and of the court, indicating that the Proof of a document’s due execution and
documents were part of the prosecution’s evidence. genuineness.

Two requisites must concur: (4) Formal Offer

(1) The document must have been duly identified
by testimony duly recorded.
(2) The document must have been incorporated to
the records of the case.
(Laborate v. Pagsanhan Tourism Consumers
Cooperative, 2014)
Evidence may be considered despite failure to
formally offer if exhibits which were not formally
offered by the prosecution were repeatedly referred
to in the course of the trial by the counsel of the
accused. (People v. Vivencio De Roxas et al., 1962)
PURPOSE WHY OFFER MUST BE SPECIFIED
To determine whether that piece of evidence should
be admitted or not because such evidence may be
admissible for several purposes under the doctrine
of multiple admissibility.
After the termination of the testimonial
evidence, the proponent will then make a
formal offer and state the purpose for which the
document is presented. If the evidence is
excluded, an offer of proof.
(5) Objections
It is only when the proponent rests his case and
formally offers the evidence that an objection
may be made. Objection prior thereto is
premature
If there is a stipulation on its due execution and
genuineness:
(a) Authentication is NOT needed in public
documents.
(b) Marking and identifying of evidence as an
exhibit does NOT mean that it has been offered
as part of evidence.

It must be rejected if it is inadmissible for the Evidence identified and marked as exhibits may be
purpose stated even if it is admissible for another withdrawn before the formal offer thereof or may
purpose. not at all be offered as evidence.

When to Make an Offer
As regards the testimony of a witness, the offer must
be made at the time the witness is called to testify.
Documentary and object evidence shall be offered
after the presentation of a party's testimonial
If they are not formally offered in evidence – such
cannot be considered as evidence nor can they be
given any evidentiary value.
Note: The SC has admitted evidence to prove
mitigating circumstance even if they are not

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presented or offered in evidence considering the
gravity of the offense and the interest of justice.
OBJECTION
Rules on making an objection:
(a) Objection to evidence offered orally must
be made immediately after the offer is
made.
(b) Objection to a question propounded in the
course of the oral examination of a witness
shall be made as soon as the grounds
therefor shall become reasonably apparent.
(c) An offer of evidence in writing shall be
objected to within three (3) days after
notice of the offer unless a different period
is allowed by the court.
(d) In any case, the grounds for the objections
must be specified. (Sec. 36, Rule 132, Rules
of Court)
NOTE: If objections are not made within the time
specified, it is deemed waived.
Classifications of Objections
General Objection Specific Objection
It does not go beyond It states why or how the
declaring the evidence as evidence is irrelevant or
immaterial, incompetent, incompetent.
irrelevant or inadmissible.
It does not specify the
grounds for objection.
“Broadside Objection”
Requirements to Exclude Inadmissible Evidence:
(1) One has to object to the evidence
(2) The objection must be timely made and
(3) The grounds for the objection must be specified
(specific objections)
EFFECT OF GENERAL OBJECTION
Failure to specify the grounds is a waiver of
objection.
BUT when evidence is excluded upon a mere general
objection, the ruling will be upheld IF any ground in
fact existed for the exclusion.
WHEN TO MAKE OBJECTIONS
Offer Time to Object
Offered orally Made immediately after
the offer is made
Question propounded in Made as soon as the
the course of the oral grounds thereof shall
examination of a witness become reasonably
apparent
Offer of evidence in W/in 3 days after notice
writing of the offer unless a
different period is allowed
by the court.
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Evidence
Note: the formal offer of evidence at the time the
witness is called to testify is necessary to enable the
court to intelligently rule on any objection.
(a) Proponent must: Show its evidence,
materiality and competence
(b) Adverse party must: Promptly raise any
objection thereto
Note: A document admitted not as an independent
evidence but merely as part of the testimony of a
witness does NOT constitute proof of the facts
related therein.
REPETITION OF OBJECTION
When it becomes reasonably apparent in the course
of the examination of a witness that the questions
being propounded are of the same class as those to
which objection has been made, whether such
objection was sustained or overruled, it shall not be
necessary to repeat the objection, it being sufficient
for the adverse party to record his continuing
objection to such class of questions. ( Sec. 37, Rule
132, Rules of Court)
Here, the party may just enter a general and
continuing objection to the same class of evidence
and the ruling of the court shall be applicable to all
such evidence of the same class. The court may also
motu proprio treat the objection as a continuing one.
RULING
The ruling of the court must be given:
(1) immediately AFTER the objection is made,
(2) UNLESS the court desires to take a reasonable
time to inform itself on the question presented;
(3) but the ruling shall ALWAYS be made:
(4) during the trial and
(5) at such time as will give the party against whom
it is made an opportunity to meet the situation
presented by the ruling. (Sec. 38, Rule 132, Rules
of Court)
The reason for sustaining or overruling an objection
need not be stated. However, if the objection is
based on two or more grounds: a ruling sustaining
the objection on one or some of them must specify
the ground or grounds relied upon. (Sec. 38, Rule 132,
Rules of Court)
WHEN SHOULD THE RULING BE MADE
GENERAL RULE: Parties who object is entitled to a
ruling at the time the objection is made. If no ruling
is made, it would prejudice the rights of the client
since there would be no way of knowing if one would
be compelled to meet any evidence.
The attorney must inform the court of the lack of
ruling – IF NOT:
GENERAL RULE: The case cannot be reopened on
such ground. The right to object is deemed waived
and cannot be raised on appeal.
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Remedial Law Evidence

