Remedial Law Reviewer '14 PDF

TABLE OF CONTENTS
JUDGMENT ON THE PLEADINGS ........... 89

CIVIL PROCEDURE SUMMARY JUDGMENTS ........................ 89
RENDITION OF JUDGMENTS
General Principles ............................ 1 AND FINAL ORDERS .............................. 91
CONCEPT OF REMEDIAL LAW .................. 1 ENTRY OF JUDGMENT AND FINAL ORDER
SUBSTANTIVE LAW AS DISTINGUISHED ............................................................. 92
FROM REMEDIAL LAW .......................... 1
RULE-MAKING POWER OF THE SUPREME Post-Judgment Remedies ............ 93
COURT .................................................... 2 MOTION FOR RECONSIDERATIO AND
NATURE OF PHILIPPINE COURTS ............. 3 MOTION FOR NEW TRIAL ................... 93
APPEALS IN GENERAL ........................... 95
APPEALS FROM MTC TO THE RTC ......... 98
Jurisdiction .......................................4 APPEAL FROM THE RTC ......................... 99
JURISDICTION IN GENERAL ..................... 4 PETITION FOR REVIEW FROM THE RTC TO
JURISDICTION OVER THE PARTIES .......... 5 THE CA ............................................... 102
JURISDICTION OVER THE SUBJECT APPEALS FROM QUASI-JUDICIAL
MATTER ................................................. 5 AGENCIES TO THE CA ........................ 103
JURISDICTION OVER THE ISSUES ............. 7 APPEALS BY CERTIORARI TO THE SC .. 106
JURISDICTION OVER THE RES OR COMPARATIVE TABLE ON THE MODES OF
PROPERTY IN LITIGATION ..................... 7 APPEAL ............................................... 111
JURISDICTION OF THE METC AND MTC .... 7 RELIEF FROM JUDGMENTS, ORDERS AND
JURISDICTION OVER SMALL CLAIMS, OTHER PROCEEDINGS ....................... 113
CASES COVERED BY THE RULES ON ANNULMENT OF JUDGMENTS OR FINAL
SUMMARY PROCEDURE AND ORDERS AND RESOLUTIONS ............ 114
BARANGAY CONCILIATION ................... 8 COLLATERAL ATTACK OF JUDGMENTS 116
JURISDICTION OF THE METC AND MTC .... 8
JURISDICTION OF THE RTC, FAMILY
COURTS, AND SHARI’A COURTS ............ 10
Execution, Satisfaction and Effect of
JURISDICTION OF THE SANDIGANBAYAN Judgments .................................... 118
................................................................. 12 DIFFERENCE BETWEEN FINALITY OF
JURISDICTION OF THE COURT OF TAX JUDGMENT FOR PURPOSES OF APPEAL;
APPEALS ................................................. 12 FOR PURPOSES OF EXECUTION ........ 118
JURISDICTION OF THE CA ........................13 WHEN EXECUTION SHALL ISSUE .......... 118
JURISDICTION OF THE SC ....................... 14 HOW A JUDGMENT IS EXECUTED ......... 121
EXECUTION FOR JUDGMENTS OF MONEY
Commencement of Action to Trial 14 ............................................................122
ACTIONS.................................................. 15 EXECUTION OF JUDGMENTS FOR
CAUSE OF ACTION .................................. 16 SPECIFIC ACTS .................................. 124
PARTIES TO CIVIL ACTIONS ................... 19 EXECUTION FOR JUDGMENTS OF MONEY
VENUE .................................................... 25 ........................................................... 125
PLEADINGS ............................................ 27 PROPERTIES EXEMPT FROM EXECUTION
SUMMONS .............................................. 47 ........................................................... 125
MOTIONS................................................. 51 RETURN OF WRIT OF EXECUTION ........126
DISMISSAL OF ACTIONS ........................60 PROCEEDINGS WHERE PROPERTY IS
PRE-TRIAL .............................................. 63 CLAIMED BY THIRD PERSONS ........... 127
INTERVENTION ...................................... 70 RULES ON REDEMPTION ..................... 128
SUBPOENA ..............................................71 EFFECT OF JUDGMENT OR FINAL ORDERS
MODES OF DISCOVERY .......................... 72 ............................................................ 132
TRIAL ...................................................... 81 EFFECT OF FOREIGN JUDGMENTS OR
DEMURRER TO EVIDENCE .....................85 FINAL ORDERS ...................................134
Provisional Remedies ..................135

Judgments and Final Orders ....... 87 NATURE OF PROVISIONAL REMEDIES .135
JUDGMENTS IN GENERAL ...................... 87 JURISDICTION OVER PROVISIONAL
JUDGMENT WITHOUT TRIAL ..................88 REMEDIES ..........................................135
CONTENTS OF A JUDGMENT .................89 PRELIMINARY ATTACHMENT ...............135
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PRELIMINARY INJUNCTION ................. 139 Summary Settlement of Estates 194

RECEIVERSHIP ..................................... 144 EXTRAJUDICIAL SETTLEMENT BY
REPLEVIN ............................................. 146 AGREEMENT BETWEEN HEIRS, WHEN
ALLOWED .......................................... 195
Special Civil Actions .................... 152 AFFIDAVIT OF SELF-ADJUDICATION BY
IN GENERAL .......................................... 152 SOLE HEIR ......................................... 196
INTERPLEADER .................................... 153 SUMMARY SETTLEMENT OF ESTATES OF
DECLARATORY RELIEFS AND SMALL VALUE ................................... 196
SIMILAR REMEDIES ............................. 154 REMEDIES OF AGGRIEVED PARTIES
REVIEW OF JUDGMENTS AND FINAL AFTER EXTRA-JUDICIAL SETTLEMENT
ORDERS OR RESOLUTION OF THE OF ESTATE .......................................... 197
COMELEC AND COA .......................... 155
CERTIORARI, PROHIBITION Production and Probate of Will .. 198
AND MANDAMUS ................................. 156 NATURE OF PROBATE PROCEEDING .. 198
QUO WARRANTO ................................. 162 WHO MAY PETITION FOR PROBATE;
EXPROPRIATION .................................. 164 PERSONS ENTITLED TO NOTICE ....... 199
FORECLOSURE OF
REAL ESTATE MORTGAGE ................... 169
PARTITION ............................................172 Allowance or Disallowance of Will
FORCIBLE ENTRY AND UNLAWFUL ....................................................... 199
DETAINER ..........................................175 CONTENTS OF PETITION FOR
CONTEMPT ............................................179 ALLOWANCE OF WILL ....................... 199
GROUNDS FOR DISALLOWING A WILL 200
Special Civil Actions .................... 185 REPROBATE; REQUISITES BEFORE WILL
REVISED RULES ON SUMMARY PROVED OUTSIDE ALLOWED IN THE
PROCEDURE....................................... 185 PHILIPPINES; EFFECTS OF PROBATE
KATARUNGANG PAMBARANGAY LAW .......................................................... 200
[PD 1508; RA 7160 AS AMENDED] ....... 186 REQUISITES FOR ALLOWANCE ........... 200
RULES OF PROCEDURE FOR SMALL
CLAIMS CASES ...................................187 Letters Testamentary and of
EFFICIENT USE OF PAPER RULE .......... 189 Administration ........................... 200
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED .......... 200
ORDER OF PREFERENCE ..................... 201
OPPOSITION TO ISSUANCE OF LETTERS
SPECIAL TESTAMENTARY; SIMULTANEOUS
FILING OF PETITION FOR
PROCEEDINGS ADMINISTRATION ............................. 201
POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS; RESTRICTIONS
Preliminary Matters ...................... 191 ON THE POWERS ............................... 202
APPLICABLE RULES .............................. 191 APPOINTMENT OF
SUBJECT MATTER AND APPLICABILITY OF SPECIAL ADMINISTRATOR ..................204
GENERAL RULES ................................ 191 GROUNDS FOR REMOVAL OF
DIFFERENCE BETWEEN ACTION AND ADMINISTRATOR .............................. 205
SPECIAL PROCEEDING ....................... 191
VENUES AND JURISDICTIONS FOR Claims against the Estate ......... 206
SPECIAL PROCEEDINGS .................... 192 ESTATE BURDENED WITH LIEN OF
CREDITORS .......................................206
Settlement of Estate of Deceased PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE .............................. 206
Persons, Venue And Process ...... 193 TIME WITHIN WHICH CLAIMS SHALL BE
JURISDICTION ...................................... 193 FILED; EXCEPTIONS .......................... 206
STATUTE OF NON-CLAIMS .................. 206
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CLAIM OF EXECUTOR OR INTER-COUNTRY ADOPTION ............... 227

ADMINISTRATOR AGAINST THE ESTATE
............................................................ 207 Writ of Habeas Corpus ............... 228
PAYMENT OF DEBTS ........................... 208 VITAL PURPOSES ................................. 228
WHO MAY ISSUE THE WRIT ................. 228
Actions by and against Executors TEMPORARY RELEASE MAY CONSTITUTE
and Administrators ...................... 211 RESTRAINT -ELEMENTS ................... 228
ACTIONS THAT MAY BE BROUGHT NATURE ............................................... 228
AGAINST EXECUTORS AND WHC MAY BE USED WITH WRIT OF
ADMINISTRATORS ............................. 211 CERTIORARI FOR PURPOSES OF
REVIEW .............................................. 229
Distribution and Partition ........... 212 WHC IS NOT THE PROPER REMEDY FOR
THE CORRECTION OF ERRORS OF FACT
LIQUIDATION ....................................... 212
OR LAW ............................................. 229
PROJECT OF PARTITION ...................... 212
WHC IS NOT PROPER ........................... 229
EFFECT OF FINAL DECREE OF
WHC IS PROPER ................................... 229
DISTRIBUTION ...................................213
CONTENTS OF THE PETITION .............. 229
REMEDY OF AN HEIR ENTITLED TO
CONTENTS OF THE RETURN ................ 230
RESIDUE BUT NOT GIVEN HIS SHARE
DISTINGUISH PEREMPTORY WRIT FROM
.............................................................213
PRELIMINARY CITATION ................... 230
INSTANCES WHEN PROBATE COURT MAY
WHEN WRIT NOT PROPER OR
ISSUE WRIT OF EXECUTION ...............213
APPLICABLE ...................................... 230
WHEN DISCHARGE NOT AUTHORIZED . 231
DISTINGUISHED FROM WRIT OF AMPARO
Trustees ........................................ 213 AND HABEAS DATA (ANNEX B) ......... 231
DISTINGUISHED FROM EXECUTOR OR CUSTODY OF MINORS AND WRIT OF
ADMINISTRATOR ...............................213 HABEAS CORPUS IN RELATION TO
BOND .....................................................213 CUSTODY OF MINORS (A.M. NO. 03-04-
REQUISITES FOR THE REMOVAL AND 04-SC) ................................................. 231
RESIGNATION OF A TRUSTEE ........... 214 WRIT OF HABEAS CORPUS IN RELATION
GROUNDS FOR REMOVAL AND TO CUSTODY OF MINORS ................. 234
RESIGNATION OF A TRUSTEE ........... 214
EXTENT OF AUTHORITY OF TRUSTEE . 214
Writ of Amparo.............................236
COVERAGE ........................................... 236
Escheat ......................................... 215 DISTINGUISH FROM WRIT OF HABEAS
WHEN TO FILE ...................................... 215 CORPUS AND HABEAS DATA (ANNEX C)
REQUISITES FOR FILING OF PETITION 215 ........................................................... 236
REMEDY OF RESPONDENT AGAINST DISTINGUISH WRIT OF AMPARO FROM
PETITION; PERIOD FOR FILING A CLAIM SEARCH WARRANT ........................... 237
............................................................ 216 WHO MAY FILE ..................................... 237
CONTENTS OF RETURN ....................... 237
Guardianship ............................... 216 OMNIBUS WAIVER RULE ..................... 238
BASIS: PARENS PATRIAE ..................... 216 EFFECT OF FAILURE TO FILE A RETURN
GUARDIANSHIP OF INCOMPETENT ..... 216 ........................................................... 238
GENERAL POWERS AND PROCEDURE FOR HEARING ON THE WRIT
DUTIES OF GUARDIANS ....................... 216 ........................................................... 238
CONDITIONS OF THE BOND OF THE INSTITUTION OF SEPARATE ACTIONS 238
GUARDIAN ........................................ 218 EFFECT OF FILING OF A CRIMINAL ACTION
RULE ON GUARDIANSHIP OVER MINORS ........................................................... 239
............................................................ 218 INTERIM RELIEFS AVAILABLE TO THE
PETITIONER AND RESPONDENT ......240
Adoption ..................................... 222 QUANTUM OF PROOF IN APPLICATION
DISTINGUISH DOMESTIC ADOPTION FOR ISSUANCE OF WRIT:
FROM INTER-COUNTRY ADOPTION
(ANNEX A) ......................................... 222
DOMESTIC ADOPTION ACT ................... 226
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Writ of Habeas Data .................... 240

SCOPE OF WRIT ................................... 240 CRIMINAL
AVAILABILITY OF WRIT ....................... 240
DISTINGUISHED FROM HABEAS CORPUS
PROCEDURE
AND AMPARO .................................. 240
CONTENTS OF THE PETITION .............. 241 General Matters .......................... 260
INSTANCES WHEN PETITION MAY BE JURISDICTION OVER SUBJECT MATTER
HEARD IN CHAMBERS ...................... 241 AND JURISIDICTION OVER PERSON OF
EFFECT OF FILING OF CRIMINAL ACTION THE ACCUSED DISTINGUISHED .........260
............................................................ 241 REQUISITES FOR EXERCISE OF CRIMINAL
DIFFERENCES UNDER THE APPLICABLE JURISDICTION ....................................260
RULES ................................................ 242 JURISDICTION OF CRIMINAL
COURTS .................................................261
Change of Name and Cancellation WHEN INJUNCTION MAY BE ISSUED TO
or Correction of Entries In RESTRAIN CRIMINAL PROSECUTION 262
the Civil Registry ......................... 247
GROUNDS FOR CHANGE OF NAME Prosecution of Offenses ..............263
(ANNEX D) ......................................... 247 CRIMINAL ACTIONS; HOW INSTITUTED
........................................................... 263
Absentees ................................... 248 WHO MAY FILE; CRIMES THAT CANNOT
PURPOSE OF THE RULE .......................248 BE PROSECUTED DE OFFICIO ............ 263
WHO MAY FILE; WHEN TO FILE ............248 CRIMINAL ACTIONS; WHEN ENJOINED 264
PETITION FOR DECLARATION OF CONTROL OF PROSECUTION................ 264
ABSENCE AND APPOINTMENT OF SUFFICIENCY OF COMPLAINT OR
TRUSTEE OR ADMINISTRATOR [PDA] INFORMATION ................................... 265
............................................................248 DESIGNATION OF OFFENSE ................. 265
WHEN TERMINATED ............................249 CAUSE OF THE ACCUSATION................ 266
DUPLICITY OF OFFENSE; EXCEPTION .. 266
Cancellation or Correction of Entries AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR
in the Civil Registry ..................... 249 VENUE OF CRIMINAL ACTIONS ............ 267
ENTRIES SUBJECT TO CANCELLATION OR INTERVENTION OF OFFENDED PARTY. 268
CORRECTION UNDER RULE 108, IN
RELATION TO RA 9048 .....................248
Prosecution of Civil Action ......... 269
Appeals in Special Proceeding .. 250 RULE ON IMPLIED INSTITUTION OF CIVIL
JUDGMENTS AND ORDERS FOR WHICH ACTION WITH CRIMINAL ACTION ...... 269
APPEAL MAY BE TAKEN .................... 251 WHEN CIVIL ACTION MAY PROCEED
WHEN TO APPEAL ................................ 251 INDEPENDENTLY ............................... 269
MODES OF APPEAL .............................. 251 WHEN SEPARATE CIVIL ACTION IS
RULE ON ADVANCE DISTRIBUTION ..... 251 SUSPENDED ....................................... 269
EFFECT OF DEATH OF THE ACCUSED OR
CONVICT ON CIVIL ACTION ................ 269
Annex A ........................................ 251 PREJUDICIAL QUESTION ...................... 270
RULE ON FILING FEES IN CIVIL ACTION
DEEMED INSTITUTED WITH CRIMINAL
ACTION............................................... 270
Preliminary Investigation.............. 271

NATURE OF RIGHT ................................. 271
PURPOSES OF PRELIMINARY
INVESTIGATION ................................. 272
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE ..... 272
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RESOLUTION OF THE INVESTIGATING RIGHT TO BE PRESENT AND DEFEND IN

PROSECUTOR .................................... 273 PERSON AND BY COUNSEL AT EVERY
REVIEW ................................................. 274 STATE OF THE PROCEEDINGS ........... 286
WHEN WARRANT OF ARREST MAY ISSUE RIGHT TO TESTIFY AS WITNESS IN HIS
............................................................ 274 BEHALF .............................................. 287
CASES NOT REQUIRING PRELIMINARY RIGHT AGAINST SELF-INCRIMINATION287
INVESTIGATION NOR COVERED BY THE RIGHT TO CONFRONTATION ................ 287
RULE ON SUMMARY PROCEDURE .... 274 RIGHT TO COMPULSORY PROCESS ...... 288
REMEDIES OF ACCUSED IF THERE WAS RIGHT TO SPEEDY, IMPARTIAL AND
NO PRELIMINARY INVESTIGATION ... 275 PUBLIC TRIAL..................................... 288
INQUEST................................................ 275 RIGHT TO APPEAL IN GENERAL ........... 288
RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATIONS ............................... 288
Arrest ............................................ 276
DEFINITION ........................................... 276
HOW MADE ........................................... 276 Arraignment and Plea ................ 290
ARREST WITHOUT WARRANT; WHEN ARRAIGNMENT AND PLEA; HOW MADE
LAWFUL ............................................. 277 ...........................................................290
METHOD OF ARREST ............................ 278 WHEN PLEA OF NOT GUILTY SHOULD BE
REQUISITES OF VALID WARRANT OF ENTERED............................................ 291
ARREST .............................................. 279 WHEN ACCUSED MAY ENTER A PLEA OF
DETERMINATION OF PROBABLE CAUSE GUILTY TO A LESSER OFFENSE ......... 291
FOR ISSUANCE OF WARRANT OF ACCUSED PLEADS GUILTY TO CAPITAL
ARREST ............................................. 280 OFFENSE; DUTY OF THE COURT ........ 292
PROBABLE CAUSE OF FISCAL AND JUDGE SEARCHING INQUIRY............................ 292
DISTINGUISHED ................................ 280 IMPROVIDENT PLEA OF GUILTY TO A
CAPITAL OFFENSE ............................. 293
GROUNDS FOR SUSPENSION OF
Bail................................................ 280 ARRAIGNMENT .................................. 293
NATURE ............................................... 280
WHEN A MATTER OF RIGHT; EXCEPTIONS
........................................................... 280 Motion to Quash ......................... 294
WHEN A MATTER OF DISCRETION ....... 281 FORM AND CONTENT ........................... 294
HEARING OF APPLICATION FOR BAIL IN GROUNDS ............................................. 294
CAPITAL OFFENSES ........................... 282 MOTION TO QUASH AND DEMURRER
GUIDELINES IN FIXING AMOUNT OF BAIL DISTINGUISHED ................................. 297
............................................................ 283 EFFECTS OF SUSTAINING THE MOTION TO
WHEN BAIL IS NOT REQUIRED ............. 283 QUASH ............................................... 297
INCREASE OR REDUCTION ................... 283 EXCEPTION TO THE RULE THAT
FORFEITURE AND CANCELLATION OF SUSTAINING THE MOTION IS NOT A BAR
BAIL ....................................................284 TO ANOTHER
APPLICATION NOT A BAR TO OBJECTIONS PROSECUTION ...................................... 298
ON ILLEGAL ARREST, LACK OF OR DOUBLE JEOPARDY .............................. 298
IRREGULAR PRELIMINARY PROVISIONAL DISMISSAL .................... 299
INVESTIGATION .................................284
HOLD/ALLOW DEPARTURE ORDER AND
BUREAU OF IMMIGRATION WATCHLIST
Pre-Trial ....................................... 300
APPLICATION OF JUDICIAL AFFIDAVIT
............................................................284
RULE ..................................................300
MATTERS TO BE CONSIDERED DURING
Rights of the Accused ................. 286 PRE-TRIAL ......................................... 301
RIGHT TO BE PRESUMED INNOCENT WHAT THE COURT SHOULD DO WHEN
UNTIL THE CONTRARY IS PROVED THE PROSECUTION AND OFFENDED
BEYOND REASONABLE DOUBT .........286 PARTY AGREE TO THE PLEA OFFERED
RIGHT TO BE INFORMED OF THE NATURE BY THE ACCUSED ............................... 301
AND CAUSE OF THE ACCUSATION PRE-TRIAL AGREEMENT ...................... 302
AGAINST HIM .....................................286
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NON-APPEARANCE DURING PRE-TRIAL NATURE OF SEARCH WARRANT ...........319

............................................................ 302 ARREST AND SEARCH WARRANTS
PRE-TRIAL ORDER ................................ 302 DISTINGUISHED ................................. 320
REFERRAL OF SOME CASES FOR COURT APPLICATION FOR SEARCH WARRANT;
ANNEXED MEDIATION AND JUDICIAL WHERE FILED...................................... 321
DISPUTE RESOLUTION ...................... 303 PROBABLE CAUSE ................................ 323
PERSONAL EXAMINATION BY JUDGE OF
THE APPLICANT AND WITNESS......... 323
Trial............................................... 303 PARTICULARITY OF PLACE TO BE
INSTANCES WHEN PRESENCE OF
SEARCHED AND THINGS TO BE SEIZED
ACCUSED IS REQUIRED BY LAW ..............
........................................................... 324
REQUISITES BEFORE TRIAL CAN BE PROPERTY TO BE SEIZED .................... 325
SUSPENDED ON ACCOUNT OF ABSENCE
EXCEPTIONS TO SEARCH WARRANT
OF WITNESS ....................................... 303
REQUIREMENT .................................. 325
TRIAL IN ABSENTIA ..............................304
REMEDIES FROM UNLAWFUL SEARCH
REMEDY WHEN ACCUSED IS NOT
AND SEIZURE ..................................... 327
BROUGHT TO TRIAL WITHIN THE
WAIVER OF IMMUNITY AGAINST
PRESCRIBED PERIOD.........................304
UNREASONABLE SEARCH AND SEIZURE
REQUISITES FOR DISCHARGE OF
........................................................... 329
ACCUSED TO BECOME A STATE
WITNESS ............................................304
EFFECTS OF DISCHARGE OF ACCUSED AS Provisional Remedies ..................329
STATE WITNESS .................................305 NATURE ................................................ 329
DEMURRER TO EVIDENCE ....................305 KINDS OF PROVISIONAL REMEDIES .... 329
Judgment ..................................... 307

REQUISITES OF A JUDGMENT .............. 307
CONTENTS OF JUDGMENT ................... 307
PROMULGATION OF JUDGMENT;
INSTANCES OF PROMULGATION IN
ABSENTIA...........................................309
WHEN DOES JUDGMENT BECOME FINAL
............................................................ 310
New Trial or Consideration ........... 311

GROUNDS FOR NEW TRIAL ................... 311
GROUNDS FOR RECONSIDERATION ..... 311
REQUISITES BEFORE A NEW TRIAL MAY
BE GRANTED ON GROUND OF NEWLY
DISCOVERED EVIDENCE ..................... 311
EFFECTS OF GAINING NEW TRIAL FOR
CONSIDERATION ................................ 311
APPLICATION OF THE NEYPES DOCTRINE
IN CRIMINAL CASES ............................312
Appeal ........................................... 313

EFFECT OF AN APPEAL .......................... 313
WHERE TO APPEAL ................................ 313
HOW APPEAL IS TAKEN ......................... 313
EFFECT OF APPEAL BY ANY OF SEVERAL
ACCUSED............................................ 319
GROUNDS FOR DISMISSAL OF APPEAL 319
Search and Seizure ...................... 319
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TABLE OF CONTENTS
QUALIFICATIONS OF A WITNESS ......... 354

EVIDENCE COMPETENCY VS. CREDIBILITY ........... 354
DISQUALIFICATIONS OF WITNESSES .. 355
EXAMINATION OF A WITNESS ..............361
General Principles of Evidence .. 332 ADMISIONS AND CONFESSIONS ......... 364
CONCEPT OF EVIDENCE ....................... 332 HEARSAY RULE ..................................... 368
APPLICABILITY ...................................... 332 OPINION RULE ..................................... 374
EVIDENCE IN CIVIL CASES VS. EVIDENCE CHARACTER EVIDENCE ........................ 375
IN CRIMINAL CASES .......................... 332 RULE ON EXAMINATION OF A CHILD
PROOF VS. EVIDENCE .......................... 333 WITNESS ............................................ 376
FACTUM PROBANS VERSUS FACTUM
PROBANDUM ..................................... 333
3 CLASSES OF EVIDENCE ACCORDING TO
Offer and Objection .................... 379
OFFER OF EVIDENCE ............................ 379
FORM.................................................. 333
WHEN TO MAKE AN OFFER ................. 380
ADMISSIBILITY OF EVIDENCE ............... 333
OBJECTION ...........................................380
BURDEN OF PROOF AND BURDEN OF
STRIKING OUT AN ANSWER ..................381
EVIDENCE ........................................... 335
TENDER OF EXCLUDED EVIDENCE ....... 382
PRESUMPTIONS ................................... 336
LIBERAL CONSTRUCTION OF THE RULES
OF EVIDENCE ..................................... 339
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) ............. 339
Judicial Notice and

Judicial Admissions .................... 340
WHAT NEED NOT BE PROVED .............340
MATTERS OF JUDICIAL NOTICE ...........340
WHEN HEARING NECESSARY ..............340
JUDICIAL ADMISSIONS ........................ 341
JUDICIAL NOTICE OF FOREIGN LAWS,
LAW OF NATIONS AND MUNICIPAL
ORDINANCES .................................... 342
Object (Real) Evidence ............... 343

NATURE OF OBJECT EVIDENCE ........... 343
REQUISITES FOR ADMISSIBILITY ......... 343
CATEGORIES OF OBJECT EVIDENCE ....344
CHAIN OF CUSTODY IN RELATION TO
SECTION 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002
.............................................................. 345
RULES ON DNA EVIDENCE.................... 345
Documentary Evidence ...............347

MEANING OF DOCUMENTARY EVIDENCE
............................................................ 347
REQUISITES FOR ADMISSIBILITY ........ 347
BEST EVIDENCE RULE .......................... 347
RULES ON ELECTRONIC EVIDENCE .....348
PAROL EVIDENCE RULE .......................350
AUTHENTICATION AND PROOF OF
DOCUMENTS ..................................... 351
Testimonial Evidence ................. 354
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Evidence ....................................... 393

RULES OF PRECAUTIONARY PRINCIPLE ............... 393
DOCUMENTARY EVIDENCE .................. 393
PROCEDURE FOR
ENVIRONMENTAL
CASES
Scope and Applicability of the Rule
...................................................... 384
Civil Procedure............................. 385

WHO MAY FILE ...................................... 385
PROHIBITION AGAINST TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION .............. 385
TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO) ............ 385
PRE-TRIAL CONFERENCE; CONSENT
DECREE ............................................. 385
PROHIBITED PLEADINGS AND MOTIONS
............................................................ 385
JUDGMENT AND EXECUTION; RELIEFS IN
A CITIZEN’S SUIT ............................... 387
PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS ................ 387
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION ................................. 387
Special Civil Actions .................... 388

WRIT OF KALIKASAN ............................ 388
PROHIBITED PLEADINGS AND MOTIONS
............................................................ 388
DISCOVERY MEASURES ........................ 389
WRIT OF CONTINUING MANDAMUS .... 389
Criminal Procedure ...................... 391

WHO MAY FILE ..................................... 391
INSTITUTION OF CRIMINAL AND CIVIL
ACTION .............................................. 391
ARREST WITHOUT WARRANT, WHEN
VALID ................................................. 391
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION ................................ 391
PROCEDURE IN THE CUSTODY AND
DISPOSITION OF SEIZED ITEMS ........ 391
BAIL ...................................................... 392
ARRAIGNMENT AND PLEA .................. 392
PRE-TRIAL ............................................ 392
SUBSIDIARY LIABILITIES ...................... 393
8
UP LAW BOC CIVIL PROCEDURE REMEDIAL LAW
General Principles Prospectivity/ Retroactivity

The Rules of Court are not penal statutes and
cannot be given retroactive effect [Bermejo v
CONCEPT OF REMEDIAL LAW Barrios (1970)].
Remedial law is that branch of law which
prescribes the method of enforcing rights or Rules of procedure may be made applicable
obtaining redress for their invasion [Bustos v. to actions pending and undetermined at the
Lucero, 81 Phil. 640]. time of their passage, and are deemed
retroactive in that sense and to that extent. [In
Remedial statute or statutes: the Matter to Declare in Contempt of Court
(1) Relating to remedies or modes of Hon. Simeon Datumanong (2006)].
procedure; The Rules of Court shall govern cases brought
(2) Do not take away or create vested rights; after they take effect, and also all further
(3) BUT operate in furtherance of rights proceedings then pending, EXCEPT to the
already existing. [Riano citing Systems extent that in the opinion of the Court their
Factor Corporation v NLRC (2000)] application would not be feasible or would
work injustice. [Riano citing Rule 114]
Source
Remedial law is basically contained in the SUBSTANTIVE LAW VIS-À-VIS
Rules of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules REMEDIAL LAW
on Summary Procedure) also contain remedial
law. Substantive Law - creates, defines and
regulates rights and duties regarding life,
The Rules of Court, promulgated by authority liberty or property which when violated gives
of law, have the force and effect of law, if not rise to a cause of action [Bustos v. Lucero, 81
in conflict with positive law [Inchausti & Co v Phil. 640]
de Leon (1913)]. The rule is subordinate to the
statute, and in case of conflict, the statute will Substantive Law Remedial Law
prevail. [Shioji v Harvey (1922)]. It refers to the
It is that part of the
legislation providing
law which creates,
Applicability means or methods
defines, or regulates
The Rules of Court is applicable in ALL whereby causes of
rights, concerning life,
action may be
COURTS, EXCEPT as otherwise provided by liberty or property or
the SC [Rule 1, Sec. 2]. effectuated, wrongs
the powers of agencies
redressed, and relief
or instrumentalities for
It governs the procedure to be observed in obtained
the administration of
CIVIL or CRIMINAL actions and SPECIAL It is also called
public affairs
proceedings [Rule 1, Sec. 3]. Adjective Law
It makes vested rights It has no vested
It does not apply to the following cases: possible rights
(1) Election cases, It governs acts and
(2) Land registration cases, It is prospective in transactions which
(3) Cadastral cases application took place
(4) Naturalization cases, (retroactive)
(5) Insolvency proceedings The SC is expressly
(6) Other cases not herein provided for It cannot be enacted empowered to
by the SC promulgate
Except by analogy or in a suppletory procedural rules
character and whenever practicable and
convenient [Rule 4, Sec. 4]
PAGE 1
RULE MAKING POWER OF THE (2) The SC has the sole prerogative to amend,
repeal, or even establish new rules for a
SUPREME COURT more simplified and inexpensive process,
Judicial Power includes the duty of the courts and the speedy disposition of case [Neypes
of justice to settle actual controversies v CA (2005)]
involving rights, which are legally demandable
and enforceable, and to determine whether or Power to Suspend Remedial Laws
not there has been grave abuse of discretion (1) It is within the inherent power of the
amounting to lack or excess of jurisdiction on Supreme Court to suspend its own rules in
the part of any branch or instrumentality of a particular case in order to do justice [De
the Government (Sec. 1, Art. VIII, 1987 Guia v De Guia (2001)].
Constitution) (2) When the operation of rules will lead to an
injustice or if their application tends to
The power of judicial review is the SC’s power subvert and defeat instead of promote and
to declare a law, treaty, international or enhance justice, their suspension is
executive agreement, presidential decree, justified [Republic v CA (1978)].
proclamation, order, instruction, ordinance, or (3) There is no absolute rule as to what
regulation unconstitutional constitutes good and sufficient cause that
will merit suspension of the rules. The
Sec. 5(5), Art. VIII, of the 1987 Constitution matter is discretionary upon the Court
provides that that the Supreme Court shall [Republic v Imperial Jr. (1999)].
have the power to: (4) The bare invocation of "the interest of
(1) promulgate rules concerning the protection substantial justice" is not a magic wand
and enforcement of constitutional rights, that will automatically compel this Court to
pleading, practice, and procedure in all suspend procedural rules [Ramos v Sps
courts; Lavendia (2008)].
(2) admission to the practice of law; (5) Procedural rules are not to be belittled or
(3) the Integrated Bar; dismissed simply because their non-
(4) and legal assistance to the underprivileged observance may have resulted in prejudice
to a party's substantive rights. Like all
LIMITATIONS ON THE RULE- rules, they are required to be followed
MAKING POWER OF THE SUPREME except only for the most persuasive of
COURT reasons when they may be relaxed to
Sec 5(5) of Art. VIII of the Constitution sets relieve a litigant of an injustice not
forth the limitations to the power: commensurate with the degree of his
(1) That the rules shall provide a simplified and thoughtlessness in not complying with the
inexpensive procedure for speedy disposition procedure prescribed. [Polanco v Cruz
of cases; (2009)].
(2) That the rules shall be uniform for courts of
the same grade; and NATURE OF PHILIPPINE
(3) That the rules shall not diminish, increase
or modify substantive rights. COURTS
MEANING OF A COURT
POWER OF THE SUPREME COURT  A court is an organ of the government
TO AMEND AND SUSPEND belonging to the judicial department, the
PROCEDURAL RULES function of which is the application of the laws
Power to Amend Remedial Laws to controversies brought before it (and) as well
(1) The constitutional faculty of the Court to as the public administration of justice.
promulgate rules of practice and procedure  Generally, the term describes an organ of the
necessarily carries with it the power to government consisting of one person or of
overturn judicial precedents on points of several persons, called upon and authorized
remedial law through the amendment of to administer justice. It is also the place where
the Rules of Court. [Pinga v Heirs of justice is administered. [Riano citing Black’s
Santiago (2006)]. and Am. Jur. and C. J. S.]
PAGE 2
COURT AS DISTINGUISHED FROM A COURTS OF GENERAL AND SPECIAL

JUDGE JURISDICTION
Court Judge Courts of general jurisdiction – Those
A tribunal officially competent to decide their own jurisdiction and
An officer of such
assembled under to take cognizance of all kinds of cases, unless
tribunal
authority of law otherwise provided by the law or Rules.
An organ of the
government with a Courts of special or limited jurisdiction – Those
The judge is the one which have no power to decide their own
personality separate
who “sits” in court jurisdiction and can only try cases permitted
from the person or
judge by statute. [Regalado]
A being in imagination
A physical and CONSTITUTIONAL AND STATUTORY
comparable to a
natural person COURTS
corporation
May be considered an Constitutional courts – Those which owe their
A public officer creation and existence to the Constitution
office
and, therefore cannot be legislated out of
The circumstances of the court are not affected existence or deprived by law of the jurisdiction
by the circumstance that would affect the and powers unqualifiedly vested in them by
judge. The continuity of a court and the the Constitution. e.g. Supreme Court;
efficacy of its proceedings are not affected by Sandiganbayan is a constitutionally-
the death, resignation, or cessation from the mandated court but created by statute.
service of the judge presiding over it. In other
words, the judge may resign, become Statutory courts – Those created, organized
incapacitated, or be disqualified to hold office, and with jurisdiction exclusively determined by
but the court remains. The death of the judge law. [Regalado]
does not mean the death of the court [Riano
citing ABC Davao Auto Supply v. CA (1998)]. COURTS OF LAW AND EQUITY
Courts of Law- Those courts which administer
CLASSIFICATION OF PHILIPPINE the law of the land. They settle cases
according to law.
COURTS
(1) Courts of original and appellate jurisdiction
Courts of Equity- Those courts which rules
(2) Courts of general and special jurisdiction
according to the precepts of equity or justice.
(3) Constitutional and statutory courts
They settle cases according to the principles
(4) Courts of law and equity
of equity referring to principles of justice,
(5) Superior and Inferior Courts
fairness and fair play.
(6) Courts of record and not of record
Philippine courts are both courts of law and
COURTS OF ORIGINAL AND APPELLATE
equity. Hence, both legal and equitable
JURISDICTION
jurisdiction is dispensed with in the same
tribunal [U.S. v. Tamparong (1998)]
Courts of original jurisdiction – Those courts in
which, under the law, actions or proceedings
SUPERIOR AND INFERIOR COURTS
may be originally commenced.
Superior courts – Courts which have the power
of review or supervision over another and
Courts of appellate jurisdiction – Courts which
lower court.
have the power to review on appeal the
decisions or orders of a lower court.
Inferior courts – Those which, in relation to
[Regalado]
another court, are lower in rank and subject to
review and supervision by the latter.
[Regalado]
PAGE 3
COURTS OF RECORD AND NOT OF DOCTRINE OF NON-INTERFERENCE

RECORD OR DOCTRINE OF JUDICIAL
Courts of record – Those whose proceedings
are enrolled and which are bound to keep a
STABILITY
The principle holds that courts of equal and
written record of all trials and proceedings
coordinate jurisdiction cannot interfere with
handled by them. [Regalado] One attribute of
each other’s orders [Lapu-lapu Development
a court of record is the strong presumption as
and Housing Corp. v. Group Management
to the veracity of its records that cannot be
Corp.(2002)] The principle also bars a court
collaterally attacked except for fraud. All
from reviewing or interfering with the
Philippine courts, including inferior courts, are
judgment of a co-equal court over which it has
now courts of record. [Riano]
no appellate jurisdiction or power of review
[Villamor v. Salas (1991)].
Courts not of record – Courts which are not
required to keep a written record or transcript
The doctrine of non-interference applies with
of proceedings held therein.
equal force to administrative bodies. When the
law provides for an appeal from the decision
PRINCIPLE OF JUDICIAL of an administrative body to the SC or CA, it
HIERARCHY means that such body is co-equal with the
The judicial system follows a ladderized RTC in terms of rank and stature, and logically
scheme which in essence requires that lower beyond the control of the latter [Phil Sinter
courts initially decide on a case before it is Corp. v. Cagayan Electric Power (2002)].
considered by a higher court. Specifically,
under the judicial policy recognizing hierarchy General Rule: No court has the authority to
of courts, a higher court will not entertain interfere by injunction with the judgment of
direct resort to it unless the redress cannot be another court of coordinate jurisdiction or to
obtained in the appropriate courts. [Riano pass upon or scrutinize and much less declare
citing Santiago v. Vasquez (1993)] as unjust a judgment of another court
The principle is an established policy Exception: The doctrine of judicial stability

necessary to avoid inordinate demands upon does not apply where a third party claimant is
the Court’s time and attention which are involved
better devoted to those matters within its
exclusive jurisdiction, and to preclude the
further clogging of the Court’s docket [Lim v. Jurisdiction
Vianzon (2006)].
JURISDICTION IN GENERAL
When the doctrine/principle may be Jurisdiction is defined as the authority to try,
disregarded: A direct recourse of the Supreme hear and decide a case [Tolentino v. Leviste
Court’s original jurisdiction to issue writs (2004)].
(referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when Judicial power includes the duty of the courts
there are special and important reasons of justice: [Art 8, Sec. 1, Constitution]
therefor, clearly and specifically set out in the (1) To settle actual controversies involving
petition. [Mangahas v. Paredes (2007)]. The rights which are legally demandable and
Supreme Court may disregard the principle of enforceable;
hierarchy of courts if warranted by the nature (2) To determine WON there has been a grave
and importance of the issues raised in the abuse of discretion amounting to lack or
interest of speedy justice and avoid future excess of jurisdiction on the part of any
litigations [Riano]. government branch/ instrumentality.
All courts exercise judicial power. Only the

Supreme Court is the court created by the
Constitution [Art 8, Sec. 1, Constitution]. The
Sandiganbayan is a Constitutionally
mandated court, but it is created by statute.
[PD 1486]
PAGE 4
REQUISITES FOR A VALID JURISDICTION OVER THE

EXERCISE OF JURISDICTION SUBJECT MATTER
(1) Court must have jurisdiction over the Jurisdiction over the subject matter is the
persons of the parties power to deal with the general subject
(2) It must have jurisdiction over the subject involved in the action, and means not simply
matter of the controversy jurisdiction of the particular case then
(3) It must have jurisdiction over the res occupying the attention of the court but
(4) It must have jurisdiction over the issues jurisdiction of the class of cases to which the
particular case belongs [Riano citing CJS].
JURISDICTION OVER THE It is the power to hear and determine cases of
PARTIES the general class to which the proceedings in
The manner by which the court acquires question belong [Reyes v. Diaz (1941)]
jurisdiction over the parties depends on
whether the party is the plaintiff or the JURISDICTION VERSUS THE
defendant. EXERCISE OF JURISDICTION
Jurisdiction - the authority to hear and
The mode of acquisition of jurisdiction over determine a cause — the right to act in a case.
the plaintiff and the defendant applies both to [Arranza v. BF Homes (2000)].
ordinary and special civil actions.
‘Exercise of Jurisdiction’: the exercise of this
How jurisdiction over the PLAINTIFF is power or authority
acquired - Jurisdiction over the plaintiff is
acquired by filing of the complaint or petition. Jurisdiction is distinct from the exercise
By doing so, he submits himself to the thereof. Jurisdiction is the authority to decide
jurisdiction of the court [Davao Light & Power a case and not the decision rendered therein.
Co., Inc. v CA (1991)]. When there is jurisdiction over the subject
matter, the decision on all other questions
How jurisdiction over the DEFENDANT is arising in the case is but an exercise of
acquired - Acquired by the jurisdiction. [Herrera v. Baretto et al (1913)]
(1) Voluntary appearance or submission by the
defendant or respondent to the court or ERROR OF JURISDICTION AS
(2) By coercive process issued by the court to DISTINGUISHED FROM ERROR OF
him, generally by the service of summons
[de Joya v. Marquez (2006), citing
JUDGMENT
Regalado] Error of jurisdiction Error of judgment
It is one which the
NOTE: In an action in personam, jurisdiction court may commit in
over the person is necessary for the court to the exercise of its
It is one where the act
jurisdiction [Cabrera v.
validly try and decide the case, while in a complained of was
Lapid (2006)].
proceeding in rem or quasi in rem, jurisdiction issued by the court
It includes errors of
over the person of the defendant is not a without or in excess of
procedure or mistakes
prerequisite to confer jurisdiction on the court jurisdiction [Cabrera v.
in the court’s mistakes
provided the latter has jurisdiction over the res Lapid (2006)].
in the court’s findings
[Alba v. CA (2005)]. [Banco Filipino Savings
v. CA (2000)]
Correctible only by the
Correctible by appeal
extraordinary writ of
[Cabrera v Lapid
certiorari [Cabrera v
(2006)]
Lapid (2006)]
Ground for reversal
only if it is shown that
Renders a judgment
prejudice has been
void or voidable [Rule 16
caused [Banco
Sec. 1, Rule 65]
Español-Filipino v
Palanca (1918)]
PAGE 5
How conferred and determined: DOCTRINE OF PRIMARY

(1) Jurisdiction being a matter of substantive JURISDICTION
law, the statute in force at the time of the Courts cannot and will not resolve a
commencement of the action determines controversy involving a question which is
the jurisdiction of the court. within the jurisdiction of an administrative
tribunal, especially where the question
(2) It is conferred only by the Constitution or demands the exercise of sound administrative
the law. discretion requiring the special knowledge,
experience and services of the administrative
(3) Jurisdiction CANNOT be: tribunal to determine technical and intricate
(a) Fixed by agreement of the parties; matters of fact [Paloma v. Mora (2005)].
(b) Cannot be acquired through, or waived,
enlarged or diminished by, any act or Objective is to guide a court in determining
omission of the parties; whether it should refrain from exercising its
(c) Neither can it be conferred by the jurisdiction until after an administrative
acquiescence of the court [Regalado agency has determined some question or
citing De Jesus v Garcia (1967)]. some aspect of some question arising in the
(d) Cannot be subject to compromise [Civil proceeding before the court [Riano citing
Code, Art 2035] Omictin v. CA (2007)]
(4) Jurisdiction over the subject matter is
determined by the allegations of the
DOCTRINE OF ADHERENCE OF
complaint and the reliefs prayed for. [Gulfo v. JURISDICTION
Ancheta (2012)] Also known as doctrine of continuity of
jurisdiction
(5) It is not affected by the pleas set up by the
defendant in the answer or in the answer or The court, once jurisdiction has been acquired,
in a motion to dismiss. [Sindico v. Diaz retains that jurisdiction until it finally disposes
(2004)]. of the case [Bantua v. Mercader (2001)].
(6) Once attached to a court, it cannot be As a consequence, jurisdiction is not affected

ousted by subsequent statute. by a new law placing a proceeding under the
(a) Exception: The statute itself conferring jurisdiction of another tribunal, EXCEPT:
new jurisdiction expressly provides for (1) Where there is an express provision in the
retroactive effect. [Southern Food v. statute
Salas (1992)] (2) The statute is clearly intended to apply to
actions pending before its enactment
(7) The filing of the complaint or appropriate [Riano citing People v. Cawaling (1998)].
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with OBJECTIONS TO JURISDICTION
jurisdiction over the subject matter or the OVER THE SUBJECT MATTER
nature of the action [CB v. CA (1992)](2008 When it appears from the pleadings or
Bar Exam). evidence on record that the court has no
(a) Exception: Non-payment of docket fee jurisdiction over the subject matter, the court
does not automatically cause the shall dismiss the same. [Sec. 1, Rule 9]
dismissal of the case on the ground of
lack of jurisdiction as long as the fee is The court may on its OWN INITIATIVE object
paid within the applicable prescriptive to an erroneous jurisdiction and may ex mero
or reglementary period, more so when motu take cognizance of lack of jurisdiction at
the party involved demonstrates a any point in the case and has a clearly
willingness to abide by the rules recognized right to determine its own
prescribing such payment. [Go v. Tong jurisdiction [Fabian v. Desierto (1998)].
(2003)]
Earliest opportunity of a party to raise the
issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer.
PAGE 6
Lack of jurisdiction over subject matter is a (2) Stipulation of the parties as when in the
ground for a motion to dismiss. If no motion is pre-trial, the parties enter into stipulations
filed, the defense of lack of jurisdiction may be of facts and documents or enter into
raised as an affirmative defense in the answer. agreement simplifying the issues of the
[Riano citing Sec. 1(b) and 6 of Rule 16]. case.
(3) Waiver or failure to object to the
Jurisdiction over the subject matter may be presentation of evidence on a matter not
raised at any stage of the proceedings, even raised in the pleadings. Here the parties try
for the first time on appeal. When the court with their express or implied consent or
dismisses the complaint for lack of jurisdiction issues not raised by the pleadings. The
over the subject matter, it is common reason issues tried shall be treated in all respects
that the court cannot remand the case to as if they had been raised in the pleadings.
another court with the proper jurisdiction. Its
only power is to dismiss and not to make any
other order. JURISDICTION OVER THE RES
OR PROPERTY IN LITIGATION
EFFECT OF ESTOPPEL ON Jurisdiction over the res refers to the court’s
OBJECTIONS TO JURISDICTION jurisdiction over the thing or the property
General Rule: Estoppel does not apply to which is the subject of the action.
confer jurisdiction to a tribunal that has none
over a cause of action. Jurisdiction is conferred Jurisdiction over the res may be acquired by
by law. Where there is none, no agreement of the court
the parties can provide one. Settled is the rule (1) By placing the property or thing under its
that the decision of a tribunal not vested with custody (custodia legis)
appropriate jurisdiction is null and void. (a) The seizure of the thing under legal
[SEAFDEC-AQD v. NLRC (1992)] process whereby it is brought into actual
custody of law
Exception: Participation in all stages of the (b) Example: attachment of property.
case before the trial court, that included (2) Through statutory authority conferring
invoking its authority in asking for affirmative upon it the power to deal with the property
relief, effectively barred petitioner by estoppel or thing within the court’s territorial
from challenging the court’s jurisdiction. jurisdiction
[Soliven v. Fastforms (2004)] (a) Institution of a legal proceeding wherein
the power of the court over the thing is
recognized and made effective
JURISDICTION OVER THE (b) Example: suits involving the status of
ISSUES the parties or suits involving the
It is the power of the court to try and decide property in the Philippines of non-
issues raised in the pleadings of the parties. resident defendants.
An issue is a disputed point or question to JURISDICTION OF THE

which parties to an action have narrowed
down their several allegations and upon which METROPOLITAN TRIAL
they are desirous of obtaining a decision. COURTS AND MUNICIPAL
Where there is no disputed point, there is no TRIAL COURTS
issue.
Generally, jurisdiction over the issues is JURISDICTION OF THE MTCs IN

conferred and determined by: CIVIL CASES
(1) The pleadings of the parties. The pleadings Exclusive Original Jurisdiction
present the issues to be tried and (1) If the amount involved does not exceed
determine whether or not the issues are of P300,000 outside Metro Manila or does
fact or law. not exceed P400,000 in Metro Manila in
the following cases:
(a) Actions involving personal property
PAGE 7
(b) Probate Proceeding (testate and (iii)From the corresponding tax

intestate) based on gross value of the declaration of the real property
estate
(c) Admiralty and maritime cases NOTE: MTC decisions in cadastral and land
(d) Demand for money registration cases are appealable in the
same maner as RTC decisions
Note: Do not include Interest, Damages of
whatever kind, Attorney’s fees, Litigation 1st level courts:
Expenses, and Costs (IDALEC). However, in (a) Metropolitan Trial Court – Metro Manila;
cases where the claim for damages is the (b) Municipal Trial Courts in Cities – situated in
main cause of action, or one of the causes cities
of action, the amount of such claim shall (c) Municipal Circuit Trial Court – composed of
be considered in determining the multi-sala
jurisdiction of the court. (d) Municipal Trial Courts – in one municipality
(2) Actions involving title to, or possession of, JURISDICTION OVER SMALL
real property, or any interest therein where
the assessed value of the property or CLAIMS, SUMMARY
interest therein does not exceed P20,000 PROCEDURE, AND BARANGAY
outside Metro Manila or does not exceed CONCILIATION
P50,000 in Metro Manila
(3) Inclusion and exclusion of voters JURISDICTION OVER SMALL

CLAIMS
(4) Those governed by the Rules on Summary MTCs, MeTCs and MCTCs shall have
Procedure jurisdiction over actions for payment of money
(a) Forcible entry and unlawful detainer where the value of the claim does not exceed
(FEUD) P100,000 exclusive of interest and costs [Sec.
(i) With jurisdiction to resolve issue of 2, AM 08-8-7-SC, Oct. 27, 2009].
ownership to determine ONLY issue
of possession (provisional only) Actions covered are
(ii) Irrespective of the amount of (1) Purely civil in nature where the claim or
damages or unpaid rentals sought to relief prayed for by the plaintiff is solely for
be recover payment or reimbursement of sum of
(iii)Where attorney’s fees are awarded, money, and
the same shall not exceed P20,000 (2) The civil aspect of criminal actions, either
(b) Other civil cases, except probate filed before the institution of the criminal
proceeding, where the total amount of action, or reserved upon the filing of the
the plaintiff’s claim does not exceed criminal action in court, pursuant to Rule 111
P200,000 in MM, exclusive of interests [Sec. 4, AM 08-8-7-SC].
and costs.
These claims may be:
Special Jurisdiction over petition for writ of (1) For money owed under the contracts of
habeas corpus OR application for bail in lease, loan, services, sale, or mortgage;
criminal cases in the absence of all RTC (2) For damages arising from fault or
judges in the province or city negligence, quasi-contract, or contract;
and
Delegated Jurisdiction to hear and decide (3) The enforcement of a barangay amicable
cadastral and land registration cases where: settlement or an arbitration award
(1) There is no controversy over the land involving a money claim pursuant to Sec.
(2) In case of contested lands, the value does 417 of RA 7160 [LGC].
not exceed P100, 000:
(a) The value is to be ascertained:
(i) By the claimant’s affidavit
(ii) By agreement of the respective
claimants, if there are more than one
PAGE 8
CASES COVERED BY RULES ON (5) Where the dispute involves real properties
SUMMARY PROCEDURE located in different cities or municipalities
All cases of forcible entry and unlawful unless the parties thereto agree to submit
detainer (FEUD), irrespective of the amount of their differences to amicable settlement by
damages or unpaid rentals sought to be an appropriate lupon
recovered. Where attorney‘s fees are awarded, (6) Disputes involving parties who actually
the same shall not exceed P20,000; reside in barangays of different cities or
All other cases, except probate proceedings municipalities, except where such
where the total amount of the plaintiff‘s claim barangay units adjoin each other and the
does not exceed P100,000 (outside Metro parties thereto agree to submit their
Manila) or P200,000 (in Metro Manila), differences to amicable settlement by an
exclusive of interest and costs. appropriate lupon
(7) Such other classes of disputes which the
Prohibited Pleadings: President may determine in the interest of
(1) Motion to dismiss the compliant except on justice or upon the recommendation of the
the ground of lack of jurisdiction; Secretary of Justice
(2) Motion for a bill of particulars; (8) Any complaint by or against corporations,
(3) Motion for new trial, or for reconsideration partnerships, or juridical entities. The
of a judgment, or for reopening of trial; reason is that only individuals shall be
(4) Petition for relief from judgment; parties to barangay conciliation
(5) Motion for extension of time to file proceedings either as complainants or
pleadings, affidavits, or any other paper; respondents
(6) Memoranda; (9) Disputes where urgent legal action is
(7) Petition for certiorari, mandamus, or necessary to prevent injustice from being
prohibition against any interlocutory order committed or further continued,
issued by the court; specifically:
(8) Motion to declare the defendant in default; (a) A criminal case where the accused is
(9) Dilatory motions for postponement; under police custody or detention
(10) Reply; (b) A petition for habeas corpus by a person
(11)Third-party complaints; and illegally detained or deprived of his
(12) Interventions. [Sec. 14, Prohibited liberty or one acting in his behalf
pleadings and motions] (c) Actions coupled with provisional
remedies, such as preliminary
injunction, attachment, replevin and
CASES COVERED BY THE RULES ON support pendente lite
BARANGAY CONCILIATION (d) Where the action may be barred by
The Lupon of each barangay shall have the statute of limitation
authority to bring together the parties actually (10) Labor disputes or controversies arising
residing in the same municipality or city for from employer-employee relationship
amicable settlement of all disputes (11) Where the dispute arises from the CARL
(12) Actions to annul judgment upon a
Except: compromise which can be directly filed in
(1) Where one party is the government or any court.
subdivision or instrumentality thereof
(2) Where one party is a public officer or Note: It is a condition precedent under Rule
employee, and the dispute relates to the 16; can be dismissed but without prejudice
performance of his official functions
(3) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
P5,000
(4) Offenses where there is no private offended
party
PAGE 9
JURISDICTION OF THE Note: The exclusion of the term “damages

of whatever kind” in determining the
REGIONAL TRIAL COURTS, jurisdictional amount under Sec. 19(8) and
FAMILY COURTS, AND Sec. 33 (1) of BP 129, as amended by RA
SHARI’A COURTS 7691, applies to cases where the damages
are merely incidental to or a consequence
of the main cause of action. However, if the
JURISDICTION OF THE RTC IN CIVIL claim for damages is the main cause of
CASES action, or one of the causes of action, the
General Original Jurisdiction: All cases not amount of such claim shall be considered
within the exclusive jurisdiction of any in determining the jurisdiction of the court.
court/tribunal/person/ body exercising [Admin Circ. 09-94]
judicial or quasi-judicial functions
(4) All actions involving the contract of
Exclusive Original Jurisdiction marriage and family relations
(1) The action is incapable of pecuniary
estimation JURISDICTION OF FAMILY
(a) Such as rescission of contract, action to
revive judgment, declaratory relief (1st
COURTS [RA 8369]
(a) Petitions for guardianship, custody of
part), support, expropriation)
children and habeas corpus involving
(b) If the action is primarily for the recovery
children
of a sum of money, the claim is
(b) Petitions for adoption of children and
considered capable of pecuniary
the revocation thereof
estimation, and jurisdiction over the
(c) Complaints for annulment of marriage,
action will depend on the amount of the
declaration of nullity of marriage and
claim. [RCPI v. CA (2002)]
those relating to status and property
(c) If the basic issue is something other
relations of husband and wife or those
than the right to recover a sum of
living together under different status
money, if the money claim is purely
and agreements, and petitions for
incidental to, or a consequence of, the
dissolution of conjugal partnership of
principal relief sought, the action is one
gains
where the subject of the litigation may
(d) Petitions for support and/or
not be estimated in terms of money.
acknowledgment
[Soliven v. Fastforms (1992)]
(e) Summary judicial proceedings brought
under the provisions of EO 209 (Family
(2) Title to, possession of, or interest in, real
Code)
property with assessed value exceeding
(f) Petitions for declaration of status of
P20,000 outside Metro Manila, or exceeds
children as abandoned, dependent or
P50,000 in Metro Manila
neglected children, petitions for
Except: Forcible entry and unlawful
voluntary or involuntary commitment of
detainer cases
children, the suspension, termination or
restoration of parental authority and
(3) If the amount involved exceeds P300,000
other cases cognizable under PD 603,
outside Metro Manila or exceeds P400,000
EO 56 (1986) and other related laws
in Metro Manila in the following cases:
(g) Petitions for the constitution of the
(a) Admiralty and maritime cases
family home
(b) Matters of Probate (testate and
intestate)
NOTE: In areas where there are no
(c) Other actions involving personal
property Family Courts, the above-enumerated
cases shall be adjudicated by the RTC
(d) Demand for money
(RA 8369)
PAGE 10
(5) To hear and decide intra-corporate (3) With the SC, CA and Sandigabayan in
controversies, as per Sec. 52, Securities and petitions for writs of habeas data and
Regulations Code amparo
(a) Cases involving devises or schemes (4) With Insurance Commissioner – claims not
employed by or any acts, of the board of exceeding P100,000
directors, business associates, its
officers or partnership, amounting to Appellate Jurisdiction over cases decided by
fraud and misrepresentation which may lower courts in their respective territorial
be detrimental to the interest of the jurisdictions EXCEPT decisions of lower courts
public and/or of the stockholders, in the exercise of delegated jurisdiction.
partners, members of associations or
organizations registered with the SEC Special Jurisdiction - SC may designate certain
(b) Controversies arising out of intra- branches of RTC to try exclusively criminal
corporate or partnership relations, cases, juvenile and domestic relations cases,
between and among stockholders, agrarian cases, urban land reform cases not
members or associates; between any or falling within the jurisdiction of any quasi-
all of them and the corporation, judicial body and other special cases in the
partnership or association of which they interest of justice.
are stockholders, members or
associates, respectively; and between JURISDICTION OF THE SHARI’A
such corporation, partnership or COURTS
association and the state insofar as it Exclusive Jurisdiction
concerns their individual franchise or (1) All cases involving custody, guardianship,
right to exist as such entity legitimacy, paternity and filiation arising
(c) Controversies in the election or under the Code of Muslim Personal Laws;
appointments of directors, trustees, (2) All cases involving disposition, distribution
officers or managers of such and settlement of estate of deceased
corporations, partnerships or Muslims, probate of wills, issuance of
associations letters of administration of appointment
(d) Petitions of corporations, partnerships administrators or executors regardless of
or associations to be declared in the the nature or aggregate value of the
state of suspension of payments in property;
cases where the corporation, (3) Petitions for the declaration of absence
partnership of association possesses and death for the cancellation and
sufficient property to cover all its debts correction of entries in the Muslim
but foresees the impossibility of Registries;
meeting them when they respectively (4) All actions arising from the customary
fall due or in cases where the contracts in which the parties are Muslims,
corporation, partnership of association if they have not specified which law shall
has no sufficient assets to cover its govern their relations; and
liabilities, but is under the management (5) All petitions for mandamus, prohibition,
of a Rehabilitation Receiver or injunction, certiorari, habeas corpus and all
Management Committee. other auxiliary writs and processes in aid of
its appellate jurisdiction
Concurrent Jurisdiction
(1) With the Supreme Court in actions Concurrent Jurisdiction
affecting ambassadors, other public (1) Petitions of Muslim for the constitution of
ministers and consuls the family home, change of name and
(2) With the SC and CA in petitions for commitment of an insane person to an
certiorari, prohibition and mandamus asylum
against lower courts and bodies in petitions (2) All other personal and legal actions not
for quo warranto, habeas corpus, and writ mentioned in par 1 (d) wherein the parties
of continuing mandamus on environmental involved are Muslims except those for
cases forcible entry and unlawful detainer, which
shall fall under the exclusive jurisdiction of
the MTC.
PAGE 11
(3) All special civil actions for interpleader or (d) Chairmen and Members of the
declaratory relief wherein the parties are Constitutional Commissions without
Muslims or the property involved belongs prejudice to the provisions of the
exclusively to Muslims Constitution
(e) All other national and local officials
Cases Cognizable classified as Grade 27 and higher under
(1) Offenses defined and punished under PD RA 6758
1083 (f) Other offenses or felonies committed by
(2) Disputes relating to: the public officials and employees
(a) Marriage mentioned in Sec. 4(a) of RA 7975 as
(b) Divorce amended by RA 8249 in relation to their
(c) Betrothal or breach of contract to marry office
(d) Customary dowry (mahr) (g) Civil and criminal cases filed pursuant to
(e) Disposition and distribution of property and in connection with EO Nos. 1, 2, 14-A
upon divorce (Sec. 4, RA 8249)
(f) Maintenance and support and
consolatory gifts (mut’a) NOTE: Without the office, the crime cannot
(g) Restitution of marital rights be committed.
(3) Disputes relative to communal properties
Appellate Jurisdiction: Over final judgments,
Note: The Shari’a District Court or the Shari’a resolutions or orders of the RTC whether in
Circuit Court may constitute an Agama the exercise of their original or appellate
Arbitration Council to settle certain cases jurisdiction over crimes and civil cases falling
amicably and without formal trial. within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by
The Council is composed of the Clerk of Court public officers below Salary Grade 27.
as Chairperson and a representative of each of
the conflicting parties. Concurrent Original Jurisdiction with SC, CA,
and RTC for petitions for writs of habeas data
JURISDICTION OF THE and amparo
SANDIGANBAYAN Note: The requisites that the offender the
Original Jurisdiction in all cases involving: offender occupies salary Grade 27 and the
(1) Violations of RA 3019 (Anti-Graft and offense must be intimately connected with the
Corrupt Practices Act) official function must concur for the SB to
(2) Violations of RA 1379 (Anti-Ill-Gotten have jurisdiction
Wealth Act)
(3) Sequestration cases (E.O. Nos. 1,2,14,14-A)
(4) Bribery (Chapter II, Sec. 2, Title VII, Book II, JURISDICTION OF THE COURT
RPC) where one or more of the principal OF TAX APPEALS
accused are occupying the following [UNDER RA 9282 and RULE 5, AM 05-11-07
positions in the government, whether in CTA]
permanent, acting or interim capacity at
the time of the commission of the offense: Exclusive Original or Appellate Jurisdiction to
(a) Officials of the executive branch Review by Appeal:
occupying the positions of regional (1) Decisions of CIR in cases involving disputed
director and higher, otherwise classified assessments, refunds of internal revenue
as Grade 27 and higher, of the taxes, fees or other charges, penalties in
Compensation and Position relation thereto, or other matters arising
Classification Act of 1989 (RA 6758) under the NIRC or other laws administered
(b) Members of Congress and officials by BIR;
thereof classified as G-27 and up under
RA 6758
(c) Members of the Judiciary without
prejudice to the provisions of the
Constitution
PAGE 12
(2) Inaction by CIR in cases involving disputed specified amount claimed (the offenses or
assessments, refunds of IR taxes, fees or penalties shall be tried by the regular
other charges, penalties in relation thereto, courts and the jurisdiction of the CTA shall
or other matters arising under the NIRC or be appellate);
other laws administered by BIR, where the (2) In tax collection cases involving final and
NIRC or other applicable law provides a executory assessments for taxes, fees,
specific period of action, in which case the charges and penalties where the principal
inaction shall be deemed an implied amount of taxes and fees, exclusive of
denial; charges and penalties claimed is less than
(3) Decisions, orders or resolutions of the RTCs P1M tried by the proper MTC, MeTC and
in local taxes originally decided or resolved RTC.
by them in the exercise of their original or
Exclusive Appellate Jurisdiction
appellate jurisdiction;
(1) In criminal offenses
(4) Decisions of the Commissioner of Customs
(a) Over appeals from the judgment,
(a) in cases involving liability for customs
resolutions or orders of the RTC in tax
duties, fees or other charges, seizure,
cases originally decided by them, in
detention or release of property
their respective territorial jurisdiction,
affected, fines, forfeitures or other
and
penalties in relation thereto, or
(b) Over petitions for review of the
(b) other matters arising under the
judgments, resolutions or orders of
Customs law or other laws, part of laws
the RTC in the exercise of their
or special laws administered by BOC;
appellate jurisdiction over tax cases
(5) Decisions of the Central Board of
originally decided by the MeTCs,
Assessment Appeals in the exercise of its
MTCs, and MCTCs in their respective
appellate jurisdiction over cases involving
jurisdiction.
the assessment and taxation of real
(2) In tax collection cases
property originally decided by the
(1) Over appeals from the judgments,
provincial or city board of assessment
resolutions or orders of the RTC in tax
appeals;
collection cases originally decided by
(6) Decision of the secretary of Finance on
them in their respective territorial
customs cases elevated to him
jurisdiction; and
automatically for review from decisions of
(2) Over petitions for review of the
the Commissioner of Customs which are
judgments, resolutions or orders of
adverse to the government under Sec. 2315
the RTC in the exercise of their
of the Tariff and Customs Code;
appellate jurisdiction over tax
(7) Decisions of Secretary of Trade and
collection cases originally decided by
Industry in the case of non-agricultural
the MeTCs, MTCs and MCTCs in their
product, commodity or article, and the
respective jurisdiction.
Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving dumping duties and JURISDICTION OF THE COURT
counterveiling duties under Secs. 301 and OF APPEALS
302, respectively, of the Tariff and Customs
Code, and safeguard measures under RA JURISDICTION OF THE COURT OF
8800, where either party may appeal the APPEALS IN CIVIL CASES
decision to impose or not to impose said Exclusive Original Jurisdiction in actions for
duties. annulment of judgments of the RTC
Exclusive Original Jurisdiction Concurrent Original Jurisdiction
(1) Over all criminal cases arising from (1) With SC to issue writs of certiorari,
violation of the NIRC and the TCC and prohibition and mandamus against the
other laws, part of laws, or special laws RTC, CSC, CBAA, other quasi-judicial
administered by the BIR or the BOC where agencies mentioned in Rule 43, and the
the principal amount of taxes and fees, NLRC (however, this should be filed first
exclusive of charges and penalties claimed with the CA as per St. Martin Funeral
is less than P1M or where there is no Home case), and writ of kalikasan.
PAGE 13
(2) With the SC and RTC to issue writs of (3) With CA, RTC and Sandiganbayan for
certiorari, prohibition and mandamus petitions for writs of amparo and habeas
against lower courts and bodies and writs data
of quo warranto, habeas corpus, whether (4) Concurrent original jurisdiction with the
or not in aid of its appellate jurisdiction, RTC in cases affecting ambassadors,
and writ of continuing mandamus on public ministers and consuls.
environmental cases.
(3) With SC, RTC and Sandiganbayan for Appellate Jurisdiction
petitions for writs of amparo and habeas (1) By way of petition for review on certiorari
data where the action involves public data (appeal by certiorari under Rule 45)
or government office against CA, Sandiganbayan, RTC on pure
questions of law and CTA in its decisions
Exclusive Appellate Jurisdiction rendered en banc.
(a) By way of ordinary appeal from the RTC (2) In cases involving the constitutionality or
and the Family Courts. validity of a law or treaty, international or
(b) By way of petition for review from the RTC executive agreement, law, presidential
rendered by the RTC in the exercise of its decree, proclamation, order, instruction,
appellate jurisdiction. ordinance or regulation, legality of a tax,
(c) By way of petition for review from the impost, assessment, toll or penalty,
decisions, resolutions, orders or awards of jurisdiction of a lower court; and
the CSC, CBAA and other bodies (3) All cases in which the jurisdiction of any
mentioned in Rule 43 and of the Office of court is in issue;
the Ombudsman in administrative (4) All cases in which an error or question of
disciplinary cases. law is involved
(d) Over decisions of MTCs in cadastral or (5) The SC may resolve factual issues in
land registration cases pursuant to its certain exceptional circumstances [Josefa
delegated jurisdiction; this is because v. Zhandong, 2003]
decisions of MTCs in these cases are (a) The conclusion is grounded on
appealable in the same manner as speculations/ surmises /conjectures
decisions of RTCs. (b) The inference is manifestly
mistaken/absurd/impossible;
JURISDICTION OF THE (c) There is grave abuse of discretion;
(d) The judgment is based on a
SUPREME COURT misapprehension of facts;
(e) The findings of fact are conflicting;
JURISDICTION OF THE SUPREME COURT (f) There is no citation of specific
IN CIVIL CASES evidence on which the factual findings
are based;
Exclusive Original Jurisdiction in petitions for (g) The finding of absence of facts is
certiorari, prohibition and mandamus against contradicted by the presence of
the CA, COMELEC, COA, CTA, Sandiganbayan evidence on record;
(h) The findings of the CA are contrary to
Concurrent Original Jurisdiction those of the trial court;
(1) With Court of Appeals in petitions for (i) The CA manifestly overlooked certain
certiorari, prohibition and mandamus relevant and undisputed facts that, if
against the RTC, CSC, Central Board of properly considered, would justify a
Assessment Appeals, NLRC, Quasi- different conclusion;
judicial agencies, and writ of kalikasan, all (j) The findings of the CA are beyond the
subject to the doctrine of hierarchy of issues of the case;
courts. (k) Such findings are contrary to the
(2) With the CA and RTC in petitions for admissions of both parties.
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.
PAGE 14
TOTALITY RULE (2) Ordinary or Special – both are governed

Where there are several claims or causes of by the rules of ordinary civil actions,
actions between the same or different parties, subject to the specific rules prescribed for
embodied in the same complaint, the amount a special civil action
of the demand shall be the totality of the claims (a) Special
in all the claims of action, irrespective of (b) Ordinary – may be classified as:
whether the causes of action arose out of the (i) As to place
same or different transactions [Sec.33 [1], BP (a) Transitory – action founded on
129]. privity of contract between
parties; brought in the place
where the party resides
(b) Local – action founded on
Commencement of privity of estate only and there
is no privity of contract;
Actions to Trial brought in a particular place
(ii) As to object – or against which
ACTIONS the action is directed, actions may
Actions in General: An ordinary suit in a court be classified as:
of justice by which one party prosecutes (a) In personam;
another for the enforcement/ protection of a (b) In rem; or
right or the prevention/redress of a wrong (c) Quasi in rem
[Santos v. Vda. De Caparas, (1959)] (iii) As to cause or foundation
(a) Real, or
An action is a formal demand of one’s legal (b) Personal
rights in a court of justice in the manner
prescribed by the court or by the law. Ordinary Civil Actions: An ordinary civil action
Determinative fact which converts a claim into is one that is governed by the rules for
an action or suit is the filing of the same with a ordinary civil actions [Rule 1, Sec. 3(a) par 2]
court of justice. (Herrera)
Special Civil Actions: A special civil action is
one that is subject to the specific rules
ACTION v. CAUSE OF ACTION prescribed for a special civil action; it is also
governed by the rules for ordinary civil actions
Cause of Action Action [Rule 1, Sec. 3(a) par 2]
A cause of action is
the basis of the action Ordinary suit in a court Criminal Actions: A criminal action is one by
filed [Rule 2, Sec.1] of justice, by which which the State prosecutes a person for an act
one party prosecutes or omission punishable by law. [Rule 1, Sec.
Fact or combination of another for the 3(b)]
facts which affords a enforcement or
party a right to judicial protection of a right, CIVIL ACTIONS vs. SPECIAL
interference in his or the prosecution or PROCEEDINGS
behalf. [Into v. Valle redress of a wrong A civil action is one by which a party sues
(2005)] another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
KINDS OF ACTION [Rule 1, Sec. 3(a) par 1]
(1) Civil or Criminal
(a) Civil – one by which a party sues A special proceeding is a remedy by which a
another for the enforcement or party seeks to establish a status, a right, or a
protection of a right, or the prevention particular fact. [Rule 1, Sec. 3 (c)]
or redress of a wrong
(b) Criminal – one by which the State
prosecutes a person for an act or
omission punishable by law
PAGE 15
Action Special Proceeding found, at the election of the plaintiff. [Rule