EXCEPTION: When there is a serious prejudice on decision.

substantial rights – the appellate court may consider
it a reversible error.
EXCEPTION TO THE EXCEPTION: Unless the
parties present a question to which the court
desired to inform itself before making its ruling.
RATIONALE
So that in case of appeal, the appellate court may be
able to examine the same and determined the
propriety of their rejection

Here, it is proper for the court to take reasonable Since Documents forming no part of proofs before
time to study the questions. the appellate court cannot be considered in
disposing of the case, otherwise that would infringe
upon the constitutional right of the adverse party to
Striking Out of an Answer due process.

Should a witness answer the question before the
adverse party had the opportunity to voice fully its
objection to the same, and such objection is found to
be meritorious, the court shall sustain the objection
and order the answer given to be stricken off the
record.
On proper motion, the court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper. (Sec. 39, rules 132,
Rules of Court)
It is the better practice to unite with the record
exhibits which have been rejected and that such
rejected or excluded exhibits should have been
permitted by the judge a quo to be attached to the
record even if not admitted in evidence, so that in
case of an appeal, the court ad quem may thus be
able to examine said exhibits and to judge whether
or not their rejection was erroneous. (Lamagan v.
Dela Cruz, 40 SCRA 101, 1971)
WHEN NOT REQUIRED

MODE OF EXCLUDING INADMISSIBLE EVIDENCE
(1) Objection when the evidence is offered
(2) Motion to strike out or Expunge – proper
in the following cases:
• When the witness answers prematurely before
there is reasonable opportunity for the party to
object (Sec 39)
• Unresponsive answers
• Answers that are incompetent, irrelevant, or
improper (Sec 39)
Note: There must be an objection before motion to
strike.
1) When the question to which an objection has
been sustained clearly reveals on its face the
substance, purpose and relevancy of the excluded
evidence;
2) When the substance, purpose and relevancy of
the excluded evidence were made known to the
court either in the court proceedings and such parts
appear on record;
3) Where evidence is inadmissible when offered
and excluded, but thereafter becomes admissible, it
must be re-offered unless the court indicates that a
second offer would be useless. (Herrera, 1999)

Tender of Excluded Evidence

H. JUDICIAL AFFIDAVIT RULE
If documents or things offered in evidence are
excluded by the court, the offeror may have the Scope and Where Applicable
same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for Rule shall apply to:
the record the same and other personal (a) Actions,
circumstances of the witness and the substance of (b) Proceedings, or
the proposed testimony. (Sec. 40, Rule 132, Rules of (c) Incidents requiring the reception of evidence
Court) (Sec. 1, AM No. 12-8-8 SC)