As to Parties 4, Sec.2]
Involves 2 or more Involves at least 1
parties party or 2 or more NOTE: Not every action involving a real
parties in proper property is a real action because the realty
cases may only be incidental to the subject matter of
the suit. To be a real action, it is not enough
As to cause of action
that the action must deal with real property. It
Involves a right and a May involve a right, is important that the matter in litigation must
violation of such right but there need not also involve any of the following issues: title
by the defendant be a violation of this to, ownership, possession, paritition,
which causes some right foreclosure or mortgage or any interest in real
damage/prejudice property. [Riano]
upon the plaintiff
As to formalities Real action Personal Action Mixed action
Requires the Requires no such Personal
application of legal formalities, as it property is
remedies in may be granted upon sought to be
accordance with the application Ownership or recovered or Both real and
prescribed rules possession of damages for personal
As to governing rules real property breach of properties are
is involved Contract or the involved
Ordinary rules of Special rules of enforcement of
procedure procedure a contract are
sought
Founded on Founded on Founded on
As to appeal from an interlocutory
privity of real privity of both
Order
estate contract
Cannot be directly and Filed in the Filed in the
immediately appealed Can be immediately court where court where the The rules on
to the appellate court and directly the property plaintiff or any venue of real
until after final appealed to the (or any of the actions
judgment on the appellate court portion defendants govern
merits thereof) is resides, at the
situated plaintiff’s option
PERSONAL ACTIONS AND REAL
ACTIONS LOCAL AND TRANSITORY ACTIONS
Real Actions: Actions affecting title to or
possession of real property, or interest therein. Local action Transitory action
[Rule 4, Sec. 1 par 1] One that could be One that could be
Personal Actions: All other actions are instituted in one prosecuted in any one
personal actions. [Rule 4, Sec.2] specific place [Manila of several places
Railroad v. Attorney- [Manila Railroad v.
Importance of Distinction: For purposes of General (1911)] Attorney-General
determining venue of the action [Riano] (1911)]
(1) Real actions shall be commenced and Its venue depends
tried in the proper court which has Venue depends upon upon the residence of
jurisdiction over the area wherein the real the location of the the plaintiff or the
property involved, or a portion thereof, is property involved in defendant at the
situated. [Rule 4, Sec.1] the litigation (Riano) option of the plaintiff
(2) Personal actions may be commenced and (Riano)
tried where the plaintiff or any of the E.g. Action to recover E.g. Action to recover
principal plaintiffs resides, or where the real property sum of money
defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant, where he may be
PAGE 16
If action is founded on privity of contract The question of whether the trial court has
between parties, then the action is transitory jurisdiction depends on the nature of the
action, i.e., whether the action is in personam,
But if there is no privity of contract and the in rem, or quasi in rem. [Riano citing Biaco v.
action is founded on privity of estate only, Philippine Countryside Rural Bank (2007)]
such as a covenant that runs with the land in
the hands of remote grantees, then the action The distinction is important to determine
is local and must be brought in the place whether or not jurisdiction over the person of
where the land lies the defendant is required and consequently to
determine the type of summons to be
ACTIONS IN REM, IN PERSONAM, employed. [Riano citing Gomez v. Court of
AND QUASI IN REM Appeals (2004)]
Action In Action In Action Quasi In
Rem Personam Rem INDEPENDENT CIVIL ACTIONS
Directed Rule 111, Sec 3: When civil action may
Directed Directed against
against proceeded independently. — In the cases
against the particular
particular provided for in Articles 32, 33, 34 and 2176 of
thing itself persons
persons the Civil Code of the Philippines, the
Jurisdiction Jurisdiction over independent civil action may be brought by
over the the person of the offended party. It shall proceed
Jurisdiction
person of defendant is not independently of the criminal action and shall
over the person
the required as long require only a preponderance of evidence. In
of defendant
defendant as jurisdiction no case, however, may the offended party
required
not over the res is recover damages twice for the same act or
required required omission charged in the criminal action.
Proceeding to
subject the CAUSE OF ACTION
Proceeding
Action to interest of a Cause of Action - A cause of action is the act or
to
impose a named omission by which a party violates a right of
determine
responsibility or defendant over another. [Rule 2, Sec.2]
the state or
liability upon a a particular
condition
person directly property to an Every ordinary civil action must be based on a
of a thing
obligation or cause of action [Rule 2, Sec. 1]
lien burdening it
A cause of action stems from the sources of
Action In Action In Action Quasi In obligations under Art. 1156, CC - Law,
Rem Personam Rem Contract, Quasi-contract, Acts and omissions
punishable by law and Quasi-delict. [Sagrada
Judgment is Orden etc v. National Coconut Corporation
Judgment binging only (1952)]
Judgment
is binding upon
binging upon
on the impleaded Elements of a Cause of Action:
particular
whole parties or their (1) Plaintiff’s legal right;
persons
world successors in (2) Defendant’s correlative obligation to
interest respect plaintiff’s right;
E.g. E.g. Specific E.g. Action for (3) Defendant’s act/omission in violation of
Probate performance, partition; plaintiff’s right [Ma-ao Sugar Central v.
proceeding, action for foreclosure of Barrios (1947)]
cadastral breach of real estate
proceeding contract mortgage
PAGE 17
RIGHT OF ACTION vs. CAUSE OF TEST OF THE SUFFICIENCY OF A

ACTION [Regalado] CAUSE OF ACTION
Right of Action Cause of Action Whether or not admitting the facts alleged,
The remedial right or The delict or the court could render a valid verdict in
right to relief granted by wrongful act or accordance with the prayer of the complaint
law to a party to omission committed [Santos v. de Leo (2005)]
institute an action by the defendant in
against a person who violation of the SPLITTING A SINGLE CAUSE OF
has committed a delict primary rights of the ACTION; EFFECTS
or wrong against him plaintiff Definition - The act of instituting two or more
Right to sue as a suits on the basis of the same cause of action.
consequence of the The delict or wrong [Rule 2, Sec.4]
delict
Determined by the The act of dividing a single or indivisible cause
Whether such acts give
averments in the of action into several parts or claims and
him right of action
pleading regarding bringing several actions thereon. [Regalado]
determined by
the acts committed
substantive law
by the defendant The test of singleness of cause of action lies in
the singleness of the delict or wrong violating
There can be no right of action without a the rights of one person.
cause of action being first established
[Regalado citing Español v. The Chairman of For a single cause of action or violation of a
PVA (1985)] right, the plaintiff may be entitled to several
reliefs. It is the filing of separate complaints
FAILURE TO STATE CAUSE OF for these several reliefs that constitutes
ACTION splitting up of the cause of action which is
There is a failure to state a cause of action if proscribed by Rule 2, Sec. 3 and 4. [City of
the pleading asserting the claim states no Bacolod v. SM Brewery (1969)]
cause of action. This is a ground for a motion
to dismiss. [Rule 16, Sec.1(g)] Effects:
(1) The filing of one or a judgment upon the
It is submitted that the failure to state a cause merits in any one is available as a ground
of action does not mean that the plaintiff has for the dismissal of the others. [Rule 2,
“no cause of action.” It only means that the Sec.4]
plaintiff’s allegations are insufficient for the (2) Filing of the 1st complaint may be pleaded
court to know that the rights of the plaintiff in abatement of the 2nd complaint, on the
were violated by the defendant. [Riano] ground of litis pendentia; or
(3) A judgment upon the merits in any of the
There is a failure to state a cause of action if complaints is available as ground for
allegations in the complaint taken together, dismissal of the others based on res
do not completely spell out the elements of a judicata.
particular cause of action. [Riano] (4) A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in
A failure to state a cause of action is not the order that the complaint may be
same as an absence or a lack of cause of dismissed.
action. The former refers to an insufficiency in
the allegations of the complaint while the Ratio: A party may not institute more than one
latter refers to the failure to prove or to suit for a single cause of action. [Rule 2, Sec. 3]
establish by evidence one’s stated cause of (1) To prevent repeated litigation between
action. [Riano] the same parties in regard to the same
subject or controversy;
(2) To protect the defendant from
unnecessary vexation. Nemo debet vexare
pro una et eadem causa (No man shall be
twice vexed for one and the same cause);
PAGE 18
(3) To avoid the costs and expenses incident (4) TOTALITY RULE - Where the claims in all
to numerous suits. [City of Bacolod v. SM the causes of action are principally for
Brewery (1969)] recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
JOINDER OF CAUSES OF ACTION
It is the assertion of as many causes of action MISJOINDER OF CAUSES OF
as a party may have against another in one ACTION
pleading alone. It is also the process of uniting [Rule 2, Sec. 6]
two or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and Misjoinder of causes of action is not a ground
CJS] for dismissal of an action. A misjoined cause
of action may, on motion or motu propio, be
By a joinder of actions, or more properly, a severed and proceeded with separately.
joinder of causes of action is meant the However, if there is no objection to the
uniting of two or more demands or rights of improper joinder or the court did not motu
action in one action, the statement of more proprio direct a severance, then there exists no
than one cause of action in a declaration [Ada bar in the simultaneous adjudication of all the
v. Baylon (2012)] erroneously joined causes of action. However,
this rule exists only when the court trying the
Splitting of Causes Joinder of Causes case has jurisdiction over all of the causes of
There is a single Contemplates several action therein notwithstanding the misjoinder
cause of action causes of action of the same. This is because if the court has no
Prohibited Encouraged jurisdiction to try the misjoined action, then
It causes multiplicity It minimizes the same must be severed and if not so
of suits and double multiplicity of suits severed, any adjudication rendered by the
vexation on part of and inconvenience on court with respect to the same would be a
defendant the parties nullity. [Ada v. Baylon (2012)]
Ratio: To avoid a multiplicity of suits and to There is no sanction against non-joinder of

expedite disposition of litigation at minimum separate causes of action since a plaintiff
cost [Ada v. Baylon (2012)] needs only a single cause of action to
maintain an action (Regalado).
The rule however is purely permissive as the
plaintiff can always file separate actions for In case of misjoinder of causes of action, the
each cause of action. [Baldovi v. Sarte, (1917)] cause of action erroneously joined need only
be separated and dismissed, without affecting
Joinder shall not include special civil actions the action with regard to other causes of
governed by special rules. [Ada v. Baylon action (Regalado).
(2012)]
PARTIES TO CIVIL ACTIONS
Requisites [Rule 2, Sec. 5]:
(1) The party joining the causes of action
must comply with the rules on joinder of REQUIREMENTS FOR A PERSON TO
parties; BE A PARTY TO A CIVIL ACTION:
(2) The joinder shall not include special civil
actions or actions governed by special For a Person to be a Party to a Civil Action:
rules; (1) He must be a natural or juridical person or
(3) Where causes of action are between the an entity authorized by law
same parties but pertain to different (2) He must have legal capacity to sue; and
venues/jurisdictions, the joinder may be (3) He must be the real party-in-interest
allowed in the RTC provided one of the A party must be a natural or juridical person or
causes of action are within the RTC’s an entity authorized by law
jurisdiction and the venue lies therein;  Only natural and juridical persons may be
parties
 See Art. 44, NC
PAGE 19
 Entities authorized by law may also be PARTIES TO A CIVIL ACTION

parties, e.g.:
(a) Partnership has a juridical personality Plaintiff – one having an interest in the matter
separate and distinct from that of each of the action or in obtaining the relief
of the partners, even in case of failure to demanded. The term may either refer to the
comply with the requirements in Art 1772 claiming party, counter-claimant, cross-
NCC [Art. 1768 NCC] claimant, or third-party plaintiff
(b) Labor organizations organized in
accordance with law may file a complaint Defendant – one claiming an interest in the
or petition in court in representation of controversy or the subject thereof adverse to
its members [Art 242 LC] the plaintiff. Term may also include:
(c) As to properties of the Roman Catholic (1) An unwilling co-plaintiff or one who
Church, the Archbishop or diocese to should be joined as plaintiff but refuses to
which they belong may be a party [Ponce give his consent thereto [Sec. 10, Rule 3]
v. Roman Catholic] (2) The original plaintiff becoming a
defendant to the original counterclaim of
LEGAL CAPACITY TO SUE defendant; and
Legal capacity to sue or be sued means that (3) One necessary to a complete
the party is free from general disability (e.g. determination or settlement of the
minority or insanity) or, in case of juridical questions involved therein
entities, that it must be duly registered in
accordance with law REAL PARTIES IN INTEREST
Under Sec. 4, Rule 8, legal capacity to sue Who is a real party-in-interest: [Rule 3, Sec. 2]
must be averred (1) The party who stands to be
benefited/injured by the judgment in the
Lack of legal capacity to Lack of legal suit;
sue personality to sue (2) The party entitled to the avails of the suit.
The plaintiff’s general
disability to sue, such as Rules:
The plaintiff is not
on account of minority, (1) Every action must be prosecuted or
the real party in
insanity, incompetence, defended in the name of the real party in
interest
lack of juridical interest. [Rule 3, Sec.2]
personality or any other (2) The party’s interest must be direct,
general disqualifications substantial and material [Sumalo v. Litton
It can be used as (2006)].
ground for a MTD (3) Husband and wife shall sue and be sued
It can be a ground for a based on the jointly, except as provided by law [Rule 3,
MTD [Rule 16 (1) (d)] failure of complaint Sec. 4]
to state a cause of (4) A minor or a person alleged to be
action. [Rule 16 (1) incompetent may sue or be sued, with the
(g)] assistance of his father, mother, guardian,
or if he has none, a guardian ad litem.
REAL- PARTY IN INTEREST [Rule 3, Sec. 5]
Interest within the meaning of the Rules of (5) Minors (represented by their parents) are
Court means material interest or an interest in real parties in interest under the principle
issue to be affected by the decree or judgment of intergenerational responsibility. [Oposa
of the case, as distinguished from mere v. Factoran (1993)]
curiosity about the question involved. [Ang v. (6) If a party becomes incompetent/
Sps. Ang (2012)] incapacitated during the pendency of the
action, the action survives and may be
continued by/against the incompetent/
incapacitated assisted by his legal
guardian or guardian ad litem [Rule 3, Sec.
18]
PAGE 20
Failure to name real party in interest General Rule: An agent acting in his own
(a) Effect: a motion to dismiss may be filed on name and for the benefit of an undisclosed
the ground that the complaint states no principal may sue or be sued without joining
cause of action the principal.
(i) If a complaint is filed for and in behalf
of a plaintiff who is not authorized to Exception: If the contract involves things
do so, the complaint is not deemed belonging to the principal. [Art. 1883, CC]
filed
(b) Remedies: NECESSARY PARTIES
(i) Amendment of pleadings (Alonso v.
Villamor, 1910); or Who: One who is not indispensable but ought
(ii) Complaint may be deemed amended to be joined as a party if complete relief is to
to include the real party-in-interest be accorded as to those already parties, or for
(Balquidra v. CFI Capiz, 1977) a complete determination or settlement of the
(c) Exception: A real litigant may be held claim subject of the action [Rule 3, Sec. 8]
bound as a party even if not formally
impleaded provided he had his day in Indispensable parties v. Necessary parties
court (Albert v. University Publishing Co.,
1958) Indispensable parties Necessary parties [Rule
[Rule 3, Sec. 7] 3, Sec. 8]
INDISPENSABLE PARTIES Should be joined
Must be joined under
Who: An indispensable party is a real party-in- whenever possible; the
any and all
interest without whom no final determination action can proceed
conditions, his
can be had of an action. [Rule 3, Sec.7] even in their absence
presence being a sine
because their interest
qua non for the
A party who has such an interest in the is separable from that
exercise of judicial
controversy or subject matter that a final of the indispensable
power
adjudication cannot be made, in his absence, party
without injuring or affecting that interest. The case may be
[Riano] determined in court
No valid judgment if but the judgment
The joinder of a party becomes compulsory indispensable party is therein will not resolve
when the one involved is an indispensable not joined. the entire controversy if
party. [Riano citing Rule 3, Sec.7] a necessary party is not
joined
A person is NOT an indispensable party if his They are those with They are those whose
interest in the controversy or subject matter is such an interest in the presence is necessary
separable from the interest of the other controversy that a to adjudicate the whole
parties, so that it will not necessarily be final decree would controversy but whose
directly or injuriously affected by a decree necessarily affect interests are so far
which does not complrete justice between their rights so that separable that a final
them. [Riano] the court cannot decree can be made in
proceed without their their absence without
REPRESENTATIVE AS PARTIES presence. affecting them.
Who: Those acting in fiduciary capacity, such
as a trustee/guardian/executor/administrator Whenever in any pleading in which a claim is
or a party authorized by law or ROC. [Rule 3, asserted a necessary party is not joined, the
Sec. 3] pleader is under obligation to:
(1) Set forth the name of the necessary party,
The beneficiary shall be included in the title of if known, and
the case and shall be deemed to be the real (2) State the reason why the necessary party
party in interest. is omitted. [Riano citing Rule 3, Sec. 9 par
1]
PAGE 21
The non-inclusion of a necessary party does Effect of Absence of Indispensable Parties:

not prevent the court from proceeding in the (1) It is the duty of the court to stop the trial
action, and the judgment rendered therein and to order the inclusion of such party
shall be without prejudice to the rights of such [Cortez v. Avila]. Such an order is
necessary party [Rule 3, Sec. 9 par 3] unavoidable
(2) Absence of an indispensable party renders
INDIGENT PARTIES all subsequent actuations of the court null
and void, for want of authority to act, not
Who: An indigent is one who has no money or only as to the present parties but even as
property sufficient and available for food, to those present
shelter, and basic necessities [Rule 3, Sec. 21]
PERMISSIVE JOINDER [Rule 3, Sec. 6] Parties
Authority to Litigate as Indigent Party can be joined, as plaintiffs or defendants, in
 May be granted upon an ex parte one single complaint or may themselves
application and hearing maintain or be sued in separate suits.
 It shall include an exemption from payment
of docket and other lawful fees (e.g. fees for Requisites of Permissive Joinder:
TSN) (1) Right to relief arises out of the same
transaction or series of transactions
NOTE: The amount of docket and other (a) Transaction - not only a stipulation or
lawful fees is a lien on any judgment agreement but any event resulting in
rendered in favor of indigent party, unless wrong, without regard to whether the
court otherwise provides. wrong has been done by violence,
neglect, or breach of contract
Adverse party may contest: Authority may be (b) Series of transaction – transactions
contested by the adverse party at any time connected with the same subject of
before judgment is rendered the action
 If the court determines after hearing that (2) There is a question of law or fact common
the party declared indigent has sufficient to all the plaintiffs or defendants
income or property, the proper docket and (3) Such joinder is not otherwise proscribed
other lawful fees shall be assessed and by the rules on jurisdiction and venue
collected by the clerk of court
Distinguished from Joinder of Causes of
ALTERNATIVE DEFENDANTS Action
 In joinder of causes of action, it is enough if
Where the plaintiff is uncertain against whom the cause of action arises out of the same
of several persons he is entitled to relief, he contract
may join any or all of them in the alternative,  Unlike permissive joinder of parties, in
although a right to relief against one may be joinder of causes of action, there is no need
inconsistent with a right to relief against the for a common question of fact or law
other. [Rule 3, Sec. 13]
MISJOINDER AND NON-JOINDER
COMPULSORY AND PERMISSIVE OF PARTIES
JOINDER OF PARTIES A party is misjoined when he is made a party
to the action although he should not be
COMPULSORY JOINDER OF impleaded.
INDISPENSABLE PARTIES [Rule 3, Sec. 7]
Parties in interest without whom no final A party is not joined when he is supposed to
determination can be had of an action shall be be joined but is not impleaded in the action.
joined either as plaintiffs or defendants [Riano]
Joinder of INDISPENSABLE PARTIES are

mandatory
PAGE 22
Effect: If a class suit is improperly brought, the action

(1) Neither misjoinder nor non-joinder of is subject to dismissal regardless of the cause
parties is a ground for dismissal of an of action [Rule 16, Sec 1 (d)].
action. [Rule 3, Sec. 11]
(a) Non-joinder of an indispensable party A taxpayer's suit or a stockholder's derivative
is not a ground for outright dismissal. suit is in the nature of a class suit, although
Reasonable opportunity must be subject to the other requisites of the
given for his inclusion by amendment corresponding governing law especially on the
of the complaint [Cortez v Avila issue of locus standi. [Regalado]
(1957)].
(b) In case of non-joinder of a necessary There is no class suit in an action filed by
party, if the court should find the associations of sugar planters to recover
reason for such omission damages in behalf of individual sugar planters
unmeritorious, it may order the for an allegedly libelous article in an
inclusion of such omitted necessary international magazine. There is no common
party or general interest in reputation of a specific
(2) Parties may be dropped or added by order individual. Each of the sugar planters has a
of the court on motion of any party or on separate and distinct reputation in the
its own initiative at any stage of the action community not shared by the others. [Riano
and on such terms as are just. [Rule 3, citing Newsweek, Inc. v. Intermediate Appellate
Sec.11] court (1986)]
Objections to defects in parties: Objections to A class suit does not require a commonality of
defects in parties should be made at the interest in the questions involved in the suit.
earliest opportunity. What is required by the Rules is a common or
 The moment such defect becomes general interest in the subject matter of the
apparent, a motion to strike the names of litigation. [Riano citing Mathay v. Consolidated
the parties must be made. Bank &Trust Company (1974)]
 Objections to misjoinder cannot be raised
for the first time on appeal [Lapanday Permissive Joinder of
Class Suit
Agricultural & Development Corporation v. Parties
There are multiple
Estita (2005)] There is a single cause of
causes of action
action pertaining to
separately belonging to
CLASS SUIT numerous persons.
several persons.
Requisites: [Rule 3, Sec. 12] Class Suit Derivative Suit

(1) Subject matter of the controversy is one of An action brought by
common/general interest to many minority shareholders in
persons; the name of the
(2) The persons are so numerous that it is corporation to redress
impracticable to join them all as parties wrongs committed
When the subject matter
against it, for which the
(i.e. impracticable to bring them all before of the controversy is one
directors refuse to sue.
the court); of common or general
(3) Parties bringing the class suit are interest to many
It is a remedy designed
sufficiently numerous and representative persons, and the parties
by equity and has been
of the class and can fully protect the are so numerous that it
the principal defense of
is impracticable to bring
interests of all concerned; them all before the
the minority
(4) The representative sues/defends for the shareholders against
court, one or more may
benefit of all. abuses by the majority.
sue or defend for the
benefit of all. [Rule 3,
Any party in interest shall have the right to In a derivative action, the
Sec. 12]
real party in interest is
intervene to protect his individual interest.
the corporation itself,
[Rule 3, Sec. 12] not the shareholders
who actually instituted it
[Lim v. Lim Yu (2001))
PAGE 23
SUITS AGAINST ENTITES WITHOUT Counsel’s duty:

JURIDICAL PERSONALITY (1) Inform court within 30 days after such
death of the fact thereof;
Requisites: [Rule 3, Sec. 15] (2) Give the name and address of the legal
(1) There are two or more persons not representatives.
organized as a juridical entity;
(2) They enter into a transaction; NOTE: Failure to comply with this duty is a
(3) A wrong is committed against a third ground for disciplinary action.
person in the course of such transaction.
Court’s duty: in case of death, the court if the
Effect: Persons associated in an entity without action survives, shall order, upon proper
juridical personality may be sued under the notice, the legal representative of the
name by which they are generally/commonly deceased to appear and to be substituted for
known, but they cannot sue under such name. the deceased within a period of 30 days or
[Rule 3, Sec. 15] within such time as may be granted.
 If there is notice of death, court should await
The service of summons may be effected upon appointment of legal representative;
all the defendants by serving upon any of otherwise, subsequent proceedings are void.
them, or upon the person in charge of the Period of filing of brief is suspended.
office or place of business maintained under
such name. [Rule 14, Sec. 8] If no legal representative is named or if the
one so name shall fail to appear within the
EFFECT OF DEATH OF PARTY specified period, the court may order the
opposing party to procure the appointment of
LITIGANT an executor or administrator for the estate.
SURVIVAL OR DEATH OF ACTION The substitute defendant need not be
The question as to whether an action survives summoned. The order of substitution shall be
or not depends on the nature of the action served upon the parties substituted for the
and the damage sued for court to acquire jurisdiction over the substitute
(1) Causes of Action that SURVIVE the party [Ferreria v Vda de Gonzales (1986)].
decedent
(a) The wrong complained of affects DEATH OR SEPARATION OF A PARTY
primarily and principally property and WHO IS A PUBLIC OFFICER [Rule 3, Sec. 17]
property rights
(b) Injuries to the person are merely Requisites:
incidental (1) Public officer is a party to an action in his
(c) E.g. Purely personal actions like official capacity;
support (2) During the pendency of the action, he
(2) Causes of Action which DO NOT SURVIVE either dies/resigns or otherwise ceases to
(a) The injury complained of is to the hold office;
person (3) It is satisfactorily shown to the court by
(b) Property and property rights affected any party, within 30 days after the
are incidental successor takes office, that there is a
(c) E.g. actions to recover real and substantial need to continue/maintain the
personal property or to enforce liens action and
thereon (4) The successor adopts/continues (or
threatens to do so) his predecessor’s
Substitution of Parties: For causes of action action
that survive the death of the party, there is (5) The party or officer affected was given
substitution of parties reasonable notice of the application
therefore and accorded an opportunity to
be heard.
PAGE 24
ACTION ON CONTRACTUAL MONEY VENUE VERSUS JURISDICTION

CLAIMS [Rule 3, Sec. 20]
Venue Jurisdiction
Requisites: Power of the court to
(1) The action must primarily be for recovery Place where the action
hear and decide a
of money/debt or interest thereon; is instituted
case
(2) The claim arose from express/implied Jurisdiction over the
contract; subject matter and
(3) Defendant dies before the entry of final over the nature of the
judgment in the court in which the action May be waived
action is conferred by
was pending. law and cannot-be
(4) The defendant’s death will not result in waived
the dismissal of the action.
Procedural Substantive
The deceased shall be substituted by his legal
Is fixed by law and
representatives in the manner provided for in May be changed by
cannot be the subject
Rule 3, Sec. 16, and the action will continue the written agreement
of the agreement of
until the entry of final judgment. of the parties
the parties
Establishes a relation
However, execution shall not issue in favor of Establishes a relation
between plaintiff and
the winning plaintiff. It should be filed as a between the court
defendant, or
claim against the decedent’s estate without and the subject
petitioner and
need of proving the claim. matter
respondent
TRANSFER OF INTEREST DURING Not a ground for a
Lack of jurisdiction
PENDENCY OF ACTION [Rule 3, Sec. 19] motu propio dismissal
over the subject
(except in cases of
matter is a ground for
General rule: The rule does not consider the summary procedure;
a motu proprio
transferee an indispensable party. Hence, the Rule 4, Rule on
dismissal.
action may proceed without the need to Summary Procedure)
implead him.
VENUE OF REAL ACTIONS
Exception: When the substitution by or joinder (1) Shall be commenced and tried in the
of the transferee is ordered by court. proper court which has jurisdiction over
the area wherein the real property
The case will be dismissed if the plaintiff’s involved, or a portion thereof is situated.
interest is transferred to defendant unless [Rule 4, Sec. 1(1)]
there are several plaintiffs, in which case the (2) Forcible entry and detainer actions shall
remaining plaintiffs can proceed with their be commenced and tried in the municipal
own cause of action. court of the municipality or city wherein
the real property involved, or a portion
thereof, is situated. [Rule 4, Sec. 1(2)]
VENUE (3) If the property is located at the boundaries
Venue is the place, or the geographical area of two places, file the case in either place
where an action is to be filed and tried. In civil (at the plaintiff’s option).
cases, it relates only to the place of the suit (4) If the case involves two properties located
and not to the jurisdiction of the court. [Riano in two different places:
citing Manila Railroad Company v. Attorney (a) If the properties are the object of the
General (1911)] same transaction, file it in any of the
two places;
Choosing the venue of an action is not left to a (b) If they are the objects of two distinct
plaintiff’s caprice; the matter is regulated by transactions, separate actions should
the Rules of Court. [Ang v. Sps. Ang (2012)] be filed in each place unless properly
joined.
PAGE 25
VENUE OF PERSONAL ACTIONS WHEN THE RULES ON VENUE DO

At the plaintiff’s election: [Rule 4, Sec. 2] NOT APPLY [Rule 4, Sec. 4]
(1) Where the plaintiff or any of the principal (1) If a specific rule/law provides otherwise
plaintiffs resides; (e.g. action for damages arising from
(2) Where the defendant or any of the libel);
principal defendants resides; (2) If there is a stipulation as to venue which is
(3) In case of a non-resident-defendant, permitted if the parties have validly
where he may be found. agreed
(a) in writing
NOTE: The plaintiff or the defendant must be (b) before the filing of the action
residents of the place where the action has (c) on the exclusive venue
been instituted at the time the action is
commenced. [Ang v. Sps. Ang (2012)] EFFECTS OF STIPULATIONS ON
The residence of a person is his personal,
VENUE
actual or physical habitation or his actual
To be binding, the parties must have agreed
residence or place of abode, which may not
on the exclusive nature of the venue of any
necessarily be his legal residence or domicile
prospective action between them. The
provided he resides therein with continuity
agreement of parties must be restrictive and
and consistency. [Boleyley v. Villanueva]
not permissive. [Regalado]
A corporation cannot be allowed to file
In the absence of qualifying restrictive words
personal actions in a place other than its
(e.g. “only/solely/exclusively in such court”),
principal place of business unless such place
venue stipulation is merely permissive; that is,
is aso the residence of a co-plaintiff or
the stipulated venue is in addition to the
defendant. [Clavecilla Radio v. Antillon]
venue provided for in the rules. [Polytrade
Corp. v. Blanco (1969)]
VENUE OF ACTIONS AGAINST NON-
RESIDENTS [Rule 5, Sec. 3] The mere stipulation on the venue of an
action, however, is not enough to preclude
Non-resident FOUND in the Philippines: parties from bringing a case in other venues.
(1) For personal actions – Where the plaintiff The parties must be able to show that such
resides stipulation is EXCLUSIVE. In the absence of
(2) For real actions – Where the property is qualifying or restrictive words, the stipulation
located should be deemed as merely an agreement on
an additional forum, not as limiting venue to
NOTE: The alternative venues granted to the specified place. [Riano citing Spouse
plaintiffs in Sec. 2, Rule 4 is not available Lantin v. Lantion, (2006)]
to a non-resident
The court may declare agreements on venue
Non-resident NOT FOUND in the Philippines: as contrary to public policy if such stipulation
An action may be filed ONLY when the case unjustly denies a party a fair opportunity to file
involves: suit in the place designated by the Rules
(1) Personal status of plaintiff – File at the [Regalado, citing Hoechst Philippines v Torres
place where plaintiff resides (1978)].
(2) Any property of said defendant located in
the Philippines – File at the place where OTHER RULES ON VENUE
the property (or any portion thereof) is Improper Venue - The Court may not motu
situated/found propio dismiss an action on the ground of
improper venue. [Dacoycoy v. IAC (1991)]
NOTE: When there is more than one Exception: In summary procedures
defendant or plaintiff, the residences of the
PRINCIPAL parties should be the basis for
determining proper venue (Herrera)
PAGE 26
Change of Venue - The SC has the power to (6) Complaint-in-intervention

change the venue to prevent a miscarriage of (7) Reply
justice. [Art. 8, Sec. 5, 1987 Constitution]
COMPLAINT [Rule 6, Sec. 3]
Waiver of Venue - Until and unless the
defendant objects to the venue in a motion to Definition - The pleading alleging the
dismiss prior to a responsive pleading, the plaintiff’s cause/s of action. It should contain
venue cannot truly be said to have been a concise statement of the ultimate facts
improperly laid since for all intents and constituting the plaintiff’s cause/s of action,
purposes, the venue though technically wrong not evidentiary facts or legal conclusions.
may yet be considered acceptable to the
parties for whose convenience the rules on Contents – Statement of ultimate facts on
venue had been devised. Although venue is which the plaintiff relies for his claim:
mandatory, it is waivable. [Diaz v. Adiong (1) It must be in a methodical and logical
(1993)] form
(2) Plain, concise, and direct
Means of waiving venue:
(3) Statement of mere evidentiary facts are
(1) Where parties validly agreed in writing
omitted [Rule 8, Sec. 1]
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4 (b)];
Function
and
(1) Its function is to inform the defendant
(2) Failure to raise improper venue as
clearly and definitely of claims made
affirmative defense or in motion to
against him so that he may be prepared to
dismiss
meet the issues at trial.
(2) It should inform the defendant of all
PLEADINGS material facts on which the plaintiff relies
Pleadings are the written statements of the to support his demand.
respective claims and defenses of the parties, (3) It should state the theory of a cause of
submitted to the court for appropriate action which forms the bases of plaintiff’s
judgment [Rule 6, Sec. 1] claim of liability. [Tantuico v. Republic
(1991)]
PLEADING v. MOTION
Pleading Motion Ultimate Facts - Essential facts constituting
Purpose: to submit a Purpose: to apply for the plaintiff’s cause of action. A fact is
claim or defense for an order not included essential if it cannot be stricken out without
appropriate judgment in the judgment leaving the statement of the cause of action
Cannot be initiatory insufficient. [Remitere v. Montinola (1966)]
as they are always
May be initiatory
made in a case Non-Ultimate Facts:
already filed in court (1) Evidentiary or immaterial facts;
Always filed before May be filed even (2) Legal conclusions, conclusions or
judgment after judgment inferences of facts from facts not stated,
Only 9 kinds of Any application for or incorrect inferences or conclusions from
pleading are allowed relief not by a facts stated;
by the rules pleading is a motion (3) Conclusions of law alleged in the
May be oral when complaint are not binding on the court.
made in open court or (4) The details of probative matter or
Must be written particulars of evidence, statements of law,
in the course of a
hearing or trial inferences and arguments.
KINDS OF PLEADINGS
Kinds of Pleadings Allowed [Rule 6, Sec. 2] Test of Sufficiency of the Facts alleged in the
(1) Complaint Complaint: WON upon the averment of facts,
(2) Answer a valid judgment may be properly rendered
(3) Counterclaim [Pamintan v. Costales (1914)].
(4) Cross-claim
(5) 3rd-party Complaint
PAGE 27
ANSWER [Rule 6, Sec. 4] Insufficient denial or denial amounting to

admissions:
Definition - The pleading where the defendant (1) General denial; and
sets forth his affirmative/negative defenses. It (2) Denial in the form of a negative pregnant
may also be the response to a counterclaim or
a cross-claim. COUNTERCLAIM
Two kinds of Defenses that may be set forth in Definition - Any claim which a defending party
the Answer [Rule 6, Sec. 5] – may have against an opposing party.
(1) A counterclaim is in the nature of a cross-
(1) Negative Defenses - Specific denials of the complaint. Although it may be alleged in
material facts alleged in the pleading of the answer, it is not part of the answer.
the claimant essential to his cause of (2) Upon its filing, the same proceedings are
action. had as in the original complaint.
 A denial is not specific just because it is (3) For this reason, it must be answered 10
so qualified (Agton v. CA) days from service [Rule 11, Sec 4]
 A general denial will be deemed an
admission of the averments in the How to Raise Counterclaims
complaint; it has to be specific
 Modes of Denial [Sec. 10, Rule 8] (1) By including it in the Answer
(a) Defendant must specify each material (a) A compulsory counterclaim or a cross-
allegation of fact the truth of which he claim that a defending party has AT
does not admit THE TIME he files his answer shall be
(b) If pleader decides to deny only a part contained therein. [Rule 11, Sec. 8]
or a qualification of an averment, he (b) Exception: Pleadings may be
shall specify so much of it as true and amended under Rule 11, Sec. 10:
deny the remainder (i) By leave of court;
(c) If pleader is without knowledge or (ii) Before judgment;
information sufficient to form a belief (iii) On the grounds of:
as to the truth of a material averment, (iv) Oversight;
he shall so state (v) Inadvertence;
(vi) Excusable neglect;
(2) Affirmative Defenses - Allegations of new (vii) When justice requires.
matters which, while hypothetically
admitting the material allegations in the (2) By filing after the Answer [Rule 11, Sec. 9]
claimant’s pleading, would nevertheless (a) Counterclaims/cross-claims arising
prevent/bar recovery by him. It includes AFTER the answer,
fraud, prescription, release, payment and (b) How done:
any other matter by way of confession and (1) By filing a supplemental pleading
avoidance. before judgment
(2) WITH court’s permission
Negative Pregnant - Denial pregnant with an
admission. It is a denial pregnant with the Rules on Counterclaims
admission of the substantial facts in the (1) In an original action before the RTC, the
pleading responded to which are not squarely counterclaim may be considered
denied. It is in effect an admission of the compulsory regardless of the amount.
averment it is directed to. [Philamgen v. Sweet [Rule 6, Sec. 7]
Lines (1993)] (2) In the case of Agustin v. Bacalan (1985), if
a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
While it is a denial in the form its substance excess is considered waived.
actually has the effect of an admission (3) But in Calo v. Ajax (1968), the remedy
because of a too literal denial of the allegation where a counterclaim is beyond the
sough to be denied. This arises when the jurisdiction of the MTC is to set off the
pleader merely repeats the allegations in a claims and file a separate action to collect
negative form. the balance.
PAGE 28
Kinds of Counterclaims (b) When a pleader fails to set up a

counterclaim through oversight,
Compulsory Permissive inadvertence, excusable negligence,
counterclaim counterclaim or when justice so requires. He may,
One which arises out by leave of court, set-up the
of or is necessarily It does not arise out of counterclaim by amendment of the
connected with the nor is it necessarily pleading [Rule 11, Sec. 10]
transaction or connected with the
occurrence -that is the subject matter of the (3) A plaintiff who fails or chooses not to
subject matter of the opposing party's answer a compulsory counterclaim may
opposing party's claim. not be declared in default, principally
claim. because the issues raised in the
Does not require for May require for its counterclaim are deemed automatically
its adjudication the adjudication the joined by the allegations in the complaint.
presence of third presence of third [Gojo v. Goyala (1970)]
parties of whom the parties over whom the
court cannot acquire court cannot acquire (4) The filing of a MTD and the setting up of a
jurisdiction. jurisdiction. compulsory counterclaim are
Barred if not set up in
Not barred even if not incompatible remedies.
the action. set up in the action. (a) In the event that a defending party
Must be answered, has a ground for dismissal and a
Need not be otherwise, the compulsory counterclaim at the same
answered; no default. defendant can be time, he must choose only one
declared in default. remedy.
Since permissive, it (b) If he decides to file a MTD, he will lose
requires the payment his counterclaim. But if he opts to set
No need for separate up his counterclaim, he may still
of docket fees (Sun
docket fees plead his ground for dismissal as an
Insurance v. Asuncion,
1989) affirmative defense in his answer.
(c) If any of the grounds to dismiss under
Compulsory Counterclaim Rule 17, Sec. 3 arise, the proper
(1) Requisites: recourse for a defendant who desires
(a) It must arise out of, or be necessarily to pursue his compulsory
connected with, the counterclaim in the same proceeding
transaction/occurrence that is the is not a MTD.
subject matter of the opposing party's (d) Instead, he should only move to have
claim; the plaintiff declared non-suited on
(b) It does not require for its adjudication the complaint so that the latter can
the presence of third parties of whom no longer present his evidence
the court cannot acquire jurisdiction; thereon, and simultaneously move
(c) It must be within the court’s that he be declared as in default on
jurisdiction both as to the amount and the compulsory counterclaim, and
the nature. [Regalado, citing reserve the right to present evidence
Quintanilla v CA (1997)] ex parte on his compulsory
counterclaim. [BA Finance v. Co
(2) General Rule: A compulsory counterclaim (1993)]
not set up in the answer is deemed
barred. Permissive Counterclaim
Exceptions: (1) Counterclaim is permissive if it does not
(a) If it is a counterclaim which either arise out of, nor is necessarily connected
matured or was acquired by a party with, the subject matter of the opposing
after serving his answer. In this case, it party’s claim
may be pleaded by filing a (a) This is not barred even if not set up in
supplemental answer or pleading the action
before judgment. [Rule 11, Sec. 9]
PAGE 29
(b) Must have independent jurisdictional Improper Cross-Claims

ground [Herrera)]. Hence, the filing of (1) Where the cross-claim is improper, the
a separate docket fee. remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) Test to determine whether a counterclaim (2) The dismissal of a cross-claim is
is compulsory or permissive: LOGICAL unappealable when the order dismissing
RELATIONSHIP TEST the complaint becomes final and
(a) Where conducting separate trials of executory (Ruiz, Jr. v. CA, 1993)
the respective claims would entail (3) A cross-claim is not allowed after
substantial duplication of effort and declaration of default of cross-claimant
time and involves many of the same (Tan v. Dimayuga, 1962) It would be
factual and legal issues. [Meliton v. CA tantamount to setting aside the order of
(1992)] default because then the cross-claimant
would re-obtain a standing in court as
(3) NOTE: If the counterclaim matures AFTER party litigant
the Answer, it is merely PERMISSIVE
Counter-Counterclaims and Counter-Cross-
Effect on Counterclaim when Complaint is Claims [Rule 6, Sec. 9]
Dismissed - Under Section 3, Rule 17, dismissal (1) Counter-Counterclaim - A claim asserted
of action due to plaintiff’s fault shall be against an original counter-claimant.
without prejudice to the defendant’s right to (2) Counter-Cross-claim - A claim filed
prosecute his counterclaim in the against an original cross-claimant.
same/separate action.
THIRD (FOURTH, ETC.) PARTY
CROSS-CLAIM COMPLAINTS [Rule 6, Sec. 11]
Definition - It is a claim that a defending party
Requisites: may, with leave of court, file against a person
(1) A claim by one party against a co-party; not a party to the action for contribution,
(2) It must arise out of the subject matter of indemnity, subrogation or any other relief, in
the complaint or of the counterclaim; respect of his opponent's claim.
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party. There could also be a 4th/etc.-party complaint
with the same purpose and function.
General Rule: A cross-claim is always
compulsory. A cross-claim not set up shall be 3rd Party
Cross-claim Counterclaim
barred. [Rule 9, Sec. 2] complaint
Against a
Exceptions: Permissive Cross-Claims Against a Against an person not a
(1) When it is outside the court’s jurisdiction; co-party opposing party party to the
(2) If the court cannot acquire jurisdiction action
over third parties whose presence is May arise out of
necessary for the adjudication of said or be necessarily
Must arise
cross-claim. In this case, the cross-claim is connected with
out of the
considered permissive. the transaction
transaction
(3) Cross claim that may mature or may be or the subject Must be in
that is the
acquired AFTER service of Answer matter of the respect of the
subject
opposing party’s opponent’s
matter of the
claim (plaintiff’s)
original
Effect on Cross-Claim when Complaint is (compulsory claim
action or of a
Dismissed - The dismissal of the complaint counterclaim), or
counterclaim
carries with it the dismissal of a cross-claim it may not
therein
which is purely defensive, but not a cross- (permissive
claim seeking an affirmative relief. [Torres v. counterclaim)
CA (1973)] No need for
No need for Leave of court
a leave of
leave of court is needed
court
PAGE 30
(3) WON the 3rd-party defendant may assert

3rd-party complaint Complaint in any defenses which the 3rd-party plaintiff
intervention has or may have to the plaintiff’s claim.
Brings into the action
a 3rd person who was Same Additional Rules
not originally a party (1) Leave of court to file a 3rd-party
Initiative is with the Initiative is with a non- complaint may be obtained by motion
person already a party party who seeks to under Rule 15.
to the action join the action (2) Summons on 3rd (4th/etc.) – party
defendant must be served for the court to
obtain jurisdiction over his person, since
he is not an original party.
3rd-party complain Counterclaim (3) Where the trial court has jurisdiction over
the main case, it also has jurisdiction over
Must be within the the 3rd-party complaint, regardless of the
Need not be within the
jurisdiction of the amount involved as a 3rd-party complaint
jurisdiction of the court
court trying the main is merely auxiliary to and is a continuation
trying the main case
case of the main action. [Republic v. Central
Need not Surety (1968)]
Diminishes/defeats
diminish/defeat the (4) A 3rd-party complaint is not proper in an
the recovery sought by
recovery sought by action for declaratory relief.
the opposing party
the opposing party
May exceed in COMPLAINT-IN-INTERVENTION
Cannot exceed the amount or be
amount stated in the different in kind from Pleadings-in-Intervention [Rule 19, Sec. 3]
original complaint that sought in the (1) Complaint-in-intervention – If intervenor
original complaint asserts a claim against either or all of the
original parties.
Basis of Third-Party Complaint - Under this (2) Answer-in-intervention – If intervenor
Rule, a person not party to an action may be unites with the defending party in
impleaded by the defendant either: resisting a claim against the latter.
Definition - INTERVENTION is a remedy by
(1) On allegation of liability to the latter which a third party, not originally impleaded in
(2) On the ground of direct liability to the a proceeding, becomes a litigant therein to
plaintiff; or enable him to protect or preserve a right or
(3) Both (1) and (2) interest which may be affected by such
proceeding.
Situation in (1) is covered by the phrase
“contribution, indemnity or subrogation”, Its purpose is "to settle in one action and by a
while (2) and (3) are subsumed under the single judgment the whole controversy
catch-all phrase (Samala v. Victor, 1989) (among) the persons involved." [First
Philippine Holdings v. Sandiganbayan (1996);
Tests to Determine Whether the 3rd-Party Rule 19]
Complaint is in Respect of Plaintiff’s Claim
[Capayas v. CFI, 1946] When Allowed - Intervention shall be allowed
(1) WON it arises out of the same transaction when a person has:
on which the plaintiff's claim is based, or (1) A legal interest in the matter in litigation;
although arising out of another/different (2) Or in the success of any of the parties;
transaction, is connected with the (3) Or an interest against the parties; and
plaintiff’s claim; (4) When he is so situated as to be adversely
(2) WON the 3rd-party defendant would be affected by a distribution or disposition of
liable to the plaintiff or to the defendant property in the custody of the court or of
for all/part of the plaintiff’s claim against an officer thereof. [First Philippine
the original defendant; Holdings v. Sandiganbayan (1996)]
PAGE 31
Not an Independent Action - Intervention is How to Intervene

not an independent action, but is ancillary and (1) With leave of court, the court shall
supplemental to an existing litigation. [First consider the two factors
Philippine Holdings v. Sandiganbayan (1996)] (2) Motion to intervene may be filed at any
(1) It is neither compulsory nor mandatory time before rendition of judgment by trial
but only optional and permissive. [Mabayo court
v. CA (2002)] (3) Copy of the pleadings-in-intervention
(2) The Court has full discretion in permitting shall be attached to the motion and
or disallowing intervention, which must be served on the original parties
exercised judiciously and only after
consideration of all the circumstances Time to Intervene: [Rule 19, Sec. 2]
obtaining in the case. [Mago v. CA (1999)] (1) General Rule: The motion to intervene
(3) It is not an absolute right as it can be must be filed at any time before the
secured only in accordance with the terms rendition of judgment by the trial court
of applicable statute or rule. [Office of (2) Exceptions:
Ombudsman v. Samaniego (2010)] (a) With respect to indispensable parties,
intervention may be allowed even on
Meaning of Legal Interest - Interest must be of appeal [Falcasantos v. Falcasantos]
a direct and immediate character so that the (b) When the intervenor is the Republic
intervenor will either gain or lose by the direct [Lim v. Pacquing]
legal operation of the judgment. The interest (c) Intervention may be allowed after
must be actual and material, a concern which judgment where necessary to protect
is more than mere curiosity, or academic or some interest which cannot otherwise
sentimental desire; it must not be indirect and be protected, and for the purpose of
contingent, indirect and remote, conjectural, preserving the intervenor’s right to
consequential or collateral. [Virra Mall Tenants appeal [Pinlac v. CA]
v. Virra Mall (2011)]
Remedy for Denial of Motion for Intervention
(1) The movant may file a motion for
Requisites for Valid Intervention reconsideration since the denial of a
motion for intervention is an interlocutory
(1) There must be a motion for intervention order.
filed before rendition of judgment by the (2) Alleging grave abuse of discretion,
trial court. movant can also file a certiorari case.
(2) Movant must show in his motion that he
has a: REPLY
(a) Legal interest in (1) the matter of The plaintiff’s response to the defendant's
litigation, (2) the success of either of answer. The function of which is to deny or
the parties in the action or (3) against allege facts in denial or in avoidance of new
both parties. matters alleged by way of defense in the
(b) That the movant is so situated as to answer and thereby join or make issue as to
be adversely affected by a distribution such new matters. [Rule 6, Sec. 10]
or other disposition of property in the Effect of Failure to Reply
custody of the court or an officer (1) General Rule - Filing a reply is merely
thereof optional. New facts that were alleged in
(c) That the intervention must not unduly the answer are deemed controverted
delay or prejudice the adjudication of should a party fail to reply thereto.
the rights of the original parties and (2) Exception – When a Reply is necessary
that the intervenor’s rights may not be (a) To set up affirmative defenses on the
fully protected in a separate counterclaim [Rosario v. Martinez]
proceeding. (b) Where the answer alleges the defense
of usury in which case a reply under
oath should be made; otherwise, the
allegation of usurious interest shall be
deemed admitted [Rule 8, Sec. 8; Sun
Bros. v. Caluntad]
PAGE 32
(c) Where the defense in the answer is (a) Is within the coverage of this Rule,
based on an actionable document, a exclusive of interest and costs;
reply under oath must be made; (b) Arises out of the same transaction or
otherwise, the genuineness and due event that is the subject matter of the
execution of the document shall be plaintiff’s claim;
deemed admitted. [Rule 8, Sec. 11; (c) Does not require for its adjudication
Toribio v. Bidin] the joinder of third parties; and
(d) Is not the subject of another pending
PLEADINGS ALLOWED IN SMALL action, the claim shall be filed as a
counterclaim in the Response;
CLAIM CASES AND CASES otherwise, the defendant shall be
COVERED BY THE RULES OF barred from suit on the counterclaim.
SUMMARY PROCEDURE
The defendant may also elect to file a
Under the Revised Rules on Summary counterclaim against the plaintiff that does
Procedure – The only pleadings allowed to be not arise out of the same transaction or
filed are: [Sec. 3] occurrence, provided that the amount and
(1) Complaints nature thereof are within the coverage of this
(2) Compulsory counterclaims and cross- Rule and the prescribed docket and other
claims pleaded in the Answer; and legal fees are paid.
(3) Answers thereto
NOTE: Courts decision shall be contained in
Prohibited Pleadings, Motions, or Petitions Form 13-SCC
[Sec. 19]
(1) Motion to dismiss the complaint or to Prohibited Pleadings and Motions in Small
quash the complaint or information Claims
except on the ground of lack of jurisdiction (1) Motion to dismiss the complaint except on
over the subject matter, or failure to the ground of lack of jurisdiction;
comply with required barangay (2) Motion for a bill of particulars;
conciliation proceedings; (3) Motion for new trial, or for reconsideration
(2) Motion for a bill of particulars; of a judgment, or for reopening of trial;
(3) Motion for new trial, or for reconsideration (4) Petition for relief from judgment;
of a judgment, or for opening of trial; (5) Motion for extension of time to file
(4) Petition for relief from judgment; pleadings, affidavits, or any other paper;
(5) Motion for extension of time to file (6) Memoranda;
pleadings, affidavits or any other paper; (7) Petition for certiorari, mandamus, or
(6) Petition for certiorari, mandamus, or prohibition against any interlocutory order
prohibition against any interlocutory order issued by the court;
issued by the court; (8) Motion to declare the defendant in
(7) Motion to declare the defendant in default;
default; (9) Dilatory motions for postponement;
(8) Dilatory motions for postponement; (10) Reply;
(9) Reply; (11) Third-party complaints; and
(10) Third party complaints; and (12) Interventions.
(11) Interventions.
PARTS OF A PLEADING [Rule 7, Sec.1- 3]
Forms Used Under the Rule of Procedure
under Small Claims Cases CAPTION
(1) Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed Caption - Court’s name, action’s title (i.e.
[Sec. 5] parties’ names) and docket number.
(2) Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10] Body - Pleading’s designation, allegations of
(3) Defendant may file counterclaim if he party's claims/defenses, relief prayed for and
possesses a claim against the plaintiff pleading’s date.
that
PAGE 33
(1) Paragraphs must be numbered, and each (7) Petition for annulment of judgments or
paragraph number must contain a single final orders and resolutions [Sec. 1, Rule
set of circumstances 47]
(2) Headings: if more than one cause of (8) Complaint for injunction [Sec. 4, Rule 58]
action, use "1st cause of action," 2nd (9) Application for appointment of receiver
cause of action," etc. [Sec. 1, Rule 59]
(3) Specify relief sought, but it may add a (10) Application for support pendente lite [Sec.
general prayer for such further/other relief 1, Rule 69]
as may be deemed just/equitable. (11) Petition for certiorari against judgments,
(4) Every pleading shall be dated. final orders, or resolutions of
constitutional commissions [Sec. 2, Rule
SIGNATURE AND ADDRESS 64]
(12) Petition for certiorari [Sec. 1, Rule 65]
Every pleading must be signed by the party or (13) Petition for prohibition [Sec. 2, Rule 65]
counsel representing him. (14) Petition for mandamus [Sec. 3, Rule 65]
(15) Petition for quo warranto [Sec. 1, Rule 66]
The address must be stated and such address (16) Complaint for expropriation [Sec. 1, Rule
must not be a post office box 67]
(17) Complaint for forcible entry or unlawful
Effect of Signature of Counsel in a Pleading - detainer [Sec. 4, Rule 70]
Signature of counsel constitutes a certificate (18) Petition for indirect contempt [Sec. 4, Rule
by him that: 71]
(1) He has read the pleading (19) Petition for appointment of a general
(2) That to the best of his knowledge, guardian [Sec. 2, Rule 93]
information, and belief there is good (20) Petition for leave to sell or encumber
ground to support it; and property of the ward by a guardian [Sec. 1,
(3) That it is not interposed for delay Rule 95]
(21) Petition for declaration of competency of a
Unsigned Pleadings ward [Sec. 1, Rule 97]
(1) No legal effect (22)Petition for habeas corpus [Sec. 3, Rule
(2) Court may, in its discretion, allow such 102]
remedy to be remedied if it appears that: (23)Petition for change of name [Sec. 2, Rule
(a) It was due to mere inadvertence; and 103]
(b) It was not intended for delay (24) Petition for voluntary judicial
dissolution of a corporation [Sec. 1, Rule
VERIFICATION AND CERTIFICATION 104]
AGAINST FORUM SHOPPING [Rule 7, Sec. 4] (25) Petition for cancellation or correction
of entries in the civil registry [Sec. 1, Rule
Verification - Pleadings need not be verified, 108]
unless otherwise provided by the law/rules
How a pleading is verified: By an affidavit
Verification is required in the following: (1) That the affiant read the pleading;
(1) Pleadings filed in the inferior courts in (2) That the allegations therein are true and
cases covered by the Rules on Summary correct of his personal knowledge or
Procedure are all required to be verified based on authentic documents.
(2) Petition for relief from judgment or order
[Sec. 3, Rule 38] Forum Shopping - The filing of multiple suits
(3) Petition for review from RTC to the CA in different courts, simultaneously or
[Sec. 1, Rule 42] successively, involving the same parties, to ask
(4) Petition for review from quasi-judicial the courts to rule on the same/related causes
agencies to the CA [Sec. 5, Rule 43] and/or to grant the same or substantially the
(5) Appeal by certiorari from the CTA to the same relief. [T'Boli Agro-Industrial
SC [Sec. 12, RA 9282 amending Sec. 19, RA Development, Inc. (TADI) v. Solidapsi (2002)]
1125] (Asked in the 2006 Bar Exam)
(6) Appeal by certiorari from CA to the SC
[Sec. 1, Rule 45]
PAGE 34
Test to Determine WON there is forum Requirement of a Corporation executing the

shopping: WON in the 2 or more cases verification/ CNFS - Only individuals vested
pending, there is identity of: with authority by a valid board resolution may
(1) Parties sign the certificate of non-forum shopping in
(2) Rights or causes of action behalf of a corporation. In addition, the Court
(3) Relief sought has required that proof of said authority must
be attached. Failure to provide a certificate of
Certificate of Non-Forum Shopping (CNFS) non-forum shopping is sufficient ground to
[Rule 7, Sec. 5] dismiss the petition. Likewise, the petition is
(1) The CNFS is to be executed by the subject to dismissal if a certification was
petitioner, not by the counsel. submitted unaccompanied by proof of the
(2) CNFS is required only for complaints or signatory’s authority. [PAL v. FASAP (2006)]
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.). ALLEGATIONS IN A PLEADING
(3) CNFS is not required in a compulsory [Rule 8]
counterclaim. A counterclaim is not an
initiatory pleading. [UST Hospital v. Surla MANNER OF MAKING ALLEGATIONS
(1998)]
(a) However, a certification is needed in In General – [Rule 8, Sec. 1]
permissive counterclaims [Korea (1) Every pleading shall contain a statement of
Exchange Bank v. Gonzales] the ultimate facts on which the party
(4) The lack of certification against forum pleading relies for his claim or defense
shopping is not curable by mere (a) In a methodical and logical form
amendment of a complaint, but shall be a (b) A plain, concise and direct statement
cause for the dismissal of the case without (c) Statement of mere evidentiary facts
prejudice. The general rule is that omitted
subsequent compliance with the
requirements will not excuse a party's (2) If a defense relief is based on law, state in a
failure to comply in the first instance. clear and concise manner:
[Ramirez v. Mar Fishing (2012)] (a) Pertinent provisions of the law
(b) Applicability of the law to him
Who Executes the Certification - Certification
against forum shopping ordained by the Rules Facts that must be averred PARTICULARLY -
is to be executed by the petitioner, not his Circumstances showing fraud/mistake in all
counsel. The petitioner is in the best position averments of fraud/mistake [Rule 8, Sec. 5]
to know whether he filed or caused the filing
of a petition in the case. Facts that may be averred GENERALLY:
(1) Conditions precedent; but there must still
Certification by counsel is defective be an allegation that the specific condition
certification. In Santos v. CA, the Court held precedent has been complied with,
that a special power of attorney was otherwise it will be dismissed for lack of
insufficient. cause of action; [Rule 8, Sec. 3]
(2) Capacity to sue or be sued;
Effect of Submission of False CNFS or Non- (3) Capacity to sue or be sued in a
Submission: representative capacity; [Rule 8, Sec. 4]
(1) Indirect contempt (4) Legal existence of an organization; A party
(2) Administrative and criminal actions desiring to raise an issue as to the legal
existence or capacity of any party to sue or
Effect of Willful and Deliberate Forum be sued in a representative capacity shall
Shopping do so by specific denial which shall include
(1) Ground for summary dismissal of the case supporting particulars within the pleader's
with prejudice; knowledge. [Rule 8, Sec 4]
(2) Direct contempt and administrative (5) Malice/intent/knowledge or other
sanctions. condition of the mind; [Rule 8, Sec. 5]
NOTE: the CNFS is mandatory but NOT
jurisdictional.
PAGE 35
(6) Judgments of domestic/foreign courts, Judgment - In pleading a judgment or

tribunals, boards or officers (without need decision of a domestic or foreign court, judicial
to show jurisdiction); [Rule 8, Sec. 6] or quasi-judicial tribunal, or of a board or
(7) Official documents/acts. [Rule 8, Sec. 9] officer, it is sufficient to aver the judgment or
decision without setting forth matter showing
Condition Precedent – If the cause of action jurisdiction to render it. (Rule 8, Sec. 6)
depends upon a condition precedent, its
fulfillment or legal excuse for non-fulfillment PLEADING AN ACTIONABLE DOCUMENT
must be averred. [Rule 8, Sec. 7]
A general averment of the performance or Actionable Document - The written instrument

occurrence of all conditions precedent shall be upon which the action or defense is based.
sufficient [Rule 8, Sec. 3] Where a pleader relies upon a document, its
substance must be set out in the pleading
All valid conditions precedent to the either by its terms or by its legal effects
institution of a particular action, whether
prescribed by statute, fixed by agreement of Pleading the actionable document:
the parties, or implied by law must be (1) The substance of such instrument or
performed or complied with before document shall be set forth in the
commencing the action. Such fact must be pleading; and
pleaded. (2) The original or copy thereof shall be
attached to the pleading as an exhibit,
Failure to comply with a condition precedent which shall be deemed to be part of the
is a ground for a motion to dismiss [Rule 16, pleading; or
Sec. 1(j)] (3) Said copy may with like effect be set forth
in the pleading
Examples of Conditions Precedent:
A variance in the substance of the document
(1) Exhaustion of administrative remedies
set forth in the pleading and the document
(2) Investigation by a fiscal is a prerequisite to
annexed thereto does not warrant dismissal of
annulment of marriage when defendant
the action [Convets Inc. v. National Dev. Co.]
defaults [Tolentino v. Villanueva]
(3) No suit shall be filed or maintained How to Contest an Actionable Document [Rule
between members of the same family 8, Sec. 8]
unless it should appear that earnest efforts (1) By specific denial under oath; and
at compromise have been made but that (2) By setting forth what is claimed to be the
the same have failed. [Art. 222; Versoza v. facts
Versoza]
(4) Arbitration; Barangay Conciliation NOTE: The genuineness and due execution of
the document must be denied SPECIFICALLY
Capacity – What must be averred:  Due Execution - That the party whose
(1) Facts showing the capacity of a party to sue signature it bears admits that he voluntarily
or be sued; or signed it; or that it was signed by another for
(2) The authority to sue or be sued in a him with his authority
representative capacity;  Genuineness - That the party whose
(3) Or the legal existence of an organized signature it bears admits that at the time it
association of persons that is made a party was signed it was in words and figures
[Rule 8, Sec. 4] exactly as set out; and that the formalities,
such as swearing and acknowledgement, or
Fraud, Mistake, Malice, Intent, Knowledge and revenue stamps which are required by law
Other Condition of the Mind, Judgments, are waived by him
official documents, or acts - Circumstances Failure to Deny Under Oath the Actionable
constituting fraud or mistake must be stated Document:
with particularity while malice, intent, (1) The genuineness and due execution is
knowledge or other condition of the mind of a deemed admitted
person may be averred generally [Rule 8, Sec. (2) The document need not be formally
5] offered in evidence
PAGE 36
SPECIFIC DENIALS [Rule 8, Sec. 10] EFFECT OF FAILURE TO PLEAD

[Rule 9]
The purpose of requiring the defendant to
make a specific denial is to make him disclose FAILURE TO PLEAS DEFENSES AND
the matters alleged in the complaint which he OBJECTIONS
sincerely intends to disprove at the trial,
together with matters which he relies upon to General Rule: Defenses and objections not
support the denial [Herrera]. pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule)
Modes of Denial:
(1) Specific Absolute Denial - Defendant Exceptions:
must specify each material allegation of (1) Lack of jurisdiction over the subject
fact the truth of which he does not admit matter;
(a) Whenever applicable, he shall set (2) Litis pendentia between same parties for
forth the substance of the matters the same cause
which he will rely upon to support the (3) Res judicata
denial (4) Action barred by statute of limitations.
FAILURE TO PLEAD COMPULSORY

(2) Partial Specific Denial - If pleader decides COUNTERCLAIM AND CROSS-CLAIM
to deny only a part or a qualification of an
averment:
General Rule: A compulsory counterclaim not
(a) He shall specify so much of it as is true
set up is considered barred. [Rule 9, Sec. 2]
and material
(b) He shall deny the remainder
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
(3) Disavowal of Knowledge - If defendant is
counterclaim, with leave of court, may be set
without knowledge or information
up by amendment before judgment. [Rule 11,
sufficient to form a belief as to the truth of
Sec. 10]
a material averment made in the
complaint:
For Cross-Claims: A cross-claim is always
(a) He shall so state
compulsory. A cross-claim not set up shall be
(b) This shall have the effect of a denial
barred. [Rule 9, Sec. 2]
Effect of Failure to make Specific Denials:
(1) General Rule: Allegations not specifically DEFAULT [Rule 9, Sec. 3]
denied are deemed admitted [Rule 8, Sec.
11] Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
(2) Exceptions: Averments not deemed appear nor his failure to present evidence
admitted even if not specifically denied
(a) Allegations as to the amount of Dual stages of default:
unliquidated damages; (1) Declaration of Order of Default – when
(b) Allegations immaterial to the cause of defendant fails to answer within the time
action specified in the rules, the court shall, upon
(c) Allegations of merely evidentiary or motion of the plaintiff and proof of such
immaterial facts may be expunged from failure, declare defendant in default
the pleading or may be stricken out on
motion. [Rule 8, Sec. 12] (2) Rendition of Judgment by Default –
(d) Conclusion of law. thereafter, on the basis of the allegation of
the complaint or after receiving plaintiff’s
When a specific denial requires an OATH – evidence, the court shall render judgment
When the genuineness and due execution of granting him such relief as the complaint
an actionable document is contested or and the facts proven may warrant
denied, the specific denial must be under
oath. [Rule 8, Sec. 8]
PAGE 37
Order of default Judgment by default (4) Defendant is still entitled to notices of

Issued by the court on subsequent proceedings
Rendered by the court
plaintiff’s motion, for (a) A defendant declared in default
following a default
failure of the cannot take part in the trial, but he
order or after it
defendant to file his cannot be disqualified from testifying
received ex parte
responsive pleading as a witness in favor of non-defaulting
plaintiff’s evidence
seasonably defendants. [Cavili v. Florendo (1987)]
Interlocutory Final (b) A party in default is entitled to notice
-Not appealable – Appealable of:
(i) Motion to declare him in default;
When a Declaration of Default is Proper: (ii) Order declaring him in default;
There is only one instance when a party (iii) Subsequent proceedings;
defendant can properly be declared in default (iv) Service of final orders and
and that is when he fails to file his answer judgments.
within the reglementary period, or within such
extended time as he is allowed by the court, (5) A defending party declared in default
under Sec. 1, Rule 18 retains the right to appeal from the
judgment by default. However, the
grounds that may be raised in such an
Elements of a Valid Order of Default appeal are restricted to any of the
(1) The court must have validly acquired following:
jurisdiction over the person of the (a) The failure of the plaintiff to prove the
defendant either by service of summons or material allegations of the complaint;
voluntary appearance (b) The decision is contrary to law; and
(2) The defendant failed to file his answer (c) The amount of judgment is excessive
within the time allowed therefor or different in kind from that prayed
(3) There must be a motion to declare the for. [Ortero v. Tan (2012)]
defendant in default with notice to the
latter Relief from an Order of Default [Lina v. CA]
(4) There must be notice to the defendant by (1) The defendant in default may file a
serving upon him a copy of such motion motion, under oath, to set aside the order
(5) There must be proof of such failure to of default
answer  At any time after discovery thereof (from
(6) There must be a hearing to declare Notice) and before judgment,
defendant in default
(2) If the judgment has already been
Effect of Order of Default: rendered, he may file for new trial under
(1) The court shall proceed to render Sec. 1 (a) Rule 37
judgment granting the claimant such  When the defendant discovered the
relief as his pleading may warrant; or in its default, but before the same has
discretion become final and executory
(2) Shall require the claimant to submit (3) If defendant discovered the default after
evidence; judgment had become final and
executory, he may file a petition for relief
(3) Loss of standing in court of the defaulting under Sec. 2, Rule 38
party – meaning he cannot appear
therein, adduce evidence and be heard (4) He may also appeal from the judgment
nor take part in the trial 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
PAGE 38
Partial Default - When the complaint states a

common cause of action against several
defendants some of whom answers and some
of them do not, the court should declare
defaulting defendants in default, and proceed
to trial on answers of others
If the defense is personal to the one who

answered, it will not benefit those who did not
answer.
Extent of Relief to be Awarded

(1) A judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for nor
award unliquidated damages
(2) If the claim is not proved, the case should
be dismissed
(3) As held in Datu Samad Mangelen v. CA
(1992):
(a) In a judgment based on evidence
presented ex parte, judgment should
not exceed the amount or be different
in kind from that prayed for.
(b) On the other hand, in a judgment

where an answer was filed but
defendant did not appear at the
hearing, the award may exceed the
amount or be different in kind from
that prayed for.
Actions Where Default is NOT allowed:

(1) An action for annulment or declaration of
nullity of marriage
(2) For legal separation
(3) Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is required
to be filed
(4) Summary procedure
PAGE 39
DEFAULT IN ORDINARY PROCEDURE
After the lapse of time to file an If motion denied:

answer, the plaintiff may move Defendant allowed to file an
to declare the defendant in answer
default
If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte
Before judgment by default is

rendered, defendant may:
(1) Move to set aside order of Court maintains order of
default upon showing of FAME default
and that he has a meritorious
defense;
(2) Avail of Rule 65 in proper
cases
Court sets aside order of

default and defendant is
allowed to file an answer
Presentation of plaintiff’s
evidence ex-parte
Case set for pre-trial
If plaintiff proves his If plaintiff fails proves his

allegations: allegations:
Judgment by default Case is dismissed
PAGE 40
FILING AND SERVICE OF (3) Further modification by Heirs of Hinog v.

PLEADINGS Melicor (2005)
(a) Fees as lien
PAYMENT OF DOCKET FEES (b) Where the trial court acquires
As a rule, the court acquires jurisdiction over jurisdiction over a claim by the filing of
the case only upon payment of prescribed fees the pleading and the payment of the
prescribed filing fee, BUT
General rule: Without payment, case is SUBSEQUENTLY, the judgment
considered not filed. Payment of docket fees is awards a claim not specified in the
mandatory and jurisdictional. pleading, or cannot then be
estimated, or a claim left for
It is not simply the filing of the complaint or determination by the court, then the
appropriate initiatory pleading but the additional filing fee shall constitute a
payment of the prescribed docket fee, that lien on the judgment
vests a trial court with jurisdiction over the
subject matter or nature of the action [Proton (4) Exception to the Sun Insurance doctrine:
Pilipinas v. Banque National de Paris (2005)] Gochan v. Gochan
(a) The Sun Insurance rule allowing
Effect of Failure to Pay Docket Fees at Filing payment of deficiency does not apply
(1) The Manchester Rule: Manchester v. CA where plaintiff never demonstrated
(1987) any willingness to abide by the rules
(a) Automatic Dismissal to pay the docket fee but stubbornly
(b) Any defect in the original pleading insisted that the case filed was one for
resulting in underpayment of the specific performance and damages.
docket fees cannot be cured by
amendment, such as by the reduction FILING VERSUS SERVICE OF PLEADINGS
of the claim as, for all legal purposes, Filing - The act of presenting the pleading or
there is no original complaint over other paper to the clerk of court. [Rule 13, Sec.
which the court has acquired 2]
jurisdiction
Service - The act of providing a party or his
(2) Relaxation of the Manchester Rule by Sun counsel with a copy of the pleading or paper
Insurance v. Asuncion (1989) concerned. [Rule 13, Sec. 2]
(a) NOT automatic dismissal
(b) Court may allow payment of fees Papers required to be filed and served: [Rule 13,
within reasonable period of time. Note Sec. 4]
that payment should always be within (1) Pleading subsequent to the complaint;
the prescriptive period of the action (2) Appearance;
filed. (3) Written Motion;
(4) Notice;
(5) Order;
(6) Judgment;
(7) Demand;
(8) Offer of Judgment;
(9) Resolution;
(10) Similar papers.
PAGE 41
PERIODS OF FILING OF PLEADINGS NOTE: Upon motion and on such terms as

Period may be just, the court may extend the time to
Pleading Period
counted from plead provided in these Rules. The court may
Service of also, upon like terms, allow an answer or other
summons, pleading to be filed after the time fixed by
unless a these Rules. [Rule 11, Sec. 11]
Within 15 days different
period is fixed MANNER OF FILING
by the court As per Rule 13, Sec. 3:
[Rule 11, Sec. 1] (1) Personally
Within 30 days if (a) By By personally presenting the
the defendant is original to the clerk of court.
a foreign private
(b) The pleading is deemed filed upon the
juridical entity Receipt of
Answer to the
and service of summons
receipt of the same by the clerk of
Complaint court who shall endorse on it the date
summons is [Rule 11, Sec. 2]
made on and hour of filing.
government (c) If a party avails of a private carrier, the
official date of the court’s actual receipt of
At least 60 days the pleading (not the date of delivery
In case of non- to the private carrier) is deemed to be
Service of the date of the filing of that pleading.
resident
extrajudicial [Benguet Electric Cooperative v. NLRC
defendant on
summons [Sec. (1992)]
whom
15, Rule 14]
extrajudicial
service is made (2) By Registered Mail
Answer to Within 15 days Service of a (a) Filing by mail should be through the
AMENDED (if amendment copy of the registry service (i.e. by depositing the
Complaint was a matter of amended pleading in the post office).
(amended right) complaint (b) The pleading is deemed filed on the
counterclaim, date it was deposited with the post
cross-claim, Within 10 days Notice of the office.
3rd party order
(if amendment
complaint, admitting the
was not a Filing a pleading by facsimile is not
complaint in matter of right) same [Rule 11,
Sec. 3] sanctioned. But fax was allowed in an
intervention) extradition case [Justice Cuevas v. Juan
Answer to
Antonio Munoz]
Counterclaim From service
Within 10 days
or Cross- [Rule 11, Sec. 4]
Claim
MODES OF SERVICE
Answer to Same rule as
third (4th, etc)- Within 15 days answer to the Personal Service [Rule 13, Sec. 6]
party complaint (1) Delivering personally a copy to the party,
complaint [Rule 11, Sec. 5] who is not represented by a counsel, or to
From service his counsel; or
of the pleading (2) Leaving a copy in counsel’s office with his
Reply Within 10 days clerk or with a person having charge
responded to
[Rule 11, Sec. 6] thereof; or
From notice of (3) Leaving the copy between 8am and 6pm
the order at the party’s or counsel’s residence, if
Answer to admitting the known, with a person of sufficient age and
supplemental Within 10 days same, unless a discretion then residing thereon – if not
complaint different person is found in his office, or if his office
period is fixed is unknown, or if he has no office
by the court
PAGE 42
Service by Mail [Rule 13, Sec. 7] PRIORITIES IN MODES OF SERVICE AND

(1) Ordinary Mail - it does not constitute filing FILING
until the papers are actually delivered into General rule: Personal filing and service is
the custody of clerk or judge preferred. [Rule 13, Sec. 11]
(a) Service may be done by ordinary mail
if no registry service is available in the Resort to other modes of filing and service
locality of either sender or addressee must be accompanied by an explanation why
the service/filing was not done personally. If
(2) Registered Mail - The date of mailing is there is no written explanation, the paper is
the date of filing considered not filed.
(a) Date of filing is determinable from 2
sources: Exception: Papers emanating from the court.
(i) From the post office stamp on the
envelope WHEN SERVICE IS DEEMED COMPLETE
(ii) From the registry receipt
Completeness of
Proof of service
(b) It is done by depositing in the post service (Rule 13 Sec.
(Rule 13 Sec. 13)
office: 10)
(i) In a sealed envelope Personal service
(ii) Plainly addressed to the party or Written admission of
his counsel the party served, OR
(a) At his office if known Official return of the
(b) Otherwise, at his residence if server OR
known Upon actual delivery Affidavit of the party
(iii) Postage fully pre-paid serving, with a full
(iv) With instructions to the statement of the
postmaster to return the mail to date/place/manner of
the sender after 10 days if service.
undelivered Service by ordinary mail
Affidavit of the person
Substituted Service [Rule 13, Sec. 8] 10 days after mailing,
mailing of facts
(1) Done by delivery of the copy to the clerk of unless otherwise
showing compliance
court with proof of failure of both personal provided by the court
with Sec. 7 of Rule 13.
and service by mail Service by registered mail
(2) Proper only when: Affidavit of the person
(a) Service cannot be made personally or Whichever is earlier:
mailing of facts
by mail showing compliance
(b) Office and place of residence of the Actual receipt by the
with Sec. 7 of Rule 13
party of his counsel being unknown addressee
(3) Service is complete at the time of such OR
AND
delivery 5 days after the
addressee received
Registry receipt issued
SERVICE OF JUDGMENTS, FINAL ORDERS, 1st postmaster's
by the post office
OR RESOLUTIONS [Rule 13, Sec. 9] notice (Constructive)
Service is done either:
(1) Personally Substituted Service
(2) By registered mail At the time of delivery of the copy to the clerk
(3) By publication ONLY IF: of court together with proof of failure of both
(a) Party is summoned by publication personal service and service by mail
AND
(b) He failed to appear in the action
NOTE: There is NO substituted service of

judgments and final orders
PAGE 43
Purpose of the rule on completeness of service

for service by registered mail: When pleading is
Proof of filing
To make sure that the party being served with deemed filed
the pleading, order or judgment is duly Personally
informed of the same so that such party can Upon receipt of the Written/stamped
take steps to protect the interests, i.e., enable pleading by the clerk of acknowledgment by the
court clerk of court
to file an appeal or apply for other appropriate
By registered mail
reliefs before the decision becomes final. Registry receipt, and
[MINTERBRO v,CA (2012)] affidavit of the person
who did the mailing with:
Service to the lawyer binds the party. But (a) Full statement of the
service to the party does not bind the lawyer, date/place of
unless ordered by the court in the following depositing the mail in
circumstances: the post office in a
(1) When it is doubtful who the attorney for On the date the sealed envelope
such party is; or pleading was deposited addressed to the
(2) When the lawyer cannot be located; or with the post office court
(3) When the party is directed to do
(b) Postage fully paid
something personally, as when he is (c) Instructions to the
ordered to show cause. [Retoni, Jr. v. CA] postmaster to return
the mail to the
Notice to the lawyer who appears to have sender after 10 days if
been unconscionably irresponsible cannot be undelivered
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the PROOF OF SERVICE [Rule 13, Sec. 13]
interests of his client by just alleging that he Mode Proof of service
just forgot every process of the court affecting A written admission of
the party served, OR
his clients, because he was so busy. [Bayog v.
The official return of the
Natino] server; OR
Personal Service Affidavit of the party
PROOF OF FILING serving containing a full
(1) Filing is proved by its existence in the statement of the date,
record of the case [Rule 13, Sec. 12] place, and manner of
service
(2) If it is not in the record: Affidavit of the person
mailing stating the facts
Service by ordinary mail
showing compliance with
Rule 13, Sec. 7
Affidavit of person
mailing containing facts
showing compliance with
Rule 13, Sec. 7, AND
Registry receipt issued by
mailing office; OR
The registry return card
which shall be filed
Service by registered
immediately upon its
mail
receipt by the sender, or
in lieu thereof of the
unclaimed letter
together with the
certified or sworn copy of
the notice given by the
postmaster to the
addressee.
PAGE 44
AMENDMENT AND (iii) Amendment of reply any time

SUPPLEMENTAL PLEADINGS within 10 days after it is served
(b) Formal amendment
HOW TO AMEND PLEADINGS [Rule 10,Sec.
1] AMENDMENTS BY LEAVE OF COURT
(1) Adding an allegation of a party; [Rule 10, Sec. 3]
(2) Adding the name of a party;
(3) Striking out an allegation of a party; When leave of court is necessary before
(4) Striking out the name of a party; amendment is allowed:
(5) Correcting a mistake in the name of a (1) All substantial amendments (unless it
party; and falls under Rule 10, Sec. 2 as a matter of
(6) Correcting a mistaken or inadequate right)
allegation or description in any other (2) When a responsive pleading has already
respect been served
A new copy of the entire pleading, Requisites:

incorporating the amendments, which shall (1) A motion for leave of court to amend
be indicated by appropriate marks, shall be pleading is filed
filed. [Rule 10, Sec. 7] (a) Amended pleading should be
attached to the motion [see Sec. 9,
Purpose: That the actual merits of the Rule 15]
controversy may speedily be determined, (2) Notice is given to the adverse party
without regard to technicalities, and in the (3) Parties are given opportunity to be heard
most expeditious and inexpensive manner.
Grounds for allowance of the amendment
As a general policy, liberality in allowing (1) If it appears to the court that the motion
amendments is greatest in the early stages of was made to delay the action, leave of
a law suit, decreases as it progresses and court is not given
changes at times to a strictness amounting to (2) There must be some reasonable grounds
a prohibition. This is further restricted by the justifying its exercise of discretion to allow
condition that the amendment should not amendment
prejudice the adverse party or place him at a
disadvantage. [Barfel Development v. CA, 1993] When amendment by leave of court may not
be allowed
Types of Amendments: (1) If the cause of action, defense or theory of
(1) Amendment as a matter of right the case is changed.
(2) Amendment as a matter of judicial (2) If amendment is intended to confer
discretion jurisdiction to the court.
(a) If the court has no jurisdiction in the
AMENDMENTS AS A MATTER OF RIGHT subject matter of the case, the
[Rule 10, Sec. 2] amendment of the complaint cannot
be allowed so as to confer jurisdiction
When amendment is allowed as a matter of on the court over the property. [PNB v.
right: Florendo (1992)]
(1) Once as a matter of course (3) If amendment is for curing a premature or
(a) A 2nd or subsequent amendment must non-existing cause of action.
now be with leave of court, not a (4) If amendment is for purposes of delay.
matter of right anymore
(2) Instances: FORMAL AMENDMENTS
(a) Substantial amendment – before (Rule 10, Sec. 4)
responsive pleading is filed
(i) Amendment of complaint before When an amendment is formal:
an answer is filed. (1) When there is a mere defect in the
(ii) Amendment of answer before a designation of the parties;
reply is filed or before the period (2) Other clearly clerical or typographical
for filing a reply expires errors
PAGE 45
How formal amendments are effected  But failure to amend does not affect the
(1) It may be summarily corrected by the result of the trial of those issues
court at any stage of the action
(2) A party may, by motion, call for the formal (2) When evidence IS objected to:
amendment  Objection on the ground that it is not
within the issues made by the pleadings
NOTE: The formal amendment must NOT  Court may allow the pleadings to be
cause prejudice to the adverse party amended and shall do so freely when
the presentation of the merits of the
AMENDMENTS TO CONFORM TO OR action will be subserved
AUTHORIZE PRESENTATION OF  As safeguard, the court may grant a
EVIDENCE [Rule 10, Sec. 5] continuance to enable the objecting
party to meet such evidence
Applicability of Sec. 5 - This is an instance
wherein the court acquires jurisdiction over SUPPLEMENTAL PLEADINGS
the issues even if the same are not alleged in Definition: One which sets forth transactions,
the original pleadings of the parties where the occurrences or events which have happened
trial of said issues is with the express or since the date of the pleading sought to be
implied consent of the parties supplemented. [Rule 10, Sec. 6]
What Sec. 5 contemplates: Purpose: To bring into the records new facts
(1) It allows a complaint which states no which will enlarge or change the kind of relief
cause of action to be cured either by: to which the plaintiff is entitled [Ada v. Baylon
(a) Evidence presented without objection (2012), citing Young v. Spouses Yu]
or
(b) In the event of an objection sustained A supplemental complaint/pleading supplies
by the court, by an amendment of the deficiencies in aid of an original pleading, not
complaint with leave of court to entirely substitute the latter.
(2) It also allows the admission of evidence: How Made: It is made upon motion of a party
(a) On a defense not raised in a motion or with reasonable notice and upon terms as are
answer if no objection is made just.
thereto;
(b) In the event of such objection, court Difference with Amended Pleading
may allow amendment of the answer
in order to raise said defense
Amendments Supplemental Pleadings
NOTE: Remember, however, that where the Reason for the Grounds for the
plaintiff has no valid cause of action at the amendment is supplemental pleading
time of the filing of the complaint, this defect available at time of arose after the 1st
cannot be cured or remedied by the the 1st pleading pleading was filed
acquisition or accrual of one while the action is Either as a matter of
pending right or a matter of Always a matter of
discretion discretion
Two Scenarios:
(1) When evidence is NOT objected to Merely supplements
 When issues not raised by pleadings are Supersedes the the original (i.e. Exists
tried by express or implied consent of original side by side with the
the parties, they shall be treated in all original pleading)
respected as if they had been raised in When an amended A supplemental
the pleadings pleading is filed, a pleading does not
new copy of the require the filing of a
 Such amendments of pleadings as may
entire pleading must new copy of the entire
be necessary to cause them to conform
be filed pleading
to the evidence and raise these issues
may be made upon motion of any party
at any time, even after judgment
PAGE 46
Limitations: Issuance of Summons - Upon the filing of the

(1) Claims or defenses which have matured complaint and the payment of legal fees, the
after the filing of the original pleadings clerk of court shall issue the corresponding
cannot be averred in a supplemental summons to the defendants. [Rule 14, Sec. 1]
pleading (it may be the subject of an
amendment) Contents of Summons [Rule 14, Sec. 2]
(2) Supplemental pleadings are not allowed (1) Summons shall be:
on separate and distinct causes of action (a) Directed to the defendant
(a) A supplemental pleading may raise a (b) Signed by clerk of court under seal
new cause of action as long as it has
some relation to the original cause of (2) Summons shall contain:
action set forth in the original (a) Name of the court and the names of
complaint. [Ada v. Baylon (2012)] the parties to the action
(3) The admission or non-admission of a (b) A direction that the defendant answer
supplemental pleading is not a matter of within the time fixed by the Rules
right but is discretionary on the court (c) A notice that unless the defendant so
answers, plaintiff will take judgment
EFFECT OF AMENDED PLEADING [Rule 10, by default and may be granted the
Sec. 8] relief applied for
(1) An amended pleading supersedes the
pleading that it amends (3) The following shall be attached to the
(2) Admissions in the superseded pleading original and each copy of the summons:
can still be received in evidence against (a) A copy of the complaint
the pleader (b) Order for appointment of guardian ad
(3) Claims or defenses alleged therein but not litem (if any)
incorporated or reiterated in the amended
pleading are deemed waived Effect of Invalid Summons
(1) The trial court does not acquire
SUMMONS jurisdiction and renders null and void all
subsequent proceedings and issuances
Definition: A coercive force issued by the court [Syjuco v. Castro]
to acquire jurisdiction over the person of the (2) Any judgment without service of
defendant summons in the absence of a valid waiver
is null and void [Filmerco Commercial Co.
NATURE AND PURPOSE OF SUMMONS IN v. IAC]
RELATION TO ACTIONS IN PERSONAM, IN
REM, AND QUASI IN REM VOLUNTARY APPEARANCE
Purposes of Summons Any form of appearance in court, by the

(1) For Actions in Personam defendant, by his agent authorized to do so, or
(a) To acquire jurisdiction over the person by attorney, is equivalent to service except
of the defendant in a civil case; where such appearance is precisely to object
(b) To give notice to the defendant that the jurisdiction of the court over the person of
an action has been commenced the defendant [Carballo v. Encarnacion]
against him.
General Rule: Defendant's voluntary
(2) For Actions in Rem and Quasi In Rem appearance in the action shall be equivalent
(a) Not to acquire jurisdiction over the to service of summons;
defendant but mainly to satisfy the
constitutional requirement of due Exception: Special appearance to file a MTD.
process
(b) Jurisdiction over the defendant is not BUT inclusion in the MTD of grounds other
required and the court acquires than LOJ over the defendant’s person, is not
jurisdiction over an action as long as it deemed a voluntary appearance.
acquires jurisdiction over the res
PAGE 47
Any mode of appearance in court by a therefrom, stating the reasons for the failure
defendant or his lawyer is equivalent to service of service
of summons, absent any indication that the
appearance of counsel for petitioner is MODES OF SERVICE OF SUMMONS
precisely to protest the jurisdiction of the court
over the person of the defendant. [Delos Modes:
Santos v. Montesa (1993)] (1) Personal Service [Rule 14, Sec. 6]
(2) Substituted Service [Rule 14, Sec. 7]
WHO MAY SERVE SUMMONS (3) Service by Publication [Rule 14, Sec. 14, 15,
16]
Who May Serve Summons [Rule 14, Sec. 3]
(1) The sheriff NOTE: Summons cannot be served by mail
(2) His deputy  Where service is made by publication, a copy
(3) Other proper court officer of the summons and order of the court shall
(4) Any suitable person authorized by the be sent by registered mail to last known
court (for justifiable reasons) address of defendant [Sec. 15]
o Resort to registered mail is only
NOTE: The enumeration in Sec. 3 of the complementary to the service of summons
persons who may validly serve summons by publication
is EXCLUSIVE [Herrera] o But it does not mean that service by
registered mail alone would suffice
RETURN OF SUMMONS
PERSONAL SERVICE OF SUMMONS [Rule
Return When Service has been Completed 14, Sec. 6]
[Rule 14, Sec. 4]
(1) The server shall serve a copy of the return How Done:
to the plaintiff’s counsel (1) By handing a copy of summons to him; or
(a) Within 5 days therefrom (2) If he refuses to receive it, by tendering it to
(b) Personally or by registered mail him
(2) The server shall return the summons
(a) To the clerk who issue it
(b) Accompanied by proof of service Personal Service of
Personal Service of
Summons on
It is required to be given to the plaintiff’s Pleadings
Defendant
counsel in order to enable him: Rule 13, Sec. 6 Rule 14, Sec. 6
(1) To move for a default order should the Personal service
defendant fail to answer on time, or includes:
(2) In case of non-service, so that alias (1) Service on the
summons may be sought party or his
counsel; or
In either of the 2 cases, server must serve (2) By leaving a copy
a copy of the return on plaintiff’s counsel with the clerk or
within 5 days from completion or failure of person having
service Service is only made
charge of his
on defendant himself
office; or
ALIAS SUMMONS [Rule 14, Sec. 5] (3) Leaving it with a
person of
Upon plaintiff’s demand, the clerk may issue sufficient age and
an alias summons if either: discretion at the
(1) Summons is returned without being party’s or
served on any/all of the defendants. counsel’s
(2) Summons was lost. residence
The server shall also serve a copy of the return

on the plaintiff's counsel within 5 days
PAGE 48
SUBSTITUTED SERVICE OF SUMMONS (3) “To be in charge” means to have care an

[Rule 14, Sec. 7] custody of, under control of, or entrusted
to the management or direction of
It is only when the defendant cannot be served [Sandoval II v. House of Representatives]
personally within a reasonable time and for
justifiable reasons that a substituted service Proof of Substituted Service MUST:
may be made. (1) Indicate the impossibility of service of
summons within a reasonable time;
How Done: (2) Specify the efforts exerted to locate the
(1) By leaving copies of the summons at the defendant; and
defendant’s residence with some person (3) State that the summons was served upon
of suitable age and discretion residing a person of sufficient age and discretion
therein; or who is residing in the address, or who is in
(2) By leaving the copies at defendant’s office charge of the office or regular place of
or regular place of business with some business, of the defendant.
competent person in charge thereof (4) It is likewise required that the pertinent
facts proving these circumstances be
Necessary Requisite: For substituted service of stated in the proof of service or in the
summons to be valid, it is necessary to officer’s return. [Sps. Tiu v. Villar (2012)]
establish the following:
(1) The impossibility of the personal service of CONSTRUCTIVE SERVICE (BY
summons within a reasonable time PUBLICATION)
(2) The efforts exerted to locate the person to
be served; and Three Situations were Summons by Publication
(3) Service upon: may be allowed under Rule 14 [Baltazar v. CA]
(a) A person of sufficient age and (1) First is the situation of an Unknown
discretion residing in the same place Defendant – governed by Sec. 14
as defendant or (2) Second is the situation were
(b) Some competent person in charge of Extraterritorial service is proper –
his office or regular place of business governed by Sec. 15
[Spouses Ventura v. CA, 1987] (3) Third, is that of a resident who is
temporarily out of the Philippines –
Meaning of RESIDENCE governed by Sec. 16
(1) For a substituted service to be valid,
summons served at the defendant’s The Rule on Unknown Defendants [Rule 14,
residence must be served at his residence Sec. 14]
AT THE TIME OF SERVICE; not his former If a defendant is a resident and plaintiff
place of residence cannot determine the correct address of
(2) “dwelling house” or “residence” refers to respondent, petitioner only needs to show
the dwelling house at the time of service that:
(3) They refer to the place where the person (1) Respondent’s address is unknown and
named in the summons is living at the (2) Cannot be ascertained by diligent inquiry
time of when the service is made, even
though he may be temporarily out of the Upon compliance with this requirement, it
country at that time [Venturanza v. CA] can validly serve summons by publication
in a newspaper of general circulation.
Meaning of Defendant’s Office or Regular [United Coconut Planters Bank v. Ongpin]
Place of Business
(1) “Office” or “regular place of business” NOTE: Under this Section, summons by
refers to the office or place of business of publication can be made in ANY action
defendant at the time of service (personam, in rem, quasi in rem) unlike in cases
(2) The rule specifically designates the of Non-Resident Defendants.
persons to whom copies of the process
should be left
PAGE 49
The Rule on Non-Resident Defendants (Extra- (b) Extra-territorial service is also allowed
territorial Service); [Rule 14, Sec. 15] (also by leave of court) according to
Sec. 16
Extra-territorial service is allowed IF:
(1) The defendant NOTE: In other words, a resident defendant in
(a) Does not reside in the Philippines an action personam, who cannot be
(b) And is not found in the Philippines personally served with summons, may be
(2) And the action (in rem and quasi in rem) summoned either by:
(a) Affects the personal status of the (1) Substituted service in accordance with
plaintiff, or Sec. 7, Rule 14
(b) Relates to or the subject of which is (2) Or by service by publication under Sec. 16,
property within the Philippines Rule 14
(1) In which defendant has or claims
a lien or interest, actual or When the action is in rem or quasi in rem,
contingent; or extra-territorial service may be effected
(2) In which the relief demanded provided that Sec. 16 requirements are met.
consists, wholly or in part, in
excluding the defendant from any SERVICE UPON PRISONERS AND MINORS
interest therein, or Service of Summons on Different Entities:
(3) Property of defendant has been
attached within the Philippines Defendant Service of Summons
Entity
Upon any or all the
NOTE: Always remember that extra- without
defendants being sued under
territorial service, when allowed, covers juridical
common name; or person in
only action in rem and quasi in rem. personality
charge of the office
[Sec. 8]
How Extra-territorial service is done: In case of minors: by serving
(1) Always by leave of court upon:
(2) Modes: (1) The minor, regardless of
(a) Personal service as under Sec. 6, Rule age, AND
14 (2) Upon his legal guardian,
(b) Publication in a newspaper of general or also upon either of his
circulation in such places and for such parents
time as court may order In case of incompetents: by
(1) A copy of the summons and order Minors and serving on:
of the court shall be sent by incompetents (1) Him personally AND
registered mail to the last known [Sec. 10] (2) Upon his legal guardian,
address of defendant but not upon his parents,
(c) In any other manner the court may unless they are his legal
deem sufficient guardians
In any event: if the minor or
NOTE: Any order granting such leave shall incompetent has no legal
specify a reasonable time within which guardian, the plaintiff must
defendant must answer BUT the time shall obtain the appointment of a
not be less than 60 days after notice guardian ad litem for him
Serve to either: (Exclusive
The Rule on Residents Temporarily Outside of enumeration)
the Philippines [Rule 14, Sec. 16] Domestic (1) The president,
How done: private (2) Managing partner,
(1) Always by leave of court juridical (3) General manager,
(2) Modes: entity [Sec. 11] (4) Corporate secretary,
(a) Where the defendant is residing in the (5) Treasurer, or
Philippines, jurisdiction over his (6) In- house counsel
person may be acquired by
substituted service of summons under
Sec. 7
PAGE 50
Defendant Service of Summons Effect of Defect of Proof of Service:

Service may be done on: (1) Where sheriff’s return is defective,
(1) The resident agent; presumption of regularity in the
Foreign (2) If no resident agent; performance of official functions will not
private (a) The government lie
juridical official designated by (2) Defective return is insufficient and
entity [Sec. law; or incompetent to prove that summons was
12] (b) Any officer or agent of indeed served
the corporation within (3) Party alleging valid summons will now
the Philippines prove that summons was indeed served
In case defendant is the (4) If there is no valid summons, court did not
Republic, by serving upon the acquire jurisdiction which renders null and
Solicitor General void all subsequent proceedings and
Public In case of a province, city or issuances
corporations municipality, or like public
[Sec. 13] corporations, by serving on its MOTIONS
executive head or on such
other officer or officers as the MOTIONS IN GENERAL
law or the court may direct
DEFINITION OF A MOTION
PROOF OF SERVICE A motion is an application for relief other than
by a pleading. [1a]
The proof of service of summons [Rule 14, Sec.
18]: MOTIONS VERSUS PLEADINGS
(1) Shall be made in writing
(2) It shall: Motion Pleading
(a) Set forth the manner, place, date of
Contains allegations Contains allegations
service
of facts of the ultimate facts
(b) Specify any papers which may have
Prays for a relief Prays for a relief
been served with the process and the
Grant of the relief
name of the person who received the Grant of relief
does not extinguish
same extinguishes the
the action
(c) Shall be sworn to when made by a action (final relief)
(interlocutory relief)
person, other than the sheriff or his
deputy Generally in writing
(with some Always in writing
If service has been made by publication, service exceptions)
may be proved by: [Rule 14, Sec. 19]
(1) The affidavit of the printer, his foreman, or General Rule: A motion cannot pray for
principal clerk; or of the editor, business or judgment
advertising manager
Exceptions:
 Copy of the publication shall be
(1) Motion for judgment on the pleadings.
attached
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to
(2) AND an affidavit showing:
evidence.
(a) The deposit of a copy of the
summons; and
CONTENTS AND FORM OF MOTIONS
(b) Order of publication in the post office,
Contents [Rule 15, Sec. 3]
postage prepaid, directed to
(1) Relief sought to be obtained
defendant by registered mail to his
(2) Grounds upon which it is based
last known address
(3) Accompanied by supporting affidavits and
other papers if:
(a) Required by the Rules, or
(b) Necessary to prove facts alleged
therein
PAGE 51
Form [Rule 15, Sec. 2] (4) Motion and notice of hearing must be
General Rule: In writing. served at least 3 days before the date of
hearing; [Rule 15, Sec. 4]
Exception: Oral motions:
(1) Motions for continuance made in the Purpose: To prevent surprise upon the
presence of the adverse party or those adverse party and to enable the latter to
made in the course of the hearing or trial study and meet the arguments of the
(2) Those made in open court even in the motion.
absence of the adverse party or those
made in the course of a hearing or trial Exceptions:
(a) Ex parte motions;
NOTICE OF HEARING AND HEARING OF (b) Urgent motions;
MOTIONS (c) Motions agreed upon by the parties to
be heard on shorter notice, or jointly
Requisites of motions (not made in open court submitted by the parties;
or in the course of hearing/trial) (d) Motions for summary judgment which
must be served at least 10 days before
(1) It must be in writing; [Rule 15, Sec. 2] its hearing.
Exception: Oral motions (5) Proof of Service
(2) Hearing on the motion set by the Proof of Service [Rule 15, Sec. 6]
applicant
General Rule: A written motion set for hearing
Motion Day [Rule 15, Sec. 7] - Except for will not be acted upon by the court if there is
urgent motions, motions are scheduled no proof of service thereof.
for hearing:
(a) On Friday afternoons; What may be proof:
(b) Afternoon of the next working day, if (1) If by registered mail: Affidavit or registry
Friday is a non-working day. receipt or postmark on envelope or
return card, with an explanation.
(3) Notice of hearing shall be addressed to all (2) If by personal service: Affidavit or
parties, and shall specify the time and acknowledgment of receipt by the other
date of the hearing which shall not be party.
later than 10 days from the filing of the
motion. [Rule 15, Sec. 5] Exceptions:
(1) If the motion is one which the court can
Notice must be addressed to the counsels. hear ex parte.
A notice of hearing addressed to the clerk (2) If the court is satisfied that the rights of
of court, and not to the parties, is no the adverse parties are not affected by the
notice at all. Accordingly, a motion that motion.
does not contain a notice of hearing to the (3) If the party is in default because such a
adverse party is nothing but a mere scrap party is not entitled to notice.
of paper, as if it were not filed; hence, it
did not suspend the running of the period OMNIBUS MOTION RULE
to appeal. [Provident International
Resources v. CA (1996)] Definition: A motion attacking a pleading/
order/ judgment/ proceeding must include all
 Effect of Want of Notice: A motion that objections then available. All objections not
does not contain a notice of hearing is included in the motion are deemed waived.
but a mere scrap of paper. A court has
no jurisdiction to issue an order in Purpose: To require the movant to raise all
consideration of a motion for correction available exceptions for relief during a single
of judgment which does not have a opportunity so that multiple and piece-meal
proper notice of hearing [Fajardo v. CA] objections may be avoided
PAGE 52
Exception: When the court’s jurisdiction is in proper mode of discovery. [Galeon v. Galeon
issue: (1973)]
(1) Lack of jurisdiction over subject-matter;
(2) Litis pendentia; Purpose: to define/ clarify/ particularize/
(3) Res judicata; limit/ circumscribe the issues in the case to
(4) Prescription. expedite the trial and assist the court.
 The only question to be resolved in a motion
LITIGATED AND EX PARTE MOTIONS for a Bill of Particulars is WON the
allegations in the complaint are averred
Kinds of Motion with sufficient definiteness/ particularity to
(1) Motion Ex Parte - Made without enable the movant to properly prepare his
notification to the other party because the responsive pleading and to prepare for trial.
question generally presented is not [Tantuico, Jr. v. Republic (1991)]
debatable.  A Bill of Particulars becomes part of the
(2) Litigated Motion - Made with notice to the pleading for which it was intended. [Rule 12,
adverse party so that an opposition Sec. 6]
thereto may be made.
(3) Motion Of Course - Motion for a kind of When Applied For: [Rule 12, Sec. 1]
relief/remedy to which the movant is (1) Before responding to a pleading
entitled to as a matter of right, (2) If the pleading is a reply, within 10 days
Allegations contained in such motion do from service thereof
not have to be investigated/verified.
(4) Special Motion - Discretion of the court is What a Motion for a Bill of Particulars should
involved. An investigation of the facts point out: [Rule 12, Sec. 1]
alleged is required. (1) The defects complained of;
(2) The paragraph wherein they are
PRO FORMA MOTIONS contained;
(3) The details desired.
Definition - A motion failing to indicate time
and date of the hearing What cannot be done in a Bill of Particulars:
 To supply material allegations necessary to
MOTIONS FOR BILL OF the validity of a pleading
PARTICULARS  To change a cause of action or defense
stated in the pleading
DEFINTION  To state a cause of action or defense other
It is a detailed explanation respecting any than that one stated
matter which is not averred with sufficient  To set forth the pleader’s theory of his cause
definiteness/particularity in the complaint as of action or a rule of evidence on which he
to enable a party to properly prepare his intends to reply
responsive pleading or to prepare for trial.  To furnish evidentiary information
[Rule 12, Sec. 1]
ACTIONS OF THE COURT
PURPOSE AND WHEN APPLIED FOR
It is filed by the plaintiff pursuant to a court Upon the filing of the motion, the clerk must
order issued upon granting a motion for Bill of immediately bring it to the attention of the
Particulars filed by the defendant before the court.
latter files an answer.
 In said motion, the defendant prays for a The court may: [Rule 12, Sec. 2]
more definite statement of matters which (1) Deny
are not averred with sufficient definiteness (2) Grant the motion outright
in the complaint. (3) Allow the parties the opportunity to be
 An action cannot be dismissed on the heard
ground that the complaint is vague/
indefinite. The remedy of the defendant is to
move for a Bill of Particulars or avail of the
PAGE 53
COMPLIANCE WITH THE ORDER AND

EFFECT OF NONCOMPLIANCE Bill of Particulars Intervention
Purpose is to enable a
Compliance with Order [Rule 12, Sec. 3] – If party bound to
Purpose is to enable a
motion is granted wholly/partially: respond to a pleading
person not yet a party
(1) Within 10 days from notice of order, Bill of to get more details
to an action, yet
Particulars or a more definite statement about matters which
having a certain right
should be submitted (unless court fixes a are alleged generally
or interest in such
different period). or which are indefinite
action, the opportunity
(2) Bill of Particulars or definite statement and vague, so as to
to appear and be
filed either as a separate pleading or as an properly guide such
joined so he could
amended pleading, a copy of which must party in answering the
assert or protect such
be served on the adverse party. pleading and to avoid
right or interest
surprise in the trial of
Effect of Non-Compliance [Rule 12, Sec. 4] – the case
(1) In case of non-compliance or insufficient Available to any
compliance with the order for Bill of person not yet a party
Particulars, the court: to the action at any
(a) May order the striking out of the Available to the
time after the
pleading (or portion thereof) to which defendant before he
commencement of an
the order is directed; OR files his responsive
action, even during the
(b) Make such order as it may deem just. pleading
proceeding, but not
after the trial has been
(2) If a party fails to obey: concluded
(a) If the plaintiff fails to obey, his
complaint may be dismissed with Effect of Motion:
prejudice unless otherwise ordered by (1) If the motion is granted, in whole or in
the court. [Rule 12, Sec. 4; Rule 17, Sec. part,
3] (a) The movant can wait until the bill of
(b) If defendant fails to obey, his answer particulars is served on him by
will be stricken off and his opposing party
counterclaim dismissed, and he will (b) Then he will have the balance of the
be declared in default upon motion of reglementary period within which to
the plaintiff. [Rule 9, Sec. 3; Rule 12, file his responsive pleading
Sec. 4; Rule 17, Sec. 4] (2) If the motion is denied
(a) He will still have such balance of the
EFFECT ON THE PERIOD TO FILE reglementary period to file his
PLEADING [Rule 12, Sec. 5] responsive pleading, counted from
service of the order denying his
A Motion for Bill of Particulars interrupts the motion
period to file a responsive pleading.
IN ANY CASE: The party will have at least
BUT only if it is sufficient in the form and 5 days to file his responsive pleading
substance.
MOTION TO DISMISS
The period to which the movant is entitled at
the time of filing of the motion, which shall IN GENERAL
not be less than 5 days in any event.
NOTE the following distinctions: Definition – 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
PAGE 54
It hypothetically admits the facts stated in the (10) Unenforceable claim under the Statute of
complaint. Frauds
(11) Non-compliance with a condition
It is not a responsive pleading. It is not a precedent for filing claim
pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a NOTE: Complaints cannot be dismissed on
pleading. Hence, it must raise all objections ground not alleged in a motion to dismiss. The
available at the time of the filing thereof. motion may be based on only one of the
grounds enumerated in Sec. 1, Rule 16
Types of Dismissal of Action:
(1) MTD before answer under Rule 16; Lack of Jurisdiction (LOJ) over the
(2) MTD under Rule 17: Defendant’s Person
(a) Upon notice by plaintiff; The objection of LOJ over the person on
(b) Upon motion by plaintiff; account of lack of service or defective service
(c) Due to fault of plaintiff. of summons, must be raised:
(3) Demurrer to evidence after plaintiff has (1) At the very first opportunity;
completed the presentation of his (2) Before any voluntary appearance is made.
evidence under Rule 33;
(4) Dismissal of an appeal. In La Naval Drug Corp. v. CA, et al. the Court
held that while lack of jurisdiction over the
Period to File: Within the time for, but before person of defendant may be duly and
filing of, the answer to the complaint or seasonably raised, his voluntary appearance in
pleading asserting a claim court without qualification is a waiver of such
defense.
Exceptions:
(a) For special reasons which may be allowed Appearance of counsel is equivalent to
even after trial has begun, a motion to summons, unless such is made to protest the
dismiss may be filed jurisdiction of the court over the person of the
(b) The court has allowed the filing of a defendant. If grounds other than invalid
motion to dismiss where the evidence that service of summons are raised, it cannot be
would constitute a ground for dismissal considered as a special appearance. [De los
was discovered during trial Santos v. Montesa (1993)]
General Rule: A court may NOT motu propio NOTE: Sec. 20, Rule 14 makes a categorical
dismiss a case, unless a motion to that effect statement that the inclusion in a motion to
is filed by a party. dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant
Exceptions: shall not be deemed voluntary appearance on
(1) Cases where the court may dismiss a case his part.
motu propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3] Lack of Jurisdiction over the Subject Matter
(3) Sec. 4, Revised Rule on Summary of the Claim
Procedure. If the complaint shows on its face LOJ, the
court may dismiss the case outright instead of
GROUNDS [Rule 16, Sec. 1] hearing the motion.
(1) Lack of jurisdiction over the defendant’s
person A MTD on the ground of LOJ over the subject
(2) Lack of jurisdiction over the subject matter matter may be raised either:
of the claim (1) Before answer;
(3) Improper venue (2) After answer is filed;
(4) Plaintiff’s lack of legal capacity to sue (3) After hearing had commenced;
(5) Litis pendentia (4) At any stage of the proceeding, even for
(6) Res judicata the first time on appeal and even if no
(7) Prescription such defense is raised in the answer.
(8) Failure to state a cause of action
(9) Extinguished claim
PAGE 55
NOTE: The rule refers to the subject matter of plaintiff is not a real party in interest, in which
each particular claim and not only to that of case the ground for dismissal would be that
the suit. Hence. other initiatory pleadings the complaint states no cause of action.
included.
The issue of plaintiff’s lack of legal capacity to
Where a party invokes the jurisdiction of a sue cannot be raised for the first time on
court to obtain affirmative relief and fails, he appeal where the defendant dealt with the
cannot thereafter repudiate such jurisdiction. former as a party in the proceedings below
While the issue of jurisdiction may be raised at [Univ. of Pangasinan Faculty Union v. Univ. of
any time, he is estopped as it is tantamount to Pangasinan]
speculating on the fortunes of litigation
(Crisostomo, et al. v. CA) Litis pendentia
Requisites: [Anderson Group v. CA, 1997]
Improper Venue (1) Identity of parties;
Unless and until the defendant objects to the (2) identity of rights asserted and relief
venue in a MTD prior to a responsive pleading, prayed for;
the venue cannot truly be said to have been (3) Relief founded on the same facts and the
improperly laid since, for all practical intents same basis;
and purposes, the venue though technically (4) Identity in the 2 proceedings should be
wrong may yet be considered acceptable to such that any judgment which may be
the parties for whose convenience the rules on rendered in the other action will amount
venue had been devised. Improper venue may to res judicata on the action under
be waived and such waiver may occur by consideration.
laches. [Diaz v. Adiong (1993)]
It is not required to allege that there be a prior
Where a motion to dismiss for improper venue pending case. It is sufficient to allege and
is erroneously denied, the remedy is prove the pendency of another case, even if
prohibition (Enriquez v. Macadaeg) same had been brought later.
Where the plaintiffs filed the action in a court It does not require that the later case be
of improper venue and thereafter submitted dismissed in favor of the earlier case. To
to its jurisdiction, the issue of venue was determine which case should be abated,
thereby waived and they are in estoppel to apply:
repudiate or question the proceedings in said (1) The More Appropriate Action Test;
court (Vda. De Suan, et al. v. Cusi, et al.) (2) The Interest of Justice Test, taking into
account:
Objection to venue is also impliedly waived (a) Nature of the controversy;
where the party enters into trial, cross- (b) Comparative accessibility of the court
examines the witnesses of the adverse party to the parties;
and adduces evidence (Paper Industries Corp (c) Other similar factors.
of the Philippines v. Samson et al.)
In both tests, the parties’ good faith shall be
Plaintiff’s Lack of Legal Capacity to Sue taken into consideration.
The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary The first case shall be abated if it is merely an
qualification to appear at the trial (e.g. anticipatory action or defense against an
when he plaintiff is not in the full exercise expected suit. The second case will not be
of his civil rights); abated if it is not brought to harass. [Vitrionics
(2) When he does not have the character Computers v. RTC (1993)]
which he claims, which is a matter of
evidence (e.g. when he is not really a duly Res Judicata
appointed administrator of an estate). Requisites:
(1) Former judgment rendered by a court
Lack of legal capacity to sue refers to having jurisdiction over the subject matter
plaintiff’s disability; while lack of legal and over the parties;
personality to sue refers to the fact that the (2) Judgment must be a final judgment;
PAGE 56
(3) Judgment must be on the merits; If the fact of prescription is not indicated on
(a) There can be res judicata without a the face of the complaint and the same may
trial, such as in a judgment on the be brought out later, the court must defer
pleadings [Rule 34]; a summary decision on the motion until such time as
judgment [Rule 35]; or an order of proof may be presented on such fact of
dismissal under Rule 17, Sec. 3. prescription.
(4) There must be identity of parties, of
subject matter and of the causes of action. Prescription Laches
Concerned with the Concerned with the
For res judicata to apply, absolute identity of fact of delay effect of delay
parties is not required because substantial A matter of time A matter of equity
identity is sufficient. Inclusion of additional Statutory Not statutory
parties will not affect the application of the Applies in law Applies in equity
principle of res judicata. Not based on fixed
Based on fixed time
time
The test of identity of cause of action lies not
in the form of the action but on WON the Defense of prescription is waived and cannot
same evidence would support and establish be considered on appeal if not raised in the
the former and the present causes of action. trial court [Ramos v. Osorio]
[DBP v. Pundogar (1993)]
However, if the allegations of the complaint,
Rationale: The sum and substance of the or evidence presented, clearly indicate that
whole doctrine is that a matter once judicially the action has prescribed, or where there is no
decided is finally decided because of: issue in fact as to prescription, defense of
(1) Public policy and necessity makes it the prescription is not deemed waived by failure to
interest of the State that there should be allege the same [Chua Lamko v. Dioso]
an end to litigation;
(2) The hardship on the individual that he Estoppel and prescription cannot be invoked
should be vexed twice for the same cause. against the State [Republic v. CA]
[Nabus v. CA (1991)]
A motion to dismiss on the ground of
Two concepts of res judicata [Abalos v. CA prescription will be given due course only if
1993) the complaint shows on its face that the
(1) Bar by prior judgment – Judgment on the action has already prescribed [Sison v.
merits in the 1st case constitutes an McQuaid]
absolute bar to the subsequent action not
only as to every matter which was offered If it is not apparent on its face, take note that
and received to sustain or defeat the Sec. 3 prohibits deferment of the resolution of
claim/demand, but also to any other the motion. Thus:
admissible matter which might have been (1) Evidence may be received in support of
offered for that purpose and to all matters the motion under Sec. 2, Rule 16; or
that could have been adjudged in that (2) The motion to dismiss should be denied
case. (Asked in the 2002 Bar Exam) without prejudice to the complaint’s
dismissal if evidence disclose that the
(2) Conclusiveness of judgment – Where the action had already prescribed [Sec. 1, Rule
second action between the parties is upon 9]
a different claim/demand, the judgment
in the first case operates as an estoppel Complaint States No Cause of Action
only with regard to those issues directly Failure to state a cause of action (not lack of
controverted, upon the determination of cause of action) is the ground for a MTD. The
which the judgment was rendered. former means there is insufficiency in the
allegations in the pleading. The latter means
Statute of Limitations that there is insufficiency in the factual basis
Prescription applies only when the complaint of the action.
on its face shows that indeed the action has
already prescribed.
PAGE 57
The failure to state a cause of action must be Unenforceable Claim under the Statute of
evident on the face of the complaint itself. Frauds
Article 1403 (2) CC requires certain contracts to
Test: Assuming the allegations and be evidenced by some note or memorandum
statements to be true, does the plaintiff have in order to be enforceable, to wit:
a valid cause of action? (1) An agreement that by its terms is not to
be performed within a year from the
A MTD based upon the ground of failure to making thereof;
state a cause of action imports a hypothetical (2) A special promise to answer for the debt,
admission by the defendant of the facts default, or miscarriage of another;
alleged in the complaint. (3) An agreement made in consideration of
marriage, other than a mutual promise to
If the court finds the allegations of the marry;
complaint to be sufficient but doubts their (4) An agreement for the sale of goods,
veracity, it must deny the MTD and require the chattels or things in action, at a price not
defendant to answer and then proceed to try less than five hundred pesos, unless the
the case on its merits. buyer accept and receive part of such
goods and chattels, or the evidences, or
A complaint containing a premature cause of some of them, of such things in action, or
action may be dismissed for failure to state a pay at the time some part of the purchase
cause of action. money; but when a sale is made by
auction and entry is made by the
If the suit is not brought against the real auctioneer in his sales book, at the time of
party-in-interest, a motion to dismiss may be the sale, of the amount and kind of
filed on the ground that the complaint states property sold, terms of sale, price, names
no cause of action. [Tanpinco v. IAC (1992)] of the purchasers and person on whose
account the sale is made, it is a sufficient
Complaint states no memorandum;
No cause of action
cause of action (5) An agreement for the leasing for a longer
Insufficiency of Insufficiency of period than one year, or for the sale of real
allegations in the factual basis for the property or of an interest therein;
pleading action (6) A representation as to the credit of a third
May be raised in a person.
Motion to Dismiss at
any time but before the may be raised at any Unlike a motion to dismiss on the ground that
filing the answer to the time the complaint states no cause of action, a
complaint or pleading motion invoking the Statute of Frauds may be
asserting a claim filed even if the absence of a cause of action
dismissal due to lack does not appear on the face of the complaint.
of cause of action is Such absence may be proved during the
Dismissal due to failure hearing of the motion to dismiss on said
made after questions
to state a cause of ground. [Yuviengco et al. v. Dacuycuy, etc., et
of fact have been
action can be made at al.]
resolved on the basis
the earliest stages of
of stipulations,
an action and without Non-Compliance with a Condition
admissions or
prejudice Precedent
evidence presented
and with prejudice Where the plaintiff has not exhausted all
administrative remedies, the complaint not
Extinguished Claim having alleged the fact of such exhaustion,
That the claim/demand set forth in the the same may be dismissed for lack of cause
plaintiff's pleading has been paid, waived, of action [Pineda v. CFI Davao, et al.].
abandoned or otherwise extinguished.
PAGE 58
Where the complaint does not state that it is The court’s resolution on the MTD must
one of the excepted cases, or it does not clearly and distinctly state the reasons
allege prior availment of conciliation process, therefor.
or it does not have a certification that no
conciliation or settlement had been reached REMEDIES OF PLAINTIFF WHEN THE
under P 1508, case should be dismissed on COMPLAINT IS DISMISSED
motion [Morata v. Go, et al]. If the motion is granted, the complaint is
dismissed. Since the dismissal is final and not
Where the defendant had participated in the interlocutory in character, the plaintiff has
trial court without any invocation of PD 1508, several options:
and the judgment therein had become final
and executory, but said defendant thereafter (1) Depending upon the ground for the
sought the annulment of the decision for dismissal of the action, the plaintiff may
alleged lack of jurisdiction, the same was REFILE the complaint,
denied under the doctrine of estoppel and (a) These are orders of dismissal which is
laches [Royales, et al., v. IAC]. not tantamount to an adjudication on
the merits
RESOLUTION OF MOTION (b) e.g when ground for dismissal is
anchored on improper venue.
During the hearing of the motion: Parties shall
submit: (2) He may APPEAL from the order of
(1) Their arguments on questions of law dismissal where the ground relied upon is
(2) Their evidence on questions of fact [Rule one which bars refilling of complaint
16, Sec. 2] (a) The grounds which bar re-filing are:
(a) Exception: Those not available at that (i) Res judicata
time (ii) Prescription
(iii) Extinguishment of the obligation
Parties should be allowed to present (iv) Violation of Statutes of Fraud
evidence and the evidence should be
taken down (3) The plaintiff may also avail of a petition
for certiorari, alleging grave abuse of
Except: when the motion is based on the discretion. [Riano]
ground of insufficiency of cause of action
which must generally be determined on
the basis of the facts alleged in the REMEDIES OF THE DEFENDANT WHEN
complaint MOTION IS DENIED
Trial: If the case goes to trial, such evidence Appeal is NOT a remedy since denial of a
presented shall automatically be part of the motion to dismiss is an interlocutory order. As
evidence of the party presenting the same. a general rule, defendant files his answer and
then may appeal an adverse judgment.
Lack of formal hearing of a motion to dismiss
is not fatal where the issues raised were fully Remedies of Defendant:
discussed in the motion and opposition. (1) The movant shall file his answer within
[Castillo v. CA] the balance of the period described in
Rule 11 to which he was entitled at the
After hearing: Court may either: time of serving his motion, but not less
(1) Dismiss the action/claim than 5 days in any event.
(2) Deny the MTD (a) If pleading is ordered to be amended,
(3) Order amendment of the pleadings he shall file his answer within the
period prescribed by Rule 11 counted
The court cannot defer the resolution of the from service of amended pleading
MTD for the reason that the ground relied unless the court provides a longer
upon is not indubitable. period
PAGE 59
(2) Another remedy is to file a certiorari, case

under Rule 65 alleging grave abuse of Motion to dismiss Demurrer to evidence
discretion. [Riano] Grounded on
Based on insufficiency
preliminary
of evidence
EFFECT OF DISMISSAL OF COMPLAINT ON objections
CERTAIN GROUNDS May be filed by any
May be filed only by
defending party
General rule: The action/claim may be re-filed. the defendant against
against whom a
the complaint of the
claim is asserted in
Exception: The action cannot be re-filed plaintiff
the action
(although subject to appeal) if it was Should be filed within
dismissed on any of the following grounds: the time for but prior May be filed for the
(1) Res judicata; to the filing of the dismissal of the case
(2) Prescription; answer of the only after the plaintiff
(3) Extinguishment of the claim/demand; defending party to has completed the
(4) Unenforceability under the Statute of the pleading presentation of his
Frauds. [Rule 16, Sec. 1 (f),(h),(i)] asserting the claim evidence
against him
WHEN GROUNDS PLEADED AS If denied, defendant
AFFIRMATIVE DEFENSES must file an answer, If denied, defendant
or else he may be may present evidence
If no motion to dismiss had been filed, any of declared in default
the grounds for dismissal may be pleaded as If granted, plaintiff
affirmative defenses and a preliminary hearing If granted, plaintiff
appeals and the order
may be had at court’s discretion. [Rule 16, Sec. may appeal or if
of dismissal is
6] subsequent case is
reversed, defendant
not barred, he may
loses his right to
NOTE: The dismissal of the complaint under re-file the case
present evidence
this section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer.
DISMISSAL OF ACTIONS
If the defendant would not want to file a DISMISSAL UPON NOTICE BY

counterclaim, he should not file a motion to PLAINTIFF; TWO-DISMISSAL RULE
dismiss [Rule 17, Sec. 1]
 Instead, he should allege the grounds of a
motion to dismiss as affirmative defenses in Dismissal by plaintiff as a matter of right
his answer with a counterclaim Dismissal is effected not by motion but by
 A preliminary hearing may be had thereon, mere notice of dismissal which is a matter of
and in the event the complaint is dismissed, right before the service of:
defendant can prosecute his counterclaim (1) The answer; or
[Herrera] (2) A motion for summary judgment
DISTINGUISHED FROM DEMURRER TO The dismissal as a matter of right ceases

EVIDENCE UNDER RULE 33 when an answer or a motion for summary
A motion to dismiss under this Rule differs judgment is served on the plaintiff and not
from a motion to dismiss under Rule 33 on when the answer or the motion is filed with
demurrer to evidence: the court.
Dismissal NOT Automatic

It requires an order by the court confirming
the dismissal. Until confirmed, the withdrawal
does not take effect
PAGE 60
Generally, Dismissal is Without Prejudice  However, under this section, if a

General Rule: Dismissal is without prejudice counterclaim has been pleaded by a
Exceptions: defendant PRIOR to the service upon him of
(1) Where the notice of dismissal so provides; the plaintiff’s motion for dismissal, the
or dismissal shall be limited to the complaint.
(2) Where the plaintiff has previously
dismissed the same case in a court of Such dismissal shall be without prejudice to
competent jurisdiction (Two Dismissal the right of the defendant to either:
Rule) (1) Prosecute his counterclaim in a separate
(3) Even where the notice of dismissal does action;
not provide that it is with prejudice but it is (a) In this case, the court should render
premised on the fact of payment by the the corresponding order granting and
defendant of the claim involved [Serrano reserving his right to prosecute his
v. Cabrera] claim in a separate complaint
(2) OR to have the same resolved in the same
Two Dismissal Rule action
When the same complaint had twice been (a) In this case, defendant must manifest
dismissed by the plaintiff without order of the such preference to the trial court
court by simply filing a notice of dismissal, the within 15 days from notice to him of
2nd dismissal operates as an adjudication on plaintiff’s motion to dismiss
the merits.
NOTE: These alternative remedies of the
DISMISSAL UPON MOTION BY defendant are available to him regardless of
PLAINTIFF; EFFECT ON EXISTING whether his counterclaim is compulsory or
COUNTERCLAIM [Rule 17, Sec. 2] permissive
Under this section, dismissal of the complaint DISMISSAL DUE TO FAULT OF

is subject to the discretion of the court and PLAINTIFF [Rule 17, Sec. 3]
upon such terms and conditions as may be
Distinction between Sec. 2 and Sec. 3 of
just.
Rule 17
Generally, Dismissal is Without Prejudice
Section 2 Section 3
General Rule: Dismissal is without prejudice
Dismissal is not
Exceptions:
Dismissal is at the procured by plaintiff
(1) When otherwise stated in the motion to
instance of the though justified by
dismiss; or
plaintiff causes imputable to
(2) When stated to be with prejudice in the
him
order of the court
Dismissal is a matter
of procedure, without Dismissal is a matter
Effect on Counterclaim
prejudice unless of evidence, an
If counterclaim has been pleaded by
otherwise stated in adjudication on the
defendant prior to service upon him of
the court order or on merits
plaintiff’s motion for dismissal, dismissal shall
motion to dismiss
be limited to the complaint
Dismissal is without
 Remember that if the civil case is dismissed,
prejudice to the right
so also is the counterclaim filed therein
of defendant to
o It was held that if the court does not have
prosecute his Dismissal is without
jurisdiction to entertain the main action of
counterclaim in a prejudice to the right
the case and dismiss the case, then the
separation action of defendant to
compulsory counterclaim, being ancillary
unless within 15 days prosecute his
to the principal controversy must likewise
from notice of motion counterclaim on the
be dismissed [Metals Engineering
he manifests his same or separate
Resources v. CA]
intention to have his action
counterclaim
resolved in the same
action
PAGE 61
Dismissal under this Section (iii) The failure to comply with order of
The case may be dismissed motu proprio or new judge to recall witness so he
upon the defendant’s motion if, without may observe demeanor is
justifiable cause, plaintiff fails either: sufficient ground for dismissal
(1) To appear on the date of the presentation [Castillo v. Torres]
of his evidence-in-chief on the complaint; (c) Failure to comply with rules
(a) The plaintiff’s failure to appear at the (i) The failure of the parties to
trial after he has presented his submit a compromise agreement
evidence and rested his case does not within period granted to them by
warrant the dismissal of the case on court is not a ground for dismissal
the ground of failure to prosecute. [Goldloop Properties Inc. v. CA]
(b) It is merely a waiver of his right to (ii) Dismissal is improper where a 3rd
cross-examine and to object to the party complaint has been
admissibility of evidence. [Jalover v. admitted and the 3rd party
Ytoriaga (1977)] defendant had not yet been
(c) Since plaintiff’s presence is now summoned [Sotto v. Valenzuela]
required only during the presentation (iii) A case may be dismissed for
of his evidence in chief, his absence failure to answer written
during the presentation of defendant interrogatories under Rule 25
or other parties’ evidence, or even at even without an order from the
rebuttal or subsequent stages, is not a court to answer. [Arellano v. CFI-
ground for dismissal. Sorsogon]
Effect of Dismissal
(2) To prosecute his action for an
General Rule: Dismissal of actions under Sec.
unreasonable length of time (nolle
3 which do not expressly state whether they
prosequi);
are with or without prejudice are held to be
(a) The test for dismissal of a case due to
with prejudice on the merits
failure to prosecute is WON, under the
circumstances, the plaintiff is Exceptions:
chargeable with want of due diligence (1) The court declares otherwise, without
in failing to proceed with reasonable prejudice to the right of the defendant to
promptitude. [Calalang v. CA (1993)] prosecute his counter-claim in the same
(b) The dismissal of an action pursuant to or separate action
this rule rests upon the sound (2) If court has not yet acquired jurisdiction
discretion of the court over the person of the defendant
[Smith Bell and Co. v. American
President Lines Ltd.] Effect on Counterclaim
(c) The action should never be dismissed Defendant is granted the choice to prosecute
on a non-suit for want of prosecution that counterclaim in either the same or a
when the delay was caused by the separate action, just like the grant of that
parties looking towards a settlement. remedy in Sec. 6, Rule 16
[Goldloop Properties Inc. v. CA]
In this section (as well as in Sec. 6, Rule 16),
(3) To comply with the Rules or any court defendant is not required to manifest his
order. preference within a 15-day period as in Sec. 2
(a) The order must be valid  The motions to dismiss in this section and in
(b) Failure to comply with order: Sec. 6, Rule 16, are filed by defendant who
(i) Dismissal for failure to comply perforce has already deliberated upon the
with order to amend complaint to course of action he intends to take on his
make claims asserted more counterclaim and which he may even
definite is ground for dismissal manifest right in his motion to dismiss
[Santos v. General Wood Craft]  The dismissal in Sec. 2 is at the instance of
(ii) Failure to comply with an order to plaintiff, hence, defendant is granted the
include indispensable parties is time and duty to manifest preference within
ground for dismissal [Aranico- 15 days from notice, after an opportunity to
Rubino v. Aquino] study the situation
PAGE 62
DISMISSAL OF COUNTERCLAIM, It is a procedural device by which the court is

CROSS-CLAIM, OR THIRD-PARTY called upon, after the filing of the last
pleading, to compel the parties and their
COMPLAINT lawyers to appear before it, and negotiate an
Provisions of Rule 17 shall apply to the
amicable settlement or otherwise make a
dismissal of any counterclaim, cross-claim, or
formal settlement and embody in a single
third-party complaint
document the issues of fact and law involved
in the action, and such other matters as may
Voluntary dismissal by claimant by notice as in
aid in the prompt disposition in the case, such
Sec. 1, shall be made:
as:
(1) Before a responsive pleading or motion for
(1) Number of witnesses
summary judgment is served; or (2) Tenor or character of their testimonies
(2) If there is none, before introduction of
(3) Documentary evidence; nature and
evidence at trial or hearing
purpose of each
(4) Number of trial dates
Effect of Dismissals
(1) Dismissal or continuance of an action
operates to annul orders, ruling, or NATURE AND PURPOSE
judgments previously made in the case
(2) It also annuls all proceedings had in Purpose of pre-trial is to consider: [Rule 18, Sec.
connection therewith and renders all 2]
pleadings ineffective (1) Possibility of an amicable settlement or of
(3) Dismissal or non-suit leaves the situation a submission to alternative modes of
as though no suit had ever been brought dispute resolution;
(2) Simplification of the issues;
Where a counterclaim is made the subject of a (3) Necessity/desirability of amendments to
separate suit, it may be abated upon a plea of the pleadings;
auter action pendentia and/or dismissal on the (4) Possibility of obtaining stipulations or
ground of res judicata. Res judicata, however, admissions of facts and of documents to
is not applicable since the court held that it avoid unnecessary proof;
did not acquire jurisdiction due to non- (5) Limitation of the number of witnesses;
payment of docket fees. (6) Advisability of a preliminary reference of
issues to a commissioner;
Dismissal on the ground of LOJ does not (7) Propriety of rendering judgment on the
constitute res judicata, there being no pleadings, or summary judgment, or of
consideration and adjudication of the case on dismissing the action should a valid
the merits. Neither is there litis pendentia. ground therefor be found to exist;
[Meliton v. CA (1992)] (8) Advisability/necessity of suspending the
proceedings; and
(9) Other matters that may aid in the prompt
PRE-TRIAL disposition of the action.
CONCEPT OF PRE-TRIAL Pre-trial is Mandatory

 Vital objective: the simplification,
Pre-Trial is a mandatory conference and abbreviation, and expedition of the trial, if
personal confrontation before the judge not indeed its dispensation
between the parties and their respective  Mandatory nature is addressed to both
counsel, called by the court after the joinder of court and parties:
issues in a case or after the last pleading has o Court must set the case for pre-trial and
been filed and before trial, for the purpose of notify the parties as well as counsel to
settling the litigation expeditiously or appear
simplifying the issues without sacrificing the  Parties with their counsel are obliged to
necessary demands of justice. obey the order of the court to that effect
PAGE 63
Primary Objective APPEARANCE OF PARTIES; EFFECT

Pre-trial is primarily intended to make certain OF FAILURE TO APPEAR
that all issues necessary to the disposition of a
case are properly raised. Duty to Appear: It is the duty of the parties and
their counsel to appear at the pre-trial. [Rule
Thus, to obviate the element of surprise, 18, Sec. 4]
parties are expected to disclose at a pre-trial
 NOTE: BOTH parties AND their counsel
conference (PTC) all issues of law and fact
which they intend to raise at the trial, except
When non-appearance is excused: A party’s
such as may involve privileged or impeaching
non-appearance may be excused only if
matters. The determination of issues at a pre-
either:
trial conference bars the consideration of
(1) Valid cause is shown for it;
other questions on appeal. [Caltex v. CA
(2) A representative appears in his behalf,
(1992)]
fully authorized in writing:
(a) To enter into an amicable settlement;
NOTICE OF PRE-TRIAL (b) To submit to alternative modes of
When pre-trial conducted - After the last dispute resolution;
pleading has been served and filed, it shall be (c) To enter into stipulations/admissions
the duty of the plaintiff to promptly of facts and of documents.
move ex parte that the case be set for pre-trial.
[Sec. 1, Rule 18] NOTE: The written special authority
(1) Specifically, the motion is to be filed must be in the form of an SPA (Sec.
within 5 days after the last pleading 23, Rule 38). If the party is a
joining the issues has been served and corporation, the SPA must be
filed [Admin Circ. No. 3-99, Jan 15, 1999] supported by a board resolution.
(2) Within 5 days from date of filing of the
reply, plaintiff must promptly move ex- Effect of Failure to Appear; unexcused non-
parte that the case be set for pre-trial appearance: [Rule 18, Sec. 5]
conference. If the plaintiff fails to file said
motion within the given period, the branch Order of Non-suit is issued to the party who
clerk shall issue a Notice of Pre-Trial [AM failed to appear at pre-trial.
No. 03-109-SC, July 13, 2004]
Who fails to
NOTE: The “Last Pleading” need not be Effect
appear
literally construed as the actual filing of the Cause for dismissal of the action
last pleading. For purpose of pre-trial, the which will be with prejudice,
expiration of the period for filing the last Plaintiff
unless otherwise ordered by the
pleading is sufficient [Sarmiento v. Juan] court
Cause to allow plaintiff to
Notice of Pre-trial: The notice shall be served present evidence ex parte, and
on: Defendant
court to render judgment on the
(1) Counsel basis thereof
(2) Party, only if he has no counsel [Sec. 3,
Rule 18] NOTE: The non-appearance of defendant in
pre-trial is not a ground to declare him in
The sufficiency of the written notice of pre-trial default. Thus, we distinguish:
is irrelevant where evidence shows that
counsel and the parties actually knew of the
pre-trial [Bembo v. CA]
PAGE 64
Contents of a Pre-Trial Brief

(1) Statement of their willingness to enter
Failure to appear by into amicable settlement or alternative
Default by defendant
defendant [Rule 18, modes of dispute resolution, indicating
[Rule 9, Sec. 3]
Sec. 5] the desired terms thereof;
(2) Summary of admitted facts and proposed
Upon motion and stipulation of facts;
Not required
notice to defendant. (3) Issues to be tried/resolved;
Requires proof of (4) Documents/exhibits to be presented,
Not required
failure to answer stating the purpose thereof;
Court to allow (5) Manifestation of their having availed or
Court to render
plaintiff to present their intention to avail themselves of
judgment, unless it
evidence ex parte, discovery procedures or referral to
requires submission of
then the court shall commissioners;
evidence
render judgment (6) Number and names of the witnesses, and
Judgment by Default Judgment Ex Parte the substance of their respective
Relief awarded must Relief awarded may testimonies. [AM No. 03-1-09-SC]
be the same in nature be of different nature
and amount as prayed and amount from the Failure to File Pre-trial Brief: Failure to file the
for in the complaint relief prayed for pre-trial brief shall have the same effect as
failure to appear at the pre-trial.
When we say that a defendant is in “default” it
speaks of his failure to file responsive pleading Remedy of defendant is to file a motion for
and not his non-appearance at pre-trial. reconsideration, showing that his failure to file
a trial brief was due to fraud, accident,
Remedy of Party who has been non-suited: mistake, or excusable negligence
(1) For a non-suited plaintiff:
(a) Motion to set aside the order of non- PROCEEDINGS AFTER
suit
(b) Affidavit of merit is not necessary in a
TERMINATION OF PRE-TRIAL
simple motion for reconsideration of
the order of non-suit EXCEPT as to Record of Pre-Trial: The pre-trial proceedings
show the cause of the failure to shall be recorded. Upon termination of such
appear at the pre-trial [Jonathan proceedings, the court shall issue the pre-trial
Landoil International Inc. v. order.
Mangudadatu]
Contents of Pre-Trial Order:
(2) For a non-suited defendant: (1) Matters taken up in the conference;
(a) File a motion for reconsideration (2) Action taken thereon;
without need for affidavits of merits (3) Amendments allowed on the pleadings;
regarding the fraud, accident, (4) Agreements/admissions made by the
mistake, or excusable negligence parties as to any matters considered;
[Lucero v. Dacayo] (5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.
PRE-TRIAL BRIEF; EFFECT OF
FAILURE TO FILE Effect of Pre-Trial Order: The contents of the
Rule 18, Sec. 6 makes it the MANDATORY duty order shall control the subsequent course of
of the parties to seasonably file their pre-trial the action; UNLESS:
briefs under the conditions and with the (1) Modified before trial to prevent manifest
sanctions provided therein. injustice [Rule 18, Sec. 7]
(2) Issues impliedly included therein or may
When to File Pre-Trial Brief: Parties shall file be inferable therefrom by necessary
and serve their respective pre-trial briefs, implication [Velasco v. Apostol]
ensuring receipt by adverse party at least 3 (3) Amendment to conform to evidence [Rule
days before the date of the pre-trial. 10, Sec. 5]
PAGE 65
On Compromise: Civil Case Criminal Case

 Upon manifestation of the parties of their [AM No. 03-1-09] -
willingness to discuss a compromise, the TC requires the
should order the suspension of the proceedings during
proceedings to allow them reasonable time the preliminary
to discuss and conclude an amicable conference to be
settlement. recorded in the
 If despite all efforts exerted by the TC and “Minutes of
the parties the settlement conference still Preliminary
fails, then the action should have continued Conference” to be
as if no suspension had taken place. signed by both parties
[Goldloop Properties v. CA (1992)] and/or counsel.
 NOTE: AM 03-1-09-SC - No termination of (Note: either party or
pre-trial for failure to settle his counsel is allowed
to sign)
DISTINCTION BETWEEN PRE-TRIAL The sanctions for non- Sanctions are
appearance are imposed upon the
IN CIVIL CASE AND PRE-TRIAL IN imposed upon the counsel for the
CRIMINAL CASE plaintiff and the accused or the
Civil Case Criminal Case defendant [Rule 18, prosecutor [Rule 118,
Ordered by the court Sec. 4] Sec. 3]
and no motion to set A pre-trial brief is
Set when the plaintiff
the case for pre-trial is specifically required to A pre-trial brief is not
moves ex parte to set
required from either be submitted [Rule 18, specifically required.
the case for pre-trial
the prosecution or the Sec. 6]
[Rule 18, Sec. 1]
defense [Rule 118, Sec.
1] ALTERNATIVE DISPUTE
Ordered by the court
after arraignment and
RESOLUTION (ADR)
Made after the within 30 days from Special Rules of Court on ADR [AM No. 07-11-
pleading has been the sate the court 08-SC]
served and filed [Rule acquired jurisdiction
18, Sec. 1] over the person of the The parties may be submitted to ADR during
accused [Rule 118, Sec. pre-trial. If ADR fails, judge will schedule the
1] continuance of the pre-trial conference
Does not include the
Considered the The Alternative Dispute Resolution System
considering of the
possibility of an Means any process or procedure used to
possibility of amicable
amicable settlement resolve a dispute or controversy, other than by
settlement of one’s
as an important adjudication of a presiding judge of a court or
criminal liability as
objective [Rule 118, an officer of a government agency, as defined
one of its purposes
Sec. 2(a)] in this Act, in which a neutral third party
[Rule 118, Sec. 1]
participates to assist in the resolution of issue
(Stricter procedure)
The arrangements and [RA 9285, Sec. 3]
All agreements or
admissions in the pre-
admissions made or
trial are not required Policy Behind the ADR: To actively promote
entered during the
to be signed by both party autonomy in the resolution of disputes
pre-trial conference
parties and their or the freedom of the party to make their own
shall be reduced in
counsels. Under the arrangements to resolve their disputes [RA
writing and signed by
Rules, they are instead 9285, Sec. 2]
both the accused and
to be contained in the
counsel; otherwise,
record of pre-trial and
they cannot be used
pre-trial order [Rule 18,
against the accused.
Sec. 7]
[Rule 118, Sec. 2]
PAGE 66
In Relation to Pre-Trial: (2) Mediation

(1) At the start of the pre-trial conference, the (a) a voluntary process in which a
judge shall immediately refer the parties mediator, selected by the disputing
and/or their counsel if authorized by their parties, facilitates communication and
clients to the PMC mediation unit for negotiation, and assist the parties in
purposes of mediation if available.[AM No. reaching a voluntary agreement
03-1-09-SC] regarding a dispute
(b) includes conciliation
(2) The pre-trial briefs of parties must include
the parties’ statement of their willingness (3) Mini-Trial
to enter into an amicable settlement (a) A structured dispute resolution
indicating the desired terms thereof or to method in which the merits of a case
submit the case to any of the alternative are argued before a panel comprising
modes of dispute resolution [AM No. 03-1- senior decision makers with or without
09-SC] the presence of a neutral third person
after which the parties seek a
Exception to the Application of RA 9285: negotiated settlement
(1) labor disputes covered by the Labor Code;
(2) the civil status of persons; (4) Early Neutral Evaluation
(3) validity of a marriage; (a) An ADR process wherein parties and
(4) any ground for legal separation; their lawyers are brought together
(5) the jurisdiction of courts; early in a pre-trial phase to present
(6) future legitime; summaries of their cases and receive a
(7) criminal liability; and nonbinding assessment by an
(8) those which by law cannot be experienced, neutral person, with
compromised. expertise in the subject in the
substance of the dispute
Modes of Alternative Dispute Resolutions:
(1) Arbitration [RA 9285, Sec. 1) (5) Combination of ADR
(a) A voluntary dispute resolution process (a) Example: Med-Arb - step dispute
in which one or more arbitrators, resolution process involving both
appointed in accordance with the mediation and arbitration
agreement of the parties, or rules
promulgated pursuant to this Act, Special Rules of Court on ADR [AM No. 07-
resolve a dispute by rendering an 11-08-SC]
award\ The Special ADR Rules shall apply to and
(b) Different Kinds: govern the following cases [Rule 1.1]
(1) Domestic Arbitration – an (1) Relief on the issue of Existence, Validity, or
arbritration that is not Enforceability of the Arbitration
international; governed by RA 876 Agreement;
(Arbitration Law) [RA 9285, Sec. (2) Referral ADR
32] (3) Interim Measures of Protection;
(2) International Arbitration - An (4) Appointment of Arbitrator;
arbitration is international if: (5) Challenge to Appointment of Arbitrator;
(a) the parties to an arbitration (6) Termination of Mandate of Arbitrator;
agreement have, at the time (7) Assistance in Taking Evidence;
of the conclusion of that (8) Confirmation, Correction or Vacation of
agreement, their places of Award in Domestic Arbitration;
business in different States; or (9) Recognition and Enforcement or Setting
(b) one of the following places is Aside of an Award in International
situated outside the State in Commercial Arbitration;
which the parties have their (10) Recognition and Enforcement of a Foreign
places of business [Article 3, Arbitral Award;
Model Law on International (11) Confidentiality/Protective Orders; and
Commercial Arbritration] (12) Deposit and Enforcement of Mediated
Settlement Agreements.
PAGE 67
Service and Filing of Petition – The petitioner 5. Motion for extension, except in cases
shall serve, either by personal service or where an ex-parte temporary order of
courier, a copy of the petition upon the protection has been issued;
respondent before the filing thereof. Proof of 6. Rejoinder to reply;
service shall be attached to the petition filed 7. Motion to declare a party in default;
in court. and
8. Any other pleading specifically
Notice – served once court finds petition disallowed under any provision of the
sufficient in form and substance Special ADR Rules.
1. Notice is sent to parties directing
them to appear at a particular time No summons (Rule 1.9 - In cases covered by
and date for hearing the Special ADR Rules, a court acquires
2. Hearing shall not be set no later than authority to act on the petition or motion upon
5 days from lapse of period for filing proof of jurisdictional facts, i.e., that the
opposition or comment respondent was furnished a copy of the
3. Notice to respondent shall contain a petition and the notice of hearing.
statement allowing him to file a
comment or opposition to petition
within 15 days from receipt of notice
4. For Referral to ADR or
Confidentiality/Protection Orders:
a. Follow Rule 15 Rules of Court
Summary Hearing - In all cases, as far as

practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.
Prohibited Submissions [Rule 1.6]

1. Motion to dismiss;
2. Motion for bill of particulars;
3. Motion for new trial or for reopening
of trial;
4. Petition for relief from judgment;
PAGE 68
PRE – TRIAL
NO SETTLEMENT FAILURE TO APPEAR AMICABLE