Rule shall applies to all courts, other than the

Supreme Court

TENDER OF EXCLUDED EVIDENCE vs. OFFER OF The rule specifies the following courts and bodies:
EVIDENCE (1) The Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial
Tender of Excluded Offer of Evidence Courts, the Municipal Circuit Trial Courts, and
Evidence the Shari' a Circuit Courts but shall not apply to
Only resorted to if Refers to testimonial, small claims cases under A.M. 08-8-7-SC;
admission is refused documentary or object (2) The Regional Trial Courts and the Shari'a
by the court for evidence that are presented District Courts;
purpose of review on in court by a party so that the (3) The Sandiganbayan, the Court of Tax Appeals,
appeal court can consider his the Court of Appeals, and the Shari'a Appellate
evidence when it comes to Courts;
the preparation of the (4) The investigating officers and bodies authorized
by the Supreme Court to receive evidence,

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Remedial Law
including the Integrated Bar of the Philippine
(IBP); and
(5) The special courts and quasi-judicial bodies,
whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as
their existing rules of procedure contravene the
provisions of this Rule. (Sec .1(a), Judicial
Affidavit Rule)
Contents and Procedure
A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or
Filipino, accompanied by a translation in English or
Filipino, and shall contain the following:
(a) The name, age, residence or business address,
and occupation of the witness;
(b) The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination is
being held;
(c) A statement that the witness is answering the
questions asked of him, fully conscious that he
does so under oath, and that he may face
criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
(1) Show the circumstances under which the
witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are relevant
to the issues that the case presents; and
(3) Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the Rules of Court;
(e) The signature of the witness over his printed
name; and
(f) A jurat with the signature of the notary public
who administers the oath or an officer who is
authorized by law to administer the same. (Sec.
3, AM No. 12-8-8 SC)
Application to Criminal Actions
Rule: The Judicial Affidavit Rule shall apply to:
(1) CRIMINAL CASES
● Where the maximum of the imposable
penalty does not exceed six years; or
● Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved
(2) CIVIL CASES
● Irrespective of the penalties involved
Basis: Criminal cases are actions, which require the
reception of evidence. (Riano, supra, p. 419)
Limitations in the Applicability of the Rule
This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty
does not exceed six years;
(2) Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved;
or
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Evidence
(3) With respect to the civil aspect of the actions,
whatever the penalties involved are.
The Judicial Affidavit Rule still applies:
(1) The accused opts its application, or
(2) With respect to the civil aspect of the criminal
action
In other cases, the use of the judicial affidavits will
now depend on the accused. The rule will apply,
irrespective of the penalty involved, where the
accused agrees to the use of the judicial affidavits.
(RIANO, supra, p. 419)
The civil aspect of the criminal action refers to the
action to recover the civil liability “arising from the
offense charged” and which is deemed instituted
with the criminal action as provided in Sec. 1 of Rule
111 of the Rules of Court. (Riano, supra, p. 419-420)
Effect of Non-Compliance
Party’s failure to submit – deemed to waived their
submission of the required judicial affidavits and
exhibits. (Note: The Court may allow only once the
late submission of the same, provided: 1) the delay is
for a valid reason; 2) would not unduly prejudice the
opposing party; and, 3) the defaulting party pays a
fine not less than P1,000.00 nor more than
P5,000.00, at the discretion of the court.)
Witness’ failure to appear at the scheduled hearing –
Court shall not consider the affidavit.
Counsel’s failure to appear at the scheduled hearing
– if without valid cause despite notice, he shall be
deemed to have waived his client’s right to cross
examine the witnesses presented.
Non-conformity with the content requirements –
Court shall not admit the Judicial Affidavit as
evidence.
(Sec. 10, AM No. 12-8-8 SC)
Effect on Other Rules
Provisions which are inconsistent with the Judicial
Affidavit Rule:
✔ Repealed or modified - Rules of Court; Rules of
procedure of investigating bodies authorized by the
Supreme Court
✔ Disapproved - Rules of procedure of governing
quasi-judicial bodies (Sec. 11, AM No. 12-8-8 SC)
I. WEIGHT AND SUFFICIENCY OF
EVIDENCE
WEIGHT OF EVIDENCE
It is the probative value given by the court to
particular evidence admitted to prove a fact in issue.
SUFFICIENCY OF EVIDENCE
In determining the sufficiency of evidence, what
matters is not the number of witnesses but the
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Remedial Law
credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible. (Ceniza-Manantan v. People, 2007)
ALIBI
It is a defense where an accused claim that
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused
may avail because of the facility with which it can be
fabricated, just like a mere denial. When this is the
defense of the accused, it must be established by
clear and satisfactory evidence. (People v. Estrada,
2003)
Not all denials and alibis should be regarded as
fabricated—indeed, if the accused is truly innocent,
he can have no other defense but denial and alibi. A
positive declaration from a witness that he saw the
accused commit the crime should not automatically
cancel out the accused’s claim that he did not do it.
(Lejano v. People, 2010)
CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is sufficient for conviction
if:
(1) There are more than one circumstances;
(2) The facts from which the inferences are derived
are proven; and
(3) The combination of all the circumstance is such
as to produce a conviction beyond reasonable
doubt.
The corollary rule is that the circumstances proven
must constitute an unbroken chain which leads to
one reasonable conclusion pointing to the accused,
to the exclusion of all others, as the guilty person.
(Trinidad v. People, 2012)
EXTRAJUDICIAL CONFESSION NOT SUFFICIENT
GROUND FOR CONVICTION
An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec, 3,
Rule 133)
CORPUS DELICTI
It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body of
the deceased or to the ashes of a burned building.
The corpus delicti may be proven by the credible
testimony of a sole witness, not necessarily by
physical evidence. (Rimorin v. People, 2003)
PROOF BEYOND REASONABLE DOUBT
Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced
mind. (Sec. 2, Rule 133)
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Evidence
PREPONDERANCE OF EVIDENCE
Only requires that evidence be greater or more
convincing than the opposing evidence. (Duarte v.
Duran, 2011)
SUBSTANTIAL EVIDENCE
Substantial evidence is defined as such amount of
relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.
(Travelaire & Tours Corp. v. NLRC and Medelyn,
1998)
CLEAR AND CONVINCING EVIDENCE
Evidence which produces in the mind of the trier of
fact firm belief or conviction as to allegations sought
to be established(Black’s Law Dictionary, 5th Ed., p.
227)
Intermediate than preponderance, but not to the
extent of such certainty as is required by beyond
reasonable doubt as in criminal cases. (Riano)
J. RULES ON ELECTRONIC
EVIDENCE
Requisite for admissibility: An electronic document is
admissible in evidence if it complies with the rules
on admissibility prescribed by the Rules of Court and
related laws and is authenticated in the manner
prescribed by law. (Sec. 1, Rule 3, Rules on Electronic
Evidence)
Whenever a rule of evidence refers to the term
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document. (Sec. 1, Rule 3)
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data
accurately. (Sec. 1, Rule 4)
Copies and duplicates of the electronic document
shall not be admissible to the same extent as the
original if:
(a) A genuine question is raised as to the
authenticity of the original; or
(b) In the circumstances it would be unjust or
inequitable to admit the copy in lieu of the
original. (Sec. 2, Rule 4)
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Remedial Law Writ of Amparo