SETTLEMENT
Agreements made by If plaintiff is absent If defendant is absent,

parties; Amendments when so required to court may hear
to pleading; Schedule attend, court may evidence of plaintiff ex
of Trial dismiss the case parte
TRIAL
If evidence is
insufficient to prove
plaintiff’s cause of
action or defendant’s
counterclaim, court
rules in favor of either
one or dismisses the
case
COURT RENDERS
DECISION
PAGE 69
INTERVENTION
A legal remedy whereby a person is permitted Notwithstanding the presence of a legal
to become a party in a case, by either: interest, permission to intervene is subject to
(1) Joining the plaintiff; the sound discretion of the court, the exercise
(2) Joining the defendant; of which is limited by considering "whether or
(3) Asserting his right against both plaintiff not the intervention will unduly delay or
and defendant, considering that either: prejudice the adjudication of the rights of the
(a) He has a legal interest in the subject original parties and whether or not the
matter of the action; intervenor’s rights may be fully protected in a
(b) He has legal interest in the success of separate proceeding. [Virra Mall Tenants v.
either of the parties Virra Mall (2011)]
(c) He has legal interest against both of
the parties TIME TO INTERVENE
(d) He is going to be adversely affected by
the disposition of the property in the How Intervention is Done
custody of the court [Rule 19, Sec. 1] (1) By a motion to intervene
(2) Attaching the pleading-in-intervention to
Intervention is never an independent action, the motion
but is ancillary and supplemental to the (3) Copies served on the original parties [Rule
existing litigation. Its purpose is to afford one 19, Sec. 2]
not an original party, yet having a certain
right/interest in the pending case, the When should it be filed – The motion to
opportunity to appear and be joined so he intervene may be filed at ANY TIME before
could assert or protect such right/interest. rendition of judgment by the court
[Carino v. Ofilada, 1993]
General Rule: Allowance of intervention is
REQUISITES FOR INTERVENTION discretionary with the court
The requisites of intervention are:
(1) Legal interest: Exception: When the intervenor is an
(a) In the matter in controversy; or indispensable party
(b) In the success of either of the parties;
or Pleadings-in-Intervention:
(c) Against both; or (1) Complaint-in-intervention – If intervenor
(d) So situated as to be adversely affected asserts a claim against either or all of the
by a distribution or other disposition original parties.
of property in the custody of the court (2) Answer-in-intervention – If intervenor
or of an office thereof; unites with the defending party in
(2) Intervention will not unduly delay or resisting a claim against the latter.
prejudice the adjudication of rights of (3) Answer to complaint-in-intervention [Rule
original parties 19, Sec. 4] - It must be filed within 15 days
(3) Intervenor’s rights may not be fully from notice of the order admitting the
protected in a separate proceeding complaint-in-intervention, unless a
[Lorenza Ortega v. CA, 1998] different period is fixed by the court.
MEANING OF LEGAL INTEREST REMEDY FOR DENIAL OF MOTION

Interest must be of a direct and immediate TO INTERVENE
character so that the intervenor will either (1) If intervention is denied
gain or lose by the direct legal operation of (a) Aggrieved party may appeal
the judgment. The interest must be actual and (b) Mandamus will not lie except in case
material, a concern which is more than mere of grave abuse of discretion
curiosity, or academic or sentimental desire; it (2) If intervention is granted
must not be indirect and contingent, indirect (a) A grant of a motion to intervene is
and remote, conjectural, consequential or interlocutory
collateral. [Virra Mall Tenants v. Virra Mall
(2011)]
PAGE 70
(b) Hence, anyone who objects can file a books, documents, or things demanded
petition for certiorari for improper which must appear to the court to be
granting of intervention prima facie relevant
SUBPOENA Kinds:
Subpoena is a process directed to a person (1) Subpoena duces tecum (SDT)
requiring him: (2) Subpoena ad testificandum (SAT)
(1) To attend and to testify at the hearing or
the trial of an action, or at any SUBPOENA AD TESTIFICANDUM
investigation conducted by competent
authority, or for the taking of his A process directed to a person requiring him
deposition; or to attend and to testify at the hearing or the
(2) To bring with him any books, documents, trial of an action, or at any investigation
or other things under his control [Rule 21, conducted by competent authority or for the
Sec. 1] taking of his deposition
Subpoena Summons SUBPOENA DUCES TECUM

An order to appear
and testify or to An order to answer A process directed to a person requiring him
produce books and complaint to bring with him books, documents, or other
documents things under his control
May be served to a Served on the
non-party defendant The SDT is, in all respects, like the ordinary
Needs tender of SAT with the exception that it concludes with
kilometrage, Does not need tender an injunction that the witness shall bring with
attendance fee and of kilometrage and him and produce at the examination the
reasonable cost of other fees books, documents, or things described in the
production fee subpoena
Who May Issue: [Rule 21, Sec. 2] Before SDT may issue, the court must first be
(1) Court before whom the witness is required satisfied that the following requisites are
to attend present:
(2) Court of the place where the deposition is (1) Test of RELEVANCY: The books,
to be taken documents, or other things requested
(3) Officer or body authorized by law to do so must appear prima facie relevant to the
in connection with investigations issue subject of the controversy
conducted by said officer or body; or (2) Test of DEFINITENESS: Such books must
(4) Any justice of the SC or of the CA, in any be reasonably described by the parties to
case or investigation pending within the be readily identified (test of definiteness)
Philippines
SERVICE OF SUBPOENA [Rule 21, Sec.
NOTE: Sec. 38(2), BP 129 – All processes 6]
issued by the MTC and MCTC in cases falling
within their jurisdiction may be served How Made: Same manner as PERSONAL or
anywhere in the Philippines without the SUBSTITUTED service of summons
necessity of certification by the judge of the
RTC Formalities:
(1) The original shall be exhibited
Form and Contents: [Rule 21, Sec. 3] (2) A copy is delivered to the person on whom
(1) Shall state the name of the court and the it is served
title of the action or investigation (3) Fees and costs:
(2) Shall be directed to the person whose (a) Tender to the person on whom it is
attendance is required served the fees for one day’s
(3) In case of a subpoena duces tecum, shall attendance and the kilometrage
contain a reasonable description of the allowed by the Rules
PAGE 71
(1) EXCEPT: Tender need not be (b) The articles sought to be produced do
made if issued by or on behalf of not appear prima facie to be relevant
the Republic or an officer of to the issues; or
agency thereof (c) The person asking for the subpoena
does not advance the cost for the
(b) If SDT, reasonable cost of producing production of the articles desired
the books, documents, or things (d) Failure to tender witness fees and
demanded shall also be tendered kilometrage allowed by the Rules
Service must be made so as to allow the (2) For quashal of subpoena ad testificandum
witness reasonable time for preparation and (a) That the witness is not bound thereby,
travel to the place of attendance or
(b) That the witness fees and kilometrage
COMPELLING ATTENDANCE OF allowed by the Rules were not
WITNESSES; CONTEMPT tendered when subpoena was served
General Rule: MODES OF DISCOVERY

(1) The court which issued the subpoena may
issue a warrant for the arrest of the Discovery – a device employed by a party to
witness and make him pay the cost of obtain information about relevant matters on
such warrant and seizure, if the court the case from the adverse party in the
should determine that his disobedience preparation for trial
was willful and without just cause [Sec. 8]
Purpose – to enable the parties to obtain the
(2) The refusal to obey a subpoena without fullest possible knowledge of the issues and
adequate cause shall be deemed evidence long before the trial to prevent such
contempt of the court issuing it [Sec. 9] trial from being carried on in the dark
Exception: Provisions regarding the Modes:

compelling of attendance [Sec. 8] and (1) Depositions pending actions – Rule 23
contempt [Sec. 9] do not apply where: (2) Depositions before action or pending
(1) Witness resides more than 100km from appeal – Rule 24
his residence to the place where he is to (3) Interrogatories to parties – Rule 25
testify by the ordinary course of travel (4) Admission by adverse party – Rule 26
(Viatory Right) and (5) Production or inspection of documents or
(a) NOTE: This refers to civil cases only, thing – Rule 27
not criminal (6) Physical and mental examination of
persons – Rule 28
(2) Permission of the court in which the
detention prisoner’s case is pending was DEPOSITIONS PENDING ACTION
not obtained [Rule 23]
QUASHING OF SUBPOENA [Rule 21, Meaning of Deposition - Deposition is chiefly a

Sec. 4] mode of discovery, the primary function of
which is to supplement the pleadings for the
How Done: By motion promptly made purpose of disclosing the real points of
dispute between the parties and affording an
Period to File: A motion to quash may be adequate factual basis during the preparation
made at or before the time specified in the for trial.
subpoena
General Uses of Deposition:
Grounds: (1) Intended as a means to compel disclosure
(1) For quashal of subpoena duces tecum: of facts resting in the knowledge of a party
(a) It is unreasonable and oppressive or other person, which are relevant in a
suit or proceeding
PAGE 72
(2) Dual functions:

(a) A method of discovery (2) Deposition of an ADVERSE party may be
(b) A method of presenting testimony in used for any purpose
lieu of oral open court testimony (a) It may be used as an admission
(b) A deposition cannot, however, be used
Scope of Examination in the trial of a case against a
(1) Matter which is relevant to the subject of defendant who was not a party to the
the pending action made by the pleadings action when the deposition was taken
or likely to arise under the pleadings
(2) Matter that is not privileged (3) Deposition of a witness or party may be
(3) As well as: used for any purpose under the following
(a) The existence, description, nature, circumstances:
custody, condition and location of any (a) Witness is dead – there must be proof
books, documents, or other tangible of death or presumption of death and
things; and that deposition was legally taken
(b) The identity and location of persons
having knowledge of relevant facts (b) Non-residence of deponent – where it
[Rule 23, Sec. 2] appears that the absence of deponent
was procured by the party offering the
NOTE: Under such limitations as the court deposition of the same cannot be
may order under Sec. 16 and 18 received in evidence
When Depositions Pending Action Taken: (c) Disability of a witness – age, sickness,
[Rule 23, Sec. 1] infirmity, or imprisonment. The
(1) With leave of court: certificate of the attending physician
(a) AFTER jurisdiction has been obtained that the witness is in a precarious
over any defendant or over the condition is sufficient
property which is the subject of the
action, but (d) Inability to procure attendance of
(b) BEFORE an answer has been served witness by subpoena
(2) Without leave of court Deponent Use

(a) AFTER answer has been served By any party for
contradicting or
Depositions before an answer should be Any person impeaching the
granted only under special circumstances testimony of
where the conditions point to the necessity of deponent as witness
presenting a strong case for allowance of the A party or anyone
motion. who at the time of
There must be some “necessity” or “good the deposition was
reason” for taking the testimony immediately an officer, director, or
or that it would be prejudicial to the party managing agent, of a By an adverse party
seeking the order to be compelled to await public or private for any purpose
joinder of issues. corporation or
partnership, or
Specific Uses of Depositions Pending association which is a
Action: the use of depositions depends on party
whether deponent is a party or not [Rule 23, By any party for any
Sec. 4] Witness, whether or purpose if the court
not a party finds the 5 instances
(1) The depositions may be used for occurring
contradicting or impeaching the testimony
of deponent not as proof of specific facts NOTE: Depositions can be used as evidence
(a) If deponent does not testify and is not by a party (“for any purpose”) under the
a party, deposition cannot be used for specific conditions in Sec. 4
this purpose
PAGE 73
REMEMBER: Generally, a deposition is not (2) After the notice is served, the court may
generally supposed to be a substitute for the make any order for the protection of the
actual testimony in open court of a party or parties and the deponent. [Rule 23, Sec.
witness. If the witness is available to testify, he 16]
should be presented in court to testify. If
available to testify, a party’s or witness’ (3) The attendance of the witnesses may be
deposition is inadmissible in evidence for compelled by the use of subpoenas. [Rule
being hearsay. [Dasmarinas Garments Inc. v. 23, Sec. 1]
Reyes, 1993]. Exceptions to this rule are those
found in Sec. 4. (4) The deponent may be examined or cross
examined following the procedures for
Persons before whom depositions may be witnesses in a trial. He may be asked
taken [Rule 23, Sec. 10 and 11] questions on direct, cross, re-direct or re-
(1) Within the Philippines: cross. He has the same rights as a witness
(a) Judge and may be impeached like a court
(b) Notary Public, or witness because Sections 3 to 18 of Rule
(c) Any person authorized to administer 132 apply to deponent. [Rule 23, Sec. 3]
oaths, as stipulated by the parties in
writing (5) The officer before whom the deposition is
being taken has no authority to rule on
(2) Outside the Philippines objections interposed during the course of
(a) On notice before a secretary of the deposition although any objections
embassy or legation, consul general, shall be noted by him upon the
consul, vice-consul, or consular agent deposition. Any evidence that is objected
of the Philippines to shall still be taken but subject to the
(b) Before such person or officer as may objection. [Rule 23, Sec. 17]
be appointed by commission or under
letter rogatory or When may objections to admissibility be
(c) Any person authorized to administer made [Rule 23, Sec. 6] - Objection may be
oaths as stipulated by parties in made at the TRIAL or HEARING to receiving in
writing evidence any deposition or part thereof for any
reason which would require the exclusion of
Disqualification by interest: No deposition the evidence if the witness were then present
shall be taken before a person who is: [Rule and testifying
23, Sec. 13]
(1) A relative within the 6th degree of affinity Effect of Taking and Using Depositions:
or consanguinity
(2) An employee or counsel of any of the (1) General Rule: A party shall not be deemed
parties to make a person his own witness for any
(3) A relative within the same degree or purpose by taking his deposition because
employee of such counsel depositions are taken for discovery and
(4) Financially interested in the action not for use as evidence. [Rule 23, Sec. 7]
Procedure in Taking Depositions: (2) Exception: If a party offers the deposition

(1) A party desiring to take the deposition of in evidence, then he is deemed to have
any person upon oral examination shall made the deponent his witness [Sec. 8]
give reasonable notice in writing to every
party to the action stating the time and (3) Exceptions to the Exception:
place for taking the deposition and the (a) The deposition is that of an opposing
name and address of each person to be party, OR
examined. [Rule 23, Sec. 15] (b) The deposition is used to impeach or
contradict opponent. [Sec. 8]
PAGE 74
When may taking of deposition be Error and

Effect
terminated or its scope limited [Rule 23, Sec. Irregularities
18] Unless reasonable
(1) How done: objection thereto is made at
(a) A motion or petition for termination or the time of taking the
limit examination is filed by any party deposition
or of the deponent Waived
(b) Filed in the court where the action is Unless served in writing
pending OR the RTC of the place Objections to
upon the party
where deposition is being taken the form of
propounding them within
(2) When done: At any time during the taking written
the time allowed for serving
of deposition interrogatories
succeeding cross or other
(3) Grounds: That the examination is being under Sec. 25
interrogatories and within 3
conducted: and 26
days after service of last
(a) In bad faith, or interrogatories authorized
(b) In such manner as unreasonably to Waived
annoy, embarrass or oppress the In the manner Unless motion to suppress
deponent or party in which depositions or some part
testimony is thereof is made with
Effect of Errors and Irregularities in transcribed or in reasonable promptness
Depositions [Rule 23, Sec. 29] the preparation after such defect is
Error and under Sec. 17, ascertained, or with due
Effect
Irregularities 19, 20, and 26 diligence might have been
Waived ascertained
As to notice for
Unless written objection is
taking
promptly served upon party Orders that may be issued by the court
depositions
giving notice regarding deposition taking
Waived (1) That the deposition shall not be taken;
Objection to Unless made: (2) That it may be taken at some designated
taking (1) Before taking of place other than that stated in the notice;
deposition deposition begins or (3) That it may be taken only on written
because of (2) As soon thereafter as interrogatories;
disqualification disqualification (4) That certain matters shall not be inquired
of officer before becomes known or into’
whom it is to be could be discovered (5) That the scope of the examination shall be
taken with reasonable held with no one present except the
diligence parties to the action and their officers or
Not waived by failure to counsel;
Objection to the
make them before or during (6) That after being sealed, the deposition
competency of
the taking of deposition shall be opened only by order of the court;
a witness or
Unless the ground of the (7) That secret processes, developments, or
competency or
objection is one which research need not be disclosed;
relevancy or
might have been obviated (8) That the parties shall simultaneously file
materiality of
or removed if presented at specified documents or information
testimony
that time enclosed in sealed envelopes to be
In the manner of taking, in opened as directed by the court;
the form of questions or
answers, in the oath or
Occurring at affirmation, or in conduct of
oral parties and errors of any
examination kind which might be
and other obviated or removed if
particulars promptly prosecuted are
waived
PAGE 75
DEPOSITIONS BEFORE ACTION OR (2) Notice and service to each person named
PENDING APPEAL [Rule 24] in the petition as an expected adverse
party, together with a copy of the petition,
A deposition before action and a deposition stating that the petitioner will apply to the
pending appeal are referred to as court, at a time and place named therein,
perpetuation of testimony (perpetuam rei for the order described in the petition.
memoriam) because their objective is to (3) At least twenty (20) days before the date
perpetuate the testimony of a witness for of the hearing, the court shall cause notice
future use. thereof to be served on the parties and
prospective deponents in the manner
Purpose: To perpetuate the testimony of provided for service of summons.
witnesses for probable use in the event of (4) Order and Examination: If the court is
further proceedings in said court. satisfied that the perpetuation of the
testimony may prevent a failure or delay
Who may avail: Any person: of justice, it shall make an order
(1) Who wants to perpetuate his own designating or describing the persons
testimony; or whose deposition may be taken and
(2) Who wants to perpetuate the testimony of specifying the subject matter of the
another person examination and whether the depositions
shall be taken upon oral examination or
Procedure for Deposition Pending Action: written interrogatories.
(1) File a verified petition in the court of the Use of Deposition: If a deposition to
place of the residence of any expected perpetuate testimony is taken under this Rule,
adverse party or if, although not so taken, it would be
(a) Petition shall be entitled in the name admissible in evidence, it may be used in any
of petitioner action involving the same subject matter
(b) It shall show: subsequently brought in accordance with the
(i) That the petitioner expects to be a provisions of sections 4 and 5 of Rule 23. [Rule
party to an action in a court of the 24, Sec. 6]
Philippines but is presently
unable to bring it or cause it to be Procedure for Deposition Pending Appeal:
brought; (1) During the pendency of an appeal, the
(ii) The subject matter of the court in which the judgment was rendered
expected action and his interest may allow the taking of depositions of
therein; witnesses to perpetuate their testimony in
(iii) The facts which he desires to the event of further proceedings in the
establish by the proposed said court.
testimony and his reasons for (2) The party who desires to perpetuate the
desiring to perpetuate it; testimony may make a motion in the said
(iv) The names or a description of the court for leave to take the depositions,
persons he expects will be adverse upon the same notice and service thereof
parties and their addresses so far as if the action was pending therein. The
as known; and motion shall state:
(v) The names and addresses of the (a) The names and addresses of the
persons to be examined and the persons to be examined and the
substance of the testimony which substance of the testimony which he
he expects to elicit from each, and expects to elicit from each, and
shall ask for an order authorizing (b) The reason for perpetuating their
the petitioner to take the testimony.
depositions of the persons to be (3) Order allowing the deposition: If the court
examined named in the petition finds that the perpetuation of the
for the purpose of perpetuating testimony is proper to avoid a failure or
their testimony. delay of justice, it may make an order
allowing the deposition to be taken.
PAGE 76
WRITTEN INTERROGATORIES TO Objections to Interrogatories: [Rule 25, Sec.

ADVERSE PARTIES [Rule 25] 3]
Objections may be presented to the court
Purpose - This mode of discovery is availed of within 10 days after service thereof with notice
by the party to the action for the purpose of as in case of a motion.
eliciting material and relevant facts from any Effect: Answers shall be deferred until
of the adverse party. [Rule 25, Sec. 1] objections are resolved
Service of Interrogatories to Parties – Any Grounds:

party desiring to elicit material and relevant (1) They require the statements of
facts from any adverse party shall file and conclusions of law or answers to
serve upon the adverse party written hypothetical questions or opinion, or mere
interrogatories to be answered by the party hearsay, or matters not within the
served. personal knowledge of the interrogated
party
NOTE: Written interrogatories must not only (2) Frivolous interrogatories need not be
be served but also filed. answered [Herrera]
Manner of Service: Scope and Use of Interrogatories [Rule 25,

(1) Without leave of court – After answer has Sec. 5]
been served; and for the first set of
interrogatories Interrogatories may relate to any matters than
(2) With leave of court – before the answer has can be inquired into under Sec. 2, Rule 23
been served; and for subsequent sets of
interrogatories Answers may be used for the same purposes
provided in Sec. 4, Rule 23
NOTE: No party may, without leave of court,
serve more than one set of interrogatories to Effect of Failure to Serve Written
be answered by the same party. [Rule 25, Sec. Interrogatories [Rule 25, Sec. 6]
4]
A party not served with written interrogatories
Answer to Interrogatories: [Rule 25, Sec. 2] may not be compelled by adverse party to:
(1) Written interrogatories and the answers (1) Give testimony in open court; or
thereto must both be filed and served (2) Give deposition pending appeal
(a) Hence, the answers may constitute as
judicial admissions [Sec. 4, Rule 129] UNLESS thereafter allowed by the court for
good cause shown and to prevent a failure of
(2) Form of answer: justice
(a) It must be answered fully in writing
(b) And signed and sworn to by the NOTE: This should not be confused with the
person making them provisions of Rule 29. Sec. 6 Rule 25 as well as
a similar provision in Rule 26 are directed to a
(3) Service and Filing party who fails or refuses to resort to discovery
(a) Party upon whom interrogatories were procedures therein. Rule 29 provides for
served shall file and serve a copy of sanctions or other consequences upon a party
the answers on the party submitting who refuses or fails to comply with discovery
interrogatories procedures duly availed of by his opponent
(b) Time period:
(i) Within 15 days after service
thereof
(ii) UNLESS court extends or
shortens the time on motion and
for good cause shown
PAGE 77
Written Interrogatories v. Interrogatories to The request for admission MUST BE SERVED

Parties ON THE PARTY and NOT ON THE COUNSEL.
This is an exception to the general rule that
Written Interrogatories Interrogatories to notices shall be served upon counsel and not
Parties upon the party. (Duque v. CA, 2002)
The deposition is takes There is no Implied Admission by Adverse Party [Rule

before a deposition officer deposition officer. 26, Sec. 2]
Each of the matters which an admission is
Questions are prepared requested shall be deemed admitted UNLESS
beforehand. These are the party to whom request is directed files and
submitted to the serves upon the party requesting admission a
The questioning is
deposition officer who will SWORN STATEMENT
direct.
ask the deponent the (1) Contents of the sworn statement:
questions and he will (a) Denying specifically the matters of
record the answers. which an admission is requested, or
(b) Setting forth in detail the reasons why
The deposition of any he cannot truthfully either admit or
The deposition of
person may be taken, deny those matters
the parties are
whether he is a party or
only taken.
not.
(2) Period to file and serve the sworn
statement
REQUEST FOR ADMISSION [Rule 26] (a) Within a period designated in the
request
Rule 26, as a mode of discovery, contemplates (b) Which shall not be less than 15 days
interrogatories seeking clarification in order to after service thereof, or
determine the truth of the allegation in a (c) Within such further time as the court
pleading. may allow on motion
Purposes: Objections to any request for admission

(1) To allow one party to request the adverse Objections shall be submitted to the court by
in writing to admit certain material and the party requested within the period for and
relevant matters which most likely will not prior to filing of his sworn statement.
be disputed during the trial. Compliance with the sworn statement shall be
(2) To avoid unnecessary inconvenience to the deferred until objections are resolved.
parties in going through the rigors of
proof, before the trial, a party may request Effect of Admission [Rule 26, Sec. 3]
the other to: (1) Any admission made by a party pursuant to
(a) Admit the genuineness of any such request is for the purpose of the
material and relevant document pending action only
described in and exhibited with the (2) It shall not:
request; or (a) Constitute an admission by him for
(b) Admit the truth of any material and any other purpose; nor
relevant matter of fact set forth in the (b) Be used against him in any other
request [Rule 26, Sec. 1] proceeding
How made: Effect of Failure to File and Serve Request

(1) A party files and serves upon any other for Admission [Rule 26, Sec. 5]
party a written request A party who fails to file and serve a request for
(2) Copies of the documents shall be served admission on the adverse party of material
with the request unless already furnished and relevant fact at issue which are, or ought
to be, within the personal knowledge of the
When made: At any time after issues have latter:
been joined. (1) He shall not be permitted to present
evidence on such facts
PAGE 78
(2) UNLESS otherwise allowed by the court Procedure:

for good cause and to prevent a failure of (1) A motion must be filed by the party
justice seeking the production or inspection
of documents and things and the
NOTE: This is similar to the provision on motion must show good cause
unjustified failure of a party to avail of written supporting the same. [Rule 27, Sec. 1]
interrogatories under Sec. 6, Rule 25.
(2) The court in which the action is
PRODUCTION OR INSPECTION OF pending shall issue an order:
DOCUMENTS OR THINGS [Rule 27] (a) which shall specify the time, place
Rule 27 applies only to a PENDING ACTION and manner of making the
and the documentary things subject of the inspection and taking copies and
motion must be only WITHIN the possession, photographs, and
control, or custody of a party (b) which may prescribe such terms
and conditions as are just. [Rule
27, Sec. 1]
Production or
Inspection of Subpoena Duces Court Order:
Documents or Tecum (1) The court may:
Things (a) Order any party to produce and
permit the inspection and copying or
A means of
photographing,
Essentially a mode compelling
(i) By or on behalf of the moving
of discovery production of
evidence party
(ii) Of any designated documents,
Rules is limited to It may be directed to a papers, books, accounts, letters,
the parties of the person whether a photographs, objects or tangible
action party or not things, not privileged, which
constitute or contain evidence
The order under this material to any matter involved in
Rule is issued only It may be issued upon the action
upon motion with an ex parte (iii) And which are in his possession,
notice to the adverse application custody or control
party
(b) Order any party to permit entry upon
May be asked before May be asked only designated land or other property in
and/or during trial during trial his possession or control
Necessary to show Not necessary to (i) For the purpose of inspecting,
good cause show good cause measuring, surveying, or
photographing, property or any
Grounds for quashal: designated relevant object or
(1) Unreasonable, operation thereon
Ground for quashal: oppressive,
No good cause irrelevant (2) Contents of the Order
shown (2) Failure to advance (a) Time, place, and manner of making
reasonable costs the inspection and taking copies and
of production photographs, and
(b) Such terms and conditions as are just
Consequence of Disobedience
disobedience, see constitutes contempt
Rule 29, Sec. 3 of court
PAGE 79
PHYSICAL AND MENTAL (3) If party examined refuses to deliver such

EXAMINATION OF PERSONS report:
[Rule 28] (a) The court on motion and notice may
When available: In an action in which the make an order requiring delivery on
mental or physical condition of a party is in such terms as are just
controversy. [Rule 28, Sec. 1] (b) And if a physician fails or refuses to
- NOTE: It is the mental and physical make such a report the court may
condition of a PARTY not a WITNESS exclude his testimony if offered at the
that is in controversy trial
How Done: Waiver of privilege [Rule 28, Sec. 4]

(1) Motion for examination is filed Where the party examined requests and
(2) Filed in the court in which the action is obtains a report on the results of the
pending examination, the consequences are:
(3) Court may, in its discretion, order him to (1) He has to furnish the other party a copy of
submit to a physical or mental the report of any previous or subsequent
examination by a physician examination of the same physical and
mental condition; AND
NOTE: Since the results of the examination (2) He waives any privilege he may have in
are intended to be made public, the same are that action or any other involving the
not covered by physician-patient privilege same controversy regarding the testimony
[Sec. 24(b), Rule 130] of any other person who has so examined
him or may thereafter examine him
Requisites to Obtain an Order for
Examination CONSEQUENCES OF REFUSAL TO
(1) A motion must be filed for the physical COMPLY WITH MODES OF
and mental examination DISCOVERY [Rule 29]
(2) The motion must show good cause for the
examination Refusal to
(3) Notice to the party to be examined and to Comply with
all other parties; Sanctions
Modes of
(4) The motion shall specify the time, place, Discovery
manner, conditions, and scope of the (1) The court may, upon
examination and the person or persons by proper application, compel
whom it is made [Rule 28, Sec. 2] a refusing deponent to
answer [Sec. 1]
Report of Findings [Rule 28, Sec. 3] (a) If granted, and refusal
to answer is without
(1) If requested by the party examined: substantial
(a) The party causing the examination to justification, court may
be made shall deliver to him a copy of require the refusing
a detailed written report of the party to pay proponent
examining physician setting out his Refusal to
the reasonable
findings and conclusions answer any
expenses incurred in
(2) After such request and delivery: question
obtaining the order
(a) The party causing the examination to [Sec. 1 and 2)
(b) If denied, and filed
be made shall be entitled upon without substantial
request to receive from the party justification, court may
examined a like report of any require proponent to
examination, previously or thereafter pay refusing party the
made, of the same mental or physical reasonable expenses
condition incurred in obtaining
the order
PAGE 80
Refusal to Refusal to
Comply with Comply with
Sanctions Sanctions
Modes of Modes of
Discovery Discovery
(2) A refusal to answer after The court on motion and
being directed by court to notice may:
do so may be constituted (1) Strike out all or any part of
as contempt of court Failure of any pleading of
party to disobedient party
Refusal to be attend or (2) Dismiss the action or
Cite the disobedient deponent
Sworn [Sec. serve proceeding or any part
in contempt of court
2] answers to thereof
The court may make the written (3) Enter a judgment by
following orders: interrogatori default against
(1) Prohibit the disobedient es disobedient party
party to introduce evidence [Sec. 5] (4) 4. Order payment of
of physical or mental reasonable expenses
condition incurred by the other
(2) Refuse to allow the including attorney’s fees
disobedient party to
Refusal to support or oppose claims NOTE: Expenses and attorney’s fees are not to
answer or defenses be imposed upon the Republic of the
designated (3) Strike out pleadings or Philippines. [Rule 29, Sec. 6]
questions or parts thereof
refusal to (4) Stay further proceedings TRIAL
produce (5) Dismiss the action or A trial is the judicial process of investigating
documents proceeding or any part and determining the legal controversies,
or to submit thereof starting with the production of evidence by the
to physical or (6) Render a judgment by plaintiff and ending with his closing
mental default against arguments [Acosta v. People (1962)].
examination disobedient party
[Sec. 3] (7) Direct the arrest of any A hearing is a broader term. It is not confined
party disobeying any of to the trial and presentation of the evidence
such orders except an because it actually embraces several stages in
order to submit to a the litigation. It includes the pre-trial and the
physical or mental determination of granting or denying a
examination motion. [Trocio v. Labayo (1973)]
(8) Other orders as may be
just NOTICE OF TRIAL [Rule 30, Sec. 1]
Upon entry of a case in the trial calendar, the
The court, upon proper clerk shall notify parties the date of its trial,
application, issue an order ensuring receipt of the notice at least 5 days
requiring the other party to before the trial date.
pay him reasonable expenses
incurred, including attorney’s General Rule: When an issue exists, trial is
fees necessary. Decision should not be made
Refusal to PROVIDED that party without trial.
admit under requesting proves
Rule 26 genuineness of such Exceptions: When there may be judgment
[Sec. 4] document or truth without trial
UNLESS court finds: (1) Judgment on the pleading [Rule 34]
(1) There were good reasons (2) Summary Judgment [Rule 35]
for denial (3) Judgment on Compromise
(2) Admissions sought were (4) Judgment on Confession
of no importance (5) Dismissal with Prejudice [Rule 17]
PAGE 81
(6) Judgment under Rule on Summary If the parties agree only on some of the facts
Procedure, and in issue, trial shall be held as to the disputed
(7) Stipulation of fact facts in such order as the court shall prescribe.
ADJOURNMENTS AND Stipulation Of Facts in Stipulation Of Facts in

POSTPONEMENTS Civil Cases Criminal Cases
[Rule 30, Sec. 2] May be signed by the Must be signed by
counsel alone who both counsel and
General Rule: A court may adjourn a trial from has an SPA accused
day to day, and to any stated time, as the May be made verbally Strict; it must always
expeditious and convenient transaction of or in writing be in writing
business may require
An agreed statement of facts is conclusive on
Limitation: The court has no power to adjourn the parties, as well as on the court. Neither of
a trial for: the parties may withdraw from the agreement,
(1) A period longer than one month for each nor may the court ignore the same. [McGuire v.
adjournment; or Manufactures Life]
(2) More than 3 months in all
ORDER OF TRIAL; REVERSAL OF
Exception: Unless authorized in writing by ORDER
the Court Administrator, SC [Rule 30, Sec. 5]
Postponement is not a matter of right. It is General Rule: Trial shall be limited to the
addressed to the sound discretion of the court. issues stated in the pre-trial order.
[Riano, citing Garces v Valenzuela (1989)]
Exceptions:
REQUISITES OF MOTION TO (1) Provisions on separate trials under Rule 31,
POSTPONE TRIAL Sec. 2
(1) For absence of evidence [Rule 30, Sec. 3] (2) When for special reasons the court directs
(a) Submission of affidavit showing that: otherwise
(i) The evidence is relevant; and
(ii) Diligent efforts had been exerted General Order of Trial:
to procure the evidence (1) Plaintiff’s evidence in chief
(2) Defendant’s evidence in chief and
(2) For illness of party or counsel [Rule 30, evidence in support of his counterclaim,
Sec. 4] cross-claim and 3rd-party complaint
(a) A motion for postponement stating (3) 3rd-party defendant shall adduce evidence
the ground relied upon must be filed; of his defense, counterclaim, cross-claim,
and and 4th party complaint
(b) The motion must be supported by an (4) 4th-party defendant shall adduce
affidavit or sworn certification evidence, and so forth
showing: (5) Parties against whom any counterclaim or
(1) The presence of such party or cross-claim has been pleaded shall
counsel at the trial is adduce evidence in support of their
indispensable; and defense, in the order to be prescribed by
(2) That the character of his court
illness is such as to render his (6) Parties may then respectively adduce
non-attendance excusable rebutting evidence only
(a) Unless the court permits them to
AGREED STATEMENT OF FACTS adduce evidence upon original case
(7) Upon admission of evidence, case
[Rule 30, Sec. 6]
submitted for decision
The parties may agree in writing upon the
(a) Unless court directs parties to argue
facts involved in the litigation and submit the
or to submit respective memoranda or
case for judgment in the facts agreed upon
any further pleading
without the introduction of evidence
PAGE 82
Reverse Order of Trial: law or facts in common with each other [Active
In this situation, the defendant presents Woods Products Co. Inc. v. CA]
evidence ahead of the plaintiff
SEVERANCE
When Proper: If the defendant in his answer
relies upon an affirmative defense When proper: This contemplates a single
action having a number of claims,
Where the answer of the defendant admitted counterclaims, cross-claims, third-party
the obligation stated in the complaint, complaints or issues which may be separately
although special defenses were pleaded, the tried
plaintiff has every right to insist that it was for
the defendant to come forward with evidence When separate trial of claims is conducted by
to support his special defenses [Yu v. Mapayo] the court under this section, it may render
separate judgments on each claim [see Sec. 5,
Ratio: Plaintiff need not have to present Rule 36]
evidence since judicial admissions do not
require proof [Sec. 2, Rule 129] This provision permitting separate trials
presupposes that the claims involved are
CONSOLIDATION OR SEVERANCE within the jurisdiction of the court
OF HEARING OR TRIAL [Rule 31]  When one of the claims is not within its
jurisdiction, the same should be dismissed,
CONSOLIDATION so that it may be filed in the proper court
When proper: When actions involving a DELEGATION OF RECEPTION OF

common question of fact or law are pending EVIDENCE [Rule 30, Sec. 9]
before the court
General Rule: The judge of the court where the
Court action: The court may: case is pending shall personally receive the
(1) Order a joint hearing or trial of any or all evidence to be adduced by the parties.
matters in issue in the actions
(2) Order all actions consolidated Exception: The court may delegate the
(3) Such orders concerning proceedings reception of evidence to its clerk of court who
therein as may tend to avoid unnecessary is a member of the bar in:
costs or delay (1) Default hearings;
(2) Ex parte hearings;
Purpose: To avoid multiplicity of suits, guard (3) Cases where parties agree in writing.
against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of However, the clerk of court has no power to
the trial court and save unnecessary costs and rule on objections to any question/admission
expenses of exhibits.
Where a case has been partially tried before Objections shall be resolved by the court upon
one judge, the consolidation of the same with submission of the clerk’s report and TSN
another related case pending before another within 10 days from termination of the
judge who had no opportunity to observe the hearing.
demeanor of the witness during trial makes
the consolidation not mandatory. [PCGG v. The rule requires that, where the reception of
Sandiganbayan (1992)] evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither
It has been held that the rules do not agreement by parties nor their acquiescence
distinguish between cases filed before the can justify its violation. [Umali-Paco v. Quilala]
same branch or judge and those that are
pending in different branches or before
different judges of the same court, in order
that consolidation may be proper, as long as
the cases involve the resolution of questions of
PAGE 83
TRIAL BY COMMISSIONERS [Rule 32] Order of Reference: [Rule 32, Sec. 3]

(1) When a reference is made, the clerk shall
CONCEPTS furnish the commissioner with a copy of
the order of reference
Commissioner - A person to whom a case (2) Contents of the order:
pending in court is referred, for him to take (a) It may specify or limit the powers of
testimony, hear the parties and report thereon commissioner
to the court, and upon whose report, if (b) It may direct him to report only upon
confirmed, judgment is rendered particular issues; or to do or perform
particular acts; or to receive and
General rule: Trial by commissioner depends report evidence only
largely upon the discretion of the court (c) It may fix the date for beginning and
closing the hearings and for the filing
Exception: In the following instances, of his report
appointment of a commissioner is necessary:
(1) Expropriation [Rule 67] Powers of Commissioner:
(2) Partition [Rule 69] (1) Exercise power to regulate the proceeding
(3) Settlement of Estate of a Deceased before him
Person in case of contested claims; and (2) Do all acts and take all measures
(4) Submission of Accounting by executors or necessary or proper for the efficient
administrators performance of his duties
(3) Swear witnesses
Kinds of trial by commissioners (4) Issue subpoena and subpoenas duces
(1) Reference by consent of both parties. tecum
(2) Reference ordered on motion when: (5) Rule upon the admissibility of evidence
(a) Trial of an issue of fact requires the (a) UNLESS otherwise provided in the
examination of a long account on order of reference
either side
(b) Taking of an account is necessary for NOTE: Limitations on the powers of
the court’s information before commissioner are found in the Order
judgment, or for carrying of Reference.
judgment/order into effect.
(c) A question of fact, other than upon Proceedings before the Commissioner [Rule
the pleadings, arises in any stage of a 32, Sec. 5]
case or for carrying a judgment/order (1) Upon receipt of the order of reference, the
into effect. commissioner shall set a time and place
for the first meeting of parties or their
REFERENCE BY CONSENT counsel
The court may order any or all of the issues in (2) Notices shall be sent to parties or counsel
a case to be referred to a commissioner by (3) Hearing is to be held within 10 days after
written consent of BOTH parties. [Rule 32, Sec. date of order of reference
1] (4) If a party fails to appear, the
commissioner may: [Sec. 6]
Commissioners are to be: (a) Proceed ex parte; or
(1) Agreed upon by the parties; or (b) Adjourn the proceedings to a future
(2) Appointed by the court date giving notice to the absent party
REFERENCE ORDERED ON MOTION REPORT OF COMMISSIONER [Rule 32, Sec.

9]
When proper: (1) When filed:
(1) When trial of an issue of fact requires (a) Filed upon completion of the trial or
examination of long account hearing or proceeding before the
(2) When taking of an account is necessary commissioner
(3) When question of fact, other than upon (b) Filed with the court
pleadings, arises upon motion or
otherwise, in any stage [Rule 32, Sec. 2]
PAGE 84
(2) Contents: DEMURRER TO EVIDENCE

(a) Report in writing upon the matters
submitted to him by the order of
reference
CONCEPTS:
(b) When his powers are not specified or
Definition - A species of MTD that may be
limited, he shall set forth his findings
invoked based on insufficiency of evidence (i.e.
of fact and conclusions of law in his
upon the facts and the law the plaintiff has
report
shown no right to relief). [Rule 33, Sec. 1]
(c) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if
It is invoked after the plaintiff has presented
any, of testimonial evidence presented
before him all the evidence available to him
Judgment on Demurrer to Evidence
It is a judgment rendered by the court
NOTICE AND HEARING ON THE REPORT
dismissing a case upon motion of defendant,
[Rule 32, Sec. 10 and 11]
made after plaintiff has rested his case, on the
ground that upon the facts presented and the
Upon filing of the report of the
law on the matter, plaintiff has not shown any
commissioner:
right to relief.
(1) Parties shall be notified by the clerk
(2) Parties shall be allowed 10 days within
Distinctions
which to object to the findings of the
report
Demurrer to evidence Motion to dismiss
NOTE: Objections to the report based upon
grounds which were available to the parties Presented before a
It is presented after
during the proceedings before the responsive pleading
the plaintiff has
commissioner shall not be considered by the is made by the
rested his case
court UNLESS they were made before the defendant
commissioner It may be based on
The ground is based
any of those
Hearing on the Report: on the insufficiency
enumerated in Rule
(1) When made: Upon expiration of the 10 of evidence
16
day period in Sec. 10
(2) The report shall be then set forth in If the motion to
hearing If the motion is
dismiss is denied, the
(3) After the hearing, the court shall issue an denied, the
defendant may file
order, either: defendant may
his responsive
(a) Adopting, modifying, or rejecting the present his evidence
pleading
report in whole or in part
(b) Or recommitting it with instructions If the motion to
(c) Or requiring the parties to present If the motion is dismiss is granted,
further evidence before the granted, the the complaint is
commissioner or the court complaint is dismissed and
dismissed depending on the
The plaintiff’s ground, the
remedy is to appeal complaint may be re-
filed
PAGE 85
EFFECT OF DENIAL; EFFECT OF WAIVER OF RIGHT TO PRESENT

GRANT EVIDENCE
If the order granting the demurrer is reversed
Grant of demurrer Denial of demurrer
on appeal, the defendant loses his right to
The case shall be The defendant shall present evidence. [Rule 33, Sec .1; Republic v.
dismissed have the right to Tuvera (2007)]
present evidence
Two scenarios:
The court should set
the date for the Motion granted but
Motion denied
reception of the reversed on appeal
defendant’s evidence-
in-chief [Northwest Movant shall have the Movant is deemed to
Airlines v. CA (1998)] right to present his have waived his right
evidence to present evidence.
Plaintiff's remedy The decision of the
would be to appeal. appellate court will
be based only on the
However, if the order evidence of the
granting the plaintiff as the
demurrer is reversed defendant loses his
on appeal, the right to have the case
defendant loses his remanded for
right to present reception of his
evidence. [Rule 33, evidence
Sec 1; Republic v. xxx
Tuvera (2007)] Denial is Order of the court is
INTERLOCUTORY an ADJUDICATION
The appellate court Sec. 1, Rule 36 (that ON THE MERITS
should render judgment should Hence, the
judgment on the state clearly and requirement in Sec. 1,
basis of the evidence distinctly the facts and Rule 36 should be
submitted by the the law on which it is complied with
plaintiff. [Radiowealth based) will NOT
Finance v. Del Rosario apply.
(2000)] The denial is NOT
appealable
Equivalent to An interlocutory order
judgment (i.e. based and not appealable.
on the merits of the However, it may be
evidence presented the subject of a
so far) petition for certiorari
for GAD under Rule
65 [Katigbak v.
Sandiganbayan
(2003)]
PAGE 86
DEMURRER TO EVIDENCE IN CIVIL

CASES VERSUS CRIMINAL CASES
Judgments and Final
Civil Cases Criminal Cases Orders
May be filed with or
without leave of court. JUDGMENTS IN GENERAL
Leave of court is The final ruling by a court of competent
Defendant need not
necessary so that the jurisdiction regarding the rights and
ask for leave of court
accused could present obligations of the parties or other matters
his evidence if submitted to it in an action/proceeding
demurrer is denied [Macahilig v. Heirs of Magalit (2000)]
If the court finds If the court finds the
Requisites of a Valid Judgmeny
plaintiff’s evidence prosecution’s evidence
[Rule 36, Sec. 1; Art. VIII, Sec. 14, 1987
insufficient, it will insufficient, it will
grant demurrer by grant demurrer by
Constitution]
dismissing the rendering judgment of (1) Court/tribunal must be with authority to
complaint acquittal. hear and determine the matter before it;
(2) Court must have jurisdiction over the
The judgment of parties and the subject matter;
dismissal is (3) Parties must have been given an
appealable. opportunity to adduce evidence in their
If plaintiff appeals and behalf;
judgment is reversed (4) Evidence must have been considered by
by the appellate court, the tribunal in deciding the case; [Acosta
it will decide the case Judgment of acquittal v. COMELEC (1998)]
on the basis of is NOT appealable. (5) Judgment must be in writing, personally
plaintiff’s evidence Double jeopardy sets and directly prepared by the judge. A
with the consequence in. verbal judgment is, under the law,
that the defendant ineffective. [Corpus v. Sandiganbayan
already loses his right
(2004)]
to present evidence.
There is no res
(6) Judgment must state clearly the facts and
judicata in dismissal the law upon which the decision is based,
due to demurrer. signed by the judge and filed with the
clerk of court. [Rule 35, Sec. 1]
The plaintiff files a
The court may motu
motion to deny Kinds of Judgment:
proprio deny the
motion to demurrer to (1) JUDGMENT ON COMPROMISE - It is one
motion
evidence conferred on the basis of a compromise
agreement entered into between the
If court denies the parties. It is immediately executory in the
demurrer filed with
absence of a motion to set aside on the
leave, accused may
ground of FAME.
present his evidence.
If court denies the If court denies the
demurrer, defendant demurrer filed without (2) JUDGMENT UPON CONFESSION - It is
will present his leave, accused can no one rendered by the court when a party
evidence longer present his expressly agrees to the other party’s claim
evidence and submits or acknowledges the validity of the claim
the case for decision against him.
based on the
prosecution’s evidence (a) JUDGMENT BY COGNOVIT
ACTIONEM – After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiff’s cause of action was just and
rightful.
PAGE 87
(b) JUDGMENT BY CONFESSION (9) SEPARATE JUDGMENT - It is one

RELICTA VERIFICATIONE – After rendered disposing of a claim among
pleading and before trial, the several others presented in a case, after a
defendant both: (a) confessed the determination of the issues material to a
plaintiff’s cause of action and (b) particular claim and all counterclaims
withdrew his plea or other allegations, arising out of the transaction or
whereupon judgment was entered occurrence that is the subject matter of
against him without proceeding to said claim. [Rule 36, Sec. 5] It is proper
trial. when more than one claim for relief is
presented in an action for the
(3) JUDGMENT UPON THE MERITS - It is one determination as to the issues material to
that is rendered after consideration of the the claim has been made.
evidence submitted by the parties during
the trial of the case. A judgment is “on the (10) MEMORANDUM DECISION - A decision of
merits” when it amounts to a legal the appellate court which adopts the
declaration of the respective rights and findings and conclusions of the TC.
duties of the parties, based upon the (a) A judgment is considered rendered
disclosed facts upon the filing of the signed decision.
(b) This includes an amended decision
(4) CLARIFICATORY JUDGMENT - It is because an amended decision is a
rendered to clarify an ambiguous distinct and separate judgment and
judgment or one difficult to comply with. must follow the established
procedural rule.
(5) JUDGMENT NUNC PRO TUNC - Literally,
“now for then”. It is a judgment intended JUDGMENT WITHOUT TRIAL
to enter into the record the acts which had When trial is NOT necessary:
already been done, but which do not (1) The pleadings of the parties tender no
appear in the records. [Lichauco v. Tan issue at all – judgment on the pleadings
Pho (1923)] may be directed by the court [Rule 34]
(2) There is actually no genuine issue from
(6) JUDGMENT SIN PERJUICIO - It may refer the pleadings, affidavits, depositions and
to a dismissal of a case without prejudice other papers – court may render a
to it being re-filed. summary judgment [Rule 35]
(3) Parties entered into a compromise or an
(7) CONDITIONAL JUDGMENT - It is one the amicable settlement either during the
effectivity of which depends upon the pre-trial or during the trial [Rule 18; Art.
occurrence or non-occurrence of an event. 2028 Civil Code]
Such a judgment is generally void (4) Complaint has been dismissed with
because of the absence of a disposition prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3;
[Cu-Unjieng v. Mabalacat Sugar Co. Rule 7, Sec. 5 (last par.)]
(1940)] (5) Case falls under the Rules on Summary
Procedure
(8) SEVERAL JUDGMENT - It is one rendered (6) Agreed statement of facts [Rule 30, Sec. 6]
by a court against one or more defendants
and not against all of them, leaving the
action to proceed against the others. [Rule
36, Sec. 4] It is proper when the liability of
each party is clearly separate and distinct
from his co-parties such that the claims
against each of them could have been the
subject of separate suits, and the
judgment for or against one of them will
not necessarily affect the other.
PAGE 88
CONTENTS OF A JUDGMENT JUDGMENT ON THE

PLEADINGS
Parts of a Judgment Judgment on the Pleadings is a judgment
(1) Body, Ratio decidendi, or Opinion of the rendered by the court if the answer fails to
court – It contains the findings of facts tender an issue, or otherwise admits the
and conclusions of law; material allegations of the adverse party’s
(2) Fallo, or Disposition of the case – It is the pleading. It is rendered without a trial, or even
dispositive part of the judgment that without a pre-trial
actually settles and declares the rights
and obligations of the parties, finally, It has been held that a motion for a judgment
definitively, and authoritatively [Light Rail on the pleadings, were the answer admits all
Transit Authority v. CA (2004)]; The part of material averments, is one that may be
the judgment that is subject to execution considered ex parte because upon the
[Riano] particular facts thus presented and laid down
(3) Signature of the judge before the court, the plaintiff is entitled to a
judgment [Dino v. Valencia], or motu proprio
Distinction between Judgment and Opinion under Rule 18(2g) [Luzon Dev. Bank v.
of the Court Conquilla]
(1) A judgment (or FALLO) must be
distinguished from an opinion. Grounds for Judgment on the Pleadings
(2) The latter is the informal expression of the [Rule 34, Sec. 1]
views of the court and cannot prevail (1) The answer fails to tender an issue
against its final order or decision. because of:
(3) While the two may be combined in one (a) General denial of the material
instrument, the opinion forms no part of allegations of the complaint;
the judgment. (b) Insufficient denial of the material
(4) So there is a distinction between the allegations of the complaint; OR
findings and conclusions of a court and its (2) The answer admits material allegations of
judgment. the adverse party’s pleading
(5) While they may constitute its decision and
amount to a rendition of a judgment they Judgment on the Pleadings is NOT proper
are not the judgment itself. in actions for:
(6) They amount to nothing more than an (1) Declaration of Nullity of Marriage
order for judgment, which, of course, must (2) Annulment of marriage; and
be distinguished from the judgment. (3) Legal Separation
[Freeman on Judgments, Vol. I, 5th Edition, (4) Unliquidated damages; claims for such
page 6, quoted in Casilan v. Salcedo (1969)] damages must be alleged and proved
(5) Admission refers only to allegations of
Conflict Between Dispositive Portion and fact and not conclusions of law
Body of Decision (6) Insufficiency of facts; proper remedy is
amendment
Rule: Where there is a conflict between the
fallo and the body of the decision, the fallo NOTE: If the complaint states no cause of
controls. action, a motion to dismiss should be filed and
not a motion for judgment on the pleadings.
Qualification: This rule applies only when the
dispositive part is definite, clear, and
unequivocal [Union Bank v. Pacific Equipment SUMMARY JUDGMENTS
Corporation (2008)] Summary Judgment is a judgment rendered
by a court without trial if it is clear that there
Basis: The fallo is the final order. The opinion exists NO GENUINE ISSUE or controversy as
in the body is merely a statement ordering to any material fact, EXCEPT as to the amount
nothing [Poland Industrial Limited v. National of damages
Development Company (2005)]
PAGE 89
Genuine Issue - an issue of fact which calls for WHEN THE CASE IS NOT FULLY
the presentation of evidence as distinguished ADJUDICATED
from an issue, which is a sham, fictitious,
contrived, and patently unsubstantial so as Partial Summary Judgment - Applies when
not to constitute a genuine issue for trial for some reason there can be no full summary
judgment. Trial should deal only with the facts
PROCEDURE [Rule 35, Sec. 3] not yet specified or established.
(1) Movant files a motion for summary
judgment with supporting affidavits, Nature – It is interlocutory in nature and is not
depositions or admission a final and appealable judgment. [Guevarra v.
(2) Service to the adverse party at least 10 CA]
days the hearing
(3) Adverse party may serve opposing Duty of the Court [Rule 35, Sec. 4]
affidavits, depositions or admissions at (1) Ascertain what material facts exist
least 3 days before the hearing without substantial controversy and what
(4) Hearing – Court shall determine if a are actually and in good faith
genuine issue as to any material fact controverted based on:
exists and if the movant is entitled to a (a) An examination of the pleadings and
summary judgment as a matter of law evidence before it
(5) Court renders summary judgment (b) Interrogation of the counsel
NOTE: Damages must still be proven even if (2) Make an order specifying the facts and the
not denied. extent of the amount of damages that
appear without substantial controversy
Bases for Summary Judgment:
(1) Affidavits made on personal knowledge; (3) Direct further proceedings as are just
(2) Depositions of the adverse or a 3rd party;
[Rule 23] (4) Conduct trial on the controverted facts
(3) Admissions of the adverse party; [Rule 26] accordingly
(4) Answers to interrogatories. [Rule 25]
Effect - A partial summary judgment is not a
WHO MAY FILE final judgment, but merely a pre-trial
adjudication that said issues in the case shall
Who may file the be deemed established for the trial of the
When
motion case. [Guevarra v. CA (1983)]
May file the motion only
Claimant after the answer has been AFFIDAVITS AND ATTACHMENTS
served
May file the motion any These are submitted to support the motion for
Defendant
time summary judgment.
NOTE: Filing of a motion for summary Form of affidavits and supporting papers
judgment does not interrupt the running of [Rule 35, Sec. 5]
the period for filing an answer. Hence, the (1) Made on personal knowledge
movant must also file a Motion for Extension (2) Shall set forth such facts as would be
of Time to File Answer. admissible in evidence
(3) Shall show affirmatively that the affiant is
TEST: Whether or not the pleadings, affidavits competent to testify to the matters stated
and exhibits in support of the motion are therein.
sufficient to overcome the opposing papers (4) Sworn or certified true copies of all papers
and to justify the finding that, as a matter of or parts thereof referred to in the affidavit
law, there is no defense to the action or claim shall be attached thereto OR served
is clearly meritorious [Estrada v. Consolocaion, therewith.
et al.]
PAGE 90
Affidavits in bad faith Summary Judgment on Judgment by

(1) Affidavits presented under this Rule which Judgment The Pleadings Default
appear to the court at any time as Available only
Available in Available in
presented in bad faith or solely for the in actions to
any action any action
purpose of delay recover a
except except
(2) Effects: debt, or for a
annulment of annulment of
(a) Court shall order the offending party liquidated
marriage, or marriage, or
or counsel to pay the other party – sum of money
legal legal
amount of reasonable expenses which or for
separation separation
the filing of the affidavits caused him declaratory
cases cases
to incur, including attorney’s fees relief
(b) Court may adjudge the offending If filed by
party or counsel guilty of contempt, plaintiff, it
after hearing must be filed
at any time
SUMMARY JUDGMENT after an
Validity: Sec. 3, Rule 35 requires: answer is
(1) That there must be NO genuine issue as There is
served. There is no
to any material fact, except for the already an
If filed by answer filed
amount of damages; and answer filed
defendant,
(2) That the party presenting the motion for may be filed
summary judgment must be entitled to a at any time
judgment as a matter of law even before
SUMMARY JUDGMENT v. there is
answer
JUDGMENT ON THE PLEADINGS v.
JUDGMENT BY DEFAULT
Summary Judgment on Judgment by
RENDITION OF JUDGMENTS
Judgment The Pleadings Default AND FINAL ORDERS
Based on the
Based on the
pleadings, Based solely
complaint FORM OF JUDGMENT [Rule 36, Sec. 1]
and evidence, (1) In writing
depositions, on the
if (2) Personally and directly prepared by the
admissions, pleadings
presentation judge
and affidavits
is required (3) Stating clearly & distinctly the facts and
Generally the law on which it is based
available only (4) Signed by the judged
Available to
to the plaintiff, (5) Filed with the clerk of court.
both plaintiff Available to
unless the
and plaintiff
defendant DEFINITION OF RENDITION OF
defendant
presents a JUDGMENT
counterclaim
There is no It is the filing of the judgment with the clerk of
The answer
genuine issue court. It is not the pronouncement of the
fails to tender No issue as
between the judgment in open court that constitutes the
an issue or no answer is
parties rendition. Even if the judgment has already
there is an filed by the
i.e. There may been put in writing and signed, it is still
admission of defending
be issues but subject to amendment if it has not yet been
material party
these are filed with the clerk of court and before its filing
allegations
irrelevant does not yet constitute the real judgment of
10-day notice 3-day notice 3-day notice the court. [Ago v. CA (1962)]
required required rule applies
May be
interlocutory
On the merits On the merits
or on the
merits
PAGE 91
PERIOD OF RENDITION [Art VIII, Sec. 5, ENTRY OF JUDGMENTS AND FINAL

1987 Constitution] ORDERS [Rule 36, Sec. 2]
(1) All cases filed must be decided or resolved
by the Supreme Court within 24 months When entered: If no appeal or motion for new
from the date of their submission for trial or reconsideration is filed within the time
decision. provided in the Rules, judgment or final order
(2) Unless reduced by the SC, within 12 shall forthwith be entered by the clerk in the
months for lower collegiate courts and book of entries of judgments
within 3 months for all other lower courts.
Date of Finality: Date of finality is the date of
A case is deemed submitted for resolution entry.
upon the filing of the last pleading, brief or
memorandum required by the Rules of Court Contents of the Records in the Book of Entries:
or by the court. (1) Dispositive part of the judgment or final
order
An extension of the period may be set by the (2) Signed by the clerk with a certification
SC upon request by the judge concerned on that such judgment or final order has
account of heavy caseload or by other become final and executory.
reasonable excuse [Arap v Mustafa (2002)]
AMENDMENTS TO JUDGMENT
ENTRY OF JUDGMENT AND
FINAL ORDER General Rule: Once a judgment becomes final
and executory, such judgment can no longer
be disturbed, altered, or modified
DEFINITION
The entry of judgment refers to the physical
Exceptions:
act performed by the clerk of court in entering
(1) Clerical errors
the dispositive portion of the judgment in the
(2) Nunc Pro Tunc entries
book of entries of judgment after the same
(3) Void judgments - Final judgment can be
has become final and executory. [Riano]
annulled on the ground of fraud or lack of
jurisdiction or contrary to law [Panlilio v.
It is the filing of the signed decision with the
Garcia]
clerk of court, and not its pronouncement in
(4) Whenever circumstances transpire after
open court that constitutes rendition of
finality of the decision making its
judgment [Ago v. CA]
execution unjust and inequitable:
(a) Cases where, because of supervening
Promulgation refers to the process by which a
events, it becomes imperative, in the
decision is published, officially announced,
higher interest of justice, to direct its
made known to the public or delivered to the
modification in order to harmonize the
clerk of court for filing, coupled with notice to
disposition with the prevailing
the parties or their counsel
circumstances [Seavan Carrier Inc. v.
GTI Sportswear Corp.]
(b) Whenever it is necessary to
Rendition of judgment Entry of judgment accomplish the aims of justice
[Pascual v. Tan]
Act of clerk of court in
entering the
Filing of the
dispositive portion of
judgment with the
the judgment in the
clerk of court
book of entries of
judgment
PAGE 92
NOTE: Fraud must be extrinsic fraud

Amended/clarified which means any fraudulent scheme
Supplemental decision
judgment executed by the prevailing party
An entirely new outside of the trial against the losing
Does not take the
decision and party who because of such fraud is
place of or extinguish
supersedes the prevented from presenting his side of
the original judgment
original judgment the case.
Court makes a
thorough study of the (2) Newly discovered evidence
original judgment and (a) Requisites:
renders the amended (i) It must have been discovered after
Serves to add to the the trial
and clarified
original judgment (ii) It could not have been discovered
judgment only after
considering all the and produced at the trial even
factual and legal with the exercise of reasonable
issues diligence; and
(iii) The evidence is of such weight
that if admitted, would probably
alter the result of the action; and
Post-Judgment (iv) It must be material and not
Remedies merely collateral, cumulative, or
corroborative
Grounds for Motion for Reconsideration:

MOTION FOR (1) Damages awarded are excessive
RECONSIDERATION AND (2) Evidence is insufficient to justify the
MOTION FOR NEW TRIAL decision or final order
(3) The decision or final order is contrary to
law
REMEDIES BEFORE FINALITY OF
JUDGMENT WHEN TO FILE:
(1) Motion for reconsideration An aggrieved party may file a motion for new
(2) Motion for new trial trial or reconsideration within the period for
(3) Appeal taking an appeal.
DEFINITION The motions are filed with the court which
A motion for reconsideration under Rule 37 is rendered the questioned judgment or final
directed against a judgment or final order. It is order.
not the motion for reconsideration of
interlocutory order, which often precedes a The period for appeal is within 15 days after
petition for certiorari under Rule 65. It does notice to the appellant of the judgment or
not apply to cases that fall under Summary final order appealed from. The 15-day period
Procedure. is deemed to commence upon receipt by the
counsel of record, which is considered notice
GROUNDS: [Rule 37, Sec. 1] to the parties. Service upon the parties
themselves is prohibited and is not considered
Grounds for Motion for New Trial: as official receipt of judgment.
(1) FAME – Fraud, accident, mistake,
excusable negligence Effect of Filing – The filing of a timely motion
(a) Conditions: interrupts the period to appeal.
(i) Which ordinary prudence could
not have guarded against; and
(ii) By reason of which such aggrieved
party has probably been impaired
in his rights
PAGE 93
FORM AND CONTENTS [Rule 37, Sec. 2] (3) Amend such judgment or final order
Form: accordingly if:
(1) The motion must comply with the (a) The court finds that excessive
provisions of Rule 15 otherwise it will not damages have been awarded or that;
be accepted for filing and/or will not or
suspend the running of the reglementary (b) That the judgment or final order is
period. contrary to the evidence or law
(2) It shall be made in writing, stating the
ground or grounds therefor Resolution [Rule 37, Sec. 4] – he motion shall
(3) Written notice shall be served by movant be resolved within 30 days from submission
on the adverse party
The 30-day period to resolve the motion is
NOTE: Non-compliance with this held to be mandatory [Gonzales v. Bantolo
requirement would reduce the motion (2006)]
to a mere pro forma motion, which
shall not toll the period for appeal. GRANT OF THE MOTION; EFFECT
Contents of a motion for new trial Grant of motion for reconsideration
(1) If based on FAME, it shall be supported by The court may amend the judgment or final
an affidavit of merits order accordingly. The amended judgment is
in the nature of a new judgment, which
NOTE: An affidavit of merits is one which supersedes the original judgment.
recites the nature and character of FAME
on which the motion is based and stating Grant of motion for new trial
the movant’s good and substantial cause The original judgment shall be vacated, and
of action or defense and the evidence he the action shall stand for trial de novo. The
intends to present if granted recorded evidence upon the former trial shall
be used at the new trial without retaking them
(2) If based on newly found evidence, it shall (if they are material and competent).
be supported by:
(a) Affidavits of witnesses by whom such Partial grant
evidence is expected or given; or Rule 37, Sec. 7 allows the court to order a new
(b) Duly authenticated documents which trial or grant reconsideration as to such issues
are proposed to be introduced in if severable without interfering with the
evidence judgment or final order upon the rest.
Contents of a motion for reconsideration REMEDY WHEN MOTION IS

(1) Shall point out specifically the findings or DENIED; FRESH 15-DAY RULE
conclusions of the judgment or final order
which are not supported by evidence or Effect of Denial of Motion – The judgment or
which are contrary to law final order shall stand as is
(2) Make express reference to testimonial or
documentary evidence or provisions of law Single-Motion Rule [Rule 37, Sec. 5]
alleged to be contrary to such findings or A party shall not be allowed to file a 2nd
conclusions motion for reconsideration.
 Follow the Omnibus Motion Rule
RESOLUTION OF MOTION AND
COURT ACTION NOTE: While a 2nd motion for reconsideration
is not allowed, a second motion for new trial is
Court action – The court may: [Rule 37, Sec. 3] authorized
(1) Set aside the judgment or final order and  However, it must be based on a ground not
grant a new trial; or upon such terms as existing nor available when the 1st motion
may be just was made within the period allowed but
(2) Deny the motion excluding the time during which the first
motion had been pending.
PAGE 94
Fresh 15-Day Rule: The aggrieved party has a Motion for

Motion for New Trial
“fresh period” of 15 DAYS within which to file Reconsideration
his appeal. Second motion from
Second motion may the same party is
If the motion is denied, the movant has a be allowed so long prohibited.
“fresh period” of 15 days from receipt or notice as based on grounds
of the order denying the motion for new trial not existing or The prohibition
or motion for reconsideration within which to available at the time applies only to final
file an appeal. [Neypes v. CA, 2005] the first motion was orders or judgments,
made hence it is allowed in
NOTES: interlocutory orders
(1) This fresh period becomes significant only If the court finds that
when a party opts to file a motion for new If a new trial is excessive damages
trial or reconsideration granted, original have been awarded or
(2) This rule does not refer to the period judgment or final that the judgment or
within which to appeal from the order order is vacated. final order is contrary
denying the motion for reconsideration The case stands for to the evidence or law,
but to the period within which to appeal trial de novo and will it may amend such
from the judgment itself. be tried anew judgment or final
order accordingly
Filing of a proper motion for new trial Available even on Available against the
interrupts the running of the period of appeal appeal but only on judgments or final
which begins to run again from receipt of the the ground of newly orders or both the trial
notice of the movant of the order denying his discovered evidence and appellate courts
motion (fresh 15 day period) [Phil. Commercial Both are prohibited motions under Summary
and Industrial Bank v. Ortiz] Procedure
Remedies if Motion is DENIED:

(1) To appeal from the judgment or final
APPEALS IN GENERAL
order itself
(2) The order denying the motion may itself NATURE OF APPEAL
be assailed by a petition for certiorari (1) Not a natural right nor a part of due
under Rule 65 process
(3) Rule 37, Sec. 9 says that an order denying (2) It is merely a statutory right, and may be
a motion for new trial or reconsideration is exercised only in the manner and in
NOT appealable accordance with provisions of the law. It
(a) NOTE HOWEVER: AM 07-7-12 must comply with the requirements;
amended Sec. 1 of Rule 41 by deleting failing to do so, the right to appeal is lost
“An order denying a motion for new (3) Once granted, appeals become part of
trial or reconsideration” from the non- due process and should be liberally
appealable orders. applied in favor of the right to appeal
Motion for JUDGMENTS AND FINAL ORDERS

Motion for New Trial
Reconsideration SUBJECT TO APPEAL; MATTERS
Grounds: Grounds: NOT APPEALABLE
(1) Fraud, accident, (1) Damages awarded Rule 41, Sec. 1, as amended by AM 07-7-12-SC
mistake, or are excessive (2007) provides:
excusable (2) That evidence is (1) Appeal may be taken from a judgment or
negligence insufficient to final order that completely disposes of the
(2) Newly discovered justify the decision case, or of a particular matter therein
evidence or final order when declared by the Rules to be
 Note the (3) 3. That decision appealable
qualifications or final order is
of each contrary to law
PAGE 95
(2) No appeal may be taken from: indicates that other things remain to be done.
(a) An order denying a petition for relief [BPI v. Lee (2012)]
or any similar motion seeking relief
from judgment; REMEDY AGAINST JUDGMENTS
(b) An interlocutory order; AND ORDERS WHICH ARE NOT
(c) An order disallowing or dismissing an
appeal;
APPEALABLE
The aggrieved party may file a special civil
(d) An order denying a motion to set
action under Rule 65. [Rule 41, Sec. 1]
aside a judgment by consent,
confession or compromise on the
ground of fraud, mistake or duress, or MODES OF APPEAL
any other ground vitiating consent; (1) Ordinary appeal – Rule 40 and 41
(e) An order of execution; (a) Notice of appeal
(f) A judgment or final order for or (b) Record on appeal
against one or more of several parties (2) Petition for review – Rule 42
or in separate claims, counterclaims, (3) Petition for review on certiorari – Rule 45
cross-claims and third-party
complaints, while the main case is Petition for
Ordinary Petition for
pending, unless the court allows an Review on
Appeal Review
appeal therefrom; and Certiorari
(g) An order dismissing an action without Appeal by
Rule 42 Rule 45
prejudice. writ of error
Case is Case decided
Case decided by
NOTE: AM 07-7-12-SC removed from the decided by by RTC in the
the RTC, CA,
original list “an order denying a motion for RTC in its exercise of its
CTA, and
new trial or reconsideration.” original appellate
Sandiganbayan
jurisdiction jurisdiction
NOTE, HOWEVER: Rule 37, Sec. 9 which Petition for
Appealed to Appealed to the
states that no appeal can be made from review with
the CA SC
an order denying MR or MNT. the CA
File a verified
Only final judgments or orders can be petition for File verified
appealed as distinguished from interlocutory review with petition for
judgments or orders which are not File notice of CA. review on
appealable. appeal or Pay docket certiorari with
record of and lawful the SC.
Final Order Interlocutory Order appeal with fees and Pay docket and
Disposes of the Does not dispose of a court of P500 as lawful fees and
matter in its entirety, case completely but origin and deposit for P500 for costs.
leaving nothing more leaves something give a copy costs with Submit proof of
to be done but to more to be decided to adverse the CA. service of a copy
enforce execution upon. party Furnish RTC to the lower
Not appealable except and adverse court and
through a petition for party a copy adverse party
Appealable of such
certiorari under Rule
65 Within 15 Within 15
Must clearly and days from days from
No need to comply Within 15 days
distinctly state the law notice of notice of
with such a from notice of
and the facts on judgment for decision to
requirement judgment or
which it is based notice of be reviewed
order of denial
appeal and or from
of MFR or
An interlocutory order is one that does not 30 days for denial of a
MFNT
finally dispose of the case, and does not end records on MFR or
the court's task of adjudicating the parties’ appeal MFNT
contentions and determining their rights and
liabilities as regards each other, but obviously
PAGE 96
ISSUES TO BE RAISED ON APPEAL Effect of

Limited to cognizable judgments/issues. Period to Appeal Extensions MR or
MNT
The appellate court has no jurisdiction to MTC to RTC to CA
review a judgment which is immediately final The CA may
and executory by express provision of law. grant a 15 day
Fresh
[Republic v. Bermudez-Lorino (2005)] extension.
15 days from period
No further
notice of the to
Rationale: Appeal is merely a privilege extension shall
judgment or final appeal
conferred by law upon the litigants. be granted
order OR from from
except for the
denial of MR or denial
A party cannot change the theory on appeal. most compelling
MNT MR or
Only issues pleaded in the lower court and reasons and in no
MNT
properly raised may be resolved by the case longer than
appellate court. [Medina v. CA (1992)] 15 days.
QJA to CA
However, issues which are inferred from or 15 days from The CA may
necessarily connected with the issue properly notice of the grant a 15 day Fresh
raised and pleaded may be resolved by the award, judgment, extension. No period
appellate court. [Espina v. CA (1992)] final order or further extension to
resolution or shall be granted appeal
PERIOD OF APPEAL from date of last except for the from
publication if most compelling denial
Effect of MR required by law reasons and in no MR or
Period to Appeal Extensions OR from denial of case longer than MNT
or MNT
MTC to RTC MR or MNT 15 days.
By notice of RTC to SC
appeal; within 15 No Interrupts RTC to CA to SC
days from notice of extensions period to CA to SC
judgment or final allowed appeal Fresh
15 days from
order period
notice of The SC may grant
By record of to
judgment or final a 30 day
appeal; appeal
order OR from extension for
within 30 days from
denial of justifiable
from notice of denial
petitioner’s MR or reasons.
judgment or final MR or
MNT.
order MNT
RTC to CA
By notice of The fresh period rule shall apply to:
appeal; (1) Rule 40 governing appeals from the
No Interrupts Municipal Trial Courts to the Regional
Within 15 days
extensions period to Trial Courts;
from notice of
allowed appeal (2) Rule 42 on petitions for review from the
judgment or final
order Regional Trial Courts to the Court of
By record of Appeals;
appeal; (3) Rule 43 on appeals from quasi-judicial
within 30 days agencies to the Court of Appeals; and
from notice of (4) Rule 45 governing appeals by certiorari to
judgment or final the Supreme Court. The new rule aims to
order regiment or make the appeal period
uniform, to be counted from receipt of the
order denying the motion for new trial,
motion for reconsideration (whether full or
partial) or any final order or resolution.
[Neypes v. CA, (2005)]
PAGE 97
Being procedural in nature, Neypes is deemed WHEN TO APPEAL [Rule 40, Sec. 2]
to be applicable to actions pending and (1) If by notice of appeal, within 15 days after
undetermined at the time of its effectivity and notice to appellant of judgment or final
is thus retroactive in that sense and to that order appealed from
extent. [First Aqua Sugar v. BPI (2007)] (2) If record of appeal is required, within 30
days from notice of judgment or final
PERFECTION OF APPEAL order
Perfection of an appeal in the manner and (3) Period of appeal shall be interrupted by a
within the period laid down by law is timely motion for new trial or
mandatory and jurisdictional. [Balgami v. CA reconsideration
(2004)]
NOTE: The fresh 15 day period rule applies.
Effect of Failure to Perfect Appeal
(1) Defeats a party’s right to appeal. HOW TO APPEAL [Rule 40, Sec. 3]
(2) Precludes appellate court from acquiring
jurisdiction. By Notice of Appeal
(1) File a notice of appeal with the trial court
APPEAL FROM MUNICIPAL that rendered the judgment or final order
appealed from
TRIAL COURTS TO THE (2) The notice of appeal must indicate the
REGIONAL TRIAL COURTS parties, the judgment or final order or part
[Rule 40] thereof appealed from; the material date
showing timeliness of appeal
OUTLINE OF PROCEDURE [Rule 40, (3) A copy served on the adverse party; and
(4) Payment in full of docket fees and other
Sec. 7]
lawful fees
Appeal decision of MTC by filing notice of appeal By Record on Appeal
and pay within 15 days from receipt of judgment (1) Record on appeal is required for the
following cases:
15 days from perfection of appeal, (a) Special proceedings
MTC clerk transmits record to RTC (b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
Notice to parties that an appeal is being taken appeal: [Rule 41, Sec. 6]
from the decision of the MTC (a) Within 15 days from perfection of
appeal, clerk of court or the branch
Within 15 days from notice of appeal: clerk of the lower court shall transmit
(1) Appellant submits memorandum to the RTC to the RTC:
(2) Appellee files his own memorandum 15 days (i) Original record or record on
from receipt of appellant’s memorandum appeal
(ii) Together with transcripts and
Court acts on the appeal exhibits
(b) Clerk shall make a certification that
the documents are complete
If uncontested, Any party may (c) Clerk shall also furnish the parties a
judgment is entered appeal by filing a copy of his letter of transmittal of the
in the book of petition for review records to the appellate court
entries with the CA (3) Copy is served on the adverse party
WHERE APPEAL IS TAKEN lawful fees
It is taken to the RTC exercising jurisdiction
over the area to which the MTC pertains. [Rule
40, Sec. 1]
PAGE 98
PERFECTION OF APPEAL (a) This mode of appeal, governed by

Since appeals from inferior courts may now be Rule 41, is taken to the CA on
either by notice of appeal or record on appeal, questions of fact or mixed questions
the rules on the perfection and the effect of fact and law
thereof are the same. See Sec. 9, Rule 41
(2) PETITION FOR REVIEW, where judgment
APPEAL FROM ORDERS was rendered by the RTC in the exercise of
its appellate jurisdiction
DISMISSING THE CASE WITHOUT (a) This mode of appeal, covered by Rule
TRIAL; LACK OF JURISDICTION 42, is brought to the CA on question
[Rule 40, Sec. 8] of fact, of law, or mixed questions of
fact and law
Two Scenarios:
(3) PETITION FOR REVIEW ON CERTIORARI,
(1) If the MTC dismissed the case without trial or appeal by certiorari to the SC
on the merits, the RTC may: (a) This mode of appeal, provided for by
(a) AFFIRM, if the ground of dismissal is Rule 45, is brought to the SC from the
lack of jurisdiction over the subject decision of the RTC in the exercise of
matter its original jurisdiction and only on
(i) If the RTC has jurisdiction, it shall questions of law
try the case on the merits as if the
case was originally filed therein HOW ORDINARY APPEAL VIA RULE
(b) REVERSE, in which case, it shall 41 IS MADE:
remand the case for further
proceedings Appeal via Rule 41 presupposes that:
(1) The RTC rendered the judgment or final
(2) If the case was tried on the merits by the order in the civil action or special
MTC without jurisdiction over the subject proceeding in the exercise of its ORIGINAL
matter: jurisdiction; and
(a) The RTC shall NOT dismiss the case if (2) That the appeal is taken to the CA on:
it has original jurisdiction (a) Questions of fact or
(b) If it has original jurisdiction, the RTC (b) Mixed questions of fact and law
shall decide the case and admit
amended pleadings or additional Notice of Appeal – Filed with the court which
evidence rendered the judgment or final order
appealed from. A copy is served on the
adverse party. [Rule 41, Sec. 5]
APPLICABILITY OF RULE 41
The other provisions of Rule 41 shall apply to
Contents of the Notice of Appeal:
appeals provided for herein insofar as they are (1) Parties to the appeal
not inconsistent with or may serve to
(2) Judgment or final order or part thereof
supplement the provisions of this Rule.
appealed from
(3) The court to which the appeal is being
APPEAL FROM THE REGIONAL taken; and
TRIAL COURTS [Rule 41] (4) The material dates showing the timeliness
of the appeal
Modes of Appeal: There are three modes of
appeal from judgments or final orders of the Record on Appeal – Done in special
RTC: proceedings and other cases where multiple
or separate appeals are allowed. This is filed
(1) ORDINARY APPEAL or appeal by writ of and served in the same manner as notice of
error, where judgment was rendered in a appeal.
civil or criminal action by the RTC in the
exercise of its original jurisdiction
PAGE 99
Contents of the Record [Rule 41, Sec. 6] Extension of Period to Appeal

(1) Full names of all the parties to the Period to appeal may be extended but such
proceedings shall be stated in the caption extension is addressed to the sound discretion
of the record on appeal of the court [Socco v. Garcia]
(2) It shall include the judgment or final order
from which the appeal is taken, The mere filing and pendency of motion for
(3) In chronological order, copies of only such extension to perfect appeal does not suspend
pleadings, petitions, motions, and all the running of the reglementary period [Bello
interlocutory orders as are related to the et al., v. Fernandez]
appealed judgment or final order
(4) For the proper understanding of the issue PLEADINGS FILED [See Rule 44,
involved Procedure in the CA]
(5) Together with such data as will show that
the appeal was perfected on time Appellant’s Brief
(1) Filed within 45 days from receipt of notice
Approval of the Record on Appeal [Rule 41, of clerk that all evidence is attached to
Sec. 7] – Upon filing of the record for approval record
and if no objection is filed by the appellee (2) Follow the Efficient Use of Paper Rule, one
within 5 days from receipt of a copy thereof, original properly marked and 2 copies
the trial court may: with annexes
(1) Approve it as presented; or (3) Attach proof of service to adverse party
(2) Direct its amendment by the inclusion of
any omitted matters which are deemed Grounds for dismissal with respect to
essential appellant’s brief:
(1) Failure to file brief on time
Joint Record on Appeal [Rule 41, Sec. 8] – (2) Failure to make specific assignment of
Where both parties are appellants, they may errors in his brief
file a joint record on appeal.
Contents:
PERIOD TO APPEAL [Rule 41, Sec. 2] (1) Subject index
(1) 15 days from notice of judgment or final (2) Assignment of Errors
order appealed from (3) Statement of the Case
(2) 30 days from notice of judgment or final (4) Statement of Facts
order where a record on appeal is required (5) Statement of Issues
(3) 48 hours from notice of judgment or final (6) Arguments
order appealed from in habeas corpus (7) Relief
cases (8) Copy of judgment or final order appealed
from
Reckoning point of reglementary period:
Period for filing the appeal should be counted Appellee’s Brief:
from the date when the party’s counsel (1) Filed within 45 days from receipt of
received a copy of the judgment or final order appellant’s brief
(2) Manner of filing is similar to that in
When a party is represented by a counsel, appellant’s brief
service of process must be made on counsel,
not on party [Fajardo v. CA] Contents:
(1) Subject index
Effect of Motions for New Trial and (2) Statement of Facts and Counter-
Reconsideration – Originally, the period to Statement of Facts
appeal is interrupted by a timely motion for (3) Arguments
new trial and reconsideration. However, with
the Neypes doctrine, a party has a fresh 15-day Appellant’s Reply Brief
period from a denial of the motion to perfect (1) Filed within 20 days from receipt of
an appeal. appellee’s brief
(2) This is not mandatory as it is optional on
the part of the appellant
PAGE 100
Extension of Time for Filing Briefs: Residual Powers/Jurisdiction of the RTC

(1) General rule: Not allowed After losing jurisdiction but prior to the
(2) Exception: For good reasons and only if transmittal of the original record on appeal,
motion for extension is filed before the RTC may:
expiration of time sought to be extended (1) Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution was
PERFECTION OF APPEAL filed before expiration of the period to
appeal)
Payment of Docket Fees [Rule 41, Sec. 4] (2) To issue orders for preservation of the
Within the period for taking an appeal, the rights of the parties which do not involve
appellant shall pay to the clerk of the court matters litigated by appeal
which rendered the judgment or final order (3) To approve compromise prior to the
appealed from, the full amount of the transmittal of the record
appellate court docket and other lawful fees. (4) Permit appeal by an indigent
Proof of payment of said fees shall be (5) Allow withdrawal of the appeal
transmitted to the appellate court together
with the original record or the record on The concept of residual jurisdiction of the trial
appeal. court is available at a stage in which the court
is normally deemed to have lost jurisdiction
Payment of docket fees in full is mandatory over the case or the subject matter involved in
and is a condition sine qua non for the the appeal. There is no residual jurisdiction to
perfection of an appeal. speak of where no appeal or petition has even
been filed [Fernandez v. CA)]
Perfection of Appeal [Rule 41, Sec. 9]
(1) If appeal is by notice of appeal – it is Duty of Clerk Upon Perfection of Appeal
deemed perfected as to him upon the [Rule 41, Sec. 10]
filing of the notice of appeal in due time
(2) If appeal is by record on appeal – it is Within 30 days after perfection of all appeals,
perfected as to him with respect to the the RTC clerk shall:
subject matter thereof, upon approval of (1) Verify completeness of original record or
the record on appeal filed in due time record on appeal and make certification
as to its correctness
Effect of Perfected Appeal (2) Verify completeness of records that will be
(1) In appeals by notice of appeal: transmitted to appellate court
(a) Court loses jurisdiction over the case (3) If found to be incomplete:
upon perfection of appeal filed in due (a) Take such measures as may be
time and expiration of the time to required to complete records
appeal of the other parties (b) If efforts to complete records fail:
(b) NOTE: This rule applies individually (i) Indicate in his letter of transmittal
and to each of the parties since the the exhibits or transcripts not
timeliness of their recourse for included
appellate remedy depends on when (ii) Reasons for their transmittal
they respectively received a copy of (iii) Steps taken or that could be taken
the judgment or final order to have them available
(4) Transmit the records to appellate court
(2) In appeals by record on appeal: and furnish the parties with copies of his
(a) Court loses jurisdiction only over the letter of transmittal
subject matter thereof upon approval
of the records on appeal filed in due DISMISSAL OF APPEAL [Rule 41, Sec. 13]
time and the expiration of the time to
appeal of the other parties When can the RTC dismiss the appeal?
(b) NOTE: The effect is limited to the (1) Prior to transmittal of original record to
subject matter only. Jurisdiction over appellate court; or
the case is still with the trial court (2) Prior to transmittal of record on appeal to
the appellate court
PAGE 101
How done: By the court, motu proprio, or on Conditions:

motion to dismiss appeal by a party (1) There was a motion filed to this effect
Grounds: lawful fees as well as deposit for costs
(1) Appeal was taken out of time (3) To be done within the reglementary
(2) Non-payment of docket and other lawful period
fees within the reglementary period
No further extension may be granted EXCEPT
NOTE: The dismissal of the appeal in RTC is for the most compelling reason and in no case
limited only to these two grounds to exceed 15 days.
PETITION FOR REVIEW FROM FORM AND CONTENTS OF THE

THE REGIONAL TRIAL COURTS PETITION FOR REVIEW [Rule 42, Sec. 5]
TO THE COURT OF APPEALS Form of the petition:
[Rule 42] (1) Original copy is filed intended for the
court, properly marked and 2 copies with
Under this mode of appeal, it is NOT a matter their annexes (Efficient Use of Paper Rule)
of right but is a matter of DISCRETION on the (2) Accompanied by clearly legible duplicate
part of the CA on whether or not to entertain originals or true copies of judgments or
the appeal. final orders of both lower courts certified
correct by the RTC clerk
Appeal via Rule 42 is proper when one (3) Also with pleadings and other material
appeals from a decision of the RTC in the portions of record as would support the
exercise of its APPELLATE jurisdiction. allegations of the petition
Appeal under Rule 42 may be on either Contents of the petition:
questions of fact or of law or on mixed (1) Full names of the parties without
questions of both impleading the lower courts or judges
thereof
HOW APPEAL IS TAKEN; PERIOD (2) Specific material dates showing timeliness
OF APPEAL [Rule 42, Sec. 1] of appeal
(3) Concise statement of:
If a party desires to appeal from a decision of (a) Matters involved
the RTC in its appellate jurisdiction: (b) Issues raised
(1) File a VERIFIED petition for review with (c) Specification of errors of fact or law, or
the CA both
(a) Within 15 days from notice of decision, (d) Reasons or arguments relied upon
or (4) A certificate of non-forum shopping must
(b) Within 15 days from notice of denial of also be attached
petitioner’s motion for new trial or
reconsideration EFFECT OF FAILURE TO COMPLY
(2) Pay the corresponding docket fee and WITH REQUIREMENTS [Rule 42, Sec. 3]
other lawful fees and depositing P500 for Failure to comply with any of the following
costs requirements shall be sufficient ground for
(3) Furnish the RTC and adverse party a copy DISMISSAL
of the petition (1) Payment of docket and other lawful fees
Extension of period: - The CA may grant an NOTE: In petitions for review under Rules
additional 15 days within which to file the 42, 43, and 45, the docket fee is paid in
petition for review the appellate courts
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of the documents, which should
accompany the petition
PAGE 102
ACTION ON PETITION [Rule 42, Sec. 4] PERFECTION OF APPEAL

[Rule 42, Sec. 8]
The CA may:
(1) Require respondent to file a comment on Appeal is deemed perfected as to
the petition not a motion to dismiss within PETITIONER upon:
10 days from notice; or (1) Timely filing of the petition
(2) Payment of docket and lawful fees
(2) Dismiss the petition if it finds the same to
be: Jurisdiction of the RTC
(a) Patently without merit (1) RTC loses jurisdiction upon:
(b) Prosecuted manifestly for delay; or (a) Perfection of appeals filed in due
(c) The questions raised therein are too time; and
unsubstantial to require consideration (b) Expiration of the time to appeal of
other parties
REMEMBER: Under this Rule, appeal is (2) RTC may exercise residual jurisdiction
discretionary on the CA which may give its due before the CA gives due course to the
course only when the petition shows prima petition
facie that the lower court has committed
error. General Rule: Perfected appeal stays the
challenged judgment or final order
COMMENT BY RESPONDENT [Rule 42,
Sec. 5] Exceptions:
(1) Unless the CA, law, or Rules, provide
Form of Comment: otherwise
(1) An original is filed, properly marked, (2) Also in civil cases decided under the Rule
together with 2 copies with their annexes on Summary Procedure; Stay of
(Efficient Use of Paper Rule) judgment is not applicable here since
(2) Accompanied by certified true copies of these are immediately executory
such material portions of the record
referred to therein SUBMISSION OF DECISION
(3) Together with other supporting papers [Rule 42, Sec. 9]
(4) Copy of the comment served on petitioner
If the petition is given due course
Contents of Comment: The comment shall (1) Case may be set for oral argument, or
(1) State whether or not he accepts the (2) The parties may be required to submit
statement of matters involved in the memoranda within 15 days from notice
petition (3) Case shall be deemed submitted for
(2) Point out such insufficiencies or decision upon filing of last pleading or
inaccuracies as he believes exist in memoranda
petitioner’s statement of matters but
without repetition APPEALS FROM QUASI-
(3) Reasons why the petition should not be
given due course JUDICIAL AGENCIES TO THE
COURT OF APPEALS
DUE COURSE [Rule 42, Sec. 6] [Rule 43]
If upon the filing of the comment or such
other pleadings as the court may allow or SCOPE
require, or after the expiration of the period for
Appeals from awards, judgments, final orders
the filing thereof without such comment or
or resolution of or authorized by any quasi-
pleading having been submitted, the Court of
judicial agency (QJA) in the exercise of its
Appeals finds prima facie that the lower court quasi-judicial functions
has committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.
PAGE 103
A quasi-judicial agency or body is an organ of Extension of Period: Additional 15 days only

government other than a court and other than (1) Extension is granted upon motion for
a legislature, which affects the rights of extension and payment of full docket fees,
private parties though either adjudication or both within the reglementary period
rule-making (2) No further extension is allowed except for
the most compelling reasons and in no
NOTE: A party adversely affected by a decision case shall exceed 15 days
or ruling of the CTA en banc may file with the
SC a verified petition for review on certiorari HOW APPEAL IS TAKEN
via Rule 45 [Sec. 12, RA 9282 and AM 07-7-12- [Rule 43, Sec. 5]
SC] (1) A verified petition for review is filed with
the CA following the Efficient Use of Paper
The CTA is no longer a quasi-judicial agency Rule
under RA 9282, as of April 7, 2004. a. Attach proof of service of a copy to
QJAs covered by Rule 43: the adverse party and to the court
(1) Civil Service Commission or agency a quo
(2) Securities and Exchange Commission (2) Upon filing, pay the docket and lawful
(3) Office of the President fees as well as a P500 deposit for costs
(4) Land Registration Authority a. Payment is made to the CA clerk
(5) Social Security Commission b. Exemption from payment may be
(6) Civil Aeronautics Board granted by the CA by filing a
(7) Bureau of Patents Trademarks and verified motion for exemption; if
Technology Transfer denied, party must pay within 15
(8) National Electrification Administration days from notice of denial
(9) Energy Regulatory Board
(10) National Telecommunications CONTENTS OF THE PETITION
Commission [Rule 43, Sec. 6]
(11) Department of Agrarian Reform under RA (1) Statement of full names of parties to the
6657 case without impleading court or agencies
(12) GSIS (2) Concise statement of facts and issues
(13) Employees Compensation Commission involved and grounds relied upon for
(14) Agricultural Inventions Board review
(15) Insurance Commission (3) Accompanied by:
(16) Philippine Atomic Energy Commission (a) Clearly legible duplicate original or a
(17) Board of Investment certified true copy of award,
(18) Construction Industry Arbitration judgment, final order, or resolution
Commission, and appealed from
(19) Voluntary arbitrators authorized by law (b) Certified true copies of such material
portions of record referred to in the
WHERE TO APPEAL [Rule 43, Sec. 3] petition and other supporting papers
(4) Certificate of non-forum shopping
Appeal is taken to the CA on questions of fact, (5) Statement of specific material dates
of law, or mixed questions of fact and law. showing timeliness of appeal
PERIOD TO APPEAL [Rule 43, Sec. 4] EFFECT OF FAILURE TO COMPLY:

Dismissal [Rule 43, Sec. 7] for failure to comply
Period to appeal is 15 days from: with the following:
(1) Notice of award, judgment, final order, or (1) Payment of docket and lawful fees
resolution OR (2) Deposit for costs
(2) Date of publication, if publication is (3) Proof of service of petition
required by law for its effectivity, OR (4) Contents of petition
(3) Denial of petitioner’s MNT or MFR (5) Documents which should accompany the
petition
PAGE 104
ACTION ON THE PETITION EFFECT OF APPEAL [Rule 43, Sec. 12]

[Rule 43, Sec. 8] General Rule: Appeal shall not stay the award,
judgment, final order or resolution sought to
The CA may: be reviewed
(1) Require respondent to file Comment
within 10 days from notice Exception: When the CA shall direct otherwise
(2) Dismiss the petition if CA finds the same upon such terms as it may deem just
to be:
(a) Patently without merit SUBMISSION FOR DECISION
(b) Prosecuted manifestly for delay, or [Rule 43, Sec. 13]
(c) Questions raised are too If petition is given due course, the CA may set
unsubstantial to require consideration the case for oral argument or require parties
to submit memoranda within 15 days from
FORM AND CONTENTS OF notice.
COMMENT [Rule 43, Sec. 9]
Upon filing of last pleading or memorandum
Form of comment: required, case is deemed submitted for
(1) Filed within 10 days from notice following decision.
the Efficient Use of Paper Rule
(2) Accompanied by the following APPEAL FROM JUDGMENTS OR
documents: FINAL ORDERS OF THE CTA
(a) Clearly legible certified true copies of
such material portions of the record A party adversely affected by a decision or
referred to therein ruling of the CTA en banc may file with the
(b) And such other supporting Supreme Court a verified petition for review on
documents certiorari pursuant to Rule 45. [Sec. 19, RA 1125
(3) Copy of Comment is served on petitioner as amended by RA 9282]
with proof of such service filed with the CA
APPEAL FROM JUDGMENTS OR
Contents of Comment: The comment shall:
(1) Point insufficiencies or inaccuracies in
FINAL ORDERS OF THE COMELEC
Unless otherwise provided by law, or by any
petitioner’s statement of facts and issues
specific provisions in these Rules, any decision,
(2) State reasons why petition should be
order or ruling of the Commission may be
denied or dismissed
brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days
DUE COURSE [Rule 43, Sec. 10] from its promulgation. [Rule 37, Sec. 1,
CA may give due course if CA finds prima facie COMELEC Rules of Procedure]
that court or agency has committed errors of
fact or law that would warrant reversal or Decisions in appeals from courts of general or
modification limited jurisdiction in election cases relating to
the elections, returns, and qualifications of
If not, then the CA may dismiss the same. municipal and barangay officials are not
appealable. [Rule 37, Sec. 2, COMELEC Rules
TRANSMITTAL OF RECORDS of Procedure]
[Rule 43, Sec. 11]
Within 15 days from notice that petition has Decisions in pre-proclamation cases and
been given due course, the CA may: petitions to deny due course to or cancel
(1) Require court or agency concerned to certificates of candidacy, to declare a
transmit original or legible certified true candidate as nuisance candidate or to
copy of entire record of proceeding under disqualify a candidate, and to postpone or
review suspend elections shall become final and
(2) Require or permit subsequent correction executory after the lapse of five (5) days from
or addition to record their promulgation, unless restrained by the
Supreme Court. [Rule 37, Sec. 3, COMELEC
Rules of Procedure]
PAGE 105
APPEAL FROM JUDGMENTS OR APPEAL BY CERTIORARI TO

FINAL ORDERS OF THE THE SUPREME COURT
OMBUDSMAN [Rule 45]
The following decisions are unappealable:
(1) In administrative cases where respondent CERTIORARI AS
MODE OF A
is absolved of the charge APPEAL [RULE 45] AND
(2) In case of conviction, where penalty CERTIORARI AS A SPECIAL CIVIL
imposed is public censure or reprimand, ACTION [RULE 65]
or suspension of not more than one Appeal by Certiorari Certiorari as an Action
month or a fine equivalent to one month Rule 45 Rule 65
salary [AO 7, Rule III, Sec. 7] Petition raises the
issue as to whether the
Jurisdiction of the CA Based on questions of
lower court acted
(1) CA has jurisdiction over orders, directives, law which appellant
without or in excess of
desires the appellate
and decisions of the Office of jurisdiction or with
court to resolve
Ombudsman in administrative disciplinary grave abuse of
cases only discretion
(2) It cannot review orders, directives, May be directed
decisions in criminal and non- against an
administrative cases interlocutory order of
the court prior to
Involves review of
Jurisdiction of the SC appeal from the
judgment, award or
(1) In criminal cases, ruling of Ombudsman judgment or where
final order on merits
shall be elevated to the SC via Rule 65 there is no appeal or
(2) In cases in which it is alleged that the any other plain,
Ombudsman has acted with grave abuse speedy, or adequate
remedy
of discretion amounting to lack or excess
May be filed not later
of jurisdiction, a special civil action of
Must be made within than 60 days from
certiorariunder Rule 65 may be filed with the reglementary notice of judgment,
this Court to set aside the Ombudsman’s period of appeal order or resolution
order or resolution. [Nava v. NBI (2005)] sought to be assailed
Does not stay the
APPEAL FROM JUDGMENTS OR challenged
Stays the judgment,
FINAL ORDERS OF THE NLRC award, or order
proceedings
Rule 43, Sec. 2 states that Rule 42 shall not (unless a writ of
appealed from
apply to judgments or final orders issued preliminary injunction
under the Labor Code. or TRO is issued)
The parties are the
The law no longer provides for an appeal from aggrieved party
Petitioner and
decisions of the LA or from the NLRC. Mode of against the lower court
respondent are
review from said decisions is the special civil or quasi-judicial
original parties to the
agency as prevailing
action for Certiorari under Rule 65 in the CA. action
parties
NLRC judgments and final orders or
A filing of a MR is a
resolutions are now reviewable, in the first Prior filing of MR not condition precedent,
instance, by the Court of Appeals on certiorari required subject to certain
under Rule 65, but those of the Employees exceptions
Compensation Commission should be Higher court exercises
brought to the Court of Appeals through a original jurisdiction
petition for review under this Rule. Also, Appellate court is in
under its power of
appeals from the Office of the Ombudsman in the exercise of
control and
administrative disciplinary cases are now appellate jurisdiction
supervision over
covered by this Rule. [Fabian v. Desierto and power of review
proceedings of lower
(1998)] courts
PAGE 106
A party desiring to appeal by certiorari from a PROPRIETY OF RULE 45 AS A

judgment, final order or resolution of the CA, MODE OF APPEAL
the Sandiganbayan, the CTA, the RTC or other Appeals to the SC Can be taken from a
courts, whenever authorized by law, may file judgment or final order or resolution of the
with the Supreme Court a verified petition for CA, Sandiganbayan, CTA en banc, RTC or
review on certiorari. such other courts as may be authorized by law
The petition may include an application for a Only questions of law are allowed. Whether an
writ of preliminary injunction or other appeal involves only questions of law or both
provisional remedies and shall raise only questions of law and fact is best left to the
questions of law, which must be distinctly set determination of an appellate court and not
forth. The petitioner may seek the same by the court which rendered the decision
provisional remedies by verified motion filed in appealed from (PNB v. Romillo, etc., et al.)
the same action or proceeding at any time
during its pendency. [Rule 45, Sec. 1, as Questions of Law Questions of Fact
amended by A.M. 07-7-12-SC] Doubt or difference as
to the truth or
OUTLINE OF PROCEDURE Doubt or controversy
falsehood of facts, or
as to what the law is
as to probative value
on certain facts
RTC, Sandiganbayan, CTA en banc, or CA of the evidence
renders a decision presented
If the appellate court
can determine the
Any party files a petition for review on The determination
issue without
certiorari involves evaluation or
reviewing or
Within 15 days from notice review of evidence
evaluating the
of final judgment or order of lower court evidence
or notice of denial of motion for Query involves the
reconsideration or new trial calibration of the
whole evidence
considering mainly
Appellant serves copies of petition on
the credibility of
adverse parties and to the lower court, Can involve questions
witnesses, existence,
and pay the corresponding docket fees of interpretation of
and relevancy of
law with respect to
specific surrounding
certain set of facts
circumstances and
SC may dismiss the petition or require relation to each other
appellee to comment and the whole
probabilities of the
situation
If given due course, parties may submit
memoranda The SC is not a trier of facts, and is not to
review or calibrate the evidence on record.
SC may affirm, reverse, or modify Moreover, findings of facts of trial court, as
judgment of lower court affirmed on appeal by the CA, are conclusive
on the court [Boston Bank of the Philippines v.
Manalo]
It has to be emphasized that it is not the duty

of the SC to review, evaluate, and weigh the
probative value of the evidence adduced
before the lower courts [Frondarina v.
Malazarte]
PAGE 107
APPEAL FROM RTC TO SC UNDER (2) Inference made is manifestly mistaken,

RULE 45 absurd or impossible [Luna v. Linatok
To appeal under Rule 45, RTC must render (1942)].
judgment in the exercise of its original (3) There is grave abuse of discretion in the
jurisdiction appreciation of facts [Buyco v. People
(1954)].
If the RTC is in exercise of its appellate (4) Judgment is based on a misapprehension
jurisdiction, proper remedy is to appeal to the of facts [De la Cruz v. Sosing (1953).
CA via Rule 42 even if only questions of law (5) The Court of Appeal’s findings of fact are
are raised conflicting [Casica v. Villaseca (1957)].
(6) The Court of Appeals, in making its
If the other party had already taken an appeal findings, went beyond the issues of the
to the CA to question the RTC decision, the case and the same is contrary to the
property remedy of petitioner is simply admissions of both appellant and
ordinary appeal to the CA as well [First Phil. appellee [Nakpil & Sons v. CA (1986)].
International Bank v. CA)]. (7) The Court of Appeals manifestly
overlooked certain relevant facts not
Grave abuse of discretion is not an allowable disputed by the parties and which, if
ground under Rule 45 [Martires v. CA]. properly considered, would justify a
different conclusion [Abellana v. Dosdos
(1965)].
APPEAL FROM CA IS ALWAYS BY (8) The Court of Appeal’s findings of fact are
RULE 45 contrary to those of the trial court, or are
mere conclusions without citation of
Appeal under Rule 45 is the proper review of specific evidence, or where the facts set
decisions of the CA even in special civil forth by the petitioner are not disputed by
actions. the respondent, or where the findings of
fact of the Court of Appeals are premised
Any alleged errors committed by it in the on absence of evidence but are
exercise of jurisdiction would be errors of contradicted by the evidence of record
judgment which are reviewable by timely [Manlapaz v. CA (1987)].
appeal and not by special civil action of
certiorari. PERIOD OF APPEAL [Rule 45, Sec. 2]
Rule 45 is clear that decisions, final orders, or
Time for Filing: 15 days from
resolutions of the CA in any case, regardless of
(1) Notice of judgment, final order, or
the nature of the action or proceedings
resolution appealed from, or
involved, may be appealed to the SC by filing
(2) Notice of denial of motion for new trial or
a petition for review, which would but be a
reconsideration filed in due time after
continuation of the appellate process over the
notice of judgment
original case.
The Neypes doctrine is also applicable in Rule
CONCLUSIVENESS OF FINDINGS OF 45.
FACT
Extension of Period: 30 days upon
General Rule: The findings of fact of the CA (1) Motion duly filed and served; and
are final and conclusive and cannot be (2) Payment of docket and lawful fees and
reviewed on appeal to the SC deposit for costs
(3) And for justifiable reasons
Exceptions: CA’s findings of fact may be
reviewed by the SC on appeal by certiorari
when:
(1) Conclusion is a finding grounded entirely
on speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
PAGE 108
FORM OF PETITION REVIEW IS DISCRETIONARY

(1) The petition must be VERIFIED [Rule 45, Sec. 6]
(2) Following the Efficient Use of Paper Rule:
(a) One original, properly marked, and 4 Appeal to the SC is NOT a matter of right. It
copies will be granted only when there are special
(b) If the case is referred to En Banc, 10 and important reasons therefor.
additional copies is filed
(3) Payment of docket and other lawful fees Some indications of the character of reasons
and deposit of P500 for costs is made which will be considered:
with the SC Clerk at the time of filing (1) When the court a quo has decided the
(4) Proof of service of the petition to the lower question of substance, not theretofore
court and adverse party are attached determined by the SC, or has decided it in
a way probably not in accord with law or
CONTENTS OF PETITION with the applicable provisions of the SC;
[Rule 45, Sec. 4] or
(1) State full names of the parties (2) Court a quo has so far departed from
(a) Appealing party = as Petitioner accepted and usual course of judicial
(b) Adverse party = as Respondent proceedings, or so far sanctioned such
(c) Do not implead lower courts or departure by a lower court, as to call for
judges an exercise of power of supervision
(2) Indicate material dates showing:
(a) When notice of judgment or final ELEVATION OF RECORDS
order or resolution was received [Rule 45, Sec. 8]
(b) When a motion for new trial or If the petition is given due course, the
reconsideration, if any, was filed Supreme Court may require the elevation of
and when a denial thereof was the complete record of the case or specified
received parts thereof within fifteen (15) days from
(3) Concise statement of: notice
(a) The matters involved
(b) Reasons or arguments relied on GROUNDS FOR DISMISSAL OF
(4) Accompanied by a clearly legible
duplicate original, or a certified true copy APPEAL
of the judgment or final order or
resolution certified by the clerk of court DISMISSAL BY THE CA [Rule 50]
and court a quo An appeal may be dismissed by the CA, on its
(5) Certificate of non-forum shopping own motion, or on that of the appellee on
certain grounds.
GROUNDS FOR DENIAL OF
PETITION [Rule 45, Sec. 5] Grounds for Dismissal as provided in Sec. 1,
(1) Failure of petitioner to comply with:
Rule 50
(1) Failure of record on appeal to show on its
(a) Payment of docket or other lawful
face that appeal was taken within the
fees
period fixed by Rules
(b) Deposit for costs
(c) Proof of Service; and (2) Failure to file notice of appeal or record on
appeal within prescribed period
(d) Contents of and documents which
(3) Failure of appellant to pay docket and
would accompany the petition
other lawful fees as provided in Sec. 4,
(2) Appeal is without merit
Rule 41
(3) Is prosecuted manifestly for delay
(4) Unauthorized alterations, omissions, or
(4) That the questions raised are so
additions in approved record on appeal as
unsubstantial as to require consideration
provided in Sec. 4, Rule 44
NOTE: SC may dismiss the petition motu (5) Failure of appellant to serve and file
required number of copies of his brief or
proprio
memorandum within time provided by
Rules
PAGE 109
(6) Absence of specific assignment of errors

in the appellant’s brief, or of page
references to record as required in Sec. 13,
(a), (c), (d), (f), Rule 44
(7) Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court in
its order
(8) Failure of appellant to appear at
preliminary conference under Rule 48 or
comply with orders, circulars, directives of
the court without justifiable cause
(9) Fact that the order or judgment appealed
from is not appealable
Other Grounds
(1) By agreement of the parties (i.e. amicable
settlement)
(2) Where appealed case has become moot
or academic
(3) Where appeal is frivolous or dilatory
DISMISSAL BY THE SC [Rule 56]

The appeal may be dismissed motu proprio or
on motion of the respondent on the following
grounds:
(1) Failure to appeal within reglementary
period
(2) Lack of merit of petition
(3) Failure to pay docket and lawful fees and
deposit
(4) Failure to comply with requirements on
proof of service, contents, and documents
accompanying petition
(5) Failure to comply with circular, directive,
or order of SC without justifiable cause
(6) Error in choice of mode of appeal
(7) The case is not appealable to the SC
PAGE 110
COMPARATIVE TABLE ON THE MODES OF APPEAL

WHEN PROPER
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL PETITIONS FOR REVIEW

Matter of Right; Filed with the court of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of origin Filed with the appellate court
Appeal from a decision of the Appeals to the SC from a

Appeal from a judgment or final
RTC in the exercise of its original judgment or final order or
order of a MTC
jurisdiction resolution of the CA,
Sandiganbayan, CTA en banc,
Appeals from awards, RTC (original jurisdiction) or such
judgments, final orders or other courts as may be
Appeal from a decision of the
resolution of or authorized by authorized by law
RTC rendered in the exercise of
any quasi-judicial agency in the
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule its appellate jurisdiction exercise of its quasi-judicial Decisions, final orders, or
40 provisions functions resolutions of the CA in any case,
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
WHERE TO FILE
Filed with the MTC Filed with the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the CA Appeal to the CA Appeal to the CA Appeal to the SC
Questions of fact, Questions of

Questions of fact or mixed
Questions of fact or mixed Questions of fact, Questions of law, or Mixed questions of fact
questions of fact and law Only Questions of Law
questions of fact and law law, or Mixed questions of both and law
PAGE 111
TIME FOR FILING
Within 15 days from:

1. Notice of award, Within 15 days from:
judgment, final order, or 1. Notice of judgment,
BY NOTICE OF APPEAL Within 15 days from notice of
resolution OR final order, or resolution
Within 15 days after notice of judgment or final order decision, or
2. Date of publication, if appealed from, or
Within 15 days from notice of
publication is required 2. Notice of denial of
BY RECORD ON APPEAL denial of petitioner’s motion for
by law for its effectivity, motion for new trial or
Within 30 days from notice of judgment or final order by filing a new trial or reconsideration
OR reconsideration filed in
notice of appeal and a record on appeal
3. Denial of petitioner’s due time after notice of
MNT or MR (only one judgment
MR allowed)
PAGE 112
RELIEF FROM JUDGMENTS, Rule 37 and Rule 38 are EXCLUSIVE

remedies.
ORDERS, AND OTHER
PROCEEDINGS A party who has filed a timely motion for new
[Rule 38] trial and/or reconsideration cannot file a
petition for relief after his motion has been
CONCEPT denied.
Remedies AFTER finality of judgment A party who has filed a timely motion for new
(1) Petition for relief [Rule 38] trial or motion for reconsideration can no
(2) Action to Annul Judgment [Rule 47] longer file a petition for relief from judgment
(3) Collateral Attack of a Judgment that is after his motion has been denied. These
Void on its Face remedies are mutually exclusive. It is only in
appropriate cases where a party aggrieved by
A petition for relief from judgment together the judgment has not been able to file a
with a motion for new trial and a motion for motion for new trial or motion for
reconsideration are remedies available only to reconsideration that a petition for relief can be
parties in the proceedings where the assailed filed. [Francisco v. Puno, 1981]
judgment is rendered. In fact, it has been held
that a person who was never a party to the WHEN PROPER
case, or even summoned to appear therein, Rule 38 can be availed of once the judgment
cannot avail of a petition for relief from has become final and executory.
judgment [Alaban v. Cam]
The relief provided for by Rule 38 is of
NOTE: This is not applicable to the SC since it equitable character and is only allowed in
is not a trier of facts. exceptional cases, that is where there is no
other available or adequate remedy. A petition
RULE 37 v. RULE 38 for relief is not regarded with favor and
judgment will not be disturbed where the
Rule 37 Rule 38 party complaining has or by his exercising
Available BEFORE Available AFTER proper diligence would have had an adequate
judgment becomes judgment has become remedy at law, as where petitioner could have
final and executory final and executory proceeded by appeal to vacate or modify the
Applies to judgments, default judgment. [Manila Electric v. CA (1990)]
Applies to judgments
final orders and other
or final orders only Under Sec. 1, it is also available when “any
proceedings
Grounds: (1) FAME other proceeding is thereafter taken against
and (2) Newly Ground: FAME the petitioner in any court through FAME”
discovered evidence
Filed within 60 days Thus, it was held that a petition for relief is
from knowledge of also applicable to a proceeding taken after
Filed within the time entry of judgment or final order such as an
judgment and within
to appeal order of execution [Cayetano v. Ceguerra] or an
6 months from entry
of judgment order dismissing an appeal [Medran v. CA]
If denied, order
If denied, order of WHERE FILED
denying a petition for
denial is not Rule 38 is not an independent action but a
relief is not
appealable; hence, continuation of the old case. Hence, it is filed
appealable; remedy is
remedy is appeal with the same court and same branch which
appropriate civil
from judgment decided the case.
action under Rule 65
Legal remedy Equitable remedy
Motion need not be Petition must be
verified verified
PAGE 113
GROUNDS [Rule 38, Sec. 1 and 2] (4) When judgment was entered by mistake
(1) When judgment or final order is entered or was obtained by fraud; or
or any other proceeding is thereafter (5) Other similar cases.
taken against petitioner through FAME
(2) When petitioner has been prevented from ORDER TO FILE ANSWER
taking an appeal by FAME [Rule 38, Sec. 4]
An order to answer shall issue only if petition
PERIOD FOR FILING [Rule 38, Sec. 3] is sufficient in form and substance.
(1) Within 60 days after petitioner learns of
the judgment, final order, or other If petition is sufficient in form and in
proceeding to be set aside; AND substance, the court shall issue an order
(2) Not more than 6 months after such requiring the adverse party to answer within
judgment or final order was entered, or 15 days from receipt thereof.
such proceeding was taken
PROCEEDINGS AFTER ANSWER IS
The two periods for the filing of a petition for FILED [Rule 38, Sec. 6]
relief are not extendible and never After filing of answer or expiration of the
interrupted. Both periods must be complied period therefor, court shall hear the petition.
with. [Phil. Rabbit Bus Lines Inc. v. Ariaga]
If the court finds that the allegations are not
Reckoning points: true – Petition is dismissed.
(1) The 60-day period is reckoned from the
time the party acquired knowledge of the If the court finds that allegations are true:
order, judgment or proceeding. Not from (1) It shall set aside the judgment, final order,
the date he actually read the same [Perez or other proceeding complained of upon
v. Araneta] such terms as may be just
(2) 6-months period is computed from the (2) Thereafter, case shall stand as if such had
date of entry of the order or judgment never been rendered, issued, or taken
(3) The court shall then proceed to hear and
FORM AND CONTENTS OF THE determine the case as if timely motion for
PETITION new trial or reconsideration has been
(1) The petition for relief must be verified granted by it
(2) The petition must be accompanied by an
affidavit showing the FAME relied upon; REMEDY FOR DENIAL OF PETITION
and FOR RELIEF.
(3) The affidavit of merit accompanying the Appeal from an order denying a petition for
petition must also show the facts relief is no longer available under the present
constituting the petitioner’s good and rules.
substantial cause of action or defense as
the case may be The remedy against a denial of a petition for
relief is certiorari under Rule 65, when proper.
The absence of an affidavit of merits is a fatal
defect and warrant denial of the petition
[Fernandez v. Tan Tiong Tick]. ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
However, it is not a fatal defect so long as the
facts required to be set out also appear in the RESOLUTIONS
verified petition [Fabar Inc. v. Rodelas]. [Rule 47]
Annulment of Judgment is a remedy in law
When Affidavit of Merit is not necessary: independent of the case where the judgment
(1) When there is lack of jurisdiction over the sought to be annulled was rendered and may
defendant; be availed of though the judgment has been
(2) When there is lack of jurisdiction over the executed.
subject matter;
(3) When judgment was taken by default;
PAGE 114
NATURE A person who is not a party to the judgment

The purpose of such action is to have the final may sue for its annulment provided that he
and executory judgment set aside so that can prove the same was obtained through
there will be a renewal of litigation. fraud or collusion and that he would be
adversely affected thereby. [Alaban v. CA]
Resorted to in cases where ordinary remedies
of new trial, appeal, petition for relief, or other GROUNDS [Rule 47, Sec. 2]
appropriate remedies are no longer available Annulment may be based only on TWO
through no fault of petitioner grounds:
(1) Extrinsic Fraud
It is not a mode of appeal but an Independent (2) Lack of Jurisdiction
Civil Action.
Although Sec. 2 provides that annulment of
WHEN PROPER [Rule 47, Sec. 1] judgment or order may be based only on
It is available when the petitioner failed to extrinsic fraud and lack of jurisdiction,
move for new trial in, or appeal from, or file a jurisprudence recognizes DENIAL OF DUE
petition for relief against, or take other PROCESS as an additional ground [Sps.
appropriate remedies assailing the questioned Benatiro, et al. v. Heirs of Cuyos et al.] This was
judgment or final order or resolution through recognized in the 2013 case of Leticia Diona,
no fault attributable to him represented by her Attorney-in-fact, Marcelina
Diona v. Romeo Balangue, Sonny Balangue,
The remedy may no longer be invoked where Reynaldo Balangue, and Esteban Balangue, Jr.
the party has availed himself of the remedy of
new trial, appeal, petition for relief, or other Extrinsic or Collateral Fraud - Refers to any
appropriate remedy and lost or where he has fraudulent act of the prevailing party in the
failed to avail himself of those remedies litigation which is committed outside of the
through his fault or negligence trial of the case, whereby the defeated party
has been prevented from exhibiting fully and
WHERE FILED fairly presenting his side of the case
Judgments, Final Judgments, Final Lack of Jurisdiction - Lack of jurisdiction

Orders, or Resolutions Orders, or Resolutions refers to either lack of jurisdiction over the
of the RTC of the MTC person of the defending party or over the
subject matter of the claim, and in either case,
Filed with the CA Filed with the RTC the judgment or final order and resolution are
void.
CA has exclusive and
RTC as a court of NOTE: In a petition for annulment of
original jurisdiction
general jurisdiction judgment based on lack of jurisdiction,
over said action
under Sec. 19(6) BP petitioner must show an ABSOLUTE LACK of
under Sec. 9 (2) of BP
129 jurisdiction not merely abuse of jurisdictional
129
discretion.
The CA may dismiss The RTC has no such
the case outright; it discretion, it is
As to Evidence
has the discretion on required to consider it
(1) When the ground invoked is extrinsic
whether or not to as an ordinary civil
fraud, extraneous evidence is admitted
entertain the petition action
(2) However, when the ground is lack of
jurisdiction, only evidence found in the
WHO CAN FILE records of the case can justify nullity of
Petitioner need not be a party to the judgment judgment
sought to annulled.
PAGE 115
PERIOD FOR FILING [Rule 47, Sec. 3] EFFECT OF JUDGMENT OF

Extrinsic Fraud Lack of Jurisdiction ANNULMENT [Rule 47, Sec. 7]
4 years from Before it is barred by
discovery of fraud laches or estoppel Effect of annulment based on lack of
jurisdiction
There must be a manifest showing with (1) The same shall be set aside and
petition that it was filed within the 4-yr period. considered null and void
(2) Aggrieved party may refile the action in
The rule does not fix the period to annul the proper court
judgment based on lack of jurisdiction but (a) This may involve a different court of
recognizes the principle of estoppel as first competent jurisdiction
laid down by Tijam v. Sibonghanoy. (b) But where the reason for such
annulment was because of lack of
FORM AND CONTENTS OF jurisdiction over defendant, the action
PETITION [Rule 47, Sec. 3] may be refilled in the same original
(1) Verified petition, alleging therein: court provided it has proper
(a) With particularity, the facts and the jurisdiction and venue
law relied upon
(b) Petitioner’s good and substantial Effect of annulment based on extrinsic
cause of action or defense fraud
(2) Filed following the Efficient Use of Paper (1) The same shall be set aside and
Rule considered null and void
(3) Certified true copy of the judgment or final (2) On motion of the prevailing party on
order or resolution shall be attached to justifiable grounds, he may be allowed to
the original copy of the petition no longer refile the action
(4) Affidavits of witnesses or documents (a) The trial court which rendered the
supporting the cause of action or defense; questioned judgment shall be ordered
and to try the case anew
(5) Certificate of non-forum shopping
The prescriptive period for the refiling of the
PROCEEDINGS aforesaid original action shall be deemed
There are two stages in the disposition of the suspended from the filing of said original
petition: action until the finality of the judgment of
(1) A preliminary evaluation of the petition for annulment. However, the prescriptive period
prima facie merit [Sec. 5] shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the
 The rule allows the CA to dismiss the
original action. [Rule 47, Sec. 8]
petition outright as in special civil
actions
 If prima facie merit is found, petition is COLLATERAL ATTACK OF
given due course and summons is JUDGMENTS
served on respondent
ON ATTACKING THE VALIDITY OF A
(2) If prima facie merit is found, petition is
JUDGMENT
given due course and issuance of
summons as in ordinary civil cases is
Direct Attack v. Collateral Attack:
made [Sec. 6]
(1) Direct attack upon a judgment is an action
 Procedure in ordinary civil cases is or proceeding to annul it, this being the
observed main object of the proceeding
(2) Collateral attack upon a judgment is one
NOTE: Prima facie determination is not made to obtain relief other than the
available in annulment of judgments or final setting aside of the judgment, the attack
orders of MTCs before the RTC. [Rule 47, Sec. on the judgment itself being incidental
10]
PAGE 116
When Collateral Attack Proper A judgment may be void for lack of due
This is proper only when the judgment on its process of law. [Spouses Benatiro v. Heirs of
face is null and void as where it is patent that Cuyos (2008))
the court which rendered said judgment has
no jurisdiction ATTACKING A VOID JUDGMENT
It may be assailed anytime, collaterally or in a
The validity of a judgment or order of the court, direct action or by resisting such judgment or
which has become final and executory, may be final order in any action or proceeding
attacked in three ways: whenever it is invoked, unless barred by
(1) Only by a direct action or proceeding to laches. [Spouses Benatiro v. Heirs of Cuyos
annul the same (2008))
 This proceeding is a direct attack
against the order of judgment REMEDIES
because it is not incidental to, but If the reglementary period for appeal has not
is the main object of, the yet lapsed, some remedies are New Trial and
proceeding Reconsideration. Appeal, Petition for Relief,
 A direct action to annul and enjoin and Other Appropriate Remedies such as
enforcement of the judgment Certiorari may also be used.
where the alleged defect is not
apparent on its face or from the If the appropriate remedies are no longer
recitals contained in the judgment available without the fault of the petitioner,
 See Rule 47 the equitable and extraordinary remedy of
Petition for Annulment of Judgment may be
(2) Or by direct action, as certiorari, or by resorted to.
collateral attack in case of apparent
nullity When all else fails, there is jurisprudence to
 The collateral attack must be the effect that a patently void judgment may
against a challenged judgment be dealt with by a Main Action for Injunction.
which is void upon its face or that [See Barrameda v. Moir (1913)]
the nullity of the judgment is
apparent from its own recitals JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses
(3) Or by a Petition for Relief under Rule 38 Benatiro v. Heirs of Cuyos, (2008) and Agustin
 This third manner of attacking v. Bacalan, (1985) on the matter of void
must be taken in the same action judgment particularly refer to Rule 47 as a
or proceeding in which the remedy against a void judgment. This
judgment or order was entered remedy, however, should be availed of only
when the appropriate remedies are no longer
VOID JUDGMENT available without fault on the part of the
A void judgment is no judgment at all. It petitioner.
cannot be the source of any right nor the
creator of any obligation. All acts performed Although Section 2 of Rule 47 of the Rules of
pursuant to it and all claims emanating from Court provides that annulment of a final
it have no legal effect. Hence, it can never judgment or order of an RTC may be based
become final and any writ of execution based "only on the grounds of extrinsic fraud and
on it is void. [Polystyrene Manufacturing v. lack of jurisdiction," jurisprudence recognizes
Privatization Management (2007)] denial of due process as additional ground
therefore [Spouses Benatiro Case].
A void judgment may be likened to a lawless
thing which can be treated as an outlaw and A void judgment is like an outlaw which may be
slain at sight, or ignored wherever and slain at sight wherever or whenever it exhibits its
whenever it rears its head. [Banco Espanol- head. The proper remedy in such case, after
Filipino v. Palanca (1918)] the time for appeal or review has passed, is for
the aggrieved party to bring an action to
enjoin the judgment. [Montinola v. Judge
Gonzales, 1989]
PAGE 117
Assuming the judgment to have been void as Once rendered, the task of the Court is ended,
alleged by the proponent of this motion, the as far as deciding the controversy or
proper remedy was by an original proceeding determining the rights and liabilities of the
and not by motion in the cause" [Banco litigants is concerned. Nothing more remains
Espanol v. Palanca (1918)]. A final judgment to be done by the Court except to await the
may be annulled on the ground of lack of parties' next move (which among others, may
jurisdiction, fraud, or that it is contrary to law. consist of the filing of a motion for new trial or
[Panlilio v. Garcia (1982)] reconsideration, or the taking of an appeal)
and ultimately, of course, to cause the
execution of the judgment once it becomes
Execution, Satisfaction, 'final or, to use the established and more
distinctive term, 'final and executory.
and Effect of Judgments Execution is a matter of right upon the
expiration of the period to appeal and no
appeal was perfected from a judgment or
DIFFERENCE BETWEEN order that disposes of the action or
FINALITY OF JUDGMENT FOR proceeding. [Rule 39, Sec. 1]
PURPOSES OF APPEAL; FOR
It can be noted that the Supreme Court made
PURPOSES OF EXECUTION a hairline distinction between finality of order
The term “finality of judgment for purposes of for appeals and for execution. It is submitted
appeal” refers to interlocutory orders which: that upon court’s issuance of a judgment
(1) Are not decisions within the constitutional touching upon the merits of a case, it is final
definition [Armargo v. CA (1973)] for the purposes of an appeal, but NOT for
(2) are those that determine incidental execution.
matters that do not touch on the merits
of the case or put an end to proceedings. NOTE: Finality for the purposes of execution
The following are examples of an refers to the expiration of the period to appeal
interlocutory order: and no appeal was perfected.
(a) An order denying a motion to dismiss;
(b) An order granting an extension of
time to file a pleading, or one WHEN EXECUTION SHALL
authorizing an amendment thereof; ISSUE
(c) Order granting or denying
applications for postponement or Execution is a process provided by law for the
inspection of documents. [Riano] enforcement of a final judgment. Enforcement
is part of court’s jurisdiction. It is not an action
The word interlocutory refers to something but is included in the phrase “Process in an
intervening between the commencement and action – part of the proceedings considered as
the end of a suit which decides some point or still pending.
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan Cases where Execution may Issue even if
(2004)] judgment NOT Final:
(1) Support pendente lite
A final judgment or order is one that finally (2) Judgments of inferior courts in ejectment
disposes of a case, leaving nothing more to be cases
done by the Court in respect thereto, e.g., an (3) Execution pending appeal
adjudication on the merits which, on the basis (4) Injunction, accounting, receivership,
of the evidence presented at the trial, declares support [Rule 39, Sec. 4]
categorically what the rights and obligations (5) Decision of the RTC in appealed civil cases
of the parties are and which party is in the under Summary Procedure, including
right; or a judgment or order that dismisses an forcible entry and unlawful detainer
action on the ground, for instance, of res (6) Decision of the LA reinstating dismissed
judicata or prescription. employee, insofar as reinstatement aspect
is concerned
PAGE 118
Writ of Execution: A judicial writ issued to an EXECUTION AS A MATTER OF

officer authorizing him to execute the RIGHT [Rule 39, Sec. 1]
judgment of the court. The finality of judgment has the effect of
entitling prevailing party to execution as a
Dispositive Portion as Subject of Execution matter of right. It is the ministerial duty of the
(1) General Rule: The dispositive portion of court to do execution. [Herrera]
the decision is that part that becomes the
subject of execution Execution as a matter of right, TWO
(2) Exceptions: INSTANCES:
(a) Where there is ambiguity, the body of (1) No appeal has been perfected or period of
the opinion may be referred to for appeal has expired
purposes of construing the judgment (2) Appeal has been perfected and finally
because the dispositive part of a resolved
decision must find support from
decision’s ratio decidendi How Done:
(b) Where extensive and explicit
discussion and settlement of the issue Case How Execution is Carried
is found in the body of the decision If no appeal has Prevailing party applies by
been perfected, motion for a writ of
To Whom Issued: or the period of execution which is granted
(1) General Rule: Only real parties in interest appeal has by the judge since it is a
in an action are bound by judgment expired matter of right
rendered therein and by the writs of
Prevailing party:
execution (1) Files a motion in the
(2) Exceptions: There are certain cases where court of origin,
the writ may be issued against non-parties
(2) Submitting certified
(a) One who is privy to judgment debtor true copies of the
can be reached by an order of judgment or final
execution and writ of demolition [Vda. orders sought to be
De Medina v. Cruz] enforced
(b) Issued against one who not being If appeal has
(3) Submitting the entry
originally a party to the case submits been perfected
thereof,
his interest to the court for and finally
(4) With notice to adverse
consideration in the same case and resolved
party
invites adjudication regarding said
Appellate court may also
interest [Jose v. Blue]
direct the court of origin to
(c) Where non-parties voluntarily signed
issue the writ of execution:
the compromise agreement or
(1) Upon motion in the
voluntarily appeared before court
same case AND
[Rodriguez v. Alikpala]
(2) When the interest of
(d) Where the remedy of a person not a
justice so requires
party to the case which he did not
avail of, was to intervene in the case in
General Rule: It is a matter of right on the part
question involving rights over the
of the winning party when the judgment or
same parcel of land and said person
order becomes executory. The court cannot
in another case was adjudged buyer in
refuse execution.
bad faith thereof [Lising v. Plan]
(e) In an ejectment case, where 3rd party
Exceptions: The issuance of a writ of execution
derived his right of possession from
which issues as a matter of right can be
defendant particularly when such
countered in any of the following cases
right was acquired only after filing of
ejectment suit [Cordova v. Tornilla]
(1) When a PETITION FOR RELIEF or an
action to enjoin judgment is filed and a
preliminary injunction is prayed for and
granted [Rule 38, Sec. 5];
PAGE 119
(2) When the judgment turns out to be Under the Rule on Discretionary Execution
INCOMPLETE OR IS CONDITIONAL since (also called execution pending appeal), the
as a matter of law, such judgment court rendering the judgment, if it still has
CANNOT BE FINAL; jurisdiction, may exercise discretion and order
(3) When the judgment has been NOVATED execution pending appeal.
BY THE PARTIES
(4) When SUBSEQUENT FACTS AND It is the execution of a judgment or final order
CIRCUMSTANCES transpire as to render before it attains finality. The court which
such execution unjust or impossible rendered the decision can grant an execution
(5) On EQUITABLE GROUNDS as when there pending appeal if it still retains jurisdiction
has been a change in the situation of the over the case and is in possession of the
parties which makes execution records at the time of the filing of the motion;
INEQUITABLE. otherwise, the motion shall be acted upon by
(6) When the judgment becomes DORMANT, the appellate court.
the 5-year period under Rule 39.6 having To be valid, there should be a good reason to
expired without the judgment having been justify the execution of the judgment pending
revived appeal, the same to be stated in the order
granting it.
NOTE: Execution may only issue upon motion
with notice of hearing. Discretionary Execution is NOT applicable in
the case of the Court of Appeals:
Supervening Event Doctrine – A supervening (1) The Rule on Discretionary Execution
event can be invoked for the modification or contemplates a situation where a
alteration of a final judgment. This refers to: judgment or final order rendered in the
(1) Facts which transpire after judgment has exercise of its original jurisdiction and the
become final and executory. Or prevailing party in said decision seeks
(2) New circumstances which developed after immediate execution during the pendency
the judgment has acquired finality of an appeal.
(3) Matters which the parties were not aware (2) The CA has no authority to issue
of prior to or during the trial as they were IMMEDIATE EXECUTION PENDING
not yet in existence at that time APPEAL OF ITS OWN DECISIONS
(4) The supervening facts or circumstances THEREIN.
must either bear a direct effect upon the (3) Discretionary execution is allowed
matters already litigated and settled or pending appeal of judgment or final order
create a substantial change in the rights of the trial court upon good reasons to be
or relations of the parties therein which stated in a special order.
render execution of the final judgment
unjust or impossible [Lim v. Jabalde] A judgment of the CA cannot be executed
pending appeal. [Heirs of Justice JBL Reyes v.
DISCRETIONARY EXECUTION CA, 2000]
[Rule 39, Sec. 2]
When Proper and How Done
Discretionary Execution as a Matter
Execution of Right (1) Execution pending appeal – The duration
May issue before the of the court’s discretionary power to order
Period to appeal has execution pending appeal depends on:
lapse of period to
already lapsed and no (a) Where the record on appeal is
appeal, and even
appeal is perfected required,
during appeal
Discretionary upon (i) The court loses jurisdiction only
Ministerial duty of the over the subject matter thereof
the court
court upon approval of the record on
Upon showing of
Provided there are no appeal and expiration of the time
good reason for
supervening events to appeal of the other party
execution
PAGE 120
(b) Where no record on appeal is The Supersedeas Bond

required, court may issue writ of Discretionary execution may be stayed upon
execution before perfection of appeal approval by the proper court of a sufficient
(c) If the court lost jurisdiction, the writ supersedeas bond filed by the party against
may be issued by the appellate court, whom it is directed.
as such: (1) It is conditioned upon the performance of
Case How Execution is Carried the judgment or order allowed to be
Prevailing party: executed in case it shall be finally
If the trial court still
(1) Files a motion with sustained in whole or in part
has jurisdiction
notice to the adverse (2) Bond may be proceeded against on
over the case and is
party motion with notice to surety
still in possession
(2) Motion is filed with the
of either the
TRIAL court General Rule: The filing of a supersedeas bond
original record or
(3) Good reasons must be is sufficient to stay the enforcement of a
record on appeal
shown discretionary execution.
The prevailing party:
(1) Files a motion with Exception: However, THE FILING OF
notice to adverse party
If the trial court has SUPERSEDEAS BOND does not entitle the
(2) Motion is filed with the
lost jurisdiction judgment debtor to the suspension of
APPELLATE COURT
(3) Good reasons must be execution as a MATTER OF RIGHT. Where the
shown needs of the prevailing party are URGENT, the
Court can order immediate execution despite
(2) Execution of several, separate, or partial such SUPERSEDEAS BOND. [Regalado]
judgments may also be executed under
the same terms and conditions as If judgment is reversed totally or partially, or
execution pending appeal. annulled – The trial court may, on motion,
issue such orders of restitution or reparation
Requisites for Discretionary Execution: of damages as equity and justice may warrant
(1) There must be a motion filed by prevailing under the circumstances
party with notice to adverse party
(2) There must be a hearing of the motion for Remedy against Execution pending Appeal –
discretionary execution The remedy is certiorari by Rule 65. The
(3) There must be good reasons to justify the appeal could not be an adequate remedy for
discretionary execution such premature execution. [Jaca v. Davao
(4) These good reasons must be stated in a Lumber Co.]
special order after due hearing
HOW JUDGMENT IS EXECUTED
Examples of Good Reasons:
(1) Where the goods subject of the judgment
stand to perish or deteriorate during the
EXECUTION BY MOTION OR BY
pendency of the appeal [Yasuda v. CA] INDEPENDENT ACTION [Rule 39, Sec. 6]
(2) The award of actual damages is for an
amount fixed and certain [Radio Modes of Enforcement of Execution:
Communications Inc. v. Lantin]. But not an Mode When Enforced
award for moral and exemplary damages Within 5 years from date of entry
By Motion
(3) Insolvency of a defeated party [Hacienda of judgment
Navarro v. Labrador] After the lapse of 5 years from
(4) The prevailing party is of advanced age By date of entry and before it is
and in a precarious state of health and the Independent barred by statute of limitations
obligation in the judgment is non- Action which is 10 years from date of
transmissible, being for support [De Leon entry [Art. 1144(3)]
v. Soriano]
(5) Where defendants were exhausting their NOTE: The revived judgment may be enforced
income and have no other property aside by motion within 5 years from date of its entry
from proceeds of the property subject in and thereafter by action before it is barred by
litigation [Lao v. Mencias] statute of limitations.
PAGE 121
Once the judgment is revived, the 10-year Remedies Against a Writ of Execution
prescriptive period commences to run from (1) If there is a defect in the writ, file a motion
the date of finality of the REVIVED to quash the writ of execution
JUDGMENT and not the original judgment. (a) Quashal is proper when:
(i) A change in the situation of the
ISSUANCE AND CONTENTS OF A parties renders execution
WRIT OF EXECUTION [Rule 39, Sec. 8] inequitable
(ii) Issued against wrong party
Contents of the Writ of Execution (iii) Issued without authority
(1) Issued in the name of the Republic from (iv) Improvidently issued
the court which granted the motion (v) Defective in substance
(2) States the name of the court, case (vi) Judgment already satisfied; and
number and title, dispositive part of (vii) The controversy was never
judgment or order submitted to the court
(3) Requiring the sheriff or other proper (viii)Where the writ varies the terms of
officer to whom it is directed to enforce the judgment
the writ according to its terms (ix) It is sought to be enforced against
(4) In all cases, it shall also specifically state property exempt from execution
the amount of interest, cost, damages, (x) Where there is ambiguity in the
rents, or profits due as well as the terms of the judgment
principal obligation
(b) If motion to quash is denied, appeal
Manner of Execution from said denial
To satisfy judgment
If it be against property plus interest out of his (2) An order granting the issuance of the writ
of judgment obligor real or personal is not appealable, except where:
property (a) The order varies the terms of the
If it be against real or judgment, or
personal property in the (b) Where, being vague, the court renders
hands of personal To satisfy judgment what is believed to be a wrong
representatives, heirs, with interest out of interpretation
devisees, legatees, such
tenants, or trustees of EXECUTION FOR JUDGMENTS
judgment obligor
To sell such property OF MONEY
described If the award is for payment of money,
execution is enforced by: [Rule 39, Sec. 9]
If it be for sale of real or
Then apply proceeds in (1) Immediate payment on demand
personal property
conformity with (2) Satisfaction by levy
judgment (3) Garnishment of debts and credits
To deliver possession IMMEDIATE PAYMENT ON DEMAND

of the same, describing
it, to the party entitled Procedure:
thereto (1) The officer shall demand from judgment
obligor the immediate payment of the full
Then to satisfy any
costs, damages, rents,
amount stated in the writ and all lawful
If it be for delivery or fees
or profits covered by
possession of real or
the judgment
personal property (2) The judgment obligor shall pay the
Out of the personal amount of the judgment debt
property of obligor (a) Payable in Cash, Certified bank check
payable to judgment obligee, or any
In case of insufficiency, other form of payment acceptable to
then out of real judgment obligee
property
PAGE 122
(i) In no case shall sheriff demand (2) Characteristics of properties to be levied

that any payment by check be (a) Properties of every kind and nature
made payable to him whatsoever
(ii) Amount of judgment under (b) Which may be disposed of for value
proper receipt directly to the (c) Not otherwise exempt from execution
judgment obligee or his
authorized representative if Procedure:
present at time of payment (1) The judgment obligor have the option to
immediately choose which property or
(b) If judgment oblige or his part thereof may be levied upon, sufficient
representative is present to receive to satisfy judgment
payment:
(i) Judgment obligor shall delver (2) If judgment obligor does not exercise the
payment to executing sheriff option:
(ii) Sheriff shall turn over the amounts (a) The officer shall first levy on personal
within the same day to the clerk properties, if any
which issued the writ or deposit (b) If personal properties are insufficient,
the amounts to a fiduciary then on the real properties
account in the nearest
government depository bank of (3) Sheriff shall sell only sufficient portion of
the RTC of the locality personal or real property of the judgment
obligor levied upon
(2) The judgment obligor shall pay the lawful
fees handed over to the sheriff. Sheriff (4) If there is more property than is sufficient
shall turn over the said amount within the to satisfy judgment and lawful fees, then
same day to the clerk that issued the writ sell only so much as is sufficient
(3) If there is any excess it shall be delivered GARNISHMENT OF DEBTS AND

to the judgment obligor. Lawful fees shall CREDITS
be retained by the clerk Garnishment is considered as a species of
attachment for reaching credits belonging to
SATISFACTION BY LEVY the judgment debtor and owing to him from a
Levy is the act whereby a sheriff sets apart or stranger to the litigation
appropriates for the purpose of satisfying the
command of the writ, a part or the whole of The Officer may levy on:
the judgment debtor’s property. (1) Debts due the judgment obligor and other
credits,
Levy means the act or acts by which an officer (2) Including bank deposits, financial
sets apart or appropriates a part or the whole interests, royalties, commissions,
of the property of the judgment debtor for (3) And other personal property not capable
purposes of the prospective execution sale of manual delivery in possession and
[Llenares v. Vandevella (1966)]. control of third parties
If susceptible of appropriation, the officer The process of levying shall be called

removes and takes the property for safekeeping; garnishment if the property involved is money,
otherwise the same is placed under sheriff’s stocks, or other incorporeal property in the
guards. Without valid levy having been made, HANDS OF THIRD PERSONS. Garnishment
any sale of the property thereafter is void. merely sets apart such funds but does not
constitute the creditor as owner of the
Conditions to be met before resort to garnished property.
satisfaction by levy:
(1) If the judgment obligor cannot pay all or Garnishment is not a violation of RA 1405 on
part of the obligation then the officer shall the secrecy of bank deposits. [Chinabank v.
levy upon the properties of the judgment Ortega (1973)]
obligor
PAGE 123
Notes: Upon service of the writ of EXECUTION OF JUDGMENTS

garnishment, the garnishee becomes a
“virtual party” or “forced intervenor” to the FOR SPECIFIC ACTS
case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply When proper [Rule 39, Sec. 10]
with its orders and processes. [BPI v. Lee (1) Resorted to if the judgment directs a party
(2012)] to:
(a) Execute a conveyance of land or
UP’s funds, being government funds, are not personal property, or
subject to garnishment. Moreover, The (b) Deliver deeds or other documents, or
execution of the monetary judgment against (c) Perform any other specific act in
the UP was within the primary jurisdiction of connection therewith.
the COA. [UP v. Dizon (2012)] (2) AND the party fails to comply within the
time specified
Procedure:
(1) Levy shall be made by serving notice Procedure:
upon: (1) Court may direct the act to be done
(a) The person owing such debts, or (a) At the cost of disobedient party
(b) Having in his possession or control (b) Or by some other person appointed by
such credits to which judgment the court
obligor is entitled
(2) In case of directing conveyance of real or
(2) Garnishment to cover only such amount personal property located in the
as will satisfy judgment and lawful fees Philippines:
(a) Court may divest the title of any party
(3) If there are 2 or more garnishees, holding and vest it in others by court order
deposits or credits sufficient to satisfy (b) This shall have the force and effect of
judgment, judgment obligor shall have conveyance executed in due form
the right to indicate the garnishee/s who
shall be required to deliver. Otherwise, the Sale of real or personal property
choice shall be made by judgment obligee If judgment is rendered ordering the sale of
real or personal property, an order for
(4) The garnishee shall make a written report execution shall be issued describing such
to the court within 5 days from service of property as may be ordered sold, selling it,
notice of garnishment. The report shall and applying the proceeds in conformity with
state whether: the judgment’s instructions.
(a) Judgment obligor has sufficient funds
or credits to satisfy judgment, OR Delivery or restitution of real property
(b) Judgment obligor has insufficient The officer shall demand of the person against
funds or credits to satisfy judgment whom the judgment for the delivery or
restitution of real property is rendered and all
(5) Garnish the amount which may be in cash, persons claiming rights under him to
or certified bank check issued in the name peaceably vacate the property within three (3)
of judgment obligee working days, and restore possession thereof
to the judgment obligee.
(6) Garnished amount shall be delivered
directly to judgment obligee within 10 Otherwise, the officer shall oust all such
working days from service of notice on persons therefrom with the assistance, if
said garnishee requiring such delivery necessary, of appropriate peace officers, and
employing such means as may be reasonably
(7) Follow procedure under “Immediate necessary to retake possession, and place the
Payment on Demand” with respect to judgment obligee in possession of such
delivery property.
(8) Lawful fees shall be paid directly to court
PAGE 124
Any costs, damages, rents or profits awarded Examples:

by the judgment shall be satisfied in the same (1) A judgment in mandamus to reinstate
manner as a judgment for money. petitioner as chief clinic of the hospital
[Vital-Gozon v. CA]
Removal of improvements on property (2) A judgment directing petitioner to vacate
subject of execution the land which is a judgment to deliver
When the property subject of the execution possession of real property and not
contains improvements constructed or special judgment. No contempt for refusal
planted by the judgment obligor or his agent, [Moslem v. Soriano].
the officer shall not destroy, demolish or (3) A judgment directing defendant to
remove said improvements except upon remove a fence from a certain place is a
special order of the court, issued upon motion special judgment [Marquez v. Marquez]
of the judgment obligee after the hearing and
after the former has failed to remove the same EFFECT OF LEVY ON THIRD
within a reasonable time fixed by the court.
PERSONS
Delivery of personal property The levy on execution shall create a lien in
In judgment for the delivery of personal favor of the judgment obligee over the right,
property, the officer shall take possession of title and interest of the judgment obligor in
the same and forthwith deliver it to the party such property at the time of the levy, subject
entitled thereto and satisfy any judgment for to liens and encumbrances then
money as therein provided. existing. [Rule 39, Sec. 12]
NOTE: The power of the court in execution