WRIT OF AMPARO

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.

WHO MAY FILE

WRIT OF
1. Any member of the immediate family, namely:
the spouse, children and parents of the
aggrieved party;

AMPARO 2. Any ascendant, descendant or collateral

relative of the aggrieved party within the fourth
civil degree of consanguinity or affinity, in
default of those mentioned in the preceding
paragraph; or

3. Any concerned citizen, organization,

association or institution, if there is no known
member of the immediate family or relative of
the aggrieved party.

Note: The filing of a petition by the aggrieved party

suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein.

VENUE
Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred,
or with the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The writ
shall be enforceable anywhere in the Philippines.

CONTENT OF PETITION
The petition shall be signed and verified and shall allege
the following:

1. The personal circumstances of the petitioner;

2. The name and personal circumstances of the

respondent responsible for the threat, act or
omission, or, if the name is unknown or
uncertain, the respondent may be described by
an assumed appellation;

3. The right to life, liberty and security of the

aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;

4. The investigation conducted, if any,

specifying the names, personal circumstances,
and addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;

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Remedial Law Writ of Amparo

5. The actions and recourses taken by the

petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the
person responsible for the threat, act or
omission; and
6. The relief prayed for.
(b) Inspection Order. - The court, justice or judge, upon
verified motion and after due hearing, may order any
person in possession or control of a designated land or
other property, to permit entry for the purpose of
inspecting, measuring, surveying, or photographing the
property or any relevant object or operation thereon.

RETURN The motion shall state in detail the place or places to be

Respondent shall file within five working days after the
service of the writ a verified written return together with
supporting affidavits containing:
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security of
the aggrieved party, through any act or
omission;
(b) The steps or actions taken by the possession to
determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
threat, act or omission;
(c) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party; and
(d) If the respondent is a public official or employee,
the return shall further state the actions that have
been or will still be taken:
inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge of
the enforced disappearance or whereabouts of the
aggrieved party.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time,
place and manner of making the inspection and may
prescribe other conditions to protect the constitutional
rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. - The court, justice or judge, upon
verified motion and after due hearing, may order any
person in possession, custody or control of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in
digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to
produce and permit their inspection, copying or
photographing by or on behalf of the movant.

(i) to verify the identity of the aggrieved
party;
(ii) to recover and preserve evidence related
to the death or disappearance of the person
identified in the petition which may aid in the
prosecution of the person or persons
responsible;
(d) Witness Protection Order. - The court, justice or
judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission to
the Witness Protection, Security and Benefit Program,
pursuant to Republic Act No. 6981.

(iii) to identify witnesses and obtain

statements from them concerning the death
or disappearance;

(iv) to determine the cause, manner, location

and time of death or disappearance as well as
any pattern or practice that may have
brought about the death or disappearance;

(v) to identify and apprehend the person or

persons involved in the death or
disappearance; and

(vi) to bring the suspected offenders before a

competent court.

INTERIM RELIEFS
1. Temporary Protection Order. - The court, justice or
judge, upon motion or motu proprio, may order that the
petitioner or the aggrieved party and any member of the
immediate family be protected in a government agency or
by an accredited person or private institution capable of
keeping and securing their safety. If the petitioner is an
organization, association or institution the protection
may be extended to the officers involved.

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Remedial Law Writ of Habeas Data

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. (A.M. No. 08-
1-16-SC)
It is an independent and summary remedy designed to
protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a
forum to enforce one's right to the truth and to
informational privacy. It seeks to protect a person's right
to control information regarding oneself, particularly in
instances in which such information is being collected
through unlawful means in order to achieve unlawful
ends. (Gen. Bautista v. Dannug-Salucon, January 23, 2018)

WRIT OF HABEAS Who may file

General Rule: Aggrieved Party
Exception: In cases of extralegal killings or enforced

DATA disappearances, any member of the immediate family, or,

in default, any ascendant, descendant, or collateral
relatives of the aggrieved party within the 4th degree of
consanguinity or affinity

Venue
Regional Trial Court where the petitioner or respondent
resides, or that which has jurisdiction over the place
where the data or information is gathered, collected or
stored, at the option of the petitioner.

The petition may also be filed with the Supreme Court or

the Court of Appeals or the Sandiganbayan when the
action concerns public data files of government offices.

Enforceability
The writ of habeas data shall be enforceable anywhere in
the Philippines

Contents of the Petition

A verified written petition for a writ of habeas data should
contain:

(a) The personal circumstances of the petitioner and the

respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty or
security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to
secure the data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in
possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of the
database or information or files kept by the respondent.

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Remedial Law Writ of Habeas Data

In case of threats, the relief may include a prayer for an

order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable.

Return
The respondent shall file a verified written return
together with supporting affidavits within five (5) working
days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons.
The return shall, among other things, contain the
following:
(a) The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the source
of information of media and others;
(b) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition;
(i) a disclosure of the data or
information about the petitioner, the
nature of such data or information,
and the purpose for its collection;

(ii) the steps or actions taken by the

respondent to ensure the security and
confidentiality of the data or
information; and

(iii) the currency and accuracy of the

data or information held; and,

(c) Other allegations relevant to the resolution

of the proceeding.

A general denial of the allegations in the petition shall not

be allowed.

Hearing
The hearing shall be summary. However, the court may
call for a preliminary conference to simplify the issues
and to explore the possibility of obtaining stipulations
and admissions.

Appeal
Any party may appeal from the final judgment or order to
the Supreme Court under Rule 45. The appeal may raise
questions of fact or law or both.

The period of appeal shall be five (5) working days from

the date of notice of the judgment or final order.

The appeal shall be given the same priority as in habeas

corpus and amparo cases.

Effect of filing a criminal action

When criminal action has been commenced, no separate
writ may be filed. The relief under the writ shall be
available to an aggrieved party by motion in the criminal
case.