EXECUTION OF SPECIAL extends only over properties
JUDGMENTS UNQUESTIONABLY belonging to judgment
debtor.
When Proper [Rule 39, Sec. 11]
PROPERTIES EXEMPT FROM
When a judgment requires performance of
any other act than those mentioned in Sec. 9 EXECUTION
and 10.
General Rule: Except as otherwise expressly
Special Judgment is one which can only be provided by law, the following property, and
complied with by the judgment obligor no other, shall be exempt from execution
because of his personal qualifications or [Rule 39, Sec. 13]
circumstances. It requires performance of an (1) The judgment obligor's family home as
act other than payment of money or sale or provided by law, or the homestead in
delivery of property. A special judgment may which he resides, and land necessarily
be enforced by contempt if defendant refuses used in connection therewith;
to comply
(2) Ordinary tools and implements personally
Procedure: used by him in his trade, employment, or
(1) A writ of execution shall be issued. livelihood;
Attached to this is a certified copy of the
judgment (3) Three horses, or three cows, or three
carabaos, or other beasts of burden, such
(2) Service by the officer upon: as the judgment obligor may select
(a) The party against whom the same is necessarily used by him in his ordinary
rendered, or occupation;
(b) Any other person required thereby, or
by law, to obey the same (4) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
(3) Failure of such party to obey the judgment
is punishable by contempt
PAGE 125
(5) Household furniture and utensils Exception: However, no article or species of

necessary for housekeeping, and used for property mentioned in this section shall be
that purpose by the judgment obligor and exempt from:
his family, such as the judgment obligor (1) Execution issued upon a judgment
may select, of a value not exceeding one recovered for its price, or
hundred thousand pesos; (2) Upon a judgment of foreclosure of a
mortgage thereon.
(6) Provisions for individual or family use
sufficient for four months; The exemptions MUST BE CLAIMED,
otherwise they are deemed waived. It is not
(7) The professional libraries and equipment the duty of the sheriff to set off the exceptions
of judges, lawyers, physicians, on his own initiative. [Herrera v. Mcmicking,
pharmacists, dentists, engineers, 1909]
surveyors, clergymen, teachers, and other
professionals, not exceeding three RETURN OF WRIT OF
hundred thousand pesos in value;
EXECUTION
(8) One fishing boat and accessories not
exceeding the total value of one hundred Procedure for Return of Writ of Execution if
thousand pesos owned by a fisherman Judgment is Satisfied within 30 days
and by the lawful use of which he earns [Rule 39, Sec. 14]
his livelihood; (1) Writ of execution shall be returnable to
the court issuing it immediately after
(9) So much of the salaries, wages, or judgment has been satisfied in part or in
earnings of the judgment obligor for his full
personal services within the four months
preceding the levy as are necessary for the (2) The return shall set forth the whole of the
support of his family; proceedings taken
(10) Lettered gravestones; (3) Return is filed with the court
(11) Monies, benefits, privileges, or annuities (4) It shall also be reproduced and copies
accruing or in any manner growing out of thereof furnished to parties
any life insurance;
Procedure if Judgment is NOT satisfied
(12) The right to receive legal support, or within 30 days:
money or property obtained as such (1) Officer shall report to the court stating the
support, or any pension or gratuity from reason for non-satisfaction
the Government;
(2) The writ shall continue in effect during the
(13) Properties specially exempted by law. period within which judgment may be
(e.g., property mortgaged to the DBP enforced by motion
[Section 26, CA 458]; savings of national
prisoners deposited with the POSTAL (3) Officer shall make a report to the court
SAVINGS BANK [Act 2489]; benefits from every 30 days on the proceedings taken
private retirement systems of companies thereon, until either:
and establishments with limitations [RA (a) Judgment is satisfied in full, or
4917]; laborer’s wages except for debts (b) Its effectivity expires
incurred for food, shelter, clothing and
medical attendance [Art. 1708, Civil Code]; (4) The periodic reports shall:
benefit payments from SSS [Section 16, RA (a) Set forth the whole of the proceedings
1161 as amended]) taken, and
(b) Be filed with the court
(c) Be reproduced and copies thereof
furnished to parties
PAGE 126
NOTE: The lifetime of a writ of execution is The timing of the filing of the claim is
without limit for as long as the judgment has important because it determines the remedies
not been satisfied. available to the claimant:
(1) If the claim is filed under Rule 39, Sec. 16:
But it is returnable to the court issuing it (a) Claimant may vindicate his claim in a
immediately after judgment has been satisfied separate action
in full or in part. (b) Intervention is no longer allowed since
judgment has already been rendered
The writ shall continue in effect during period
within which the judgment may be enforced (2) If the claim is filed under Sec. 14, Rule 57
by motion which is 5 years from date of entry. (Attachment) or under Sec. 7, Rule 60
After the first 5 years, judgment becomes (Replevin)
dormant and subject to revival action. (a) Claimant may vindicate his claim by
intervention as he has a legal interest
PROCEEDINGS WHERE in the matter of litigation
(b) Intervention is allowed as these
PROPERTY CLAIMED BY THIRD actions are still pending in court
PERSON
Effect of Third-Party Claim: When a third-party
CONCEPTS claim is filed, sheriff is not bound to proceed
with the levy of the property unless judgment
Rule 39, Sec. 16 and other provisions which creditor or latter’s agent posts an indemnity
provide for a mode of recovering property bond against the claim.
allegedly to have been wrongfully taken by
sheriff pursuant to a writ of execution or other SUMMARY HEARING BEFORE
process, refers to a STRANGER to an action. COURT AUTHORIZING EXECUTION
Remedies of Third-Party Claimant: A third-person whose property was seized by a
(1) Summary hearing before the court which sheriff to answer for an obligation of a
authorized the execution judgment debtor may invoke the supervisory
(2) “Terceria” or third-party claim filed with power of the court which authorized such
the sheriff [Rule 39, Sec. 16] execution
(3) Action for damages on the bond posted
by the judgment creditor Procedure:
(4) Independent reivindicatory action (1) Claimant files application
The aforementioned are cumulative remedies (2) Court conducts summary hearing
and may be resorted to by a third-party (a) The court may command that the
claimant independently of or separately from property be released from the
and without need of availing of the others. [Sy mistaken levy and restored to rightful
v. Discaya (1990)] owner or possessor
(b) If claimant’s proofs do not persuade,
For a Third-Party Claim to be Sufficient: the claim will be denied by the court
(1) Must be filed by a person other than the
defendant or his agent, at any time before (3) Note however that the court
sale determination is limited
(2) Must be under oath or supported by (a) Limited only to a determination of
affidavit stating the claimant’s title to, or whether the sheriff has acted rightly
right of possession of, the property, and or wrongly in performance of his
grounds therefor duties
(3) Must be served upon the officer making (b) The court does not and cannot pass
levy and a copy thereof upon the upon the question of title. It can treat
judgment creditor of the matter only insofar as may be
necessary to decide if sheriff acted
correctly or not
PAGE 127
TERCERIA In Spouses Sy v. Hon. Discaya (1990), SC

Independent of the foregoing, a third-party declared that for a third-party claim or a
claimant may also avail of the remedy of terceria to prosper, the claimant must first
Terceria. Terceria is provided in Sec. 16, Rule 39. sufficiently establish his right on the property
This is an action for damages by claimant REINVINDICATORY ACTION

against officer within 120 days from date of The aforesaid remedies are nevertheless
filing of bond for taking or keeping the without prejudice to any proper action that
property subject of the terceria. third-party claimant may file to vindicate his
claim over the property (ownership claim).
Procedure This action is separate and independent
(1) Claimant serves on the officer making levy
an affidavit of his title and a copy thereof Procedure
to judgment creditor (1) He must institute an action, distinct and
separate from that which the judgment is
(2) Officer shall not be bound to keep being enforced, with the court of
property competent jurisdiction
(a) Unless judgment creditor, or his
agent, on demand of officer, posts (2) No need to file a claim in the court which
indemnity bond not lesser nor greater issued a writ. The latter is not a condition
than value of property sine qua non for the former.
(3) Where a third-party claim has been filed (3) In such proper action, validity and
in due form: sufficiency of title of claimant will be
(a) Prevailing party can compel the sheriff resolved.
to proceed by filing of a bond to
answer for damages as a (4) A writ of preliminary injunction against
consequence of the execution sheriff may be issued
(b) If sheriff proceeds with the sale
without such bond, he will be RULES ON REDEMPTION
personally liable for such damages as
may be sustained by and awarded to
the claimant
WHEN AVAILABLE
(1) For personal property – there is NO right
of redemption as the sale is absolute
(4) Action against Indemnity
(2) For real property – right of redemption is
(a) Action against indemnity bond must
available
be filed within 120 days from date of
filing of the bond
(b) After lapse of 120 days, no claim for WHO MAY REDEEM REAL
damages for taking or keeping of PROPERTY SO SOLD [Rule 39, Sec. 27]
property may be enforced against the
bond Who may redeem:
(1) Judgment obligor, or his successor in
The right of a third-party claimant to file a interest, in the whole or any part of the
terceria is founded on his title or right of property
possession. Corollary thereto, before the court (2) Remptioner who is a creditor having a lien
can exercise its supervisory power to direct the by virtue of an attachment, judgment or
release of the property mistakenly levied and mortgage on the property sold,
the restoration thereof to its rightful owner, subsequent to the lien which the property
the claimant must first unmistakably establish was sold
his ownership or right of possession thereon.
[Magdalena T. Villasi v. Filomena Garcia, Successors-in-interest
substituted by his heirs, namely, Ermelinda H. They include, among others, one to whom the
Garcia, et al, 2014] debtor has conveyed HIS INTEREST in the
property for purposes of redemption
PAGE 128
The Redemptioner REDEMPTION PRICE

He is a creditor with a lien SUBSEQUENT to (1) By the Judgment Debtor or First
the judgment which was the basis of the Redemptioner:
execution sale. (a) Purchase PRICE
(b) 1% INTEREST thereon up to time of
Unlike the judgment debtor, a redemptioner redemption
must prove his right to redeem by producing (c) Any amount of ASSESSMENTS OR
the documents required in Sec. 30, to wit: TAXES which purchaser may have
(1) Copy of the judgment or final order under paid after purchase as well as interest
which he claims the right to redeem on such last named amount at the
certified by the clerk wherein judgment or same rate
final order was entered OR (d) If purchaser is also a creditor having a
(2) If he redeems upon a mortgage or other PRIOR LIEN to that of redemptioner,
lien, a memorandum of the record thereof, other than the judgment under which
certified by the Register of Deeds; OR such purchase was made, the
(3) An original or certified copy of any AMOUNT of such OTHER LIEN, also
assignment necessary to establish his with interest
claim; OR
(4) An affidavit executed by him or his agent (2) By all Subsequent Redemptioners
showing the amount then actually due on (a) AMOUNT paid on last redemption
the lien [Sec. 30] (b) 2% INTEREST thereon
(c) Any amount of ASSESSMENTS OR
If the lien of the creditor is PRIOR to the TAXES which purchaser may have
judgment under which the property was sold: paid after purchase as well as interest
(1) He is not a redemptioner on such last named amount at the
(2) He cannot redeem since his interests in his same rate
lien are fully protected. Any purchaser at a (d) Amount of any LIENS held by said last
public auction takes the same subject to redemptioner prior to his own, also
such prior lien which he has to satisfy with interest
WHEN CAN REDEMPTION BE MADE NOTE: The redemption price for subsequent
[Rule 39, Sec. 28] redemption shall be the same, so the price
becomes higher and higher.
Who When
By the JUDGMENT
Within 1 year from date of EFFECT OF REDEMPTION BY THE
registration of certificate JUDGMENT OBLIGOR [Rule 39, Sec. 29]
DEBTOR
of sale
Within 1 year from date of If Judgment debtor redeems the property:
By FIRST
registration of certificate (1) No further redemption is allowed
REDEMPTIONER
of sale (2) He is restored to his estate
Within 60 days from last
BY ALL redemption When a judgment debtor redeems the
SUBSEQUENT PROVIDED that judgment property, what is effected is the elimination of
REDEMPTIONERS debtor has not exercised the lien created by the levy on attachment or
his right of redemption judgment on the registration of mortgage
thereon. Note that he never lost ownership so
In all cases, judgment debtor shall have the there is no recovery of ownership.
entire 1 year period from date of registration of
sale to redeem the property. If judgment Payments mentioned in Sec. 28 and 29 may
debtor redeems, no further redemption is be made to the:
allowed [Sec. 29]. (1) Purchaser, or
(2) Redemptioner, or
NOTE: There is no extension or interruption of (3) For him to the officer who made the sale
redemption period.
PAGE 129
The person to whom redemption payment is Two Documents which the Sheriff Executes
made must execute and deliver to him a in case of Real Property
CERTIFICATE OF REDEMPTION (1) CERTIFICATE OF SALE
(1) Acknowledged by a notary public or other  After auction sale, he will execute in
officer authorized to take favor of the purchaser the certificate of
acknowledgements of conveyances of real sale under Sec. 25
property  From registration of said certificate, the
(2) Filed and recorded in the registry of deeds one year redemption period starts
of the place which the property is situated  Certificate of sale after execution sale is
(3) Registrar must note the record on the merely a memorial of the fact of sale
margin of the record of the certificate of and does not operate as conveyance
sale
(2) DEED OF CONVEYANCE
RIGHTS PENDING REDEMPTION  Issued if after expiration of redemption
[Rule 39, Sec. 31 and 32] period there is no redemption
 Operates to transfer to purchaser
Right of Judgment Creditor Pending whatever rights the judgment debtor
Redemption had in the property
(1) Apply for injunction to restrain the  The effect of a final deed of sale
commission of waste on the property transfers the right as of the time of the
levy
Rights of the Judgment Debtor Pending
Redemption
(1) Remain in possession of the property
RECOVERY OF PRICE IF SALE IS
(2) Cannot be ejected NOT EFFECTIVE [Rule 39, Sec. 34]
(3) Use the property in the same manner it
was previously used Purchaser may recover the purchase price
(4) Make necessary repairs to buildings WHEN:
thereon while he occupies the property (1) Purchaser or his successor-in-interest fails
(5) Use it in the ordinary course of husbandry to recover possession the property; or
(Sec. 31); and (2) Evicted due to:
(6) Collect rents, earning and income derived (a) Irregularities in the proceedings
from property until the expiration of concerning the sale; or
period of redemption (b) Judgment has been reversed or set
aside; or
EXPIRATION OF REDEMPTION (c) The property sold was exempt form
execution; or
PERIOD [Rule 39, Sec. 33] (d) A third person has vindicated his
claim to the property
Judgment obligor shall have the entire period
of ONE YEAR from date of registration of sale Remedies of the Purchaser
to redeem the property (1) File a motion in the same action or file a
separate action to recover from judgment
Entitlement to a CONVEYANCE and creditor the price paid
POSSESSION: (2) File a motion for revival of judgment in his
(1) To the PURCHASER name against judgment debtor; or
 If there is no redemption made within 1 (3) Bring an action to recover possession of
year from date of registration of the property
certificate of sale
(2) To the LAST REDEMPTIONER Effect of revived judgment – it has the same
 If there was redemption, and 60 force and effect as an original judgment
days have elapsed and no other would have as of the date of revival and no
redemption has been made more
 Notice must have been given, and the
redemption period has elapsed
PAGE 130
REMEDIES OF JUDGMENT amount of his debt or so much thereof

CREDITOR IN AID OF EXECUTION as may be necessary to satisfy the
judgment
OR IF JUDGMENT IS NOT FULLY
SATISFIED [Rule 39, Sec. 36 – 43] (4) SEC. 38 – A party or other person may be
compelled to attend before the court or
(1) SEC. 36 – If execution is returned commissioner to testify as provided in Sec.
unsatisfied, he may cause examination of 36 and 37
the judgment debtor as to his property (a) This must be done by order of the
and income court or by subpoena
(a) When: At any time after return is (b) Failure to obey: Contempt
made (c) All examinations and answers must
(b) The court issues an order requiring be under oath
the judgment debtor to appear and be
examined (5) SEC. 40 – Order for application of
(c) Limitations on examination: property and income to satisfaction of
(i) Judgment debtor cannot be made judgment
to appear before a judge or (a) Court may order any property of
commissioner outside the judgment debtor, or any money due
province where debtor resides him, or in the hands of another to be
(ii) He may no longer be examined applied to the satisfaction of
after lapse of 5 years within which judgment
a judgment may be enforced by (b) If the court finds the earning of the
motion for execution [Umali v. judgment debtor for his personal
Coquia] services are MORE than sufficient for
his family’s needs, it may order
(2) SEC. 37 – He may cause examination of payment in FIXED MONTHLY
the debtor of the judgment debtor as to INSTALLMENTS
any debt owed by him or to any property (c) Failure to do so: Punish for contempt
of the judgment debtor in his possession
(a) Requisites: (6) SEC. 41 – Appointment of a Receiver
(i) The writ must be returned (a) Court may appoint a receiver for the
unsatisfied; and property of judgment debtor not
(ii) Proof that person, corporation, or exempt from execution
other legal entity has property of (b) Court may also forbid disposition or
such judgment debtor or is interference with the property
indebted to him
(b) Where? Before a judge or (7) SEC. 42 – Sale of Ascertainable Interest of
commissioner appointed by him at a Judgment Obligor in Real Estate by
time and place where such debtor Receiver
resides or is found (a) Requisites:
(c) Effect: Service of order shall bind all (i) The court finds that the judgment
credits due to judgment debtor and debtor has an ascertainable
all money and property interest in real property
(d) This rule is not applicable if there is no (ii) Such interest can be ascertained
issue concerning the indebtedness of without controversy
the person (b) If the requisites are met, the court can
order the sale of such interest.
(3) SEC. 37 – If after examination, court finds Procedure is the same as in sale of
property of the judgment debtor, either in real estate upon execution
his own hands or that of any a person,
court may order the property applied to
the satisfaction of judgment
(a) SEC. 39 - Note that the person
indebted to judgment obligor may pay
to the sheriff holding the writ the
PAGE 131
(8) SEC. 43 – Institution of an action to BAR BY FORMER JUDGMENT

recover property Res judicata is a rule that a final judgment
(a) If person alleged to have property of rendered by a court of competent jurisdiction
judgment debtor or person indebted on the merits is conclusive as to the rights of
to him, claims an adverse interest in the parties and their privies, and, as to them,
the property or denies his debt constitutes an absolute bar to a subsequent
(b) Court may authorize judgment action involving the same claim, demand, or
creditor to bring an action to recover causes of action.
the property, forbid its transfer
(c) Action must be instituted within 120 In Rem In Personam
days from notice of order (Paragrah A) (Paragraph B)
(d) Failure is contempt The judgment or final
(e) Such order may be modified or order is
vacated at any time by the court Decision is
CONCLUSIVE as
CONCLUSIVE upon
between parties and
title the thing, will or
EFFECT OF JUDGMENT OR administration of
their successors in
FINAL ORDERS interest, litigating for
condition, status or
the same thing and
Rule 39, Sec. 47 refers to judgments which are relationship of the
under the same title
considered as conclusive and may be rebutted person
an in the same
directly by means of relief from judgment or
capacity
annulment of judgment or indirectly by
e.g. accion
offering them in evidence under the parole e.g. land registration
reinvindicatoria
evidence rule.
Bar by prior judgment is a preclusion of claims
Immutability of Judgments - Once a judgment
- The first judgment is a bar to the prosecution
attains finality it thereby becomes immutable
of a second action upon the same claim,
and unalterable
demand, or cause of action
DUAL ASPECT OF RES JUDICATA Requisites:
(1) Bar by Former Judgment - Direct Estoppel (1) A FINAL judgment or order
by Judgment; covers paragraph (a) and (b) (2) JURISDICTION over the subject matter
(2) Conclusiveness of Judgment –Estoppel by and the parties by the court rendering it
Verdict, Estoppel by Record, Collateral (3) Judgment UPON MERITS
Estoppel by Judgment or Preclusion of (4) Between the TWO CASES, there is:
Issues or Rule of Auter Action Pendant; it (a) IDENTITY OF PARTIES
covers paragraph (c) (b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
Bar by Former Conclusiveness of
Judgment Judgment General Rule: For res judicata to apply, trial
There is only identity must be made on the merits of the case.
There is identity of
of parties and subject
parties, subject
matter Exception: Section 3, Rule 17 of ROC: If plaintiff
matter, and causes
Cause of action are fails to appear at the time of the trial, or to
of action
different prosecute his action for an unreasonable
The first judgment is length of time, or to comply with these rules
The first judgment
conclusiveness only as or any order of the court, the action may be
constitutes as an
to matters directly dismissed upon motion of the defendant or
absolute bar to all
adjudged and actually upon the court's own motion . This dismissal
matters directly
litigated in the first shall have the effect of an adjudication upon
adjudged and those
action. the merits, unless otherwise provided by court.
that might have
The second action can [Development Bank v. CA]
been adjudged
be prosecuted
Preclusion of issues
Preclusion of claims
only
PAGE 132
Res Judicata in Judgments in Rem RES JUDICATA v. LAW OF THE CASE

v. STARE DECISIS
Judgments or final Stare Decisis - When the SC has laid down a
Conclusive as to
order principle of law applicable to a certain state of
Against a specific facts, it will adhere to that principle and apply
Title of the thing
thing to it all future cases where the facts are
The will or substantially the same
administration.
However, the probate Doctrine of the Law of the Case - Whatever is
Probate of a will or of a will or granting of once irrevocably established as the controlling
administration of the letters of legal rule or decision between the same
estate of a deceased administration shall parties in the case continues to be the law of
person only be prima facie the case whether correct on general principles
evidence of the death or not, so long as the facts on which such
of the testator or decision was predicated continue to be the
intestate; facts of the case before the court.
in respect to the
personal, political, or As discussed in Ayala Corp. v. Rosa-Diana
legal condition or Condition, status or Realty, 2000:
status of a particular relationship of the
person or his person, “Law of the
relationship to Res Judicata Stare Decisis
Case”
another Operates only
in the
Res Judicata in Judgments in Personam The ruling in
particular and
In other cases, the judgment or final order is, one case is
single case
with respect to the matter directly adjudged or carried over
where the
as to any other matter that could have been to another
ruling arises
missed in relation thereto, conclusive: case
and is not
(1) Between the parties and between the
carried into
(2) Their successors in interest, by title same parties
other cases as
subsequent to the commencement of the a precedent
action or special proceeding, litigating for Once a point of
the same thing and under the same title law has been
and in the same capacity. established by
The ruling
the court, that
CONCLUSIVENESS OF JUDGMENT adhered to in
point of law
the particular
will, generally,
Preclusion of issues (auter action pendant) case need not
be followed by
be followed as
the same court
In any other litigation between the same a precedent in
and by all
parties or their successors in interest, that only subsequent
courts of lower
is deemed to have been adjudged in a former litigation
rank in
judgment or final order which appears upon between other
subsequent
its face to have been so adjudged, or which parties
cases where
was actually and necessarily included therein the same legal
or necessary thereto. issue is raised
Issue Preclusion – The first judgment

precludes the re-litigation of a particular fact
or issue in another action between the same
parties on a different cause of action.
Requisite: Identity of ISSUES
PAGE 133
EFFECT OF FOREIGN EFFECT OF FOREIGN JUDGMENTS

[Rule 39, Sec. 48]
JUDGMENTS OR FINAL
ORDERS Nature Effect
In judgments against Judgment is
PUBLIC POLICY PRINCIPLE a specific thing (in CONCLUSIVE upon the
A judgment by a foreign court is enforceable rem) title to the thing
only within its territorial jurisdiction. Judgment is
PRESUMPTIVE
A valid judgment rendered by a foreign In judgments against evidence of a right as
tribunal may be recognized insofar as the a person (in between parties and
immediate parties the underlying cause of personam) their successors-in-
action are concerned so long as it is interest by a
convincingly shown that: subsequent title
(1) There has been an opportunity for a fair
hearing before a court of competent In both cases, judgment may be repelled by
jurisdiction evidence of:
(2) Trial upon registered proceedings has (1) Want of jurisdiction
been conducted (2) Want of notice
(3) There is nothing to indicate either a (3) Collusion
prejudice in court and in the system of (4) Fraud
laws under which it is sitting or fraud in (5) Clear mistake of law or fact
procuring the judgment [Philippine
Aluminum v. Fasgi Enterprises (2000)] A foreign judgment is presumed to be valid
and binding in the country from which it
Such limitation on the review of foreign comes, until a contrary showing, on the basis
judgment is adopted in all legal systems to of a presumption of regularity of proceedings
avoid repetitive litigation on claims and issues, and the giving of due notice in the foreign
prevent harassment of the parties and avoid forum.
undue imposition on the courts.
Before our courts can give the effect of res
This policy of preclusion rests on principles of judicata to a foreign judgment, it must be
comity, utility and convenience of nations. shown that the parties opposed to the
judgment had been given ample opportunity
As a generally accepted principle of to do so on grounds under Section 48 of Rule
international law, it is part of the law of the 39 of the Rules of Court. [Roehr v. Rodriguez
Philippines by virtue of the Incorporation (2003)]
Clause [Section 2, Article II of the 1987
Constitution] [Regalado]
Two Ways of Giving Effect to Foreign

Judgment:
(1) An ordinary action to enforce the foreign
judgment may be filed in court; or
(2) It may be pleaded in an Answer or a
Motion to Dismiss.
PAGE 134
Provisional Remedies PRELIMINARY ATTACHMENT

DEFINITION
NATURE OF PROVISIONAL A provisional remedy issued upon order of the
court where an action is pending to be levied
REMEDIES upon the property of the defendant so the
Provisional remedies are writs and processes property may be held by the sheriff as security
available during the pendency of the action for the satisfaction of whatever judgment may
which may be resorted to by a litigant for the be rendered in the case [Davao Light v CA
preservation or protection of their rights and (1991)]
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
judgment in the case; also known as ancillary PURPOSES
or auxiliary remedies. (1) To seize the property of the debtor in
advance of final judgment and to hold it
They are applied to a pending litigation, for for purposes of satisfying the said
the purpose of securing the judgment or judgment.
preserving the status quo, and in some cases (2) To enable the court to acquire jurisdiction
after judgment, for the purpose of preserving over the action by the actual or
or disposing of the subject matter. [Calo v. constructive seizure of the property in
Roldan (1946)] those instances where personal service of
summons on the creditor cannot be
Orders granting or denying provisional effected. [Quasha v. Juan (1982)]
remedies are merely interlocutory and cannot
be the subject of an appeal. They may GROUNDS FOR ISSUANCE [Rule 57,
however be challenged before a superior court Sec. 1]
through a petition for certiorari under Rule 65. There are only specific situations where
preliminary attachment may issue. The
The Provisional Remedies under the Rules grounds are EXCLUSIVE:
of Court
(1) Preliminary Attachment (Rule 57) (1) Action for recovery of a specified amount
(2) Preliminary Injunction (Rule 58) of money or damages, EXCEPT moral and
(3) Receivership (Rule 59) exemplary,
(4) Replevin (Rule 60) (a) On a cause of action arising from law,
(5) Support Pendente Lite (Rule 61) contract, quasi-contract, delict, or
quasi-delict
NOTE: The enumeration above is not (b) Against a party who is about to depart
exclusive. The court may invoke its equity from the Philippines with intent to
jurisdiction and order the appropriate defraud his creditors;
reliefs during the pendency of an action
(2) Action for money or property, embezzled
or fraudulently misapplied or converted to
JURISDICTION OVER his own use by either:
PROVISIONAL REMEDIES (a) A public officer, an officer of a
The court which grants or issues a provisional corporation, an attorney, factor,
remedy is the court which has jurisdiction over broker, agent, or clerk, in the course of
the main action. his employment as such,
(b) OR by any other person in a fiduciary
Inferior courts may also grant all appropriate capacity, or for a willful violation of
provisional remedies in an action pending with duty;
it and is within its jurisdiction [Sec. 33, (1), BP
129]
PAGE 135
(3) Action to recover the possession of (3) Applicant must show by affidavit that
property unjustly or fraudulently taken, there is no sufficient security for the claim
detained or converted, sought to be enforced and that the
(a) When the property, or any part amount claimed in the action is as much
thereof, has been concealed, as the sum of which the order is granted
removed, or disposed of to prevent its above all counterclaims
being found or taken by the applicant (4) Applicant must post a bond executed to
or an authorized person; adverse party
NOTE: rule makes no distinction between A writ of preliminary attachment is too harsh a
real and personal property [Riano] provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules
(4) Action against a party who has been guilty require that for the writ to issue, there must be
of a fraud in contracting the debt or a recitation of clear and concrete factual
incurring the obligation upon which the circumstances manifesting that the debtor
action is brought, OR in the performance practiced fraud upon the creditor at the time
thereof; of the execution of their agreement in that
said debtor had a preconceived plan or
NOTE: the delivery of counterfeit money or intention not to pay the creditor. [Equitable v.
knowingly issuing a bounced check are Special Steel (2012)]
considered as grounds under this rule
[Riano] ISSUANCE AND CONTENTS OF
ORDER OF ATTACHMENT
(5) Action against a party who has removed [Rule 57, Sec. 2]
or disposed of his property, or is about to
do so, AND with intent to defraud his When may one apply: A preliminary
creditors; or attachment may be applied for
(1) At the commencement of the action or
(6) Action against a party who does not reside (2) At any time before the entry of judgment.
and is not found in the Philippines, OR on
whom summons may be served by Who may apply: It may be applied for by the
publication. plaintiff OR any proper party (including a
defendant who filed a counterclaim, cross-
Note: the rule also refers to persons on claim, or a third party complaint)
whom summons may be served by
publication and against whose property, Methods to Procure Preliminary
preliminary attachment may be availed of Attachment:
such as: (1) Writ may be prayed for in the complaint
(1) Residents defendants whose identity itself providing the allegations warranting
or whose whereabouts are unknown its issuance
[Rule 14, Sec. 14] (2) May be issued pursuant to a separate
(2) Resident defendants who are motion for attachment whenever the writ
temporarily out of the country [Rule is not prayed for in the original complaint
14, Sec. 16]
Three Stages in the Grant of a Preliminary
REQUISITES FOR PRELIMINARY Attachment:
ATTACHMENT TO ISSUE: (1) The court issues the order granting the
(1) The case must be any of those where application
preliminary attachment is proper [Sec. 1, (2) Writ of attachment issues pursuant to the
Rule 57] order granting the writ
(2) Applicant must file a motion whether ex (3) The writ is implemented
parte or with notice and hearing
NOTE: For the initial two stages, it is not
necessary that jurisdiction over person of
defendant be first obtained
PAGE 136
However, once implementation of writ Applicant’s Bond: The party applying for the
commences, court must have acquired order must give a bond executed to the
jurisdiction over the defendant for without adverse party
such jurisdiction, the court has no power or (1) Amount is fixed by the court in its order
authority to act granting the issuance of the writ
(2) Conditioned that, if the court shall finally
Issuance of the Order of Attachment adjudge that applicant was not entitled to
(1) The order may be issued either: the writ, the bond will pay:
(a) Ex parte (service of summons to (a) All costs which may be adjudged to
defendant required) adverse party and
(b) Or upon motion with notice and (b) All damages which he may sustain by
hearing reason of attachment
(2) The order is issued by the court in which
the action is pending or the CA, or the SC The bond shall only be applied to all damages
sustained due to the attachment. It cannot
Contents of the Order of Attachment: answer for those that do not arise by reason of
(1) It must require the sheriff to attach so the attachment [Riano].
much of the property of the party against
whom it is issued as may be sufficient to THE RULE ON PROR OR
satisfy applicant’s demand CONTEMPORANEOUS SERVICE OF
(a) Property must be within the
Philippines
SUMMONS
(b) And it must not be exempt from
General Rule: A writ of attachment may be
execution
issued ex parte even before the summons is
served upon the defendant. BUT a writ may
(2) It shall contain an amount for the
not be implemented until jurisdiction over the
attachment bond:
person is acquired by service of summons.
(a) The amount sufficient to satisfy the
Otherwise, the implementation is null and
applicant’s demand, or
void. [Riano]
(b) The value of the property to be
attached as stated by applicant
Exceptions to Contemporaneous Service of
Summons: [Rule 57, Sec. 5]
AFFIDAVIT AND BOND (1) Summons could not be served personally
[Rule 57, Sec. 3 and 4] or by substituted service despite diligent
efforts, or
For the writ to issue, the applicant must (2) Defendant is a resident of the Philippines
submit an affidavit and post bond. The temporarily absent therefrom, or
affidavit and bond required must be duly filed (3) Defendant is a non-resident, or
with the clerk before order issues (4) The action is in rem or quasi in rem.
Contents of the Affidavit: The affidavit must
establish:
MANNER OF ATTACHING
(1) A sufficient cause of action exists PROPERTY [Rule 57, Sec. 5]
(2) Cause is one of those mentioned in Sec. 1
(3) No other sufficient security for the claim The sheriff enforcing the writ shall attach only
sought to be enforced by action so much of the property in the Philippines of
(4) Amount due to applicant or possession of the adverse party not exempt from execution
which is entitled to recover is as much as as may be sufficient to satisfy the applicant’s
the sum for which the order is granted demand, UNLESS
above all legal counterclaims (1) Party against whom writ is issued makes a
deposit with the court from which the writ
is issued, or
(2) He gives a counter-bond executed to the
applicant
PAGE 137
ATTACHMENT OF REAL AND (i) The executor, or administrator, or

PERSONAL PROPERTY [Rule 57, Sec. 7] (ii) Other personal representative of
(1) Real property, or growing crops thereon, the decedent
or any interest therein (c) Copy of the writ and notice:
(a) File with the Registry of Deeds: (i) Shall be filed with the clerk in
(i) A copy of the order together with which said estate is being settled,
a description of the property and
(ii) And a notice that the property is (ii) Served upon the heir, legatee, or
attached devisee concerned
(b) The registrar of deeds must index
attachments in the names of the Property in custodia legis may be attached by:
applicant, adverse party, or person by (1) Filing a copy of the writ of attachment
whom the property is held or in whose with the proper court or quasi-judicial
name it stands in the records agency
(c) If attachment is not claimed on the (2) Serving a notice of attachment upon the
entire area of land, description custodian of the property [Rule 57, Sec. 7]
sufficiently accurate for identification
of such shall be included in the A previously attached property may also be
registration subsequently attached. But the first
attachment shall have priority over
(2) Personal property capable of manual subsequent attachments. [Riano]
delivery
(a) Issue a corresponding receipt therefor PROCEEDINGS WHERE ATTACHED
(b) Then sheriff takes it and safely keeps PROPERTY IS CLAIMED BY THIRD
it in his custody PERSON
(3) Stocks or Shares, or an Interest therein, of A third person who has a claim to the property
any corporation or company attached may avail of the following remedies:
(a) Leave a copy of the writ and a notice
stating that these properties are (1) File terceria or third-party claim [Rule 57,
attached in pursuance of such writ Sec. 14]
(b) Leave these documents with the (a) Note that a third-party claim may be
president, or managing agent thereof filed with the sheriff while has
possession of the properties levied
(4) Debts, credits, bank deposits, financial upon, this being the only time fixed for
interest, royalties, commissions and other the purpose
personal property not capable of manual (b) The claimant makes an affidavit of his
delivery title or right to possession, stating the
(a) Leave a copy of the writ and a notice grounds of such right or title. The
that the debts owing, credits, and affidavit must be served upon the
other personal property are attached sheriff
in pursuance of such writ (c) Substantial identical procedure as in
(b) Leave these documents with: terceria in Rule 39, Sec. 16
(i) The person owing such debts, or
(ii) Having in his possession or under (2) File independent action to recover
his control, such credits or other property; or
personal property, or
(iii) With his agent (3) File motion for intervention
(a) This is available only before judgment
(5) The interest of the party against whom is rendered
attachment is issued in property
belonging to the estate of decedent,
whether as heir, legatee, or devisee
(a) By service of a copy of the writ, and
notice that said interest is attached
(b) Service is made to:
PAGE 138
DISCHARGE OF ATTACHMENT AND (2) That bond is executed to adverse party

COUNTER-BOND conditioned that the applicant will pay all
the costs which may be adjudged to
After a writ of attachment has been enforced, adverse party and all damages which he
the party whose property has been attached, may sustain by reason of the attachment,
or the person appearing on his behalf, may if the court shall finally adjudge that
move for the discharge of the attachment applicant was not entitled thereto (Sec. 4)
wholly or in part on the security given. (3) Until that determination is made, as to
applicant’s entitlement to attachment, his
Ways of Discharging Attachment bond must stand and cannot be
(1) Counterbond under Sec. 12 withdrawn
(2) Motion for Discharge under Sec. 13
SATISFACTION OF JUDGMENT OUT
Grounds for Discharge of Preliminary OF PROPERTY ATTACHED [Rule 57,
Attachment: Sec. 15]
(1) Debtor has posted a counterbond or has Procedure:
made the requisite cash deposit [Sec. 12] (1) Pay to judgment obligee the proceeds of
(2) Attachment was improperly or irregularly sale of perishable property
issued [Sec. 13] (2) If there is any balance that remains due,
(a) As where there was no ground for sell property as may be necessary to
attachment, or satisfy the balance if enough remains in
(b) The affidavit and/or bond filed are the sheriff or those of the clerk
defective or insufficient [Sec. 3] (3) Collection of property of garnishee and
(3) Judgment is rendered against attaching proceeds paid to judgment oblige without
creditor [Sec. 19] need of prior permission to file action but
(4) Attachment is excessive, but the may be enforced in the same action
discharge shall be limited to the excess (4) Return must be made within 10 days from
[Sec. 13] receipt of writ
(5) Property attached is exempt from
execution PRELIMINARY INJUNCTION
NOTE: There is a difference between the bond
for issuance of writ and bond for lifting the
DEFINITIONS AND DIFFERENCES
Injunction - a judicial writ, process, or
writ
proceeding whereby a party is ordered to do or
(1) Bond for issuance of writ [Sec. 4] – This is
refrain from doing a particular act
for damages by reason of the issuance of
the writ
Preliminary Injunction - an ancillary or
(2) Bond for lifting of writ [Sec. 5 and 12] –
preventive remedy where a court requires a
This is to secure the payment of the
judgment to be recovered person, a party or even a court or tribunal
either to REFRAIN (prohibitory) from or to
PERFORM (mandatory) particular acts during
Only the defendant or party whose property is
the pendency of an action. It is only a
attached may move for its lifting. If the
temporary remedy.
attachment is proper, the discharge should be
by counterbond under Sec. 12 [KO Glass v.
Injunction Preliminary injunction
Valenzuela] Ancillary; exists only as
part or incident of an
Effect of Dissolution on Plaintiff’s Main action
independent action or
Attachment Bond proceeding
(1) Dissolution of preliminary attachment sole object of which is to
seeks a judgment
upon security given, or a showing if its preserve the status quo
embodying a final
irregular issuance, does not operate to until the merits can be
injunction
discharge the sureties on the attachment heard
bond Based on all evidence
based solely on initial
gathered by court to
and incomplete evidence
determine main action
PAGE 139
Purpose: To prevent future injury and maintain Requisites:

the status quo (i.e. the last actual, peaceable, (1) There must be a verified application
uncontested status which preceded the (2) The applicant must establish that:
pending controversy) for [Knecht v. CA, (1993)] (a) He has a right to relief or a right to be
protected and
The injunction should not establish new (b) The act against which the injunction is
relations between the parties but merely re- sought violates such right
establish the pre-existing relationship (c) There is a need to restrain the
between them. commission or continuance of the acts
complained of and if not enjoined
TRO v. Injunction would work injustice to him
TRO Injunction (3) A bond must be posted unless otherwise
May be granted ex exempted by the court
Cannot be granted
parte if great and (4) The threatened injury must be incapable
without notice and
irreparable injury of pecuniary estimation
hearing
would result otherwise (5) Prior notice and hearing for party/person
sought to enjoined (except in 72-hour
A TRO is issued in order to preserve the status TROs)
quo until the hearing of the application for
preliminary injunction. [Bacolod City Water v. KINDS OF INJUNCTION
Labayen (2004)]
Kinds of Injunction:
Same requirements for application as (1) Preliminary Preventive Injunction –
preliminary injunction. Prohibits the performance of a particular
act or acts
An application for a TRO shall be acted upon
only after all parties are heard in a summary (2) Preliminary Mandatory Injunction –
hearing, which shall be conducted within 24 Requires the performance of a particular
hours after the sheriff's return of service act or acts. This is an extreme remedy
and/or the records are received by the branch which will be granted only on showing
selected by raffle. [Rule 58, Sec.4] that:
(a) The invasion of the right is material
Status Quo Order v. Injunction and substantial
A status quo order is in the nature of a cease (b) Right of complainant is clear and
and desist order. It is resorted to when the unmistakable
projected proceedings in the case made the (c) There is an urgent and paramount
conservation of the status quo desirable or necessity
essential, but the affected party neither
sought such relief nor did the allegations in Preliminary Prohibitory Preliminary
his pleading sufficiently make out a case for a Injunction Mandatory Injunction
temporary restraining order. Purpose is to prevent
Purpose is to require
a person from the
It does NOT direct the doing or undoing of a person to perform a
performance of a
acts but is an order to maintain the last, particular act
particular act
actual, peaceable and uncontested state of The act has already
things which preceded the controversy. The act had not yet been performed and
been performed this act has violated
Status Quo Ante Order the rights of another
Directs the maintenance of the condition Status Quo is Status Quo is
prevailing before the promulgation of the preserved restored
assailed decision.
It has the nature of a TRO. [Dojillo v.

COMELEC, 2006]
PAGE 140
When preventive injunction does not lie; GROUNDS FOR THE ISSUANCE OF
examples: PRELIMINARY INJUNCTION
(1) To restrain collection of taxes [Valley [Rule 58, Sec. 3]
Trading v. CA (1989)], except where there
are special circumstances that bear the Preliminary injunction may be granted
existence of irreparable injury. [Churchill & when it is established that:
Tait v. Rafferty (1915)] (1) Applicant is entitled to the relief
(2) To restrain the sale of conjugal properties demanded, or
where the claim can be annotated on the (2) Commission, continuance, or non-
title as a lien, such as the husband’s performance of the act complained of
obligation to give support. [Saavedra v. would work injustice to applicant, or
Estrada (1931)] (3) Party, court, agency or a person is doing,
(3) To restrain a mayor proclaimed as duly threatening, or is attempting to do, or is
elected from assuming his office. [Cereno procuring or suffering to be done, some
v. Dictado (1988)] act or acts probably in violation of the
(4) To restrain registered owners of the rights of the applicant respecting the
property from selling, disposing and subject of the action or proceeding
encumbering their property just because
the respondents had executed Deeds of
Assignment in favor of petitioner. [Tayag
GROUNDS FOR OBJECTION TO, OR
v. Lacson (2004)] FOR MOTION OF DISSOLUTION OF,
(5) Against consummated acts. [PNB v. Adi INJUNCTION OR RESTRAINING
(1982); Rivera v. Florendo (1986); Ramos, ORDR [Rule 58, Sec. 6]
Sr. v. CA (1989)]
Grounds for objection or dissolution
When mandatory injunction does not lie; (1) Upon showing of its insufficiency
examples
(1) To compel cohabitation [Arroyo v. Vasquez (2) Other grounds upon affidavits of the party
(1921)] or person enjoined. This may be opposed
(2) Cancellation of attachment [Levy by the applicant by affidavits
Hermanos v. Lacson (1940)]
(3) Release imported goods pending hearing (3) If it appears after hearing that although
before the Commissioner of Customs. applicant is entitled to injunction or TRO,
[Commissioner of Customs v. Cloribel the issuance or continuance thereof,
(1967)] would cause irreparable damage to party
(4) To take property out of the possession or enjoined while applicant can be fully
control of one party and place it into that compensated for such damages as he
of another whose title has not clearly been may suffer
established [Pio v. Marcos (1974)] (a) PROVIDED that he files a bond
(i) Amount to be fixed by the court
WHEN WRIT MAY BE ISSUED (ii) Conditioned that he will pay all
When: It may be issued at ANY stage PRIOR damages which the applicant may
to the judgment or final order suffer by denial or dissolution of
the injunction or TRO
Who: It may be granted by the court where the
action or proceeding is pending. If the action If it appears that the extent of the preliminary
or proceeding is pending in the Court of injunction or restraining order granted is too
Appeals or in the Supreme Court, it may be great, it may be modified.
issued by said court or any member thereof.
[Rule 58, Sec. 2]
PAGE 141
TEMPORARY RESTRAINING ORDER (i) The applicant must then

(TRO) immediately comply with Sec. 4
General Rule: Before preliminary injunction as to service of summons and
may be granted, there must be prior notice to documents
person sought to be enjoined and there must (ii) The Executive Judge shall then
be a hearing summon the parties to a
conference and raffle the case in
Procedure: When an application for a writ of their presence
preliminary injunction or TRO is included in a
complaint or initiatory pleading, the case, if Within the 72-hr period
filed in a multiple-sala, shall proceed as (i) The Presiding Judge before whom
follows: the case is pending shall conduct
(1) Verified complaint and bond is filed a summary hearing to determine
(2) Determine if there is great or irreparable whether the TRO shall be
injury or extreme urgency, which warrants extended until application for
the issuance of a TRO preliminary injunction can be
(a) If yes, go to Procedure for Issuance of heard
TRO (ii) In no case shall the total period of
(3) In both cases, Notice shall then be served effectivity of the TRO exceed 20
to the party sought to be enjoined days, including the original 72
(a) There must be prior and hours
contemporaneous service of
summons (exceptions also apply) Effectivity of TRO
(1) Effectivity is not extendible. No court shall
Procedure for Issuance of TRO: have authority to extend or renew the
(1) If it appears that great or irreparable same on the ground for which it was
injury would result to the applicant before issued
the matter can be heard on notice: (2) If issued by the CA – effective for 60 days
(a) Summary hearing on the application from service
of the TRO within 24 hours after (3) If issued by SC – effective until further
sheriff’s return of service and/or orders
records are received by the branch
selected by raffle TRO issued by executive
(b) The court may issue a TRO effective judge (multi-sala) or TRO issued by
for 20 days from service on the party ordinary judge (single- ordinary judge
sought to be enjoined sala)
Matter is of extreme
Within the 20 day period: urgency and that grave If it appears that
(i) The applicant must show cause injustice and irreparable great or irreparable
why injunction should not be injury will arise unless injury would result
granted immediately issued
(ii) The court will determine WON the A summary hearing
preliminary injunction shall be May be issued ex parte must be done
granted. If granted, the court will before issuance
issue the corresponding order Good for 20 days
Good for 72 hours including first 72
(2) If the matter is of extreme urgency and hours
the applicant will suffer grave injustice Issued before raffling Issued after raffling
and irreparable injury Issued after
Issued ex parte
(a) A TRO may be issued ex parte (after summary hearing
raffling of case) ordered by the Upon the expiration of the non-extendible
Executive judge of a multiple sala period, the TRO is automatically terminated.
court or the presiding judge of a No judicial declaration necessary.
single-sala court
(b) Effective for 72 hours from issuance
PAGE 142
IN RELATION TO RA 8975, BAN ON RULE ON PRIOR OR

ISSUANCE OF TRO OR WRIT OF CONTEMPORANEOUS SERVICE OF
INJUNCTION IN CASES INVOLVING SUMMONS IN RELATION TO
GOVERNMENT INFRASTRUCTURE ATTACHMENT
PROJECTS When an application for a writ of preliminary
Sec. 3, RA 8975: No court, except the Supreme injunction or a temporary restraining order is
Court, shall issue any TRO, preliminary included in a complaint or any initiatory
injunction or preliminary mandatory injunction pleading, the case, if filed in a multiple-sala
against the government, or any of its court, shall be raffled only after notice to and
subdivisions, officials or any person or entity, in the presence of the adverse party or the
whether public or private acting under the person to be enjoined. In any event, such
government direction, to restrain, prohibit or notice shall be preceded, or
compel the following acts: contemporaneously accompanied, by service
(1) Acquisition, clearance and development of summons, together with a copy of the
of the right-of-way and/or site or location complaint or initiatory pleading and the
of any national government project applicant's affidavit and bond, upon the
(2) Bidding or awarding of contract/ project adverse party in the Philippines.
of the national government as defined
under Section 2 hereof; Exception:
(3) Commencement prosecution, execution, Where the summons could not be served
implementation, operation of any such personally or by substituted service despite
contract or project; diligent efforts, or the adverse party is a
(4) Termination or rescission of any such resident of the Philippines temporarily absent
contract/project; and therefrom or is a nonresident thereof, the
(5) The undertaking or authorization of any requirement of prior or contemporaneous
other lawful activity necessary for such service of summons shall not apply. [Rule 58,
contract/project. Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
This prohibition shall apply in all cases, court may issue ex parte a TRO effective for
disputes or controversies instituted by a only 72 hours from issuance if the matter is of
private party, including but not limited to extreme urgency and the applicant will suffer
cases filed by bidders or those claiming to grave injustice and irreparable injury.
have rights through such bidders involving However, he shall immediately comply with
such contract/project. the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
This prohibition shall NOT APPLY when the therewith. [Rule 38, Sec. 5]
matter is of extreme urgency involving a
constitutional issue, such that unless a WHEN FINAL INJUNCTION
temporary restraining order is issued, grave GRANTED
injustice and irreparable injury will arise. The If after the trial of the action it appears that
applicant shall file a bond, in an amount to be the applicant is entitled to have the act or acts
fixed by the court, which bond shall accrue in complained of permanently enjoined, the
favor of the government if the court should court shall grant a final injunction perpetually
finally decide that the applicant was not restraining the party or person enjoined from
entitled to the relief sought. the commission or continuance of the act or
acts or confirming the preliminary mandatory
Any TRO, preliminary injunction, or injunction. [Rule 58, Sec. 9]
preliminary mandatory injunction issued in
violation of Sec. 3 is void and of no force and
effect. [Sec 4]
PAGE 143
RECEIVERSHIP discharge the mortgage debt, or that

the parties have so stipulated in the
contract of mortgage;
NATURE
(3) After judgment, to preserve the
Receiver – A person appointed by the court in
property during the pendency of an
behalf of all the parties to the action for the
appeal, or to dispose of it according to
purpose of preserving and conserving the
the judgment, or to aid execution
property in litigation and prevent its possible
when the execution has been returned
destruction or dissipation if it were left in the
unsatisfied or the judgment obligor
possession of any of the parties.
refuses to apply his property in
satisfaction of the judgment, or
Purpose
otherwise to carry the judgment into
The purpose of a receivership as a provisional
effect;
remedy is to protect and preserve the rights of
the parties during the pendency of the main
(4) Whenever in other cases it appears
action, during the pendency of an appeal or as
that the appointment of a receiver is
an aid in the execution of a judgment when
the most convenient and feasible
the writ of execution has been returned
means of preserving, administering, or
unsatisfied.
disposing of the property in litigation.
The receivership under Rule 59 is directed to
Specific cases where receiver was
the property which is the subject of the action
appointed
and does not refer to the receivership
(1) If a spouse without just cause
authorized under banking laws and other
abandons the other or fails to comply
rules or laws. Rule 59 presupposes that there
with his/her obligations to the family,
is an action and that the property subject of
the aggrieved spouse may petition the
the action requires its preservation.
court for receivership. [Family Code,
Receivership under Rule 59 is ancillary to the
Article 101]
main action. [Riano].
(2) The court may appoint a receiver of
the property of the judgment obligor;
The guiding principle is the prevention of
and it may also forbid a transfer or
imminent danger to the property. If an action
other disposition of, or any
by its nature, does not require such protection
interference with, the property of the
or preservation, said remedy cannot be
judgment obligor not exempt from
applied for and granted. [Commodities
execution. [Rule 39, Sec. 41]
Storage v. CA, 1997]
(3) After the perfection of an appeal, the
trial court retains jurisdiction to
CASES WHEN RECEIVER MAY BE appoint a receiver of the property
APPOINTED [Rule 59, Sec. 1] under litigation since this matter does
(1) When it appears from the verified not touch upon the subject of the
application and other proof that the appeal. [Rule 41, Sec. 9; Acuña v.
applicant has an interest in the Caluag (1957)]
property or fund which is the subject (4) After final judgment, a receiver may
of the action or proceeding, and that be appointed as an aid to the
such property or fund is in danger of execution of judgment. [Philippine
being lost, removed, or materially Trust Company v. Santamaria (1929)]
injured unless a receiver be appointed (5) Appointment of a receiver over the
to administer and preserve it; property in custodia legis may be
allowed when it is justified by special
(2) When it appears in an action by the circumstances, as when it is
mortgagee for the foreclosure of a reasonably necessary to secure and
mortgage that the property is in protect the rights of the real owner.
danger of being wasted or dissipated [Dolar v. Sundiam (1971)]
or materially injured, and that its
value is probably insufficient to
PAGE 144
REQUISITES; REQUIREMENTS Powers of a Receiver

BEFORE ISSUANCE OF AN ORDER (1) Bring and defend in such capacity actions
in his own name with leave of court
Procedure: (2) Take and keep possession of the property
(1) Verified application filed by the party in controversy
requesting for the appointment of the (3) Receive rents
receiver; (4) Collect debts due to himself as receiver or
(2) Applicant must have an interest in the to the fund, property, estate, person, or
property or funds subject of the action; corporation of which he is the receiver
(3) Applicant must show that the property or (5) Compound for and compromise the same
funds is in danger of being lost, wasted, or (6) Make transfers
dissipated; (7) Pay outstanding debts
(4) Application must be with notice and must (8) Divide the money and other property that
be set for hearing; shall remain among the persons legally
(5) Before appointing a receiver, the court entitled to receive the same’
shall require applicant to post a bond in (9) Generally, to do such acts respecting the
favor of the adverse party. When the property as the court may authorize
receiver is appointed, the receiver shall file (10) Invest funds in his hands, ONLY by order
a bond then take his oath. of the court upon the written consent of
(6) Before entering upon his duties, the all the parties. [Rule 59, Sec. 6]
receiver must be sworn to perform his
duties faithfully. Liability for refusal or neglect to deliver
property to receiver:
Who Appoints Receiver: (1) Contempt; and
(1) Court where the action is pending (2) Be liable to the receiver for the money or
(2) CA the value of the property and other things
(3) SC so refused or neglected to be surrendered
(4) During the pendency of an appeal, the together with all damages that may have
appellate court may allow an application been sustained by the party or parties
for the appointment of a receiver to be entitled thereto as a consequence of such
filed in and decided by the court of origin. refusal or neglect. [Rule 59, Sec. 7]
[Rule 59, Sec. 1]
Remedies Against the Receiver
Receivership may be denied or lifted: (1) No action against receiver can be
(1) If the appointment was sought or granted maintained without leave of court
without sufficient cause [Sec. 3] (2) An aggrieved party may:
(2) Adverse party files a sufficient bond to (a) Take the matter into the court which
answer for damages [Sec. 3] appointed the receiver and ask either
(3) Bond posted by applicant for grant of for an accounting or take some other
receivership is insufficient [Sec. 5] proceeding, and ask for consequent
(4) Bond of the receiver is insufficient [Sec. 5] judgment on the acts complained of;
or
(b) Ask for leave of court to bring him an
THE RECEIVER action directly
Who May Be Appointed As Receiver
The general rule is that neither party to the TWO KINDS OF BOND
litigation should be appointed as a receiver
without the consent of the other because a The Applicant’s Bond
receiver is supposed to be an impartial and (1) Applicant must file a bond executed to
disinterested person. [Alcantara v. Abbas, the party against whom the application is
1963] presented
A clerk of court should not be appointed as a (a) Amount to be fixed by the court
receiver as he is already burdened with his (b) CONDITION: To the effect that
official duties. [Arigo v. Kayanan, 1983] applicant will pay such party all
damages he may sustain by reason of
the appointment IN CASE the
PAGE 145
applicant shall have procured such Effect:

without sufficient cause (1) Settle accounts of receiver
(2) The court may require additional bond (2) Delivery of funds to person entitled
after appointment in the exercise of its (3) Discharge of receiver
discretion as further security for such (4) Receiver entitled to reasonable
damages [Rule 59, Sec. 2] compensation to be taxed as costs against
defeated party
The Receiver’s Bond
(1) As a precondition before entering into his REPLEVIN
duties, receiver must file a bond
(2) The bond is executed to such person and
in such sum as the court may direct
NATURE
Replevin is the provisional remedy seeking for
(3) CONDITION: To the effect that he will
the possession of the property prior to the
faithfully discharge his duties and obey
determination of the main action for replevin.
the orders of the court [Rule 59, Sec. 4]
Replevin may also be a main action with the
Damages Resulting Damages Arising After
ultimate goal of recovering personal property
From Appointment Appointment
capable of manual delivery wrongfully
Damages which arise
detained by a person. In this sense, it is a suit
Damages resulting due to receiver’s
in itself
from appointment negligence or
mismanagement
Writ of Preliminay
The right rests on Writ of Replevin
Attachment
The right is statutory general principles of
The purpose is to have
law
the property put in the
The damages may The purpose is to
custody of the court to
be caused before the Liability rests on the recover personal
secure the satisfaction
receiver qualifies or mismanagement or property capable of
of the judgment that
takes possession of negligence of receiver manual delivery
may be rendered in
the property from the defendant
favor of the plaintiff at
The applicant’s bond The receiver’s bond is
some future time
is responsible responsible
The property either
belongs to the
The property does not
plaintiff or one over
TERMINATION OF RECEIVERSHIP belong to the plaintiff
which the plaintiff
Ground: The necessity for a receiver no longer but to the defendant
has a right of
exists possession
May be sought only
Procedure: Available even if
when the principal
(1) The court shall determine that the recovery of property is
action is for the
necessity for a receiver no longer exists only incidental to the
recovery of personal
(a) Motu proprio, or on motion of either relief sought
property
party Can be sought only
(2) Due notice shall be given to all interested when defendant is in May be resorted to
parties actual or even if property is in
(3) A hearing shall be conducted constructive possession of a third
(4) The court shall then settle the accounts of possession of the person
the receiver property
(5) The court directs delivery of the funds and Cannot be availed of Can be availed of even
other property in his possession to the when property is in if property is in
person adjudged to be entitled to receive custodia legis custodia legis
them
Available from
(6) The court will then order the discharge of
Available before commencement but
the receiver
defendant answers before entry of
judgment
PAGE 146
Writ of Replevin
Writ of Preliminay REQUISITES
Attachment (1) Applicant is owner of the property claimed
Bond is double the Bond is fixed by the or is entitled to possession
value of the property court (2) Property is wrongfully detained by the
Extends only to Extends to all kinds of adverse party
personal property property whether real, (3) Property is not distrained or taken for tax
capable of manual personal, or assessment or fine pursuant to law, or
delivery incorporeal seized (if seized, that the property is
Attachment to recover exempt)
possession of personal (4) Principal purpose of the action is to
Available to recover property unjustly recover possession of personal property
personal property detained presupposes
even if the same is that the same is being PROCEDURE [Rule 60, Sec. 2 and 3]
not being concealed, concealed, removed, (1) An application is filed at the
removed, or or disposed of to commencement of the action or at any
disposed of prevent its being found time before answer of defendant
or taken by the (2) Application must contain an affidavit
applicant (3) Applicant must file a bond
(4) Approval of the bond by the court
NOTE: There can be no replevin and (5) Court shall then issue an order and the
preliminary attachment in the same case writ of replevin:
because the purposes are different. (a) It must describe the personal property
(1) In Rule 57, it is for security alleged to be wrongfully detained
(2) In Rule 60, it is for recovery of possession (b) Requiring the sheriff to take such
property into his custody
WHEN MAY WRIT BE ISSUED
NOTE: The writ of replevin may be served
When Applied For – A writ of replevin must be anywhere in the Philippines.
applied for:
(1) At the commencement of the action, or AFFIDAVIT AND BOND;
(2) At any time before defendant files his REDELIVERY BOND
answer
Contents of the Affidavit
NOTE: There can be no replevin before the (1) That the applicant is:
appellate courts (a) The owner of the property claimed –
describe with particularity
The provisional remedy of replevin is available (b) Or is entitled to possession
where the PRINCIPAL PURPOSE of the action (2) Property is wrongfully detained by adverse
is to recover the possession of PERSONAL party
property. (a) Allege the cause of detention
(b) According to his best knowledge,
Who May Avail of the Remedy? information, belief
(1) Plaintiff – where the complaint prays for (3) That the property has not been :
recovery of possession of personal (a) Distrained, or
property (b) Taken for a tax assessment, or
(2) Defendant – where a counterclaim was (c) Taken as a fine pursuant to law, or
set out in the answer for recovery of (d) Seized under a writ of execution or
personal property preliminary attachment, or under
custodia legis; if so taken, that said
It is available to any other party asserting property is exempt
affirmative allegations praying for the (4) The affidavit must also state the actual
recovery of personal property unjustly value of the property subject of replevin
detained. and not just its probable value. This value
will be the basis of the bond.
PAGE 147
The Applicant’s Bond (3) After taking possession:

(1) Executed to the adverse party (a) Keep the property in a secure place
(2) Amount is DOUBLE the value of the (b) He shall be responsible for delivery to
property stated in the affidavit party entitled
(3) Conditions of the Bond:
(a) The return to of property to adverse Unlike a preliminary attachment and
party, if such return be adjudged, and preliminary injunction, the rule on prior or
(b) The payment to adverse party of such contemporaneous jurisdiction is not provided
sum as he may recover from the for in replevin.
applicant in the action
However, the rule requires that upon such
Return of Property [Sec. 5] order, the sheriff must serve a copy on the
(1) If the adverse party objects to the adverse party together with the required
sufficiency of the bond, he cannot documents.
immediately require the return of the
property even by counterbond. A sheriff’s prerogative does not give him the
liberty to determine who among the parties is
(2) If the adverse party DOES NOT object to entitled to possession.
the sufficiency of the bond, he may require
the return of the property When a writ is placed in the hands of a sheriff,
(a) When: At any time before delivery to it is his duty to proceed with reasonable
applicant celerity and promptness to execute it
(b) How: By filing a redelivery bond according to its mandate.
The Redelivery Bond DISPOSITION OF PROPERTY BY

(1) This is executed to the applicant and filed SHERIFF [Rule 60, Sec. 6]
where the action is pending The adverse party is entitled to the return of
(2) Amount is double the value of the the property taken under writ of replevin, if:
property as stated in the affidavit of the (1) He seasonably posts a redelivery bond
applicant (2) The applicant’s bond is found to be
(3) Conditions of the Bond: insufficient or defective and is not
(a) The delivery thereof to the applicant, if replaced with a proper bond
such delivery be adjudged, and (3) The property is not delivered to the
(b) The payment of such sum to him as plaintiff for any reason
may be recovered against the adverse
party The sheriff shall retain the property for 5 days;
Within such period, the adverse party:
SHERIFF’S DUTY IN THE (1) May object to the sufficiency of the
IMPLEMENTATION OF THE WRIT applicant’s bond or surety; or
(2) May file a redelivery bond, if he does not
Duties of the Sheriff [Rule 60, Sec. 4] object to the sufficiency of the bond
(1) Serve a copy of the order, together with
the copies of the application, the affidavit, NOTE: These remedies are alternative.
and bond to the adverse party
(2) Take the property:

(a) If it be in the possession of the adverse
party or his agent – Take the property
into custody
(b) If property is concealed in a building
or enclosure:
(i) Demand delivery of the property
(ii) If not delivered, cause the building
or enclosure to be broken open
and then take the property into
possession
PAGE 148
WHEN PROPERTY IS CLAIMED BY

THIRD PARTY
When third party claims the property and such
person makes affidavit of his title thereto
stating his grounds, and serves such affidavit
upon the sheriff while the latter has
possession of the property and a copy upon
the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or
deliver property to the applicant UNLESS the
applicant files a bond approved by the court in
favor of the third person (the bond should not
be less than the value of stated under Sec. 60,
Sec. 2; the court shall determine the value in
case of disagreement).
No claim for damages for the taking or

keeping of the property may be enforced
against the bond UNLESS the action is filed
within 120 days from filing of the bond.
The procedure in Rule 60, Sec. 7 is similar to

that in third-party claims in execution [Sec. 16,
Rule 39] and in attachment [Sec. 14, Rule 57].
Difference in Service of Affidavits:

(1) Sec. 14, Rule 57 – affidavit is served upon
the sheriff while he has possession of the
attached property
(2) Sec. 7, Rule 60 – affidavit is served within
5 days in which sheriff has possession (in
connection with Sec. 6)
JUDGMENT [Rule 60, Sec. 9]

After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall render
judgment in the alternative for the delivery
thereof to the party entitled to the same, or for
its value in case delivery cannot be made, and
also for such damages as either party may
prove, with costs.
PAGE 149
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES

Preliminary Attachment Preliminary Injunction Receivership Replevin
To have the property of adverse

party attached as security for To require a party or a court, agency,
satisfaction of judgment that may be or a person to reframe from doing a
recovered in cases falling under Sec. particular act/s
1, Rule 57 To place the property subject of an
auction or proceeding under the
control of a third party for its To recover possession of personal
Purpose
preservation and administration property
To enable the court to acquire pendente lite or as an aid to
jurisdiction over the action by the execution
actual or constructive seizure of the Or to require the performance of
property in those instances where particular act/s
personal service of summons on
creditor cannot be effected
Personal property capable of

Subject Matter Personal or real property Particular act/s Personal or real property
manual delivery
At any time prior to satisfaction of
At the commencement of action judgment
When applied/ At any stage prior to final judgment At the commencement of the action
OR `At any time prior to entry of It may be availed of even after
Granted or final order BUT before the filing of answer
judgment judgment becomes final under Sec.
41, Rule 39
File verified application and File verified application and
applicant’s bond applicant’s bond
If application is included in initiatory
How applied for File affidavits and applicant’s bond pleading, adverse party should be Application may also be included in File affidavits and applicant’s bond
served with summons together with initiatory pleading in actions for
a copy of initiatory pleading and foreclosure of mortgage
applicant’s bond
Required
Requirement Not required EXCEPT: Not Required
Of a hearing May be issued ex parte Great or irreparable injury would Required May be issued ex parte
result or Extreme urgency and
applicant will suffer grave injustice
PAGE 150
Preliminary Attachment Preliminary Injunction Receivership Replevin

and irreparable injury [Sec. 5, Rule
58]
Only the court where the action is
Court where action is pending
pending
The CA or SC even if action is
Courts where the action is pending, Lower court, CA or SC provided
pending in the lower court Only the court were action is
Who may grant the CA or the SC even if action is action is pending in the same court
Appellate court may allow pending
pending in lower court which issues the injunction
application for receivership to be
Also with the Sandiganbayan and
decided by the court of origin
CTA
1. Applicant is entitled to relief
1. Applicant has interest in 1. Applicant is owner of the
1. Sufficient cause of action demanded
property or fund, subject matter property claimed or is entitled
2. Case is covered by Sec. 1, Rule 57 2. Act/s complained of would work
of action to possession
3. No other sufficient security for injustice to applicant if not
2. Property or fund is in danger of 2. Property is wrongfully detained
the claim exists enjoined
Requisites for being lost, or removed, or by the adverse party
4. Amount due to applicant or 3. Acts sought to be enjoined
granting application material injured 3. Property is not distrained or
value of property he is entitled to probably violates applicant’s
3. Appointment is the most taken for tax assessment or fine
recover is equal to the sum which rights respecting the subject of
convenient and feasible means pursuant to law, or seized (if
the order of attachment is the action or proceeding
of preserving, administering, seized, that the property is
granted 4. Threatened injury incapable of
disposing of property in litigation exempt)
pecuniary estimation
PAGE 151
Special Civil Actions JURISDICTION AND VENUE

The Special Civil Actions (SCA) under the
Rules of Court
IN GENERAL (1) SCAs initiated by complaints:
(a) Interpleader
NATURE (b) Foreclosure of Real Estate
Since a civil action in general is one by which a Mortgage
party sues another for the enforcement of a (c) Forcible Entry and Unlawful
right, or the prevention or redress of a wrong, Detainer
a special civil action is generally brought or (d) Partition
filed for the same purpose. [Riano] (e) Expropriation
ORDINARY CIVIL ACTIONS v. (2) SCAs initiated by petitions:

SPECIAL CIVIL ACTIONS (a) Declaratory Relief
A special civil action is governed by the rules (b) Review or Adjudication of
of ordinary civil actions but there are certain COMELEC/COA Decisions
rules that are applicable only to special civil (c) Certiorari
actions. (d) Prohibition
(e) Mandamus
Ordinary Civil Action Special Civil Action (f) Quo Warranto
Also governed by (g) Contempt
Governed by ordinary ordinary rules but
rules subject to specific rules The venue of special civil actions is governed
prescribed by the general rules on venue EXCEPT as
Formal demand of otherwise indicated in the particular rule for
one’s legal rights in a Special features not
said special action.
court of justice in the found in ordinary civil
manner prescribed by actions
the court or by the law Actions for certiorari, prohibition and
The concept of cause of mandamus should be commenced in the
Must be based on a proper RTC, but the same may, in proper
action in an ordinary
cause of action which cases, be commenced in the SC or the CA and
action does not always
means that the
defendant has violated
fit in a special civil a specific rule of venue is provided for quo
action (e.g. warranto proceedings
plaintiff’s rights
interpleader)
Venue is determined by This dichotomy does not In the absence of special reasons, the SC will
either the residences of always apply in a decline original jurisdiction in certiorari,
the parties when action special civil action (e.g.
prohibition, and mandamus since it is not a
is personal or by the the venue in a petition
location of the property for quo-warranto is trier of facts and, that is a function which can
when the action is real where the SC or CA sits) be better done by the trial courts. The same
There are special civil rule applies for quo warranto wherein the SC
actions which can be has concurrent jurisdiction with the RTC.
filed with the MTC (e.g.
forcible entry and Special civil actions that can be filed in or are
May be filed initially in unlawful detainer) within the jurisdiction of inferior courts:
either the MTC or RTC There are also those (1) Interpleader -- Provided that amount
which cannot be involved is within its jurisdiction
commenced in the MTC (2) Ejectment suits
(e.g. certiorari,
prohibition, mandamus)
(3) Contempt
They are denominated Some special civil
as “complaints” when actions are initiated by
filed petitions
PAGE 152
INTERPLEADER WHEN TO FILE
NATURE Who Files the Complaint - A complaint for

Definition - A remedy whereby a person who interpleader is filed by the person against
has property in his possession or has an whom the conflicting claims are made
obligation to render wholly or partially,
without claiming any right in both, comes to When to File - REASONABLE TIME
court and asks that the defendants who have
made conflicting claims upon the same An action for interpleader should be filed
property or who consider themselves entitled within a reasonable time after a dispute has
to demand compliance with the obligation be arisen without waiting to be sued by either of
required to litigate among themselves in order the contending parties. Otherwise, it may be
to determine who is entitled to the property or barred by laches or undue delay.
payment or the obligation [Beltran v. PHHC,
(1969)] Jurisdiction and Venue – General rules on
jurisdiction and venue apply as in ordinary civil
The peculiar characteristic of an interpleader actions.
is that there is NO CAUSE OF ACTION on the
part of the plaintiff but only a threat of cause PROCEDURE
of action. (1) A complaint is filed.
Purposes (2) Upon filing of complaint, the court issues

(1) To compel conflicting claimants to an Order [Sec. 2] requiring conflicting
interplead and litigate their several claims claimants to interplead with one another
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double (3) Summons shall then be served upon the
vexation in respect of one liability [Beltran, conflicting claimants with a copy of the
supra] complaint and the order to interplead
[Sec. 3].
REQUISITES FOR INTERPLEADER
(1) The plaintiff clams no interest in the (4) Each claimant has a 15-day period to file:
subject matter or his claim thereto is not [Sec. 4]
disputed (a) An answer
(2) The parties to be interpleaded must make (b) A motion to dismiss. If filed, period to
effective claims answer is filed
(3) There must be at least two or more (i) Grounds:
conflicting claimants with adverse or (1) Same as in Rule 16
conflicting interests to a property in (2) Impropriety of interpleader
custody or possession of the plaintiff; and action
(4) The subject matter must be one and the (ii) If motion is denied, movant may
same file his answer within the
remaining period but it shall not
NOTE: Interpleader applies regardless of be less than 5 days in any event
nature of subject matter. from notice of denial
Cannot be availed of to resolve the issue of (5) From service of Answer, the claimants
breach of undertakings made by defendants, may file their Reply serving copies to all
which should be resolved in an ordinary action parties. Parties may file counterclaims,
for specific performance or other relief cross-claims, third-party complaints,
[Beltran, supra]. responsive pleadings
EFFECT OF FAILURE TO ANSWER:

Default.
(a) The claimant may be declared, on
motion, in default
PAGE 153
(b) Unlike ordinary default, default in (2) Any person whose rights are affected by a
interpleader allows the court to statute, executive order or regulation, or
render judgment barring him from ordinance, or any other governmental
any claim in respect to the subject regulation
matter (a) He must file before violation
(6) Pre-trial is conducted. PARTIES

(1) All persons who have or claim any interest
(7) After all pleadings have been fled, the which would be affected by the
court shall then determine the respective declaration [Rule 63, Sec. 2]
rights and adjudicate their several claims (2) If action involves the validity of a
[Sec. 6] statute/executive order/regulation/other
governmental regulation, the Solicitor
DECLARATORY RELIEFS AND General shall be notified. [Rule 63, Sec. 3]
(3) If action involves the validity of a local
SIMILAR REMEDIES government ordinance, the
prosecutor/attorney of the LGU involved
NATURE shall be notified. [Rule 63, Sec. 4]
In Declaratory Relief, the subject matter is a
deed, will, contract, or other written Non-joinder of interested persons is not a
instrument, statute, executive order, or jurisdictional defect; but persons not joined
regulation, or ordinance; shall not be prejudiced in their interests
unless otherwise provided by the Rules.
Note: The enumeration of the subject matter [Baguio Citizens Action v. City Council of
is EXCLUSIVE Baguio, 1983]
Issue is the validity or construction of the WHERE TO FILE
subject matter
It is filed In the appropriate RTC (incapable of
pecuniary estimation)
Relief: declaration of the petitioner’s rights
and duties
Original jurisdiction of a petition for
declaratory relief is with the RTC.
Purpose: To relieve the litigants of the
common law rule that no declaration of rights
may be judicially adjudged unless a right has REQUISITES OF ACTION FOR
been violated and for the violation of which DECLARATORY RELIEF
relief may be granted. (1) Subject matter of controversy must be a
deed, will, contract, or other written
Characteristics instrument, statute, executive order or
(1) The concept of a cause of action is not regulation, or ordinance. (Enumeration is
applicable to declaratory relief since this exclusive)
SCA presupposes that there has been no
breach or violation of the (2) Actual justiciable controversy or “ripening
(2) Instruments involved seeds” of one between person whose
(3) Unlike other judgments, judgment in an interests are adverse
action for declaratory relief does not
essentially entail any execution process (3) No breach of documents in question
(4) Doubtful as to the terms and validity of

WHO MAY FILE THE ACTION the document and require judicial
[Rule 63, Sec. 1] construction
(1) Any person interested under a deed, will, (5) Issue is ripe for judicial determination, as
contract or other written instrument where all administrative remedies have
(a) He must file before breach been exhausted
PAGE 154
(6) Adequate relief is not available through However we must make a distinction:
other means or other forms of action or (1) In those cases similar to declaratory relief,
proceeding the court is BOUND to render judgment
(2) In actions for declaratory relief, the court
WHEN COURT MAY REFUSE TO MAY REFUSE to exercise the power to
MAKE JUDICIAL DECLARATION declare rights and to construe
instruments
Court has DISCRETION to REFUSE to Grant
Declaratory Relief when [Rule 63, Sec. 5] REVIEW OF JUDGMENTS AND
(1) The decision will not terminate the FINAL ORDERS OR
controversy or uncertainty giving rise to
the action; or RESOLUTION OF THE
(2) The declaration or constitution is not COMELEC AND COA
necessary and proper under the
circumstances SCOPE [Rule 64, Sec. 1]
Applicable only to judgments and final orders
How Done: Motu proprio, or on motion of the COMELEC and COA [Rule 64, Sec. 1]
CONVERSION TO ORDINARY Judgments/orders of the Civil Service

ACTION Commission are now reviewable by the Court
[Rule 63, Sec. 6] of Appeals under Rule 43, eliminating
recourse to the Supreme Court (SC). [RA
When proper: If before the final termination of 7902; SC Revised Administrative Circular No. 1-
the case, a breach or violation of the 95]
instrument or status occurs. Then, petition is
converted into an ordinary action An aggrieved party may bring the questioned
judgment, etc. directly to the SC on certiorari
Effect of Conversion: Parties shall be allowed under Rule 65. [Rule 64, Sec. 2]
to file such pleadings as may be necessary or
proper Basis: This new rule is based on the provisions
of Art. IX-A, 1987 Constitution regarding the
NOTE: If there has been breach or violation three constitutional commissions provided for
BEFORE filing of the petition, declaratory therein.
relief cannot be availed of.
APPLICATION OF RULE 65 UNDER
PROCEEDINGS CONSIDERED AS RULE 64
SIMILAR REMEDIES The aggrieved party may bring a judgment or
final order or resolution of the COMELEC and
Actions similar to Declaratory Relief and COA to the SC on certiorari under Rule 65 and
may be brought under Rule 63: (may be filed not on appeal by certiorari under Rule 45
with the MTC)
(1) Action for reformation [See Art. 1359-1369 NOTE: The petition should be filed
Civil Code[ EXCLUSIVELY with the SC
(2) Action to quiet title or remove cloud [See
Art. 476-481 Civil Code] Unlike in Rule 65, petition should be filed
(3) Action to consolidate ownership [See Art. within 30 days from notice of judgment or
1607 Civil Code] final order or resolution sought to be
reviewed.
These remedies are considered similar to
declaratory relief because they also result in Filing of MFR or MNT, if allowed under the
the adjudication of the legal rights of the procedural rules of the Commission, shall
litigants often without the need of execution interrupt the 30-day period.
to carry the judgment into effect
PAGE 155
If denied, aggrieved party may file petition Rule 64 Rule 65

within the remaining period but it shall not be The filing of a MR or a
less than 5 days in any event from notice of Motion for New Trial if
denial. allowed, interrupts the
period for the filing of
NOTE: The Fresh Period Rule is NOT The period within
the petition for
applicable which to file the
certiorari. If the
petition if the MR or
motion is denied, the
new trial is denied, is
PROCEDURE aggrieved party may
60 days from notice of
(1) A verified petition is filed [Sec. 5] with file the petition within
the denial of the
payment of docket and lawful fees [Sec. 4] the remaining period,
motion.
(2) Service of petition to the Commission and but which shall not be
parties concerned [Sec. 5] less than 5 days
(3) SC shall act on the petition: reckoned from the
(a) It may dismiss the petition: notice of denial.
(i) Failure to comply with the form
and content requirements in Sec.
5 CERTIORARI, PROHIBITION,
(ii) If SC finds the petition insufficient
in form and substance [Sec. 6] MANDAMUS
(iii) If it was filed manifestly for delay
[Sec. 6] DEFINITIONS AND DISTINCTIONS
(iv) Questions raised are too Writ of Certiorari is a writ emanating from a
unsubstantial to warrant superior court directed against an inferior
proceedings [Sec. 6] court, tribunal, or officer exercising judicial or
(b) If sufficient in form and substance, the quasi-judicial functions. The purpose of which
SC will require the respondents to file is to correct errors of jurisdiction.
their Comments [Sec. 6] within 10
days from notice Writ of Prohibition is a writ issued by a superior
(4) SC may also require oral argument or court and directed against an inferior court,
submission of memoranda [Sec. 9] board, officer or other person whether
(5) The case is then submitted for decision exercising judicial, quasi-judicial, or ministerial
[Sec. 9] functions for the purpose of preventing the
latter from usurping jurisdiction with which it
is not legally vested.
DISTINCTION IN THE APPLICATION
Writ of Mandamus is a writ issued in the name
OF RULE 65 TO JUDGMENTS OF
of the State, to an inferior tribunal,
THE COMELEC AND COA AND THE corporation, board, or person, commanding
APPLICATION OF RULE 65 TO the performance of an act which the law
OTHER TRIBUNALS, PERSONS, enjoins as a duty resulting from an office,
AND OFFICERS trust, or station.
Rule 64 Rule 65
Directed to any
Directed only to the
tribunal, board, or
judgments, final
officer exercising
orders or resolutions
judicial or quasi-
of COMELEC and COA
judicial functions
Filed within 30 days Filed within 60 days
from notice of the from notice of the
judgment judgment
PAGE 156
Certiorari v. Prohibition v. Mandamus Distinguished from Injunction
Certiorari Prohibition Mandamus Injunction Prohibition

Directed Ordinary civil action Special civil action
Directed
against an Directed Directed to the court
against an Directed only to the
entity or against an itself, commanding it
entity or party litigants,
person entity or to cease from the
person without in any
exercising person exercise of a
exercising manner interfering
judicial, quasi- exercising jurisdiction to which it
judicial or with the court
judicial, or ministerial has no legal claim
quasi-judicial
ministerial functions
functions
functions
Entity or Injunction Mandamus
person is Ordinary civil action Special civil action
alleged to Directed against a
Entity or person is alleged to Directed against a
have: tribunal, corporation,
have acted: litigant
(1) Neglected board, or officer
(1) Without jurisdiction
a ministerial Purpose is to either
(2) In excess of jurisdiction; or Purpose is for the
duty; or refrain the defendant
(3) With grave abuse of tribunal, corporation,
(2) Excluded from performing an
discretion amounting to lack or board, or officer, to
another from act or to perform not
excess of jurisdiction perform a ministerial
a right or necessarily a legal
office and legal duty
and ministerial duty
PURPOSE:
PURPOSE:
For
PURPOSE To have
respondent
To annul or respondent
to: (1) Do the
nullify a desist from
act required,
proceeding further
and (2) Pay
proceeding
damages
Covers
Covers Covers
discretionary
discretionary ministerial
and ministerial
acts acts
acts
Negative and
Corrective Preventive
This remedy
remedy remedy
is affirmative
To correct To restrain or
or positive
usurpation of prevent the
or negative
jurisdiction said
usurpation
PAGE 157
Certiorari as a Mode of Appeal and as a Certiorari as a mode Certiorari as a special

Special Civil Action of appeal [Rule 45] civil action [Rule 65]
Does not stay the
Certiorari as a mode Certiorari as a special judgment or order
of appeal [Rule 45] civil action [Rule 65] Stays the judgment subject of the
A continuation of the appealed from petition, unless
An original action
appellate process enjoined or
and not a mode of
over the original restrained
appeal
case Parties are the
May be directed original parties with
The tribunal, board,
against an the appealing party
officer, exercising
interlocutory order of as the petitioner and
judicial or quasi-
Seeks to review final the court or where no the adverse party as
judicial functions is
judgment or final appeal or plain or the respondent
impleaded as
orders speedy remedy is without impleading
respondents
available in the the lower court or its
ordinary course of judge
law May be filed with the
Filed only with the
Raises questions of SC, CA,
SC
jurisdiction – that is, Sandiganbayan, RTC
whether a tribunal, SC may deny the
board or officer decision motu
exercising judicial or proprio on specific
quasi-judicial grounds
Raises only
functions has acted
questions of law
without jurisdiction or NOTE: An original action for Certiorari,
in excess of Prohibition, or Mandamus, is an Independent
jurisdiction or with Action, as such:
grave abuse of (1) Does not interrupt the course of the
discretion amounting principal action
to lack of jurisdiction (2) Does not affect the running of the
Filed not later than reglementary periods involved in the
60 days from notice proceedings
of judgment, order, (3) Does not stay the execution of judgment
Filed within 15 days
or resolution sought unless a TRO or writ of preliminary
from notice of
to be assailed and in injunction has been issued
judgment or final
case a motion for
order appealed from,
reconsideration or ACQUISITION OF JURISDICTION
or of the denial of
new trial is timely In original actions for Certiorari, Prohibition,
petitioner’s motion
filed, the 60-day Mandamus, when does the court acquire
for reconsideration
period is counted jurisdiction over the person of the respondent?
or new trial
from notice of said IT DEPENDS:
denial (1) IF ACTION IS FILED WITH THE RTC - We
follow rules on ordinary civil actions.
Extension of 30 days Jurisdiction is acquired by:
Extension no longer
may be granted for (a) Service of summons to respondent or
allowed
justifiable reasons (b) By his voluntary appearance in court
Motion for
Does not require a
reconsideration is a (2) IF ACTION IS FILED WITH THE CA OR SC
prior motion for
condition precedent, - Court acquires jurisdiction over
reconsideration
subject to exceptions respondents by:
(a) Service on them of its orders
indicating its initial action on the
petition or
(b) By their voluntary submission to such
jurisdiction
PAGE 158
REQUISITES Discretionary Act Ministerial Act

One which an officer
Requisites of Certiorari: or tribunal performs
One where public
(1) There must be a controversy in a given state of
functionaries, by virtue
(2) Respondent is exercising judicial or quasi- facts, in a prescribed
of a power or right
judicial function manner, in obedience
conferred upon them
(3) Respondent acted without or in excess of to the mandate of a
by law, can act
its jurisdiction or acted with grave abuse legal authority,
officially under certain
of discretion amounting to lack of without regard to or
circumstances,
jurisdiction; and the exercise of his
uncontrolled by the
(4) There must be no appeal or other plain, own judgment upon
judgment or
speedy, and adequate remedy the propriety or
conscience of others
impropriety of the act
Requisites of Prohibition: done
(1) There must be a controversy
(2) Respondent is exercising judicial, quasi- WHEN PETITION FOR CERTIORARI
judicial, or ministerial functions IS PROPER
(3) Respondent acted without or in excess of Only to correct errors of jurisdiction, not errors
its jurisdiction or acted with grave abuse of judgment.
of discretion amounting to lack of
jurisdiction; and Questions of fact cannot be raised in an
(4) There must be no appeal or other plain, original action for certiorari. Only established
speedy, and adequate remedy or admitted facts may be considered. [Suarez,
NLRC, 1998]
Requisites of Mandamus:
(1) There must be a clear legal right or duty Where appeal is available, certiorari will not
 If there is discretion as to the taking or lie. Exceptions:
non-taking of the action sought, there (1) Where the appeal does not constitute a
is no clear legal duty, and mandamus speedy and adequate remedy
will not lie (2) Where orders were also issued either in
excess or without jurisdiction
(2) The act to be performed must be practical (3) For certain special considerations, as
 Within the powers of the respondent public welfare or public policy
to perform such that if the writ of (4) Where, in criminal actions, the court
mandamus was issued, he can comply rejects the rebuttal evidence for the
with it, or else the essence will be prosecution as, in case of acquittal, there
defeated could be no remedy
(3) Respondent must be exercising a (5) Where the order is a patent nullity
ministerial duty (6) Where the decision in the certiorari case
 A duty which is absolute and will avoid future litigations
imperative and involves merely its
execution WHEN PETITION FOR INJUNCTION
(4) The duty or act to be performed must be IS PROPER
existing Prohibition is a preventive remedy. However,
 A correlative right will be denied if not to prevent the respondent from performing
performed by the respondents the act sought to be prevented during the
(5) There is no other plain, speedy, and pendency of the proceedings for the writ, the
adequate remedy in the ordinary course of petitioner should obtain a restraining order
law and/or writ of preliminary injuction.
[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]
PAGE 159
General Rule: Prohibition does NOT ordinarily Prayers:

lie to restrain an act which is already fait (1) In certiorari
accompli. (a) That the judgment be rendered
annulling or modifying the
Exception: Writ of prohibition will lie to proceedings of such tribunal, board or
prevent the unlawful creation of a new officer; and
province by those in the corridors of power (b) Granting such incidental reliefs as law
who could avoid judicial intervention and and justice may require
review by merely speedily and stealthily
completing the commission of such illegality (2) In prohibition
[Tan, et al. v. COMELEC] (a) That the judgment be rendered
commanding the respondent to desist
WHEN PETITION FOR MANDAMUS from further proceedings in the action
PROPER or matter specified; or
The purpose of mandamus is to compel the (b) Otherwise granting such incidental
performance, when refused, of a ministerial reliefs as law and justice may require
duty, this being its main objective.
(3) In mandamus
A writ of mandamus will not issue to control (a) That the judgment be rendered
the exercise of official discretion or judgment, commanding the respondent,
or to alter or review the action taken in the immediately or at some other time to
proper exercise of the discretion of judgment, be specified by the court, to do the act
for the writ cannot be used as a writ of error or required to be done to protect the
other mode of direct review. rights of the petitioner; and
(b) To pay the damages sustained by the
However, in extreme situations generally in petitioner by reason of the wrongful
criminal cases, mandamus lies to compel the acts of the respondent
performance of the fiscal of discretionary
functions where his actuations are
tantamount to a wilful refusal to perform a EXCEPTIONS TO FILING MOTION
required duty. [Regalado] FOR RECONSIDERATION BEFORE
Grounds for Mandamus: FILING PETITION
(1) When any tribunal, corporation, board, General Rule: A MR is an essential
officer or person, UNLAWFULLY precondition for the filing of a petition for
NEGLECTS the performance of an act certiorari, prohibition, or mandamus. It is a
which the law specifically enjoins as a duty plain, speedy, and adequate remedy. This is to
resulting from an office, trust, or station enable the lower court, in the first instance, to
(2) When any tribunal, corporation, board, pass upon and correct its mistakes without the
officer, or person, UNLAWFULLY intervention of the higher court
EXCLUDES another from the due and
enjoyment of a right or office to which the If a MR is filed, the period shall not only be
other is entitled interrupted but another 60 days shall be given
to the petitioner within which to file the
appropriate petition for certiorari or
MANNER OF FILING THE PETITION prohibition with the superior court [SC Admin
(1) A verified petition is filed in the proper
Circular 00-2-03]
court accompanied by:
(a) Certified true copy of the judgment,
Exceptions: MR may be dispensed with in
order, resolution subject thereof
some cases:
(b) Copies of all pleadings and relevant
(1) Where the order is a patent nullity
and pertinent documents
(2) Where questions raised in the certiorari
(c) Sworn certification of non-forum
proceeding have been duly raised and
shopping
passed upon by the lower court , or are the
(2) Contents of the petition
same as those raised and passed upon in
(a) Allegation of facts with certainty
the lower court
(b) Prayer
PAGE 160
(3) Where there is urgent necessity for the (e) The COMELEC in election cases
resolution of the question and any further involving an act or omission of the
delay would prejudice the interests of the MTC/RTC
Government
(4) Where under the circumstances, a MFR (2) Order to Comment - If the petition is
would be useless, as where the court had sufficient in form and substance to justify
already indicated that it would deny any such process, the court shall issue an
motion for reconsideration of its order requiring the respondent(s) to
questioned order comment on the petition within 10 days
(5) Where petitioner was deprived of due from receipt of a copy thereof.
process and there is extreme urgency for
relief Such order shall be served on the
(6) Where, in a criminal case, relief from an respondents in such manner as the court
order of arrest is urgent and granting such may direct, together with a copy of the
relief by trial court is improbable petition and any annexes thereto. [Rule
(7) Where the proceedings in the lower court 65, Sec. 6]
are a nullity for lack of due process
(8) Where the proceeding was ex parte or in (3) Hearing or Memoranda - After the
which the petitioner had no opportunity to comment or other pleadings required by
object the court are filed, or the time for the filing
(9) Where the issue raised is one purely of law thereof has expired, the court may hear
or where public interest is involved the case or require the parties to submit
(10) Where the subject matter of the action is memoranda. [Rule 65, Sec. 8]
perishable
(4) Judgment - If after such hearing or
PROCEDURE submission of memoranda or the
(1) A petition for certiorari/mandamus/ expiration of the period for the filing
prohibition is filed thereof, the court finds that the
allegations of the petition are true, it shall
When filed: render judgment for the relief prayed for
(a) Not later than 60 days from notice of or to which the petitioner is entitled.
judgment/order/resolution
(b) If a motion for reconsideration/new The court, however, may dismiss the
trial is filed, the 60-day period shall petition if it finds the same to be:
be counted from notice of denial of (a) Patently without merit,
motion. (b) Prosecuted manifestly for delay, or
(c) Extension may be granted for (c) The questions raised therein are too
compelling reasons, not exceeding 15 unsubstantial to require
days. [Rule 65, Sec. 4] consideration. [Rule 65, Sec. 8]
Where filed: (Follow hierarchy of courts) (5) Service and Enforcement of Order or
(a) Supreme Court Judgment - A certified copy of the
(b) Court of Appeals; Whether or not the judgment rendered shall be served upon
same is in aid of its appellate the court, quasi-judicial agency, tribunal,
jurisdiction BUT if it involves the acts corporation, board, officer or person
of a quasi-judicial agency, the petition concerned in such manner as the court
shall be filed only in the CA, unless may direct, and disobedience thereto shall
otherwise provided by law or the be punished as contempt.
Rules.
(c) Regional Trial Court, if it relates to
acts / omissions of a lower court /
corporation / board / officer / person.
RTC must exercise jurisdiction over
the territorial area
(d) Sandiganbayan, if it is in aid of its
appellate jurisdiction. [Rule 65, Sec. 4]
PAGE 161
RELIEFS PETITIONER IS ENTITLED EFFECTS OF FILING AN

TO UNMERITORIOUS PETITION
The court, however, may dismiss the petition if
Petitioner may be entitled to: it finds the same to be patently without merit,
(1) Injunctive relief – Court may may issue prosecuted manifestly for delay, or that the
orders expediting the proceedings, and it questions raised therein are too unsubstantial
may also grant a temporary restraining to require consideration. [Rule 65, Sec. 8]
order or a writ of preliminary injunction for In these cases, the court may award TREBLE
the preservation of the rights of the COSTS solidarily against petitioner and
parties [Rule 65, Sec. 7] counsel, in addition to administrative
(2) Incidental reliefs as law and justice may sanctions
require [Rule 65, Secs. 1 and 2]
(3) Other reliefs prayed for or to which the Court may impose, motu proprio, based on res
petitioner is entitled [Rule 65, Sec. 8] ipsa loquitur, other disciplinary sanctions for
patently dilatory and unmeritorious petitions
INJUNCTIVE RELIEF [AM No. 07-7-12-SC]
Rule 65, Sec. 7 provides for the issuance of a

temporary restraining order, and not only for a QUO WARRANTO
writ of preliminary injunction, but such order
shall be subject to the rules on the grounds NATURE
and duration thereof. [Regalado] Quo Warranto literally means “by what
authority”.
General Rule: The petition shall not interrupt
the course of the principal case. It is a prerogative writ by which the
government can call upon any person to show
The public respondent shall proceed with the by what warrant he holds a public office or
principal case WITHIN 10 DAYS from filing of exercises a public franchise.
the petition for certiorari with the higher court,
absent a TRO or preliminary injunction, or When the inquiry is focused on the legal
upon its expiration. Failure may be a ground existence of a body politic, the action is
for an administrative charge (AM No. 07-7-12- reserved to the State in a proceeding for quo
SC) warranto or any other direct proceeding.
Exception: Unless a TRO or preliminary Subject Matter: The subject matter of a quo
injunction has been issued against the public warranto may be a public office, franchise, or
respondent from further proceedings in the position.
case
NOTE: Rule 66 deleted an office in a
FACTS/OMISSIONS OF MTC/RTC IN corporation created by authority of law. This
ELECTION CASES falls under the jurisdiction of the SEC under
PD 902-A.
In election cases involving an act or an
omission of a municipal or regional trial court,
the petition shall be filed EXCLUSIVELY with Jurisdiction to Issue Writ: Original jurisdiction
to issue the writ of quo warranto is vested in
the Commission on Elections, in aid of its
the SC, CA, and RTC.
appellate jurisdiction [Rule 65, Sec. 4, as
amended in AM No. 07-7-12-SC]
PAGE 162
DISTINGUISHED FROM QUO AGAINST WHOM MAY THE ACTION

WARRANTO IN THE OMNIBUS BE BROUGHT [Rule 66, Sec. 1]
ELECTION CODE (1) A PERSON who USURPS, intrudes into, or
unlawfully holds or exercises a public
ROC Rule 66 OEC Sec. 253 office, position, or franchise
Filed by whom (2) A PUBLIC OFFICER who does or suffers
an act, which, by provision of law,
Solicitor General or constitutes a ground for FORFEITURE OF
Public Prosecutor in OFFICE
Any voter (3) An ASSOCIATION which acts as a
behalf of the Republic;
Individual corporation within the Philippines without
being legally incorporated or without
Where filed lawful authority to act
COMELEC, if
against election of a Actions for quo warranto against corporations
Member of with regard to franchises and rights granted
By SolGen: RTC Manila, Congress, Regional, to them, as well as their dissolution now fall
CA or SC; Otherwise, Provincial or City under the jurisdiction of the RTC [Securities
RTC with jurisdiction Officer; Regulation Code, Sec. 5.2]
over territorial area
where respondent appropriate RTC or WHO MAY COMMENCE THE ACTION
resides, CA or SC MTC, if against a [Rule 66, Sec. 2 – 5]
municipal or
barangay officer General Rule: The Government, through the
Solicitor General or public prosecutor
Period for filing (1) MANDATORY [Sec. 2]; When to
Within 1 year from commence:
Within 10 days after (a) When directed by the President, or
ouster, or from the time
proclamation of (b) When upon complaint or otherwise he
the right to the position
results has good reason to believe that any
arose
Against whom, grounds case in Sec. 1 can be established by
A person, who usurps, proof
intrudes into or
unlawfully holds or (2) DISCRETIONARY [Sec. 3]; When to
exercises a public office, commence:
position or franchise; (a) This is upon permission of court
Ineligibility or (b) Bringing such action (ex relatione) at
disloyalty to the the request and upon the relation of
A public officer, who
Republic another person, PROVIDED:
does or suffers an act
which, by provision of (i) Officer bringing it may require an
law, constitutes a indemnity bond
ground for forfeiture of (ii) Leave of court will have to be
office obtained
In fine, Rule 66 applies to quo warranto IN Exception: An individual may commence the
GENERAL while election law governs quo action [Sec. 5]; PROVIDED:
warranto against SPECIFIED elective officials. (1) He institutes the action in his own name
(a) He does not have to secure the
intervention of the Solicitor General or
public prosecutor
(b) No leave of court necessary
(2) HOWEVER, he must claim to be entitled
to the office or position usurped or
unlawfully held or exercised by another.
PAGE 163
(a) He must aver and be able to show  Respondent’s neglect or refusal to

that he is entitled to the office in comply with the demand is punishable
dispute. There must be an allegation by contempt
that respondent is either a de facto or (3) Bring an action for damages against
de jure officer respondent
 For damages sustained by him by
PERIOD FOR PLEADINGS AND reason of the usurpation
PROCEEDINGS MAY BE REDUCED  Must be commenced within 1 year after
[Rule 66, Sec. 8] entry of judgment establishing
petitioner’s right to the office in question
Period to File: The action must be commenced [Sec. 11]
within 1 year from the date after the cause of
such ouster or the right of the petitioner to EXPROPRIATION
hold such office or position arose. [Sec. 11]
NATURE
Laches does not attach and failure to file quo-
Eminent Domain is the right and authority of
warranto proceedings does not operate
the State, as sovereign, to take private
adversely against a dismissed government
property for public use upon observance of
employee where it was the act of responsible
due process and payment of just
government official which contributed in the
compensation.
delay of filing of complaint for reinstatement
[Cristobal v. Melchor].
It is a government’s right to appropriate, in the
nature of a compulsory sale to the State,
Reduction of Period: The court may reduce the
private property for public use or purpose.
period for filing and for all other proceedings
in the action to secure most expeditious
Requisites for the Valid Exercise of the
determination of the matters involved therein,
Right
consistent with the rights of the parties.
(1) There must be due process of law
(2) Payment of just compensation
JUDGMENT IN QUO WARRANTO (3) Taking must be for public use
ACTION [Rule 66, Sec. 9]
Subject Matter of Expropriation: All
When respondent is found guilty of usurping, properties can be expropriated, EXCEPT:
intruding, or unlawfully holding, judgment (1) Money (futile; because of just
rendered: compensation)
(1) That such respondent is ousted and (2) Choses in action (conjectural in nature;
altogether excluded therefrom validity and its value)
(2) That petitioner or relator, as the case may
be, recover his costs When is Expropriation Proper:
(3) May determine the respective rights in (1) When the owner refuses to sell
and to the public office, position, or (2) When he agrees to sell but an agreement
franchise of all parties as to the price cannot be reached.
RIGHTS OF A PERSON ADJUDGED MATTERS TO ALLEGE IN

ENTITLED TO PUBLIC OFFICE COMPLAINT FOR EXPROPRIATION
[Rule 66, Sec. 10]
Contents of the Complaint [Rule 67, Sec. 1]
Rights of persons adjudged entitled to (1) State with certainty the right and purpose
office: of expropriation
(1) Execution of the office (a) Where the right of the plaintiff to
 After taking oath of office and executing expropriate is conferred by law,
any official bond required by the law complaint does not have to state with
(2) Demand from respondent all the books certainty the right of expropriation
and papers appertaining to the office to [MRR Co. v. Mitchel]
which judgment relates
PAGE 164
(2) Describe the real or personal property Preliminary deposit:

sought to be expropriated
(3) Joining of defendants Provide damages if court finds
(a) All persons owning or claiming to that the plaintiff has no right to
own, or occupying, any part thereof or expropriate
interest therein. showing separate
interest of each defendant, as far as Purposes
Advance payment for just
practicable compensation, if property is finally
(b) Make the following averments, if expropriated
needed:
(i) If title appears to be in the If Real Property - Equivalent to the
Republic, although occupied by assessed value of the property for
private individuals purposes of taxation
(ii) If title is otherwise obscure or Value
If Personal Property – Value shall
doubtful so that plaintiff cannot be provisionally ascertained and
with accuracy or certainty specify fixed by the court
who the real owners are
With the authorized government
Where to depositary
Where to File: RTC where property is located.
deposit Amount is to be held by such bank
MTC has no jurisdiction since an action for
subject to the orders of the court
expropriation is incapable of pecuniary
estimation. Deposit shall be in money
UNLESS, in lieu of money, court

TWO STAGES IN EVERY ACTION Form of authorizes deposit of a certificate
FOR EXPROPRIATION Deposit of deposit of a government bank of
the Republic, payable on demand
First Stage: Determination of the authority of to the authorized government
the plaintiff to exercise the power of eminent depositary
domain and the propriety of its exercise in the
context of the facts involved. This ends with After the deposit, court shall order sheriff or
either: proper officer to place plaintiff in possession
(1) An order of dismissal, or of the property. Such officer shall promptly
(2) An order of expropriation submit a report to the court with service of
copies to parties.
Second Stage: Determination of the just
compensation for the property sought to be NOTE: Preliminary deposit is only necessary if
taken. the plaintiff desires entry on the land upon its
institution of the action. Otherwise, he could
NOTE: Multiple appeals is allowed in always wait until the order of expropriation is
expropriation. Aggrieved party may appeal in issued before it enters upon the land.
each stage separately.
Once the preliminary deposit has been made,
WHEN PLAINTIFF CAN the expropriator is entitled to a writ of
IMMEDIATELY ENTER INTO possession as a matter of right, and the
POSSESSION OF THE REAL issuance of said writ becomes ministerial on
PROPERTY, IN RELATION TO R.A. the part of the trial court [Biglang-Awa v.
Bacalla]
NO. 8974
On RA 8974
Plaintiff shall have the right to take or enter
On Nov. 7, 2000, Congress enacted RA 8974,
upon possession of the real property upon:
a special law to facilitate the acquisition of
(1) Filing of complaint or at any time right of way, site, or location for national
thereafter, and after due notice to government infrastructure projects:
defendant
(2) Making preliminary deposit [Rule 67, Sec.
2]
PAGE 165
Rule 67,
RA 8974 DEFENSES AND OBJECTIONS
Sec. 2
Only when No Objection or Has Objection or
national Defense to the Taking Defense to the Taking
government
What to file and serve
expropriates
Expropriation Notice of
Application property for Answer to the
in general appearance and
national complaint
manifestation
government
infrastructure Period to file
projects
Government is Time stated in the summons
Government
required to make
For writ of is required to Contents
immediate
possession make Specifically
payment to owner
to issue preliminary designating/identifying
upon filing of Manifestation to the
deposit the property in which
complaint effect that he has no
he claims to have an
Equal to the objection or defense;
interest in and the
market value of
nature and extent of
the property as Specifically
the interest;
stated in the tax designating/
Equal to declaration or identifying the
assessed current relevant property in which he
Amount of ALL his objections and
value of real zonal value of BIR, claims to be
payment or defenses to the
property for whichever is interested
deposit complaint or any
purposes of higher, and value
allegation therein
taxation of improvements
and/or structures Prohibited
using Counterclaim, cross-
replacement cost claim, third party
method complaint in any
pleading
Remember the Applicable Rules:
(1) RA 8974 specifically governs NOTE: A defendant waives all defenses and
expropriation for national government objections not so alleged, but the court, in the
infrastructure projects interest of justice, may permit amendments to
(2) Sec 19, LGC governs the exercise of the the answer not to be made later than ten (10)
power of eminent domain by LGUs days from filing thereof.
through an enabling ordinance
NOTE: In any case, in the determination of just
NEW SYSTEM OF IMMEDIATE compensation, defendant may present
PAYMENT OF INITIAL JUST evidence as to the amount of compensation to
COMPENSATION be paid.
For the acquisition of right-of-way, site or
location for any national government NOTE: The defendant CANNOT be declared in
infrastructure project through expropriation, default for failure to file Answer. Failure to file
upon the filing of the filing of the complaint, an answer would result to the court’s
and after due notice to the defendant, the judgment on the right to expropriate without
implementing agency shall immediately pay prejudice to the right to present evidence on
the owner of the property the amount the just compensation and to share in the
equivalent to the sum of (1) 100 percent of the distribution of the award.
value of the property based on the current
relevant zonal valuation of the BIR; and (2)
the value of the improvements and/or
structures as determined under Sec. 7 of RA
8974 [Sec. 4, RA 8974]
PAGE 166
ORDER OF EXPROPRIATION (3) Procedures:

[Rule 67, Sec. 4] (a) Copies of the Order shall be served on
the parties
Order of Expropriation - It is the order (b) Objections to appointment:
declaring that the plaintiff has lawful right to (i) Filed with the court within 10 days
take the property. from service
(ii) Objections shall be served to all
When Issued: It is issued when: commissioners
(1) Objections or defenses against the right of (iii) Resolved within 30 days after all
plaintiff to expropriate are overruled; or commissioners shall have
(2) No party appears to defend the case received copies
Contents of the Order: Just Compensation

(1) That the plaintiff has a lawful right to take Just Compensation has been defined as the
the property sought to be expropriated full and fair equivalent of the property taken
(2) For public use or purpose described in the from its owner by the expropriator. Just
complaint compensation means not only the correct
(3) Upon payment of just compensation determination of the amount to be paid but
(a) To be determined as of the date of also the payment of the land within a
taking, or reasonable time from its taking.
(b) The filing of the complaint, whichever
came first Market Value
Is “that sum of money which a person desirous
Remedy of Defendant: Order of condemnation but not compelled to buy, and an owner
is final, not interlocutory. Hence, it is willing but not compelled to sell, would agree
appealable. on as a price to be given and received
therefore.” [BPI v. CA (2004)]
Effects of the Order:
(1) Plaintiff not permitted to dismiss or Time when market value should be fixed:
discontinue the proceeding (1) When plaintiff takes possession before
(a) EXCEPTION: On such terms as the institution of proceedings, value should be
court deems just and equitable, fixed as of the TIME OF TAKING
plaintiff may be allowed to dismiss or (2) When the taking coincides with or
discontinue subsequent to the commencement of
(2) Forecloses any further objections to the proceedings, DATE OF FILING of the
right to expropriate, including the public complaint should be the basis
purpose of the same
APPOINTMENT OF
ASCERTAINMENT OF JUST COMMISSIONERS;
COMPENSATION [Rule 67, Sec. 5] COMMISSIONER’S REPORT; COURT
Upon rendition of the Order of Expropriation, ACTION UPON REPORT
the court issues an Order of Appointment. Qualifications of the Commissioners:
(1) Competent and
Order of Appointment: (2) Disinterested
(1) Court appoints not more than 3
commissioners to ascertain and report to Proceedings by Commissioners [Rule 67,
the court the just compensation for the Sec. 6]
property (1) Commissioners shall first take and
subscribe an oath that they will faithfully
(2) Contents: perform their duties. Oath shall be filed in
(a) It shall designate the time and place court together with other proceedings.
of the first session of hearing to be (2) Evidence may be introduced by either
held by commissioner party before the commissioners who are
(b) Specify the time within which their authorized to administer oaths on
report shall be submitted to court hearings before them
PAGE 167
Duties of Commissioners: (b) Recommit to commissioners for

(1) View and examine the property sought to further report of facts, for cause
be expropriated and its surroundings, and shown
may measure the same (c) Set aside the report and appoint new
(a) Due notice to parties to attend must commissioners;
first be given UNLESS the parties (d) Accept the report in part and reject in
consent to the contrary part
(b) After this, each party may argue the (e) Make such order or render such
case judgment as shall secure the plaintiff
and the defendant
(2) They shall assess the consequential
damages to the property not taken and RIGHTS OF PLAINTIFF UPON
deduct from such the consequential JUDGMENT AND PAYMENT
benefits to be derived by owner [Rule 67, Sec. 10]
(a) In no case shall the consequential
benefits assessed exceed the When will the right of plaintiff TO ENTER the
consequential damages property sought to be appropriated or RIGHT
(b) In no case shall the owner be deprived TO RETAIN it should he have taken immediate
of the actual value of his property possession thereof accrue?
taken (1) RIGHT TO RETAIN: Upon filing of
complaint, serving notice to defendant,
Report by Commissioners [Rule 67, Sec. 7] and after depositing the assessed value of
Commissioners shall make a full and accurate property for taxation purposes with
report to the court of all their proceedings. authorized government depositary [Sec. 2]
Such proceeding shall not be effectual until (2) RIGHT TO ENTER:
court has accepted their report and rendered (a) Upon payment by plaintiff to
judgment in accordance with their defendant of compensation fixed by
recommendations. judgment, with legal interest from
taking [Sec. 10]
Report shall be filed within 60 days from date (b) After tender to defendant of amount
commissioners were notified of their so fixed and payment of the costs
appointment. Time may be extended by court [Sec. 10]
discretion,
Upon filing, clerk shall serve copies of the

EFFECT OF RECORDING OF
Commissioners’ Report to all interested JUDGMENT
parties. Clerk includes a notice that parties are
allowed to file objections to the report within Contents of the Judgment
10 days from notice (1) Statement of the particular property or
interest therein expropriated, with
Action Upon Commissioners’ Report [Rule adequate description
67, Sec. 8] (2) Nature of the public use or purpose for
(1) When court renders judgment: Upon which it is expropriated
(a) Filing of objections to the report or of
the agreement thereon of all In case of real estate, a certified true copy of
interested parties; or such judgment shall be recorded in the
(b) Expiration of 10-day period to object registry of deeds of the place in which
from the report property is situated. Effect is to vest title.
(2) Court may: Title in Expropriation is vested:

(a) After hearing, accept the report and (1) If PERSONAL property, upon payment of
render judgment in accordance just compensation [Sec. 10]
therewith (2) If REAL property, upon payment of just
compensation AND registration of
property [Sec. 13]
PAGE 168
FORECLOSURE OF REAL (3) Transferee or grantee of the property

(4) Second mortgagee or junior
ESTATE MORTGAGE encumbrancers or any person claiming a
right or interest in the property
NATURE subordinate to the mortgage sought to be
Foreclosure of Mortgage is a proceedings in a foreclosed to foreclose their equity of
court of justice conducted according to legal redemption
forms by which the mortgagee or his  But if the action is by the junior
successors or one who has by law succeeded encumbrancer, first mortgagee MAY
to the rights and liabilities of the mortgagee also be joined as defendant
undertakes to dispose of, to ban, to cut-off the (5) Mortgagor even if not owner of the
legal and equitable claims of lien holders or of mortgaged property should be included to
the mortgagors or those who have succeeded satisfy the deficiency
to the rights and liabilities of the mortgagor.
JUDGMENT ON FORECLOSURE FOR
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage
PAYMENT OR SALE [Rule 68, Sec. 2]
loan, but it may be on other grounds which
If upon trial, the facts set forth in the
under the contract warrant the foreclosure,
complaint are true, the court shall:
such as the violation of the other conditions
therein. (1) Ascertain the amount due to the plaintiff
upon the mortgage debt or obligation
Foreclosure may be made: including interests, other charges
approved, costs
(1) Judicially – governed by Rule 68
(2) Extrajudicially – proper only when so
(2) Render judgment for the sum so found
provided in contracts in accordance with
due
Act. No. 3135; governed by A.M. No. 99-10-
05-0.
(3) Order that the amount be paid to the
court or to judgment obligee
COMPLAINT IN AN ACTION FOR (a) Within a period of not less than 90
FORECLOSURE [Rule 68, Sec. 1] days but not more than 120 days from
Venue: A foreclosure action must be brought entry of judgment
in the RTC of the province where the land or (b) In default of such payment, property
any part thereof is situated shall be sold at public auction to
satisfy judgment
Contents of the Complaint:
(1) The following dates: Judgment on Foreclosure is the judgment of
(a) Date and due execution of the real the court ordering the debtor to pay within
mortgage 90-120 days from entry of judgment after
(b) Date of the note or other documentary ascertaining the amount due to plaintiff
evidence of the obligation secured by
the mortgage NOTE: Multiple appeals are allowed under
(2) Its assignments, if any Rule 68
(3) The following names and residences: (1) Judgment of foreclosure is appealable
(a) Of the mortgagor and mortgagee [Sec. 2]
(b) Of all persons having or claiming an (2) Order confirming foreclosure sale is a final
interest in the property subordinate in disposition with respect to the issue of
the right to that of the holder of the validity and regularity of the sale [Sec. 3]
mortgage (3) Deficiency judgment is a disposition on
(4) Description of the mortgaged property the merits of the correctness of such
(5) Amount claimed to be unpaid award [Sec. 6]
Defendants in a judicial foreclosure

(1) Persons obliged to pay the mortgage debt
(2) Persons who own, occupy, or control the
mortgaged premises or any part thereof
PAGE 169
SALE OF MORTGAGED PROPERTY; DISPOSITION OF PROCEEDS OF

EFFECT [Rule 68, Sec. 3] SALE [Rule 68, Sec. 4]
(1) Amount realized from the foreclosure
When Proper: When Defendant fails to pay the sale, less costs of the sale, shall be paid to
amount of judgment within the period the person foreclosing
specified, the court shall order the property to (2) When there is a balance or residue after
be sold. paying the mortgage debt, the same shall
be paid to junior encumbrancers in the
How: By motion and under the provisions of order of priority as ascertained by the
Rule 39. court
It is the ministerial duty of the court to order (3) If there are no junior encumbrancers, the
the foreclosure of the property when the debt residue goes to the mortgagor or his
is not paid within the period specified. authorized agent, or any other person
entitled to it
A motion for such order of sale is non-litigable
and may be made ex parte. [Gov’t of P.I. v De DEFICIENCY JUDGMENT;
las Cajigas (1931)] INSTANCES WHEN COURT CANNOT
NOTE: Such sale shall not affect the rights of
RENDER DEFICIENCY JUDGMENT
[Rule 68, Sec. 6]
persons holding prior encumbrances upon the
property or a part thereof.
Deficiency Judgment is judgment rendered by
the court holding defendant liable for any
Order of Confirmation - When confirmed by an
order of the court, also upon motion, it shall unpaid balance due to the mortgagee if the
proceeds from the foreclosure sale do not
operate to divest the rights in the property of
satisfy the entire debt.
all the parties to the action and to vest their
rights in the purchaser, subject to such rights
In extrajudicial foreclosure, the mortgagee can
of redemption as may be allowed by law.
also recover by action any deficiency in the
mortgage account which was not realized in
Confirmation of the sale of mortgaged real
the foreclosure sale. [PNB v. CA (1999)]
property vests title in the purchaser including
the equity of redemption, it retroacts to the
A motion for deficiency judgment may be
date of the sale. It cuts off all the rights or
made only after the sale and after it becomes
interests of the mortgagor and of the
known that a deficiency exists. [Governor of the
mortgagee. [Lozame v Amores (1985]].
Philippine Islands v. Torralba Vda. de Santos
(1935)]
The motion for the confirmation of the sale
requires a hearing to grant an opportunity to
If the debtor dies, the deficiency may be filed
the mortgagor to show cause why the sale
should not be confirmed [Tiglao v Botones, 90 as a claim against his estate. [Rule 86, Sec. 7]
Phil 275], as by proof of irregularities therein
How Done:
or of gross inadequacy of the price. Lack of
(1) Judgment creditor files motion for
notice vitiates the confirmation of the sale.
deficiency judgment
(2) Court shall then render judgment against
Writ of Possession - Upon the finality of the
defendant for any such balance for which
order of confirmation or upon the expiration of
he may personally be liable to plaintiff
the period of redemption when allowed by
law, the purchaser at the auction sale or last (3) Execution may then issue immediately if
balance is all due at the time of rendition
redemptioner, if any, shall be entitled to the
of judgment
possession of the property, unless a third
(a) If not, plaintiff shall be entitled to
party is actually holding the same adversely to
execution at such time as the balance
the judgment obligor.
remaining becomes due
PAGE 170
Instances when court CANNOT render

deficiency judgment Equity of Redemption Right of Redemption
(1) Recto Law [Art. 1484, par. 3] Right of the
(2) When mortgagor is a non-resident and is defendant mortgagor
not found in the Philippines to extinguish the Right of the debtor,
(3) When mortgagor dies, mortgagee may file mortgage and retain his successor in
his claim with the probate court [Sec. 7, ownership of the interest, or any
Rule 86] property by paying judicial creditor of
(4) If mortgagor is a third person but not the secured debt said debtor or any
solidarily liable with debtor within the 90 to 120 person having a lien
 No deficiency judgment may be day period after entry on the property
rendered against owner who is not a of judgment or even subsequent to the
mortgagor and has not assumed after the foreclosure mortgage or deed of
personal liability for the debt sale but prior to its
 Remedy is ordinary action against confirmation
debtor Period is 90-120 days
(5) In case of a mortgage debt due from the after entry of
Period is 1 year from
estate of a deceased mortgagor and the judgment or even
date of registration of
mortgage creditor availed of the third after foreclosure sale
certificate of sale
remedy which is to rely upon his mortgage but prior to
alone and foreclosing the same within the confirmation
statute of limitations [Sec. 7, Rule 86] Governed by Sec. 29-
Governed by Rule 68
31, Rule 39
JUDICIAL FORECLOSURE vs.
EXTRAJUDICIAL FORECLOSURE Extrajudicial
Judicial Foreclosure
Foreclosure
Extrajudicial Mortgagor has a right
Judicial Foreclosure No right of to redeem the
Foreclosure
redemption, only property within one
Requires court No court intervention
equity of redemption year from registration
intervention necessary
of the deed of sale
There is only an Right of redemption
EXCEPT: Sec. 47 of
equity of redemption exists
the General Banking
Governed by Rule 68 Governed by Act 3135
Act provides that in
No Deficiency case of extrajudicial
judgment because foreclosure, juridical
There could be a there is no judicial EXCEPT: Those
persons shall have
Deficiency Judgment proceeding but granted by banks or
the right to redeem
recovery of deficiency is banking institutions
until, but not after,
allowed as provided by the
the registration of the
Recovery of General Banking Act
Recovery of deficiency certificate of
deficiency can be (mortgagor may
is through an foreclosure sale with
done by mere exercise a right of
independent action the Register of Deeds
motion redemption)
which in no case shall
be more than 3
EQUITY OF REDEMPTION vs. RIGHT months after
OF REDEMPTION foreclosure, whichever
Equity of Redemption is the right of the is earlier
defendant mortgagor to extinguish the
mortgage and retain ownership of the NOTE: What Sec. 2 and 3, Rule 68 provide for
property by paying the secured debt within the is the mortgagor’s EQUITY, nor right, of
90 to 120 day period after entry of judgment redemption. - This may be exercised by him
or even after the foreclosure sale but prior to even beyond the period to pay the judgment
its confirmation obligation and even after the foreclosure sale
itself, provided it be before the order of the
confirmation of sale
PAGE 171
PARTITION WHO MAY FILE COMPLAINT; WHO

SHOULD BE MADE DEFENDANTS
NATURE [Rule 69, Sec. 1]
Partition is the process of dividing and
assigning the property owned in common Who May File: A person having the right to
among the various co-owners thereof in compel partition of real estate, or of personal
proportion to their respective interests in said property, or both real and personal property
property. [Sec. 1, Sec. 13]
Partition may be: Venue: An action for partition should be filed

(1) JUDICIAL – Procedure is Rule 69 in the RTC of the province where the property
(2) EXTRAJUDICIAL – No court intervention or part thereof is situated.
required
Parties
The partition of property may be made (1) The plaintiff is the person who is supposed
voluntarily (by agreement) or compulsorily to be a co-owner of the property
under the Rules. Even if the parties had (2) Defendants are all the co-owners, who are
resorted to judicial partition, they may still indispensable parties
make an amicable partition of the property. (3) Creditors or assignees of co-owners may
also intervene and object to the partition
An action for partition and accounting under
Rule 69 is in the nature of an action QUASI IN MATTERS TO ALLEGE IN THE
REM. Such an action is essentially for the COMPLAINT FOR PARTITION
purpose of affecting the defendant’s interest
in a specific property and not to render a Contents of the Complaint:
judgment against him. (1) Nature and extent of his title
(2) Adequate description of the real estate
WHEN CAN PARTITION BE MADE sought to be partitioned
(3) Joining of Defendants – All other persons
General Rule: It can be made anytime. The interested in the property
right to demand partition is imprescriptible.
TWO STAGES IN EVERY ACTION
Exception to Imprescriptibility of Right to FOR PARTITION
Partition: If a co-owner asserts adverse title to First Stage: Determination of the propriety of
the property. In which case, period of partition
prescription runs from such time of assertion
of adverse title. This involves a determination of whether the
subject property is owned in common and
Exceptions to the Right to Ask for Partition: whether all the co-owners are made parties in
(1) When there is a stipulation against it, not the case.
exceeding 10 years [Art. 494, Civil Code]
(2) When partition is prohibited by the donor The order may also require an accounting of
or testator for a period not exceeding 20 rents and profits recovered by the defendant.
years [Art. 494, 1083 Civil Code] This order of partition is appealable. [Miranda
(3) When partition is prohibited by law (e.g. v. Court of Appeals (1976)]
ACP, party wall) [Art. 494, Civil Code]
(4) When the property is not subject to a If not appealed, then the parties may partition
physical division and to do so would the common property in the way they want. If
render it unserviceable for the use for they cannot agree, then the case goes into the
which is it intended [Art. 495 Civil Code] or second stage. However, the order of
(5) When the condition imposed upon accounting may in the meantime be executed.
voluntary heirs before they can demand [De Mesa v. CA (1994)]
partition has not yet been fulfilled. [Art.
1084 Civil Code]
PAGE 172
Second Stage: Actual partitioning of the How Done: The court appoints not more than
subject property 3 competent and disinterested commissioners
to make the partition. [Sec. 3]
This is also a complete proceeding and the
order or decision is appealable. Oath of the Commissioners: Before entering
into their duties, commissioners must first
When there was a prior partition, the fact that make an oath that they will faithfully perform
the share of each co-heir has not been their duties as commissioners. Such oath is to
technically described and the title over the be filed in court. [Sec. 4]
whole lot remains uncancelled does not
negate such partition. Duties of the Commissioners:
(1) They shall view and examine real estate,
There can be no partition again because there after due notice to parties to attend at
is no more common property. [Noceda v. CA such view and examination
(1999)] (2) They shall hear the parties as to their
preference in the portion to be set apart to
ORDER OF PARTITION AND them
PARTITION BY AGREEMENT (3) They shall also determine the comparative
Order of Partition - The court issues an order of value thereof
partition AFTER the trial and the court finds (4) They shall set apart the same to the
that the plaintiff has a right to partition. The parties in lots or parcels as will be most
court orders the partition of the property. advantageous and equitable considering
the improvements, situation, and quality
The parties may make the partition proper of the parts thereof
themselves, by agreement:
(1) After the issuance of the order of partition, Assignment of Real Estate to One Party
the parties will then be asked if they agree [Sec. 5]
to make partition of the property among (1) General Rule: If the commissioners should
themselves determine that the real estate cannot be
(2) If they agree, proper instruments of divided without prejudice to the interests
conveyance will be executed to effect the of the parties, the court may order that the
partition. property be assigned to one of the parties
(3) After the execution of instruments of willing to take the same PROVIDED he
conveyance, the court shall confirm the pays to the other parties such amounts as
partition through a final order. the commissioners deem equitable
(4) The final order of partition and the (2) Exception: if one of the parties asks that
instruments of conveyance shall be the property be sold instead of being so
registered with the Registry of Deeds assigned, then the court shall ORDER the
where the property is situated. [Rule 69, commissioners to sell the real estate at
Sec. 2] public sale under such conditions and
within such time as the court may
determine
PARTITION BY COMMISSIONERS;
APPOINTMENT OF Commissioner’s Report: Commissioners
COMMISSIONERS; shall make a full accurate report to the court.
COMMISSIONER’S REPORT; COURT Contents:
ACTION UPON COMMISSIONER’S (1) All proceedings as to the partition, or
REPORT (2) The assignment of real estate to one of
the parties, or
(3) The sale of the same
When proper: If parties fail to agree on the
manner of partition, commissioners are
appointed to make partition.
PAGE 173
Upon filing of Commissioner’s Report: Contents of Judgment Effects of Judgment

(1) Clerk shall serve copies on all interested
parties with notice that they are allowed If Property Is Sold And
to file objections Sale Is Confirmed By The Court
(2) Parties may file objections within 10 days Judgment shall state
upon receipt of notice Judgment shall vest
the name of the
the real estate in the
purchaser or
Hearing on the Report [Sec. 7] purchaser(s), making
purchasers and a
(1) When Conducted: the payment(s) free
definite description of
(a) Upon expiration of the 10 day period from the claims of
the parcels of real
for filing objections; or any parties to the
estate sold to each
(b) Even before expiration but after the action.
purchaser
interested parties have filed their
objections or their statement of A certified copy of the judgment shall in either
agreement therewith case be recorded in the registry of deeds of
the place in which the real estate is situated.
(2) The court may: [Rule 69, Sec. 11]
(a) Accept the report and render
judgment in accordance therewith; or PARTITION OF PERSONAL
(b) Recommit the same to commissioners
for further report of facts, for cause
PROPERTY
The provisions of Rule 69 shall apply to
shown; or
partitions of estates composed of personal
(c) Set aside the report and appoint new
property, or of both real and personal
commissioners; or
property, in so far as the same may be
(d) Accept the report in part and reject in
applicable. [Sec. 13]
part;
(e) Make such order and render such
judgment as shall effectuate a fair PRESCRIPTION OF ACTION
and just partition of the real estate, or The right of action to demand partition does
of its value, if assigned or sold not prescribe [De Castro v. Echarri (1911)],
EXCEPT where one of the interested parties
JUDGMENT AND ITS EFFECTS openly and adversely occupies the property
without recognizing the co-ownership
[Rule 69, Sec. 11]
[Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.
Contents of Judgment Effects of Judgment
If Actual Partition Is Properly Made If a co-owner repudiates the co-ownership and
makes known such repudiation to the other
Judgment shall state co-owners, then partition is no longer a proper
Judgment shall vest
definitely, by metes remedy of the aggrieved co-owner. He should
in each party to the
and bounds and file an accion reivindicatoria, which is
action in severalty the
adequate description, prescriptible. [Roque v. IAC (1988)]
portion of the real
the particular portion
estate assigned to
of the real estate
him.
assigned to each party.
If The Whole Property Is Assigned To One Of
The Parties After Payment
Judgment shall vest
Judgment shall state
in the party making
the fact of such
the payment the
payment and of the
whole of the real
assignment of the real
estate free from any
estate to the party
interest on the part of
making the payment.
the other parties.
PAGE 174
FORCIBLE ENTRY AND DISTINGUISHED FROM ACCION

UNLAWFUL DETAINER PUBLICIANA, ACCION
REIVINDICATORIA, ACCION
NATURE INTERDICTAL
Ejectment cases are SUMMARY proceedings
intended to provide an expeditious means of The Three Kinds of Action for Recovery of
protecting actual possession of property. Possession
Reason: The owners of property have no Accion Accion Accion

authority to use force and violence to eject Interdictal Publiciana Reivindicatoria
alleged usurpers who were in prior physical Summary A plenary
possession of it. They must file the action for action for An action for
appropriate action in court and should not recovery of recovery of recovery of
take the law in their own hands. physical real right of ownership,
possession possession which
NOTE: The Rule on Summary Procedure where the when necessarily
applies only in cases filed before the MTC dispossession dispossession includes the
has not lasted has lasted for recovery of
DEFINITIONS AND DISTINCTIONS for more than more than possession
1 year one year
Forcibly Entry Unlaful Detainer All cases of
(Detentacion) (Desahucio) forcible entry
Possession is and unlawful
Possession of land by inceptively lawful but detainer,
defendant is unlawful it becomes illegal by irrespective of RTC has jurisdiction if value
from the beginning as reason of the the amount of of the property exceeds
he acquires termination of his damages or P20,000 outside Metro
possession by force, right to possession of unpaid Manila; exceeds P50,000
intimidation, strategy, the property under his rentals sought within Metro Manila.
threat, or stealth contract with the to be
plaintiff recovered MTC has jurisdiction if value
Demand is should be of property does not exceed
No previous demand jurisdictional if the brought to the the above amounts
for defendant to ground is non- MTC. (RA 7691 expanded the
vacate the premises is payment of rentals or However, if jurisdiction of 1st level courts)
necessary failure to comply with not brought
lease contract within 1 year,
Plaintiff must prove RTC has
that he was in prior jurisdiction
Plaintiff need not
physical possession of
have been in prior HOW TO DETERMINE
the premises until he
physical possession
was deprived thereof JURISDICTION
by defendant
The 1-year period is In Accion Interdictal: In the proper Municipal
Period is counted
generally counted Trial Court
from the date of last
from date of actual
letter of demand
entry on land NOTE: Amount of rents and damages claimed
The issue centers on does not affect the jurisdiction of the MTC
The issue centers on
whether the because they are only incidental or accessory
who was in prior
defendant’s right to to the main action
possession de facto.
possess has expired
or not. HOWEVER, municipal courts have no
jurisdiction over a FEUD case involving
agricultural tenants. Jurisdiction is with the
HLURB
PAGE 175
(3) Vendor may bring action for ejectment

In accion publiciana and accion reivindicatoria: against vendee upon failure to pay
(1) RTC has jurisdiction where the assessed installments
value of the property exceeds P20K or, in (4) FEUD lie against the very owner of the
MM, P50k property
(2) MTC has jurisdiction if the assessed value (5) Action may be maintained against
does not exceed said amounts government officials or agents acting in
behalf of the government, even if
WHO MAY INSTITUTE THE ACTION government is not made a party to the
AND WHEN; AGAINST WHOM action
MAINTAINED
PLEADINGS ALLOWED
Who May Institute Proceedings
[Rule 70, Sec. 1] Pleadings must be VERIFIED. [Rule 70, Sec. 4]
(1) In Forcible Entry:
(a) A person deprived of possession of What must be alleged in a complaint for
any land or building by force, forcible entry:
intimidation, strategy, threat, or (1) That plaintiff was in prior physical
stealth (FISTS) possession of the property in litigation
until he was deprived thereof by
(2) In Unlawful Detainer: defendant
(a) Lessor, vendor, vendee or other (2) That the dispossession was through FISTS
person against whom any land or (3) That the complaint was filed within 1 year
building is unlawfully withheld from dispossession
(b) Or their legal representatives or
assigns What must be alleged in a complaint for
unlawful detainer:
Period of Filing: Within ONE (1) year after such (1) That defendant is unlawfully withholding
unlawful deprivation or withholding of possession from plaintiff because his right
possession. Reckoning points: to possess had expired
(1) For forcible entry, it is counted from date (2) That landlord has made a demand upon
of entry or taking of possession tenant to comply with the terms of the
(2) For unlawful detainer, it is counted from: contract and to return the possession of
(a) Date of last demand to vacate in case the property, and that the tenant failed to
of non-payment of rent or non- satisfy the demand within 15 or 5 days, in
compliance with conditions of the case of buildings
lease (3) That the complaint is filed within 1 year
(b) Date of notice to quit, in case of tacit from demand
renewal of lease
(c) Date of revocation of the permit in Allowed pleadings:
case of occupancy on mere tolerance (1) Complaint
or under temporary permit (2) Compulsory Counterclaim pleaded in the
answer
Against whom may the action be maintained - (3) Cross-claim pleaded in the answer
Person or persons unlawfully withholding or (4) Answer
depriving of possession, or any person/s
claiming under them: ACTION ON COMPLAINT
(1) Action of Forcible Entry and Unlawful [Rule 70, Sec. 5]
Detainer (FEUD) may be maintained only
against one in possession at the From the examination of allegations in the
commencement of the action complaint, the court may:
(2) Tenant with right of possession may bring (1) Dismiss the case outright on any grounds
action against another tenant mentioned in Rule 16
(2) If there is no ground for dismissal, court
issues summons
PAGE 176
Answer by defendant [Rule 70, Sec. 6] (b) After 5 days in case of buildings
Defendant shall file his answer within 10 days
from service of summons NOTE: Demand contemplated by Sec. 2 is
jurisdictional and is always two-fold.
Effect of Failure to Answer [Rule 70, Sec. 7]
Court shall render judgment; motu proprio or Demand upon a tenant may be oral. [Jakihaca
upon motion v. Aquino, 1990]
(1) Judgment:
(a) Warranted by the facts alleged in the A person who occupies the land of another at
complaint the latter's tolerance or permission, without
(b) Limited to what is prayed for any contract between them is necessarily
(2) Court may reduce the amount of damages bound by an implied promise that he will
and attorney’s fees claimed vacate upon demand, failing which, an action
(a) For being excessive or otherwise for unlawful detainer may be instituted
unconscionable against him. [Dakudao v. Consolacion, 1983]
(b) In the exercise of its discretion
(c) No prejudice to applicability of Sec. PRELIMINARY INJUNCTION AND
3(c), Rule 9 if there are 2 or more PRELIMINARY MANDATORY
defendants
INJUNCTION
Court may grant preliminary injunction in
Preliminary Conference [Rule 70, Sec. 8]
accordance with Rule 58 to prevent defendant
Preliminary conference shall be held not later
from committing further acts of dispossession
than 30 days after filing of last answer.
against plaintiff [Rule 70, Sec. 15].
Submission of Affidavits and Position
How done: Possessor may present a motion in
Papers [Rule 70, Sec. 10]
the action for issuance of preliminary
Affidavits and position papers are to be
mandatory injunction within 5 days from filing
submitted within 10 days from receipt of the
of complaint to restore him in his possession.
Order stating the matters taken in the
Court shall decide the motion within 30 days
preliminary conference.
from filing.
Preliminary mandatory injunction shall be
Rendition of Judgment [Rule 70, Sec. 11]
available:
Court shall render judgment within 30 days
(1) At the start of the action [Rule 70, Sec. 15]
after receipt of affidavits and position papers.
(2) On appeal to the RTC [Sec. 2] upon
motion of plaintiff within 10 days from
perfection of appeal
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand Preliminary preventive injunction is
against the lessee before the lessor can available in either case. Note that Sec. 15
proceed against him. makes the provisions of Rule 58
applicable to Rule 70.
NOTE: This applies ONLY to unlawful detainer
cases. NOTE: Note that there is no distinction as to
the type of ejectment case involved.
It is only where defendant fails to comply with
the demand within the periods provided by The injunction is to restore to plaintiff in
Sec. 2 will his possession become unlawful. possession
(1) If the court is satisfied that the
Requisites before the lessor can proceed defendant’s appeal is frivolous or dilatory,
against lessee or
(1) Demand is made by lessor to lessee: (2) That the appeal of plaintiff is prima facie
(a) Demand to pay and vacate; or meritorious
(b) Demand to comply with conditions of
the lease and to vacate
(2) Lessee fails to comply with the demand:
(a) After 15 days in the case of lands; or
PAGE 177
RESOLVING DEFENSE OF OWNERSHIP (b) But such pronouncement is merely

[Rule 70, Sec. 16] provisional
(c) It does not bar or prejudice an action
In an action for unlawful detainer, the between the same parties involving
question of possession is primordial while the title
issue of ownership is generally unessential.
The issue of ownership should be raised by the HOW TO STAY IMMEDIATE
affected party in an appropriate action. EXECUTION OF JUDGMENT
[Rule 70, Sec. 19]
Under BP 129, when in FEUD cases, the
defendants raise the question of ownership in General rule: Judgment of the MTC against
his pleadings, and the issue of ownership, the defendant in ejectment cases is immediately
MTCs nevertheless have undoubted executory
competence to resolve the issue of ownership
ONLY TO DETERMINE THE ISSUE OF Exception: When the following concur:
POSSESSION (1) The defendant perfects his appeal
(2) He files a sufficient supersedeas bond
Guidelines laid down by the Court in Refugia,
 To pay the rents, damages, and costs
et al. v. CA regarding the legislative
accruing down to the time judgment
prescription in Sec. 33 (2). BP 129:
appealed from
(1) Primal rule is that the principal issue must
 The supersedeas bond shall be
be that of possession
transmitted by the MTC, with the other
(a) Ownership is merely ancillary
(b) Issue of ownership may be resolved papers, to the RTC Clerk
(3) He deposits with the appellate court:
but only for the purpose of
determining the issue of possession (a) The amount of rent due from time to
time under the contract, or
(b) In the absence of contract, the
(2) It must sufficiently appear from
reasonable value of the use and
allegations of complaint that what
occupation of premises for the
plaintiff really and primarily seeks is
preceding month or period
restoration of possession
determined by judgment on or before
(3) Inferior court cannot adjudicate on the the 10th day of each succeeding month
nature of ownership where relationship of or period [Chua v. CA, 1998]
lease has been sufficiently established
The judgment of the Regional Trial Court
(a) UNLESS it be proven that there has
against the defendant shall be immediately
been a subsequent change in or
executory, without prejudice to a further
termination of that relationship
appeal that may be taken therefrom. [Rule 70,
between parties
Sec. 21]
(4) The rule in forcible entry, but not in
unlawful detainer, is that a party who can SUMMARY PROCEDURE,
prove prior possession can recover such PROHIBITED PLEADINGS
possession even against the owner
himself General rule: All actions for FEUD shall be
(a) Hence, it prior possession may be governed by the summary procedure of Rule
ascertained in some other way, 70, irrespective of the amount of damages or
inferior court cannot intrude into the unpaid rentals sought to be recovered
issue of ownership
Exceptions:
(5) Where the question of who has prior (1) In cases covered by the agricultural
possession hinges on the issue of who the tenancy laws
real owner is (2) When the law otherwise expressly
(a) Inferior court may resolve issue of provides
ownership
PAGE 178
Prohibited Motions: Criminal Contempt Civil Contempt

(1) Motion for a BILL of particulars Punitive in nature Remedial in nature
(2) Motion for EXTENSION of time to file Purpose is to provide a
pleadings, affidavits, or any other paper Purpose is to preserve remedy for an injured
(3) Motion for NEW trial, or for the court’s authority suitor and to coerce
and to punish for compliance with an
reconsideration of a judgment, or for
disobedience of its order; for the
reopening of trial orders preservation of the
(4) Motion to DISMISS the complaint; Except rights of private persons
on the ground for lack of jurisdiction over Intent is necessary Intent is not necessary
the subject matter or failure to comply Instituted by the
with Sec. 12 aggrieved party, or his
(5) Motion to DECLARE defendant in default State is the real successor, or someone
(6) DILATORY motions for postponement prosecutor who has a pecuniary
interest in the right to be
Prohibited Pleadings: protected
(1) THIRD-party complaints
(2) REPLY Proof required is proof Proof required is more
beyond reasonable than mere
(3) INTERVENTIONS doubt preponderance
(4) PETITION for relief from judgment
(5) PETITION for certiorari, mandamus, or If judgment is for
prohibition against any interlocutory order If accused is acquitted,
respondent, there can
issued by the court there can be no appeal
be appeal
CONTEMPT According to Manner of Commission

(1) DIRECT CONTEMPT – act committed in
NATURE the presence of or so near the court or
Contempt of Court is disobedience to the judge as to obstruct or interrupt the
court by acting in opposition to its authority, proceedings before the same
justice, and dignity. It signifies not only a (2) INDIRECT CONTEMPT – one not
willful disregard of disobedience to the court’s committed in the presence of the court. It
orders but also conduct tending to bring the is an act done at a distance which tends to
authority of the court and administration of belittle, degrade, obstruct, or embarrass
law into disrepute, or, in some manner, to the court and justice
impede the due administration of justice.
Direct Contempt Indirect Contempt
Committed in the Not committed within
The power to declare person in contempt of presence of or so near a the presence of the
court and in dealing with him accordingly is an court court
INHERENT power of the court. It is used as a There is charge and
means to protect and preserve the dignity of Summary in nature
hearing
the court, the solemnity of the proceedings, Punishment: Punishment:
and administration of justice. If committed against If committed against
the RTC: Fine of not RTC: Fine not exceeding
KINDS OF CONTEMPT; PURPOSE exceeding P2,000 P30,000 and/or
and/or imprisonment imprisonment not
AND NATURE OF EACH not exceeding 10 days exceeding 6 months
If committed against If committed against
According to Nature the MTC: Fine not MTC: Fine not
(1) CRIMINAL CONTEMPT – conduct directed exceeding P200 and or exceeding P5,000
against the authority and dignity of the imprisonment not and/or imprisonment
court or a judge acting judicially exceeding 1 day not exceeding 1 month
(2) CIVIL CONTEMPT – failure to do Remedy is certiorari or
Remedy is appeal
something ordered to be done by a court prohibition
or by a judge for the benefit of the Otherwise known as
Otherwise known as
Contempt in Facie
opposing party Curiae
Constructive Contempt
PAGE 179
Contempt, whether direct or indirect, may be Remedy of a person adjudged in direct

civil or criminal depending on the nature and contempt [Rule 71, Sec. 2]
effect of contemptuous act. (1) He cannot appeal
(2) But he may file certiorari or prohibition
The real character of the proceedings in (a) Execution of judgment shall be
contempt cases is to be determined by the suspended pending resolution of such
relief sought or by the dominant purpose. The petition, PROVIDED:
proceedings are to be regarded as criminal (i) He files a bond fixed by the court
when the purpose is primarily punishment, which rendered judgment, and
and civil when the purpose is primarily (ii) Conditioned that he will abide by
compensatory or remedial. and perform the judgment should
the petition be decided against
DIRECT CONTEMPT him
For a person to be adjudged guilty of direct
contempt, he must commit a “misbehavior in INDIRECT CONTEMPT
the presence of or so near a judge as to
interrupt the administration of justice …” Specific acts constituting indirect contempt
[Rule 70, Sec. 3]
Grounds for Direct Contempt [Rule 71, Sec. 1] (1) MISBEHAVIOR of an officer of a court in
(1) DISRESPECT toward the court; the performance of his official duties or in
(2) OFFENSIVE personalities toward others his official transactions
(3) REFUSAL to be sworn or answer as (2) ABUSE of or any unlawful interference
witness or subscribe an affidavit when with processes or proceedings of a court
lawfully required to do so not constituting direct contempt
(4) MISBEHAVIOR in the presence of or so (3) DISOBEDIENCE or resistance to lawful
near a court as to obstruct or interrupt the writ, process, order, or judgment of a
proceedings court, or any unlawful intrusion to any real
(5) When the counsel WILLFULLY and property after being ejected
deliberately engages in forum shopping (4) FAILURE to obey subpoena duly served
(5) ASSUMING to be an attorney or officer of
Procedure: Summarily adjudged in contempt a court, and acting as such without
by such court authority
(6) IMPROPER conduct tending to impede,
By whom initiated: obstruct, or degrade administration of
(1) Generally, civil contempt proceedings justice
should be instituted by an aggrieved (7) RESCUE, or attempted rescue, of a person
party, or his successor, or someone who or property in custody of an officer
has pecuniary interest in the right to be (8) Failure by COUNSEL to inform the court
protected of the death of his client
(2) In criminal contempt proceedings, it is
generally held that the State is the real Procedural requisites for indirect contempt
prosecutor proceedings:
(1) A charge in writing or an order of the court
Penalties: to appear and explain
(2) An opportunity for respondent to
Offense Penalty comment on the charge and to appear
Fine not exceeding and explain his conduct
If RTC or a court of
P2,000 and/or
equivalent or higher
Imprisonment not Two modes of commencing a proceeding
rank
exceeding 10 days for indirect contempt [Rule 70, Sec. 4]
Fine not exceeding (1) Motu proprio by the court against which
If lower court: P200 and/or contempt was committed
Imprisonment not (a) By order or any other formal charge
exceeding 1 day requiring respondent to show why he
should not be punished for contempt
(2) Independent action in all other cases
PAGE 180
(a) By a charge commenced by a verified Remedy of a person adjudged in indirect

petition with supporting particulars contempt [Rule 71, Sec. 11]
May be appealed to the proper court as in
Where Charge is to be Filed [Rule 70, Sec. 5] criminal cases, but execution shall not be
(1) General rule: Proceeding for Indirect suspended until BOND is filed.
Contempt shall be filed and tried by the
court against which the contumacious WHEN IMPRISONMENT SHALL BE
conduct was committed. IMPOSED
When the contempt consists in the refusal or
(2) Exceptions: omission to do an act which is yet in the power
(a) If committed against a lower court, it of the respondent to perform, he may be
may be tried by the RTC, regardless of imprisoned by order of the court concerned
the imposable penalty; and until he performs it. [Rule 71, Sec. 8]
(b) If committed against the SC, it may
cause it to be investigated by the The respondent “carried the keys to his prison
prosecutor and filed with the RTC, or in his own pocket.” [Galvez v. Republic Surety &
for hearing and recommendation Insurance Co., Inc. (1959)]
where the charge involves questions
of fact Only the judge who ordered the confinement
of the person for contempt of court can issue
Penalties for indirect contempt the Order of Release. [Inoturan v Limsiaco, Jr.
[Rule 71, Sec. 7] (2005)]
Offense Penalty Rule 71, Sec. 8 does not apply to tenants who
If against RTC, or Fine not exceeding refused or failed to pay their rentals to the
court of P30,000 and/or special administratrix of the property. The
equivalent or Imprisonment not non-payment of rentals, which is a civil debt,
higher rank exceeding 6 months is covered by the constitutional guarantee
Fine not exceeding P500, against imprisonment. [Regalado]
If committed
and/or
against lower
Imprisonment not CONTEMPT AGAINST QUASI-
court
exceeding 1 month
Offender may also be JUDICIAL BODIES [Rule 71, Sec. 12]
ordered to make complete Rule 71 shall apply to contempt committed
restitution to the party against persons, entities, bodies, or agencies
injured by such violation of exercising quasi-judicial functions or have
If contempt the property involved or suppletory effect to such rules as they may
consists in such amount as may be have adopted.
violation of a writ alleged and proved.
of injunction, TRO, RTC of the place where the contempt was
or status quo If there is nothing more to committed shall have jurisdiction.
order return, offender is
personally liable for the It is not within the jurisdiction and
restitution of the money competence of quasi-judicial bodies to decide
equivalent to the lost thing indirect contempt cases. The requirement for
(Rosario Textile Mills v. CA) a verified petition must also be complied with
If committed Penalty shall depend upon (e.g. DARAB has no power to decide the
against a person the provisions of the law contempt charge filed before it). [Land Bank v
or entity which authorizes penalty Listana (2003)]
exercising quasi- for contempt against such
judicial functions persons or entities Rule 71, Sec. 12 confers contempt powers on all
Quasi-Judicial entities or supplements their
rules, unless the applicable law provides
otherwise.
PAGE 181
Acts or violations against quasi-judicial bodies

punishable as contempt: where a person,
without lawful excuse, fails to appear, make
oath, give testimony or produce documents
when required to do so by the official or body
exercising such powers. Other acts or
violations cannot be punished as contempt
unless specifically defined in the governing
law as contempt of court or if it authorizes the
quasi-judicial body to punish for contempt,
and providing the corresponding penalty.
[People v. Mendoza (1953), §13, Ch. 3, Bk VII,
Admin Code of 1987]
PAGE 182
THE SPECIAL CIVIL ACTIONS