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Remedial Law Environmental Cases

TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)

Environmental protection order (EPO)

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.

Issuance of a TEPO
If it appears from the verified complaint with a prayer for
the issuance of an Environmental Protection Order (EPO)
that the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the
executive judge of the multiple-sala court before raffle or

RULES FOR
the presiding judge of a single-sala court as the case may
be, may issue ex parte a TEPO effective for only seventy-
two (72) hours from date of the receipt of the TEPO by

PROCEDURE ON
the party or person enjoined.
Within said period, the court where the case is assigned,
shall conduct a summary hearing to determine whether
the TEPO may be extended until the termination of the
ENVIRONMENTAL case.
The court where the case is assigned, shall periodically
monitor the existence of acts that are the subject matter

CASES of the TEPO even if issued by the executive judge, and

may lift the same at any time as circumstances may
warrant.

Dissolution of a TEPO
The TEPO may be dissolved if it appears after hearing
that its issuance or continuance would cause irreparable
damage to the party or person enjoined while the
applicant may be fully compensated for such damages as
he may suffer and subject to the posting of a sufficient
bond by the party or person enjoined.

WRIT OF CONTINUING
MANDAMUS

Continuing Mandamus
A writ issued by a court in an environmental case
directing any agency or instrumentality of the
government or officer thereof to perform an act or series
of acts decreed by final judgment which shall remain
effective until judgment is fully satisfied.

Venue of Filing
RTC exercising jurisdiction where the actionable neglect
or omission occurs

Order to Comment

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Remedial Law Environmental Cases

If the petition is sufficient in form and substance, the 1. Ocular Inspection - The court may order any
court shall issue the writ and require the respondent to person in possession or control of a designated
comment on the petition within ten (10) days from receipt land or other property to permit entry for the
of a copy thereof. purpose of inspecting or photographing the
property or any relevant object or operation
Expediting Proceedings thereon.
The court in which the petition is filed may issue such 2. Production or inspection of documents or things -
orders to expedite the proceedings, and it may also grant The court may order any person in possession,
a TEPO for the preservation of the rights of the parties custody or control of any designated documents,
pending such proceedings. papers, books, accounts, letters, photographs,
objects or tangible things, or objects in digitized
Judgments or electronic form, which constitute or contain
If warranted, the court shall grant the privilege of the evidence relevant to the petition or the return, to
writ of continuing mandamus requiring respondent to produce and permit their inspection, copying or
perform an act or series of acts until the judgment is fully photographing by or on behalf of the movant.
satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of
the respondent. The court shall require the respondent to
submit periodic reports detailing the progress and
execution of the judgment, and the court may, by itself or
through a commissioner or the appropriate government Continuing
agency, evaluate and monitor compliance. The petitioner Writ of Kalikasan
Mandamus
may submit its comments or observations on the Unlawful act or
execution of the judgment. Neglect or omission
Subject
exclusion of a law, threatening life,
Matter
WRIT OF KALIKASAN rule or right health, or
property
Personally Any person or
Petitioner
Nature aggrieved representative
The writ is a remedy available to a natural or juridical Government or
Respondent Public or Private
person, entity authorized by law, people’s organization, officers
non-governmental organization, or any public interest Ancillary Remedy
group accredited by or registered with any government TEPO Ancillary Remedy
agency, on behalf of persons whose constitutional right to Venue RTC, CA, SC CA, SC
a balanced and healthful ecology is violated, or Ocular
threatened with violation by an unlawful act or omission inspection/
of a public official or employee, or private individual or Discovery Production or
entity, involving environmental damage of such None mentioned
Measures inspection of
magnitude as to prejudice the life, health or property of documents or
inhabitants in two or more cities or provinces. things

Venue
Supreme Court or Court of Appeals

Issuance of the Writ

Within three (3) days from the date of filing of the
petition, if the petition is sufficient in form and
substance, the court shall give an order: (a) issuing the
writ; and (b) requiring the respondent to file a verified
return as provided in Section 8 of this Rule. The clerk of
court shall forthwith issue the writ under the seal of the
court including the issuance of a cease and desist order
and other temporary reliefs effective until further order.

Prohibited pleadings and motions

(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.

Discovery Measures

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