Jurisdiction Venue
Personal Property:
(1) MTC – if value not more than P300,000 outside Metro Manila, or
not more than P400,000 in Metro Manila [Sec. 33, BP129]
Rule 4 applies
(2) RTC – value exceeds P300,000 outside Metro Manila, or P400,000
in Metro Manila, or if incapable of pecuniary estimation [Sec. 19,
If the action affects title to or possession of real property
BP129]
Venue is where the real property involved or a portion thereof is situated
Interpleader
Real Property
All other actions—At the election of the plaintiff
(1) MTC – assessed value not more than P20,000 outside Metro
(1) Where plaintiff or any of the principal plaintiffs reside; or
Manila or not more than P50,000 in Metro Manila [Sec. 33, BP 129]
(2) Where defendant or any of the principal defendants resides; or
(2) RTC – value exceeds P20,000 if outside Metro Manila, or P50,000
(3) In case of an non-resident, where he may be found
if in Metro Manila, or incapable of pecuniary estimation [Sec. 19,
BP129]
Rule 4 applies
General Rule: In the appropriate RTC If the action affects title to or possession of real property
Declaratory Relief Exception: Where the action is for reconveyance, cancellation or quieting
of title to real property, jurisdiction will depend on the assessed value of All other actions—At the election of the plaintiff
the property (1) Where plaintiff or any of the principal plaintiffs reside; or
(2) Where defendant or any of the principal defendants resides; or
(3) In case of an non-resident, where he may be found
Review of Judgments
With the SC
and Final Orders of Certiorari rules apply
Via Special Civil Action of Certiorari
COMELEC/COA
RTC, CA, SC,
Certiorari RTC where the respondent is situated, where petition relates to an act or omission of a
Sandiganbayan (in aid of its appellate jurisdiction),
Prohibition corporation, board, an officer, or person
COMELEC (in election cases involving an act or omission by MTC or
Mandamus [Rule 65, Sec. 4]
RTC, in aid of its appellate jurisdiction_
Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area
RTC, CA, SC
where respondent resides or any of the respondent resides
Sandiganbayan (exclusive original jurisdiction over quo warranto cases
filed by the PCGG)
Quo Warranto If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC
COMELEC (exclusive jurisdiction over cases falling under the OEC)
SEC for quo warranto against duly licensed association (Corp Code rules
File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation
apply, not the ROC)
or against persons who usurp an office in a corporation
Expropriation With the RTC Where the real property involved, or a portion thereof, is situated
Judicial Foreclosure With the RTC Where the real property involved, or a portion thereof, is situated
PAGE 183
Rule 4 applies
If the action affects title to or possession of real property

Partition With the RTC
All other actions—At the election of the plaintiff

Forcible Entry And
With the MTC Where the real property involved, or a portion thereof, is situated
Unalwful Detainer
If committed against RTC or a court of equivalent or higher rank, or against an officer
appointed by it: File with such court
If committed against a lower court. File with the RTC of the place in which lower court is
Contempt MTC, RTC, CA, SC
sitting
If act was committed against persons or entities exercising quasi-judicial functions: File with
the RTC of the place wherein contempt was committed
PAGE 184
Rule shall not apply:

Special Rules (1) To a civil case where plaintiff’s cause of
action is pleaded in the same complaint
with another cause of action subject to
REVISED RULES ON SUMMARY ordinary procedure
PROCEDURE (2) To a criminal case where offense charged is
necessarily related to another criminal case
CASES COVERED BY THE RULE subject to ordinary procedure
[Sec. 1]
EFFECT OF FAILURE TO ANSWER [Sec. 6]
Rule shall govern the summary procedure in the If defendant fails to answer the complaint within
MTC, MTC in Cities, MCTC in the following cases the period provided, court (motu proprio or on
falling within their jurisdiction: motion of plaintiff) shall render judgment
For Civil Cases: The judgment:

(1) Cases of forcible entry and unlawful (1) As may be warranted by the facts alleged in
detainer the complaint and
(a) Irrespective of the amount of damages (2) Limited to what is prayed for
or unpaid rentals sought to be
recovered The court may in its discretion reduce the
(b) Where attorney’s fees are awarded, it amount of damages and attorney’s fees claimed
shall not exceed P20,000 for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
(2) All other civil cases where total amount of ROC, if there are 2 or more defendants
plaintiff’s claim does not exceed P100,000
or P200,000 in Metropolitan Manila, PRELIMINARY CONFERENCE AND
exclusive of interest and costs APPEARANCES OF PARTIES [Sec. 7]
(a) EXCEPT: probate proceedings A preliminary conference shall be held not later
than 30 days after the last answer is filed.
For Criminal Cases
(1) Traffic laws, rules, and regulations violation Rules on pre-trial in ordinary cases shall be
(2) Rental law violations applicable unless inconsistent with the
(3) Municipal or city ordinance violations provisions of this Rule
(4) All other criminal cases where penalty
prescribed by law for offense charged is Failure of plaintiff to appear in preliminary
imprisonment not exceeding 6 months conference
and/or a fine not exceeding P1,000 (1) Cause for dismissal of complaint
(a) Irrespective of other imposable (2) Defendant who appears in the absence of
penalties, accessory or otherwise, or of plaintiff shall be entitled to judgment on his
civil liability arising therefrom counterclaim in accordance with Sec. 6
(b) In offenses involving damage to (3) All cross-claims shall be dismissed
property through criminal negligence,
this rule shall govern where imposable If sole defendant shall fail to appear
fine does not exceed P10,000 (1) Plaintiff entitled to judgment in accordance
with Sec. 6
(2) Rule shall not apply where one of 2 or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at preliminary conference
PAGE 185
KATARUNGANG (6) Disputes involving parties who actually

reside in barangays of different cities or
PAMBARANGAY LAW municipalities, except where such barangay
[PD 1508; RA 7160 as amended] units adjoin each other and the parties
thereto agree to submit their differences to
SCOPE AND APPLICABILITY OF THE amicable settlement by an appropriate
RULE lupon;
(7) Such other classes of disputes which the
RA 7610 Sec. 399-422, and 515 is applicable.
President may determine in the interest of
The LGC is now the governing law on
Justice or upon the recommendation of the
Katarungang Pambarangay. PD 1508 was
Secretary of Justice.
expressly repealed
The court in which non-criminal cases not
CASES COVERED falling within the authority of the lupon under
All disputes, civil and criminal in nature, where this Code are filed may, at any time before trial
parties actually reside in the SAME motu propio refer the case to the lupon
CITY/MUNICIPALITY are subjected barangay concerned for amicable settlement.
conciliation.
VENUE [RA 7610, Sec. 40])
SUBJECT MATTER FOR AMICABLE
SETTLEMENT [Sec. 408, RA 7160] Parties Lupon
The lupon of each barangay shall have authority Between actual Lupon of said barangay
to bring together the parties actually residing in residents of the same
the same city or municipality for amicable barangay
settlement of all disputes. Between actual Lupon of the barangay
residents of different where the respondent
WHEN PARTIES MAY GO DIRECTLY barangays but within or any of the
TO COURT same city/municipality respondents actually
In these cases, referral to barangay conciliation resides at the option of
is not a condition precedent for filing a case to complainant
court: Involving real property Lupon of barangay
(1) Where one party is the government, or any or any interest therein were the real property
subdivision or instrumentality thereof; or the larger portion
(2) Where one party is a public officer or thereof is located
employee, and the dispute relates to the Between parties arising Lupon of the barangay
performance of his official functions; at the workplace or at were the workplace or
(3) Offenses punishable by imprisonment institutions of learning institution is located
exceeding one (1) year or a fine exceeding
Five thousand pesos (P5,000.00); EXECUTION
(4) Offenses where there is no private offended The amicable settlement or arbitration award
party; may be enforced by execution by the lupon
(5) Where the dispute involves real properties within six (6) months from the date of the
located in different cities or municipalities settlement. After the lapse of such time, the
unless the parties thereto agree to submit settlement may be enforced by action in the
their differences to amicable settlement by appropriate city or municipal court. [Sec. 417, RA
an appropriate lupon; 7160]
PAGE 186
REPUDIATION (3) The enforcement of a barangay amicable

Any party to the dispute may, within ten (10) settlement or an arbitration award involving
days from the date of the settlement, repudiate a money claim covered by this Rule
the same by filing with the lupon chairman a pursuant to Sec. 417, LGC.
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence, COMMENCEMENT OF SMALL CLAIMS
or intimidation. Such repudiation shall be ACTION; RESPONSE [Sec. 5]
sufficient basis for the issuance of the
certification for filing a complaint as How commenced: By filing with the court an
hereinabove provided. [Sec. 418, RA 7160] accomplished and verified STATEMENT OF
CLAIM in duplicate
RULES OF PROCEDURE FOR
Attachments to the Statement of Claim:
SMALL CLAIMS CASES (1) Certification of Non-forum Shopping
[A.M. No. 08-8-7-SC]
(2) Two (2) duly certified photocopies of the
actionable document/s subject of the claim
SCOPE AND APPLICABILITY OF THE (3) Affidavits of witnesses and other evidence to
RULE support the claim
This Rule shall govern the procedure in actions
before the MeTC, MTC in Cities, MTC and MCTC NOTE: No evidence shall be allowed during the
for payment of money where the value of the hearing which was not attached to or submitted
claim does not exceed P100,000 exclusive of together with the Claim. UNLESS good cause is
interest and costs. [Sec. 2] shown for admission of additional evidence.
This Rule is applicable in all actions which are; No formal pleading, other than the Statement
[Sec. 4] of Claim, is necessary to initiate a small claims
(1) Purely civil in nature where the claim or action.
relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of After examination of allegations of the Claim,
money, and the court may dismiss outright the case for any
(2) Civil aspect of criminal action, or reserved of the grounds apparent for the dismissal of a
upon the filing of the criminal action in civil action. [Sec. 9]
court, pursuant to Rule of 111 of the Revised
Rules of Criminal Procedure. If no ground of dismissal is found, the court
shall issue Summons directing defendant to
These claims or demands may be; submit a verified response. [Sec. 10]
(1) For money owned under any of the
following; The defendant shall file with the court and serve
(a) Contract of Lease; on the plaintiff a duly accomplished and verified
(b) Contract of Loan; Response within a non - extendible period of
(c) Contract of Services; ten (10) days from receipt of summons [Sec. 11].
(d) Contract of Sale; or Attachments:
(e) Contract of Mortgage; (1) Certified photocopies of documents
(2) Affidavits of witnesses
(2) For damages arising from any of the (3) Evidence in support
following;
(a) Fault or negligence; NOTE: No evidence shall be allowed during
(b) Quasi-contract; or hearing which was not attached or submitted
(c) Contract; together with the Response.
PAGE 187
Should the defendant fail to file his response Failure to appear:

within the required period, the court by itself (1) If plaintiff fails to appear – it shall be a
shall render judgment as may be warranted by cause for dismissal without prejudice.
the facts alleged in the Statement of claim Defendant present shall be entitled to
limited to what is prayed for. The court however, judgment on permissive counterclaim.
may, in its discretion, reduce the amount of (2) If defendant fails to appear – same effect as
damages for being excessive or unconscionable. failure to file Response.
[Sec. 12]
HEARING; DUTY OF THE JUDGE
PROHIBITED PLEADINGS AND At the beginning of the court session, the judge
MOTIONS [Sec. 14] shall read aloud a short statement explaining
the nature, purpose and the rule of procedure of
The following pleadings, motions, and petitions small claims cases. [Sec. 20]
shall not be allowed in the cases covered by this
Rule: At the hearing, the judge shall conduct JDR
(1) Motion to dismiss the compliant except on through mediation, conciliation, early neutral
the ground of lack of jurisdiction; evaluation, or any other mode of JDR. [Sec. 21]
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration If JDR fails and the parties agree in writing that
of a judgment, or for reopening of trial; the hearing of the case shall be presided over by
(4) Petition for relief from judgment; the judge who conducted the JDR, the hearing
(5) Motion for extension of time to file shall so proceed in an informal and expeditious
pleadings, affidavits, or any other paper; manner and terminated within one (1) day. [Sec.
(6) Memoranda; 22]
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order Absent such agreement
issued by the court; (1) In case of a multi-sala court , the case shall,
(8) Motion to declare the defendant in default; on the same day, be transmitted to the
(9) Dilatory motions for postponement; Office of the Clerk of Court for immediate
(10) Reply; referral by the Executive Judge to the
(11) Third-party complaints; and pairing judge for hearing and decision
(12) Interventions. within five (5) working days from referral;
and
APPEARANCES (2) In case of single sala court, the pairing
The parties shall appear at the designated date judge shall hear and decide the case in the
of hearing personally or through a court of origin within five (5) working days
representative authorized under a Special from referral by the JDR judge.
Power of Attorney to:
(1) Enter into an amicable settlement, FINALITY OF JUDGMENT
(2) Submit of Judicial Dispute Resolution (JDR) After the hearing, the court shall render its
and decision on the same day, based on the facts
(3) Enter into stipulations or admissions of facts established by the evidence.
and of documentary exhibits [Sec. 16]
The decision shall immediately be entered by
No attorney shall appear in behalf of or the Clerk of Court in the court docket for civil
represent a party at the hearing, unless the cases and a copy thereof forthwith served on the
attorney is the plaintiff or defendant. [Sec. 17] parties.
The decision shall be final and unappealable.

[Sec. 23]
PAGE 188
EFFICIENT USE OF PAPER RULE All members of the Court shall share the
[A.M. No. 11-9-4-SC] extra copies of annexes in the interest of
economy of paper.
FORMAT AND STYLE In the Court of Appeals and the
All pleadings, motions and similar papers
Sandiganbayan,
intended for the court and quasi-judicial body’s
(1) One original (properly marked) and
consideration and action (court-bound papers)
(2) Two copies with their annexes;
shall:
(1) Be written in single space with one-and-a –
In the Court of Tax Appeals,
half space between paragraphs,
(1) One original (properly marked) and
(2) Use an easily readable font style of the
(2) 2 copies with annexes
party’s choice, of 14-size font, and on a 13 –
inch by 8.5- inch white bond paper
On appeal to the En Banc:
(a) One Original (properly marked)
All decisions, resolutions and orders issued by
(b) 8 copies with annexes; and
courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court
In other courts,
shall comply with these requirements. Similarly
(1) One original (properly marked)
covered are the reports submitted to the courts
(2) With the stated annexes attached to it.
and transcripts of stenographic notes.
ANNEXES SERVED ON ADVERSE
MARGINS AND PRINTS
The parties shall maintain the following PARTY
margins on all court-bound papers: A party required by the rules to serve a copy of
(1) Left hand margin of 1.5 inches from the his court-bound on the adverse party need not
edge; enclose copies of those annexes that based on
(2) Upper margin of 1.2 inches from the edge; the record of the court such party already has in
(3) Right hand margin of 1.0 inch from the his possession.
edge;
(4) Lower margin of 1.0 inch from the edge. In the event a party requests a set of the
annexes actually filed with the court, the part
Every page must be consecutively numbered. who filed the paper shall comply with the
request within five days from receipt.
COPIES TO BE FILED
Unless otherwise directed by the court, the APPLICABILITY
number of court- bound papers that a party is This Rule applies to all courts and quasi-judicial
required or desires to file shall be as follows: bodies under the administrative supervision of
the Supreme Court.
In the Supreme Court,
(1) One original (properly marked) and 4 copies
(2) Two sets of annexes, one attached to the
original and an extra copy
If the case is referred to the Court En Banc:

(a) Parties shall file 10 additional copies.
(b) For the En Banc, the parties need to
submit only 2 sets of annexes, one
attached to the original and an extra
copy.
PAGE 189
UP LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW
PAGE 190
Preliminary Matters
Special proceedings - A remedy by which a party In the absence of special provisions, the rules
seeks to establish a status, right or a particular provided for in ordinary actions shall be, as far
fact [Rule 1, Sec. 3(c)]. as practicable, applicable in special
proceedings. [Sec. 2, Rule 72]
APPLICABLE RULES
 If special rules are provided, they shall apply. DIFFERENCE BETWEEN ACTION
But in the absence of special provisions, the AND SPECIAL PROCEEDING
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special Ordinary Civil Action Special Proceeding
proceedings. [Rule 72, Sec. 2]. To protect/enforce a To establish a
 There are special proceedings which are not right or prevent/ right/status/fact
part of the ROC (e.g. Writs of amparo and redress a wrong
habeas data).
Involves 2 or more May involve only 1 party
 The distinction between final and
parties
interlocutory orders in civil actions for
purposes of determining the issue of Governed by ordinary Governed by special
applicability is not strictly applicable to orders rules supplemented by rules, supplemented by
in special proceedings. Rule 109 specifies the special rules ordinary rules
orders from which appeals may be taken Courts of GENERAL Courts of LIMITED
[Regalado]. jurisdiction jurisdiction
 Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings Initiated by pleading, Initiated by petition,
[Matute v. CA (1969)]. and parties respond parties respond
through an answer through an opposition
SUBJECT MATTER AND Laws on pleadings Laws on pleadings
applicable: filing of an generally not
APPLICABILITY OF GENERAL answer, counterclaim, applicable.
RULES cross-claim, third-party
Rules of special proceedings are provided for in complaint
the following cases: Period of appeal only Period to appeal is 30
(1) Settlement of estate of deceased persons 15 days and notice of days. Record of appeal
(2) Escheat appeal is sufficient. is required in addition
(3) Guardianship and custody of children to a notice of appeal.
(4) Trustees
(5) Adoption
Action - formal demand of one’s right in a court
(6) Rescission and revocation of adoption
of justice in the manner prescribed by the court
(7) Hospitalization of insane persons
or by the law.
(8) Habeas corpus
(9) Change of name
Special proceeding - application or proceeding
(10) Voluntary dissolution of corporations
to establish the status or right of a party, or
(11) Judicial approval of voluntary recognition of
particular fact. No formal pleadings are
minor natural children
required, unless the statute expressly so
(12) Constitution of family home
provides.
(13) Declaration of absence and death
(14) Cancellation of correction of entries in the
civil registry. [Sec. 1, Rule 72]
PAGE 191
VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

Special Proceeding Venue Jurisdiction
Settlement of the Estate Residence of the decedent MTC if gross value of
of a Deceased Person If non-resident, place where he had an estate the estate does not
exceed P300,000, or
does not exceed
P400,000 in Metro
Manila otherwise, RTC
Escheat Person dies intestate leaving no heir – Residence of RTC
the decedent or if non-resident, place where he had
estate
Reversion – where land lies in whole or in part RTC
Unclaimed Balances Act – where deposits are located RTC
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Where will was allowed or RTC
Trustees Where the property or portion thereof affected by the
trust is situated
Adoption Domestic – where adopter resides Family Court
Inter-country Adoption – ICAB or, where adoptee ICAB or Family Court
resides if filed with the Family Court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Habeas Data Where the petitioner or respondent resides, or that RTC generally
which has jurisdiction over the place where the data If concerning public
or information is gathered, collected, or stored, at the data files or
option of the petitioner government offices, SC,
CA or Sandigabayan
Amparo Where the threat, act or omission was committed or RTC, Sandiganbayan,
any of its elements occurred CA, SC or any justice
thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/
 Local civil registry where the record sought to be Philippine consulate
changed is kept
 Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is
impractical to file where records sought to be
changed are kept)
 Philippine consulates only for non-resident citizen
PAGE 192
Special Proceeding Venue Jurisdiction

Appointment of Where Absentee resides before his disappearance RTC
Representative of
Absentee/ Declaration
of Absence
Cancellation / Judicial - Where corresponding civil registry is located RTC
Correction of Entries in Administrative - Same as change of name Local Civil Registry/
Civil Registries Philippine consulate
Petition for declaration Where petitioner or respondent has been residing for Family Court
of nullity, annulment, at least 6 months prior to the date of filing
legal separation If non-resident petitioner, where he may be found at
the election of the petitioner
Settlement of Estate of Uriarte vs. CFI (1970)

Deceased Persons, Venue Thus, if in the course of intestate proceedings
pending before a court of first instance, it is
and Process found that the decedent had left a last will,
proceedings for the probate of the latter should
Modes of Settlement of Estate [Herrera] replace the intestate proceedings even if at that
(1) Extrajudicial Settlement of Estate [Rule 73, stage an administrator had already been
Section 1] appointed, the latter being required to render
(2) Summary Settlement of Estate of Small final account and turn over the estate in his
Value [Rule 74, Section 2] possession to the executor subsequently
(3) Partition [Rule 69] appointed. This, however, is understood to be
(4) Probate of Will [Rule 75-79] without prejudice; that should the alleged last
(5) Petition for Letters of Administration [Rule will be rejected or is disapproved, the
79] proceeding shall continue as an intestacy.
JURISDICTION General Rule: Jurisdiction assumed by a court

shall not be contested in a suit or proceeding,
JURISDICTION OF RTCS
Exceptions:
When the value of the estate exceeds P300,000
(1) In an appeal from that court, in the original
or P400,000 in Metro Manila. [SC Circular 21-
case, OR
99]
(2) When the want of jurisdiction appears on
the record.
JURISDICTION OF MTCS
When the value of the estate does not exceed
VENUE IN JUDICIAL SETTLEMENT OF
P300,000 or P400,000 in Metro Manila. [SC
Circular 21-99] ESTATE
Decedent Venue
Sandoval v. Santiago (1949) Inhabitant of the RTC of the province in
Court first taking cognizance shall exercise Philippines at time of which he resides
jurisdiction to the exclusion of all other courts death (citizen/alien)
and cannot be divested by subsequent act of
interested parties. Inhabitant of foreign RTC of any province in
country which he had estate
Testate proceedings take precedence over
intestate proceedings of the same estate.
PAGE 193
Rule 73 relates to venue and not to jurisdiction. In Re: Baldomero Cosme (1937)
The place of residence of the deceased in There seems, however, to be a general
settlement of estates, probate of will, and tendency, in the absence of express and specific
issuance of letters of administration does not restrictions to the contrary, to uphold the
constitute an element of jurisdiction over the exercise by the probate court of such incidental
subject matter. It is only constitutive of venue. powers as are, within the purview of their grant
of authority, reasonably necessary to enable
Meaning of term “resides” them to accomplish the objects for which they
Resides – the personal, actual or physical were invested with jurisdiction and to perfect
habitation of a person, actual residence of place the same.
of abode and not to his permanent residence or
domicile. [Festin]
EXTENT OF JURISDICTION OF Summary Settlement of

PROBATE COURT
Probate court is of limited jurisdiction Estates
General rule: Probate court cannot decide
questions as to ownership of property alleged to General Rule: Judicial Settlement
be part of the estate of the deceased but
claimed by some other person to be his Exception:
property. (1) Extrajudicial Settlement of Estate
(2) Summary Settlement of Estate of Small
Exceptions: Value
(1) In a provisional manner to determine
whether said property should be included or Extrajudicial Settlement Summary Settlement
excluded in the inventory, without prejudice
to final determination of title in a separate Court intervention not Summary judicial
action [Cuizon v Ramolete (1984)] required adjudication needed
(2) With consent of all the parties, without No will (intestate) Will may or may not
prejudice to third persons [Trinidad v. CA exist (intestate/testate)
(1991)]
(3) If the question is one of collation or No debts Debts may or may not
advancement [Coca v. Borromeo (1978)] exist
(4) When the estate consists of only one Heirs are all of age, or
property [Portugal v. Portugal-Beltran minors are represented
(2005)] by judicial or legal reps
POWERS AND DUTIES OF PROBATE COURT Instituted only at the May be instituted by
Dariano vs. Fernandez Fidalgo (1909) instance and by any interested party
It is the duty of courts of probate jurisdiction to agreement of all heirs even by a creditor of
guard jealously the estates of the deceased the estate without the
person by intervening in the administration consent of the heirs.
thereof in order to remedy or repair any injury
Value of the estate is Gross value of estate
that may be done thereto
IMMATERIAL may not exceed
P10,000
Bond filed with Bond filed with and to
Register of Deeds in an be determined by the
amount equal to the court
value of the personal
property
PAGE 194
EXTRAJUDICIAL SETTLEMENT BOND REQUIREMENT

Required only if personal property is involved
BY AGREEMENT BETWEEN because real estate is subject to lien
HEIRS, WHEN ALLOWED
Requisites [Sec. 1, Rule 74] File a bond equal to the value of the personal
(1) Decedent died intestate property involved as certified to under oath by
(2) No debts OR the heirs have already paid the parties, conditioned upon the payment of
such at the time of partition any just claim that may be filed of deprived heirs
(3) Heirs are all of age OR the minors are and creditors. [Sec. 1, Rule 74]
represented by their judicial or legal
representatives The extrajudicial settlement is not binding on
(4) Settlement made in public instrument filed any person who:
with the register of deeds (1) Has not participated in the extrajudicial
(5) Fact of the extrajudicial settlement shall be settlement; or
published in a newspaper of general (2) Had no notice thereof. [Sec. 1, Rule 74]
circulation 3 times a week, once each week.
PROCEDURE VALIDITY OF ORAL PARTITION

Such is VALID, because there is no law that
Death of the decedent
requires partition among heirs to be in writing to
 be valid. [Pada Kilario v. CA (2000)]
Division of estate in public instrument or
affidavit of adjudication The requirement under Rule 74.1 is merely for
 the protection of creditors and the heirs
Filing of the public instrument, or affidavit of themselves against tardy claims. Where there
adjudication if there is only one heir, and bond are no creditors, the requirements no longer
equivalent to the amount of personal property apply.
with the proper Registry of Deeds
 VALIDITY OF COMPROMISE
Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks
AGREEMENT
Such is VALID, binding upon the parties as
in a newspaper of general circulation in the
individuals, upon the perfection of the contract,
province, and after such other notice to
even without previous authority of the court to
interested persons as the court may direct
enter into such agreement. [Borja v. Vda. De
 Borja (1972)]
Hearing to be held not less than 1 month nor
more than 3 months from the date of the last
publication of notice NO PRECLUSION FROM INSTITUTING
ADMINISTRATION PROCEEDINGS
The parties may divide the Sec. 1, Rule 74 does not preclude the heirs from
If there is no instituting administration proceedings, even if
estate among themselves by
disagreement the estate has no debts or obligations, if they do
means of a public instrument
between the not desire to resort for good reasons to an
filed in the office of register of
heirs ordinary action for partition. While Sec. 1 allows
deeds.
If there is They may divide the estate in the heirs to divide the estate among themselves
disagreement an ordinary action of partition. as they may see fit, or to resort to an ordinary
action for partition, the said provision does not
He may adjudicate to himself
compel them to do as if they have good reasons
the entire estate by means of
If only one heir to take a different course of action. [Pereira v CA
an affidavit filed in the
Registrar of Deeds. (1989)]
PAGE 195
TWO-YEAR PRESCRIPTIVE PERIOD Upon fulfillment of the requisites, the court may
Claim by creditors and deprived heirs must be proceed summarily without the appointment of
filed within 2 years from the time of an executor/administrator and without delay,
distribution/publication. (1) to grant, if proper, allowance of the will, if
any there be
PRESUMPTION OF NO DEBTS (2) to determine who are persons legally
It shall be presumed that the decedent left no entitled to participate in the estate
debts if no creditor files a petition for letters of (3) to apportion and divide among them after
administration within 2 years after the death of the payment of such debts of the estate
the decedent. [Sec. 4, Rule 74] (4) persons in own right if of lawful age, or their
guardians, will be entitled to receive and
AFFIDAVIT OF SELF- enter into possession of the portions of the
estate so awarded to them respectively.
ADJUDICATION BY SOLE HEIR [Sec. 2, Rule 74]
If there is only one heir, he may adjudicate to
himself the entire estate by means of an
affidavit filed in the office of register of deeds.
PROCEDURE
[Sec. 1, Rule 74] Death of the decedent

BOND REQUIREMENT Application for summary settlement with an
File a bond equal to the value of the personal allegation that the gross value of the estate
property involved as certified to under oath by does not exceed P10K
the parties, conditioned upon the payment of 
any just claim that may be filed [Sec. 1, Rule 74] Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks
in a newspaper of general circulation in the
SUMMARY SETTLEMENT OF province, and after such other notice to
ESTATES OF SMALL VALUE interested persons as the court may direct
WHEN ALLOWED 
(1) Gross value of estate does not exceed Hearing to be held not less than 1 month nor
P10,000 more than 3 months from the date of the last
(2) Fact is made to appear to the RTC publication of notice
(3) Through petition of an interested person 
(4) Upon hearing Court to proceed summarily, without appointing
Held not less than 1 month nor more than an executor/administrator
3 months (executor/administrator), and to make orders as
Counted from the date of the last may be necessary
publication of a notice 
(5) Notice Grant allowance of the will, if any
Which shall be published once a week for
3 consecutive weeks 
In a newspaper of general circulation in Determine persons entitled to estate
the province 
It is not required that publication be for a Pay debts of estate which are due
complete 21 days. What is required is that 
it be published for once a week for 3 Filing of bond fixed by the court
consecutive weeks. 
(6) Notice to interested persons as the court Partition of estate
may direct. (Sec. 2, Rule 74]
PAGE 196
There is no requirement regarding the lack of This is only a Bar against the parties who had
debts (unlike extrajudicial partition) in summary taken part in the extrajudicial proceedings, but
settlement of estates of small value since the not against third persons not parties thereto
court will make provisions for such in its
resolution of the proceedings. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
If on the date of the expiration of the period of 2
REMEDIES OF AGGRIEVED years, the person authorized to file a claim is:
PARTIES AFTER EXTRA- (1) a minor or mentally incapacitated, or is in
JUDICIAL SETTLEMENT OF prison or
(2) outside the Philippines,
ESTATE he may present his claim within 1 year after such
disability is removed. [Sec. 5, Rule 74]
(1) CLAIM AGAINST THE BOND OR
THE REAL ESTATE WITHIN TWO (2) ACTION AGAINST DISTRIBUTES
YEARS After the two years has passed, claimant must
file an ordinary action against the distributees
BOND AND REAL ESTATE REMAIN within the statute of limitations.
CHARGED
Rule: bond and real estate shall remain charged The court shall order how much and in what
with a liability to creditor, heirs or other persons manner each distributee shall contribute in the
for the full period of 2 years after such payment thereof. [Sec. 4, Rule 74]
distribution, notwithstanding any transfers of
real estate that may have been made. (3) ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL PARTITION
When applicable: there is an heir or other person Prescriptive period: within 4 years from the
who discovery of the fraud (deemed to have taken
(1) has been unduly deprived of his lawful place when said instrument was filed with the
participation in the estate: Register of Deeds and new certificates of title
 He shall have a right to compel the were issued in the name of respondents).
settlement of the estate in the courts for [Gerona v. De Guzman, 11 SCRA 154 (1964)]
the purpose of satisfying such lawful
participation HOWEVER, in Amerol v. Bagumbaran (1987), the
(2) has been unduly deprived of his lawful Court applied Article 1144 (NCC) which stated
participation payable in money: The court that actions upon an obligation created by law
having jurisdiction of the estate may, by must be brought within 10 years from the time
order for that purpose, after hearing, the right of action accrues. Since implied or
 settle the amount of such debts or constructive trusts are obligations created by
lawful participation, and law, then the prescriptive period to enforce the
 may issue execution against the bond or same prescribes in 10 years. Thus, an action for
against the real estate belonging to the reconveyance based on an implied or
deceased, or both. [Sec. 4, Rule 74] constructive trust must perforce prescribe in 10
years and not otherwise.
When not applicable:
(1) To persons who have participated or taken The ruling in the Gerona case was reiterated in
part or had notice of the extrajudicial Pedrosa v. CA (2001).
partition
(2) When the provisions of Sec. 1 of Rule 74 have (4) NEW ACTION TO ANNUL
been strictly complied with (all persons or
heirs of the decedent have taken part in the
SETTLEMENT WITHIN
extrajudicial settlement or are represented REGLEMENTARY PERIOD OF TWO
by themselves or through guardians) YEARS
PAGE 197
(5) REOPENING BY INTERVENTION

Production and Probate of
BEFORE RENDITION OF JUDGMENT Will
WITHIN THE REGLEMENTARY Probate or allowance of wills is the act of
PERIOD OF TWO YEARS proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
Jerez v. Nietes (1969) registration and carrying out its provision in so
Within the reglementary period, the judge of a far as they are in accordance with law. [Festin]
probate court has the power to reopen estate
proceedings even after the issuance of an order
approving a project of partition and closing the NATURE OF PROBATE
proceedings. Rather than requiring an allegedly PROCEEDING
preterited party to air his grievances in a (1) In Rem
separate and independent action, he may within (2) Mandatory
the reglementary period claim his relief sought (3) Imbued with public policy, thus
in the same case by reopening the same even imprescriptible and the doctrine of estoppel
after a project of partition and final accounting does not apply
had been approved. This is proper to avoid
needless delay in the resolution of cases. General Rule: A probate proceeding only looks
at extrinsic validity.
(6) PETITION FOR RELIEF
Extrinsic validity - due execution of the will
Petition for Relief on the ground of fraud,
(whether or not the testator, being of sound
accident, mistake or excusable negligence within
mind, freely executed the will in accordance
60 days after the petitioner learns of the
with the formalities prescribed by law)
judgment, final order or other proceedings to be
set aside and not more than 6 months after
Exception:
such judgment or order is entered or taken [Rule
Principle of Practical Consideration
38]
The probate court may pass upon the intrinsic
validity of the will because there is apparent
(7) RESCISSION IN CASE OF defect in its face – this is also known as the
PRETERITION principle of practical consideration [Nepomuceno
v CA (1985)]. (Ex. When on the face of the will
the petitioner appears to be preterited)
But the remedy of certiorari is available, where

the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
there is clearly preterition and the said judge
still continues the probate proceedings)
EFFECT OF PROBATE OF WILL

Decree of probate is conclusive as to its due
execution, subject to the right of appeal. (Thus,
no suit for forgery of a will, which has been duly
probated and such order becoming final)
PAGE 198
DUTY OF CUSTODIAN, EXECUTOR

Rodelas v Aranza (1982) The person who has custody of the will shall
General Rule: If a holographic will has been lost deliver the will to the court having jurisdiction
or destroyed and no other copy is available, the or, to the executor within 20 days after he
will cannot be probated because the best and knows of the death of the testator. [Sec. 2, Rule
only evidence is the handwriting of the testator 75]
in said will.
The person named executor shall present the
Exception: A photostatic copy or xerox of the will to the court having jurisdiction, unless the
holographic will may be allowed because will has reached it in any manner, and signify
comparison can be made with the standard acceptance/refusal of the trust within 20 days
writings of the testator. after he knows of the death of the testator or
after he knows that he is named executor. [Sec.
WHO MAY PETITION FOR 3, Rule 75]
PROBATE; PERSONS ENTITLED Penalty for neglect without excuse satisfactory to

TO NOTICE the court: Fine not exceeding P2,000 [Sec. 4,
Rule 75]
Petitioner for the allowance of the will
(1) Executor PERSON RETAINING WILL MAY BE
(2) Devisee COMMITTED TO PRISON
(3) Legatee (1) Has custody of will
(4) Other person interested in the estate (2) There is a court order directing him to deliver
(5) Testator himself, during his lifetime [Sec. 1, the will
Rule 76] (3) Neglects without reasonable cause to deliver
the same [Sec. 5, Rule 75]
MEANING OF INTEREST IN ESTATE
An interested party is one who would be
benefited by the estate such as an heir or one
who has claim against the estate like a creditor. Allowance or
[Sumilang v. Ramagosa (1967)]
Disallowance of Will
JURISDICTION, HOW ACQUIRED
(1) Attaching a mere copy of will to the petition CONTENTS OF PETITION FOR
or
(2) Delivery of will, even if no petition is filed or
ALLOWANCE OF WILL
(1) Jurisdictional facts
(3) Filing of the original petition and
compliance with Sec. 3-4 Rule 76. (a) Death of the decedent
a) Publication for 3 weeks of the order (b) Residence at the time of death in the
b) Notice to all interested persons (If by province where the probate court is
sitting Or if he is an inhabitant of a
mail, 20 days before hearing; if through
personal service, 10 days before hearing) foreign country, his leaving his estate in
such province
If testator files for probate of his will, no (2) Names, ages, and residences of the heirs,
publication is required and notice is only to the legatees, and devisees of the testator or
compulsory heirs. [Sec. 3, Rule 76] decedent
(3) Probable value and character of the
property of the estate
(4) Name of the person for whom letters are
prayed
PAGE 199
(5) If the will has not been delivered to the Evidence necessary for reprobate [Vda. De Perez
court, the name of the person having v. Tolete (1994)]
custody of it. [Sec. 2, Rule 76] (1) the due execution of the will in accordance
with the foreign laws;
DEFECT IN PETITION (2) the testator has his domicile in the foreign
Defect in petition will not void the allowance of country and not in the Philippines;
the will, or the issuance of letters testamentary (3) the will has been admitted to probate in
or of administration with the will annexed. [Sec. such country;
2, Rule 76] (4) the fact that the foreign tribunal is a probate
court, and
GROUNDS FOR DISALLOWING A (5) the laws of a foreign country on procedure
and allowance of wills
WILL
(1) If not executed and attested as required by EFFECT
law The will shall have the same effect as if
(2) If the testator was insane, or otherwise originally proved and allowed in such court.
mentally incapable to make a will, at the
time of its execution
(3) If executed under duress, or the influence of
fear, or threats Letters Testamentary and
(4) If procured by undue and improper pressure
and influence, on the part of the beneficiary, of Administration
or of some other person for his benefit
(5) If the signature of the testator was procured WHEN AND TO WHOM LETTERS
by fraud or trick, and he did not intend that
the instrument should be his will at the time
OF ADMINISTRATION ARE
of fixing his signature thereto [Sec. 9, Rule GRANTED
76] Letters Testamentary – issued to the executor
named in the will, if s/he is competent, accepts
Note: The grounds for disallowance of will are the trust, and gives the required bond. [Sec. 4,
exclusive. Rule 78]
REPROBATE Letters of Administration – issued to an

Wills proved and allowed in a foreign country, administrator when
according to the laws of such country, may be (1) No executor named or
allowed, filed, and recorded by the proper Court (2) Executor or executors are incompetent,
of First Instance in the Philippines (now RTC). refuse the trust, or fail to give bond or
[Sec. 1, Rule 77] (3) Person dies intestate. [1st para., Sec. 6, Rule
78]
REQUISITES FOR ALLOWANCE
(1) Copy of the will WHO ARE INCOMPETENT TO SERVE
(2) Order or decree of the allowance in foreign AS EXECUTORS OR
country ADMINISTRATORS
(3) Filed with a petition for allowance in the (1) Minor
Philippines by executor or other person (2) Non-resident
interested (3) One who, in the opinion of the court, is unfit
(4) Court having jurisdiction shall fix a time and to exercise the duties of the trust by reason
place for the hearing of drunkenness, improvidence, want of
(5) Cause notice thereof to be given as in case understanding or integrity or conviction of an
of an original will presented for allowance. offense involving moral turpitude. [Sec. 1,
[Sec. 2, Rule 77] Rule 78]
PAGE 200
4) Neglect to apply for letters 30 days after the

An executor of an executor cannot administer death of the decedent
the estate of the first testator. [Sec. 2, Rule 78]
Court may reject order of preference when
circumstances warrant. [Villamor v. Court of
ORDER OF PREFERENCE Appeals, (1988)]
ORDER OF PREFERENCE IN THE
GRANT OF ADMINISTRATION The order of preference is not absolute for it
(1) Surviving spouse or depends on the attendant facts and
next of kin, or both, or circumstances of each case. The selection of an
to such person as the surviving spouse, or administrator lies in the sound discretion of the
next of kin requests to have appointed, if trial court. [In Re Suntay, (2007)]
competent and willing to serve.
(2) If those in (1) be incompetent or unwilling, or 30-DAY PERIOD MAY BE WAIVED
if the husband or widow, or next of kin, Just as the order of preference is not absolute
neglects for 30 days after the death of the and may be disregarded for valid cause, so may
person to apply for administration or to the 30-day period be likewise waived under the
request that administration be granted to permissive tone in paragraph (b) of said rule
some other person, it may be granted to one which merely provides that said letters as an
or more of the principal creditors, if alternative, “may be granted to one or more of
competent and willing to serve. the principal creditors.” [Herrera]
(3) If there is no (2), it may be granted to such
other person as the court may select. (Sec. Co-administrators may be appointed. [Matute v.
6, Rule 78) Court of Appeals (1969)]
Next of kin are those entitled by law to receive
the decedent’s properties. [Gonzalez v.
OPPOSITION TO ISSUANCE OF
Aguinaldo, et al., (1990)] LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF
REASON FOR ORDER OF PETITION FOR
PREFERENCE
Those who would reap the benefit of a wise, ADMINISTRATION
speedy and economical administration of the
estate, or, on the other hand, suffer the Who may oppose - Any person interested in will
consequences of waste, improvidence or [Sec. 1, Rule 79]
mismanagement, have the highest interest and
most influential motive to administer the estate MEANING OF INTERESTED PERSON
correctly. [Gonzalez v. Aguinaldo, et al., (1990)] One who would be benefited by the estate, such
as an heir, or one who has a claim against the
Mere failure to apply for letters of estate, such as a creditor; thus interest must be
administration does not remove preference. [1 immaterial and direct, not merely indirect or
ALR 1247] contingent. [Saguinsin v. Lindayag, 6 SCRA 874]
General Rule: The court cannot set aside order GROUNDS

of preference (1) Incompetency of the person/s named in the
will as executor/s, or
Exception: (2) Contestant’s right to the administration
If the person enjoying such preferential rights is [Sec. 4, Rule 79]
1) Unsuitable
2) Incompetent
3) Unwilling
PAGE 201
FORM REQUIRED POWERS AND DUTIES OF

State in writing the grounds why letter should
not issue; the court shall then hear and pass
EXECUTORS AND
upon sufficiency of such grounds. [Sec. 1, Rule ADMINISTRATORS;
79] RESTRICTIONS ON THE
CONTENTS
POWERS
1) Jurisdictional facts Executor Administrator
2) Name, age and residence of heirs and the Named by the testator Appointed when:
name and age of creditors in his will and (1) Testator did not
3) Probable value of the estate subsequently appoint an executor
4) Name of person to whom letter is prayed appointed by the court. (2) The appointment
[Sec. 2, Rule 79] was refused
(3) The will was
JURISDICTIONAL FACTS disallowed
(1) Death of the testator (4) No will (intestate
(2) His/her residence at the time of death in the succession)
province where the probate court is sitting
or,
(3) If an inhabitant of a foreign country, his/her Executor Administrator
having left his estate in such province [Diez Has the duty to present No such duty as
v. Serra, (1927)] will to the court within regards the
20 days after administrator.
PUBLICATION AND NOTICE (1) he knows of the
Publication of notice for 3 weeks successively death of the testator or
and notice to heirs, creditors and interested (2) he knew that he was
persons, if place of residence is known, are appointed as executor
jurisdictional. [Sec. 3, Rule 79 and Secs. 3 & 4, Unless the will has
Rule 76] reached in another
manner.
SIMULTANEOUS FILING OF OPPOSITION
AND PETITION The testator may Bond is required unless
A petition may, at the same time, be filed for provide that he may exempted by law.
letters of administration to himself, or to any serve without a bond
competent person or person named in the but the court shall
opposition. [Sec. 4, Rule 79] direct him to post a
bond conditioned only
Lack of interest in the proceedings is equal to to pay debts.
lack of legal capacity to institute proceedings. Compensation Apply Sec. 7 of Rule
[Herrera] provided in the will 85.
controls, unless
Appointment of regular administrator is final renounced.
and thus, appealable. If there’s no provision
for compensation, Sec.
7 of Rule 85 shall
apply.
PAGE 202
GENERAL POWERS AND DUTIES OF RESTRICTIONS ON POWERS OF

EXECUTORS AND ADMINISTRATORS EXECUTORS AND ADMINISTRATORS
(1) HAVE ACCESS TO PARTNERSHIP BOOKS (1) EXECUTOR OR ADMINISTRATOR
AND PROPERTY AT ALL TIMES CHARGEABLE WITH ALL ESTATE AND
INCOME
(a) Have access to, and may examine and take
copies of, books and papers relating to the Chargeable in his account with the whole of the
partnership business, estate which has come into his possession, at
(b) Examine and make invoices of the property the value of the appraisement contained in the
belonging to such partnership inventory:
(c) The surviving partner or partners, on (a) With all the interest,
request, shall exhibit to him all such books, (b) Profit
papers, and property in their hands or (c) Income of such estate and
control. [Sec. 1, Rule 84] (d) With the proceeds of as much of the estate
as is sold by him, at the price at which it was
Failure to freely permit the exercise of the may sold. [Sec. 1, Rule 85]
subject any partner for contempt.
(2) PROHIBITED FROM PROFITING BY
(2) KEEP BUILDINGS IN TENANTABLE INCREASE OR LOSING BY DECREASE IN
REPAIR VALUE
(a) Houses and other structures and fences (a) No executor/administrator shall profit by
belonging to the estate, and the increase, or suffer loss by the decrease
(b) Deliver the same in such repair to the heirs or destruction, without his fault, of any part
or devisees when directed so to do by the of the estate
court. [Sec. 2, Rule 84] (b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
(3) RIGHT TO POSSESSION AND justly made
MANAGEMENT OF THE REAL AND (d) If settled claim for less - He is entitled to
PERSONAL PROPERTIES charge in his account only the amount he
actually paid on the settlement [Sec. 2, Rule
(a) So long as it is necessary for the payment of 85]
the debts and the expenses of (e) Not accountable for debts due the deceased
administration which remain uncollected without his fault
(b) Administrator cannot exercise the right of [Sec. 3, Rule 85]
legal redemption over a portion of the
property owned in common sold by one of (3) ACCOUNTABLE FOR INCOME FROM
the other co-owners since this is not within REALTY USED BY HIM
the powers of administrator. [Sec. 3, Rule
84] If the executor/administrator uses or occupies
any part of the real estate himself, he shall
When the estate of a deceased is already account for it as may be agreed upon between
subject of a testate or intestate proceeding, the him and the parties interested, or adjusted by
administrator cannot enter into any transaction the court with their assent and if the parties do
involving it without any prior approval of the not agree upon the sum to be allowed, the
Court. [Estate of Olave v. Reyes (1983)] same may be ascertained by the court, whose
determination in this respect shall be final. [Sec.
4, Rule 85]
PAGE 203
(4) ACCOUNTABLE IF HE NEGLECTS OR Not included:

DELAYS TO RAISE OR PAY MONEY (1) Wearing apparel of surviving husband or
wife and minor children
(a) Neglects or unreasonably delays to raise (2) The marriage bed and bedding
money, by collecting the debts or selling the (3) Such provisions and other articles as will
real or personal estate of the deceased, or necessarily be consumed in the subsistence
(b) Neglects to pay over the money he has in of the family of the deceased [Sec. 2, Rule
his hands, and the value of the estate is 83]
thereby lessened or unnecessary cost or
interest accrues, or the persons interested Widow’s allowance
suffer loss. The widow and minor or incapacitated children
(c) Damages sustained may be charge and shall, during the settlement of the estate,
allowed against executor or administrator in receive such allowance under the direction of
his/her account; liable on his/her bond. the court [Sec. 3, Rule 83]
[Sec. 5, Rule 95]
Accounting mandatory
(5) ONLY NECESSARY EXPENSES SHALL BE Within 1 year from the time of receiving letters
ALLOWED testamentary or of administration unless the
court otherwise directs [Sec. 8, Rule 85]
(a) The amount paid by an
executor/administrator for costs awarded The fact that the heirs of the estate have
against him shall be allowed in his entered into an extrajudicial settlement and
administration account [Sec. 6, Rule 85] partition in order to put an end to their
(b) Unless it appears that the action or differences cannot in any way be interpreted as
proceeding in which the costs are taxed was a waiver of the objections of the heirs to the
prosecuted or resisted without just cause, accounts submitted by the administrator. [Joson
and not in good faith. v. Joson (1961)]
(c) When the executor is an attorney, cannot
charge against estate any professional fees Examination on Oath by Court
for legal services rendered. [Sec. 7, Rule 85] As to the correctness of his account before the
same is allowed, except when no objection is
Necessary expenses made to the allowance of the account and its
Such expenses as are entailed for the correctness is satisfactorily established by
preservation and productivity of the estate and competent proof [Sec. 9, Rule 85]
for its management for purpose of liquidation,
payment of debts, and distribution of the The heirs, legatees, distributees, and creditors of
residue among persons entitled thereto. the estate shall have the same privilege as the
[Hermanos v. Abada (1919)] executor/administrator of being examined on
oath on any matter relating to an administration
Attorney’s fees as expenses of administration account. (Sec. 9, Rule 85)
Administrator may not recover attorney’s fees
from estate. APPOINTMENT OF SPECIAL
(6) EXECUTOR OR ADMINISTRATOR TO ADMINISTRATOR
MAKE INVENTORY AND RENDER
ACCOUNT WHEN APPOINTED
(1) When there is delay in granting letters
Inventory testamentary or administration, or
Of all real and personal estate of the deceased (2) By any cause, including an appeal from
which has come into his possession or allowance or disallowance of a will. [Sec. 1,
knowledge within 3 months after his Rule 80]
appointment [Sec. 1, Rule 83]
PAGE 204
Sec. 8, Rule 86 provides that a special (4) May sell only such perishable and other
administrator may be appointed with respect to property as the court orders sold.
the settlement of the claim of an (5) Not liable - to pay any debts of the
executor/regular administrator against the deceased unless so ordered by the court.
estate. [Sec. 2, Rule 80]
PROCEDURE FOR APPOINTMENT WHEN SPECIAL ADMINISTRATOR CEASES

There must first be notice and publication. DUTIES
Notice through publication of the petition is a When letters testamentary/administration are
jurisdictional requirement even in the granted on the estate of the deceased
appointment of a special administrator. [De (1) He shall deliver to the
Guzman v. Angeles (1988)] executor/administrator the goods, chattels,
money, and estate of the deceased in his
Appointment of special administrator lies hands.
entirely in the sound discretion of the court. [De (2) The executor/administrator may prosecute
Gala v. Gonzales, 53 Phil. 104 (1929)] to final judgment suits commenced by such
SA. [Sec. 3, Rule 80]
Regular Administrator Special Administrator
Appointment of Special Administrator is
Appointed by the court Appointed by the court interlocutory and is not appealable. [Garcia v.
in the following when: Flores, 101 Phil. 781 (1957)]
instances: (1) there is DELAY in
(1) Testator did not granting letters GROUNDS FOR REMOVAL OF
appoint an executor testamentary or ADMINISTRATOR
(2) The appointment administration
was refused (2) when the executor REVOCATION OF ADMINISTRATOR
(3) The will was is a claimant of the
When the decedent’s will is allowed and proved
disallowed estate
after a letters of administration has been issued,
(4) No will (intestate (3) by any cause,
the administration is deemed revoked.
succession) including an appeal
from allowance or
disallowance of a
REMOVAL OF EXECUTOR OR
will ADMINISTRATOR
Grounds
Should pay the debts Cannot pay debts of (1) Neglects to:
of the estate the estate unless (a) Render his account
ordered by the court. (b) Settle the estate according to law
Order of Appointment Order of Appointment (c) Perform an order or judgment of the
is final and appealable. is interlocutory and is court, or a duty expressly provided by
not appealable these rules
(2) Absconds
POWERS AND DUTIES OF SPECIAL (3) Becomes insane or
ADMINISTRATOR (4) Becomes incapable or unsuitable to
(1) Take possession and charge of the goods, discharge the trust. [Sec. 2, Rule 82]
chattels, rights, credits, and estate of the
deceased, and
(2) Preserve the same for the
executor/administrator afterwards
appointed, and
(3) For that purpose may commence and
maintain suits as administrator.
PAGE 205
REMOVAL OF SPECIAL (2) Executor/administrator will be able to

ADMINISTRATORS examine each claim, determine whether it is
a proper one which should be allowed.
Ocampo v Ocampo (2010) (3) To appraise the administrator and the
The probate court may appoint or remove probate court of the existence of the claim
special administrators based on grounds other so that a proper and timely arrangement
than those enumerated in the Rules at its may be made for its payment in full or by
discretion, such that the need to first pass upon pro-rata portion in the due course of the
and resolve the issues of fitness or unfitness and administration. [Estate of Olave v. Reyes
the application of the order of preference under (1983)]
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain.
As long as the discretion is exercised without TIME WITHIN WHICH CLAIMS
grave abuse, and is based on reason, equity, SHALL BE FILED; EXCEPTIONS
justice, and legal principles, interference by General Rule: Claims must be filed within the
higher courts is unwarranted. time specified by the court in its notice which
shall not be less than 6 months nor more than 12
EFFECT OF REMOVAL, DEATH, OR months from the date of the first publication of
RESIGNATION the notice. [Sec. 2, Rule 86]
(1) The remaining executor/administrator may
administer the trust alone, unless the court EXCEPTION
grants letters to someone to act with him. BELATED CLAIMS
(2) If there is no remaining executor/ The Court has the discretion, for cause and
administrator, administration may be to any upon such terms as are equitable, to allow
suitable person. [Sec. 2, Rule 82] contingent claims presented beyond the period
previously fixed provided they are filed within 1
Acts of the executor/administrator before month from the expiration of such period but in
removal/resignation are valid. [Sec. 3, Rule 82] no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Sec.
2, Rule 86]
Claims Against the Estate Publication for 3 consecutive weeks and posting
in 4 public places in the province and in 2 public
ESTATE BURDENED WITH LIEN places in the municipality where the decedent
OF CREDITORS last resided. [Sec. 4, Rule 86]
Upon the death of the person, all his property is
burdened with all his debts, his debts creating STATUTE OF NON-CLAIMS
an equitable lien thereon for the benefit of the
creditors. CLAIMS COVERED (Exclusive)
(1) Claims for money against the decedent
And such lien continues until the debts are arising from contract
extinguished either by the payment, - Express or implied
prescription, or satisfaction in one of the modes - Due or not
recognized by law. [Suiliong & Co. v. Chio - Contingent or not
Tayaan, 12 Phil. 13]
(2) Claims for funeral expenses
PURPOSE OF PRESENTATION (3) Expenses for the last sickness
(4) Judgment for money against the decedent.
OF CLAIMS AGAINST ESTATE [Sec. 5, Rule 86]
(1) To protect the estate of the deceased.
PAGE 206
The period, once fixed by the courts, is ALTERNATIVE REMEDIES OF A

mandatory. MORTGAGE CREDITOR UPON DEATH
General Rule: Claim must be filed within the
OF DEBTOR:
(1) Waive the security and claim the entire debt
time fixed by the notice otherwise they are
from the estate as an ordinary claim – creditor is
barred forever. [Sec. 5, Rule 86]
deemed to have abandoned the mortgage and
he cannot thereafter file a foreclosure suit if he
Purpose: to settle the estate with dispatch, so
fails to recover his money claim against the
that the residue may be delivered to the persons
estate
entitled thereto without their being afterwards
called upon to respond in actions for claims.
(2) Foreclose mortgage judicially and prove any
deficiency as an ordinary claim – suit should be
Exceptions:
against the executor or administrator as party
(1) When set forth as counterclaims in any
defendant; Creditor may obtain deficiency
action that the executor/administrator may
judgment if he fails to fully recover his claim
bring against the claimants [Sec. 5, Rule 86]
(2) Belated claims [Sec. 2, Rule 86]
(3) Rely solely on the mortgage and foreclose it
before it is barred by prescription without right to
CONTINGENT CLAIM WHEN claim for deficiency – includes extrajudicial
ALLOWED foreclosure of sale and its exercise precludes
(1) When it becomes absolute; one from recovery of any balance of debt
(2) Presented to the court or against the estate and frees the estate from
executor/administrator within 2 years from further liability.
the time limited for other creditors to
present their claims; and CLAIM OF EXECUTOR OR
(3) Not disputed by executor/administrator
IF DISPUTED ADMINISTRATOR AGAINST THE
It may be proved and allowed or disallowed by ESTATE
the court as the facts may warrant [Sec. 5, Rule
88] PROCEDURE TO FOLLOW IF THE EXECUTOR
OR ADMINISTRATOR HAS A CLAIM
Mutual claims may be set off against each other AGAINST THE ESTATE HE REPRESENTS
in such action. (1) Executor/Administrator shall give notice
thereof, in writing, to the court
Effect if a debtor obtains a favorable judgment (2) The court shall appoint a special
against the estate: the amount shall be administrator who shall have the same
considered the true balance against the estate, powers and liabilities as the general
as though the claim had been presented directly executor/administrator in the adjustment of
before the court in the administration such claim.
proceedings (3) The court may order the executor or
administrator to pay to the special
The presentation of a money claim may be administrator necessary funds to defend
waived. [Ignacio v. Pampanga Bus co., Inc., such claim. (Sec. 8, Rule 86)
(1967)]
If obligation solidary - file claim against

decedent as if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Sec. 6, Rule 86]
PAGE 207
PAYMENT OF DEBTS In which case—

The whole of the real estate not disposed of
by will, or so much thereof as is necessary, may
DEBTS PAID IN FULL IF ESTATE
be sold, mortgaged, or otherwise encumbered for
SUFFICIENT that purpose by the executor/administrator,
(1) After all money claims heard and
ascertained; and Court approval must be obtained first, and
(2) It appears that there are sufficient assets to
pay the debts Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6 of
Executor/administrator shall pay the same this rule. [Sec. 3, Rule 88]
within the time limited for that purpose. [Sec. 1,
Rule 88]
ESTATE TO BE RETAINED TO MEET
The probate court may hold in abeyance CONTINGENT CLAIMS
intestate proceedings pending determination of If court is satisfied that such claim is valid:
a civil case against the administrator. (1) It may order the executor/administrator to
retain in his hands sufficient estate for the
The heirs of the estate may not demand the purpose of paying the contingent claim
closing of an intestate proceeding at anytime when such becomes absolute.
where there is a pending case against the (2) If estate insolvent - Retain a portion equal
administrator of the estate. The court can to the dividend of the other creditors. [Sec.
rightfully hold in abeyance until the civil case is 4, Rule 88]
settled. [Dinglasan v. Chia, (1956)]
PAYMENT OF CONTINGENT CLAIM
PART OF ESTATE FROM WHICH DEBT If allowed - Creditor shall receive payment to
the same extent as the other creditors if the
PAID WHEN PROVISION MADE BY
estate retained by the executor/administrator is
WILL sufficient.
(1) Testator provided for payment of debt
Expenses of administration, or family Claim not presented after becoming absolute
expenses shall be paid according to such and allowed within 2 year period – The assets
provisions retained in the hands of the
(2) If not sufficient executor/administrator, not exhausted in the
The part of the estate not disposed of by will payment of claims, shall be distributed by the
shall be appropriated for the purpose (Sec. order of the court to the persons entitled
2,Rule 88)
But the assets so distributed may still be
PERSONALTY FIRST CHARGEABLE applied to the payment of the claim when
FOR DEBTS, THEN REALTY established, and the creditor may maintain an
General Rule: Personal estate not disposed of by action against the distributees to recover the
will shall be FIRST chargeable [Sec. 3, Rule 88] debt, and such distributees and their estates
shall be liable for the debt in proportion to the
Exceptions: estate they have respectively received. [Sec. 5,
(1) Not sufficient for the purpose; or Rule 88]
(2) Its sale will redound to the detriment of the
participants for the estate
PAGE 208
COURT TO FIX CONTRIBUTIVE INSOLVENT RESIDENT WITH

SHARES WHERE DEVISEES, FOREIGN CREDITORS AND FOREIGN
LEGATES, OR HEIRS HAVE BEEN IN CLAIMS PROVEN IN ANOTHER
POSSESSION COUNTRY
(1) Possession before debts and expenses are (1) Executor/administrator in the Philippines
paid had knowledge of the presentation of such
Court shall claims in such country; and
- Hear and settle the amount of their (2) Executor/administrator had opportunity to
several liabilities contest such allowance
- Order how much and in what manner
each shall contribute The court shall:
- May issue execution as circumstances (1) Receive a certified list of such claims, when
require. [Sec. 6, Rule 88] perfected in such country,
(2) And add the same to the list of claims
(2) Liability of heirs and distributes proved against the deceased person in the
Heirs are not required to respond with their Philippines
own property for the debts of their deceased (3) So that a just distribution of the whole
ancestors. But after partition of an estate, estate may be made equally among all its
the heirs and distributees are liable creditors
individually for the payment of all lawful
outstanding claims against the estate in But the benefit of this and the preceding
proportion to the amount or value of the sections shall not be extended to the creditors
property they have respectively received in another country if the property of such
from the estate. [Gov’t of P.I. v. Pamintuan, deceased person there found is not equally
55 Phil. 13 (1930)] apportioned to the creditors residing in the
Philippines and the other creditor, according to
ORDER OF PAYMENT IF ESTATE IS their respective claims. [Sec. 10, Rule 88]
INSOLVENT
Executor/administrator pays the debts against ORDER OF PAYMENT OF DEBTS
the estate, observing the provisions of Articles Before the expiration of the time limited for the
1059 and 2239 to 2251 of the Civil Code. payment of the debts
(Preference of credits) [Sec. 7, Rule 88] (1) The court shall order the payment thereof,
and the distribution of the assets received
DIVIDENDS TO BE PAID IN by the executor/administrator for that
PROPORTION TO CLAIMS purpose among the creditors,
If no assets sufficient to pay credits of any one (2) As the circumstances of the estate require
class of creditors after paying preferred credits, and in accordance with the provisions of this
Each creditor within such class shall be paid rule [Sec. 11, Rule 88]
dividend in proportion to his claim. No creditor
of any one class shall receive any payment until APPEAL TAKEN FROM A DECISION
those of the preceding class are paid. [Sec. 8, OF THE COURT CONCERNING THE
Rule 88] CLAIM
INSOLVENT NON-RESIDENT The court may:
His estate found in the Philippines shall be so (1) Suspend the order for payment or order the
disposed of that his creditors here and distribution among creditors whose claims
elsewhere may receive each an equal share, in are definitely allowed
proportion to their respective credits. [Sec. 9, (2) Leave in the hands of
Rule 88] executor/administrator sufficient assets to
pay the claim disputed and appealed.
PAGE 209
When a disputed claim is finally settled, the Requisites

court shall order the claim to be paid out of the (1) Executor/administrator must apply.
assets retained to the same extent and in the (2) Notice of the time and place of hearing.
same proportion with the claims of other (3) Court must hear the application.
creditors. [Sec. 12, Rule 88]
REAL PROPERTY MAY, UPON
FROM TIME TO TIME FURTHER ORDER, BE SOLD, MORTGAGED,
ORDERS OF DISTRIBUTION ENCUMBERED TO PAY DEBTS
(1) Whole of the debts not paid on first when:
distribution; and (1) Personal estate is insufficient to pay the
(2) If the whole assets not distributed or other debts
assets afterwards come to the hands of (2) Sale of personal estate may injure the
executor/administrator. [Sec. 13, Rule 88] business of persons interested in the estate
(3) Property appropriated by testator in his will
CREDITORS TO BE PAID IN is insufficient to pay debts [Sec. 2, Rule 89]
ACCORDANCE WITH TERMS OF
ORDER Sold, even if not to pay the debts when:
When an order is made for the distribution of Sale will be beneficial to the heirs, devisees,
assets among creditors, the executor or legatees and other interested persons and is not
administrator shall, as soon as the time of inconsistent with the provisions of the will [Sec.
payment arrives, pay the creditors the amounts 4, Rule 89]
of their claims, or the dividend thereon, in
accordance with the terms of such order. [Sec. WRIT OF EXECUTION FOR PAYMENT
14, Rule 88] OF CLAIMS
General Rule: The probate court does not have
COURT SHALL ALLOW EXECUTOR the power to issue writs of execution for the
OR ADMINISTRATOR A TIME FOR payment of claims against the estate. [Aldamiz
DISPOSING THE ESTATE AND v. Judge of CFI-Mindoro (1949)]
PAYING DEBTS AND LEGACIES Exceptions:
(1) To satisfy the distributive shares of devisees,
PERIOD ALLOWED TO ORIGINAL OR legatees, and heirs in possession of the
EXECUTOR OR ADMINISTRATOR decedent’s assets.
 Not exceeding 1 year (2) To enforce payment of expenses of the
 Two years when special circumstances require partition.
[Sec. 15, Rule 88] (3) To satisfy the costs when a person is cited for
examination in probate proceedings.
EXTENSION ALLOWED TO SUCCESSOR OF
DEAD EXECUTOR OR ADMINISTRATOR
 Not exceeding 6 months at a time and
not exceeding six months beyond the
time allowed to original executor or
administrator or
 Not exceeding two years and a half.
[Moran 525, 1980 Ed.; Sec. 16, Rule 88]
GROUNDS FOR EXTENSION

(1) Original executor/administrator dies
(2) New administrator appointed
PAGE 210
Actions by and Against WHEN RECOVERY OF

PROPERTY FRAUDULENTLY
Executors and CONVEYED BY DECEASED MAY
Administrators BE RECOVERED
(1) There is deficiency of assets and the
ACTIONS THAT MAY BE deceased, in his lifetime, had conveyed real
or personal property, right or interest
BROUGHT AGAINST therein, or debt or credit with intent to
EXECUTORS AND defraud his creditors or avoid any right, debt
ADMINISTRATORS or duty; or
(2) Had so conveyed such property, right,
interest, debt or credit that by law the
ACTIONS TO BE BROUGHT AGAINST conveyance would be void as against the
ADMINISTRATORS creditors; and
(1) Recover real or personal property or interest (3) The subject of the attempted conveyance
therein would be liable to attachment by any of
(2) Or to enforce a lien thereon and them in his lifetime. [Sec. 9, Rule 87]
(3) Actions to recover damages for an injury to
a person or property [Aguas v. Llenos (1962); RECOVERY BY THE
Sec. 1, Rule 87]
EXECUTOR/ADMINISTRATOR OF
ACTIONS WHICH MAY NOT PROPERTY FRAUDULENTLY
BROUGHT AGAINST CONVEYED
ADMINISTRATORS (1) Commence and prosecute to final judgment
an action for the recovery of such property,
Claim for the recovery of money or debt or
right, interest, debt or credit for benefit of
interest cannot be brought against
the creditors
executors/administrators. [Aguas v. Llenos
(2) Provided, creditors make an application and
(1962)]
pay such part of the costs and expenses or
give security therefor. [Sec. 9, Rule 87]
EXECUTOR OR ADMINISTRATOR
MAY BRING OR DEFEND ACTIONS If a person before granting letters testamentary
WHICH SURVIVE DEATH or administration
For the recovery or protection of the property or (1) Embezzles or alienates
rights of the deceased [Sec. 2, Rule 87] (2) Any of the money, goods, chattels, or effects
of such deceased
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to other Consequence: Such person shall be liable to an
wrongs by which personal estate is injured or action in favor of the executor/administrator of
diminished. [Javier v. Araneta, 93 Phil. 1115; the estate for double the value of the property
Aguas v. Llenos, supra] sold, embezzled, or alienated, to be recovered
for the benefit of such estate. [Sec. 8, Rule 87]
PAGE 211
RECOVERY BY CREDITOR OF LIQUIDATION

PROPERTY FRAUDULENTLY General Rule: Before an order of distribution or
CONVEYED assignment, it must be shown that the “debts,
Any creditor may commence and prosecute to funeral expenses and expenses of
final judgment a like action for the recovery of administration, allowances, taxes, etc.,
the subject of the conveyance or attempted chargeable to the estate” have been paid.
conveyance if the following requisites are
satisfied: Exception: The distributees give a bond
(1) If executor/administrator failed to conditioned on the payment of above
commence such action obligations [Sec. 1, Rule 90]
(a) With court permission
(b) In the name of the The part distributed must not be subject to any
executor/administrator controversy or appeal. [Sec. 2, Rule 109]
(c) He files a bond, conditioned to
indemnify the executor/administrator PROJECT OF PARTITION
against the cost and expenses incurred A project of partition is merely a proposal for the
by such action distribution of the hereditary estate which the
court may accept or reject. [Solivio v. CA, (1990)]
(2) If conveyance or attempt is made in favor of
executor/administrator The executor/administrator has no duty to
 No need for court permission prepare and present the same under the Rules.
 No need for Bond. The court may, however, require him to present
 Action shall be brought in the name of such project to better inform itself of the
all the creditors condition of the estate. [3 Moran 541, 1980 Ed.]
EFFECT It is the court that makes that distribution of the

Such creditor shall have a lien upon any estate and determines the persons entitled
judgment recovered by him in the action for thereto
such costs and other expenses incurred therein (1) On application of executor/administrator or
as the court deems equitable. [Sec. 10, Rule 87] person interested in the estate
(2) Notice
(3) Hearing
Distribution and Partition Court shall assign the residue of the estate to
the persons entitled to the same, naming them
Before there could be a distribution of estate, the and the proportions, or parts, to which each is
following stages must be followed: entitled.
(1) Liquidation of the estate i.e. payment of
obligations of the deceased. Such persons may demand and recover their
(2) Collation and Declaration of heirs - to respective shares from the
determine to whom the residue of the executor/administrator, or any other person
estate should be distributed. having the same in his possession.
 Determination the right of a natural child
 Determination of proportionate shares of If there is a controversy as to who are heirs or
distributes. shares such shall be heard and decided as in
ordinary cases. [Sec. 1, Rule 90]
Afterwards, the residue may be distributed and
delivered to the heirs. [Herrera]
PAGE 212
EFFECT OF FINAL DECREE OF - Expenses of partition are to be paid by

DISTRIBUTION interested parties in proportion to their
(1) In rem and binding against the whole world. respective shares or interest
(2) All persons having interest in the subject - Such apportionment are settled and
matter involved, whether they are notified or allowed by the court
not, are equally bound. [Philippine Savings - Any person interested in the partition
Bank v. Lantin (1983)] does not pay his/her proportion or
(3) The court acquires jurisdiction over all share [Sec. 3, Rule 90]
persons interested, through the publication (3) To satisfy the costs when a person is cited
of the notice prescribed and any order that for examination in probate proceedings
may be entered therein is binding against [Sec. 13, Rule 142]
all of them. [Ramon v. Ortuzar (1951)]
(4) 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
Trustees
reason of circumstances beyond his control
or through mistake or inadvertence not DISTINGUISHED FROM
imputable to negligence. [Vda. De Alberto v. EXECUTOR OR
CA (1989)]
ADMINISTRATOR
REMEDY OF AN HEIR ENTITLED Araneta v. Perez (1962)
A trustee, like an executor/administrator, holds
TO RESIDUE BUT NOT GIVEN an office of trust, particularly when the trustee
HIS SHARE acts as such under judicial authority.
The better practice for the heir who has not received
his share is to The duties of executor/administrator are
(1) Demand his share through a proper motion however, fixed and/or limited by law whereas
in the same probate or administrative those of the trustee of an express trust are,
proceedings, or usually governed by the intention of the trustor
(2) Motion for reopening of the probate or or the parties, if established by contract.
administrative proceedings if it had already Besides, the duties of trustees may cover a wider
been closed, and not through an range than those of executor/administrator of
independent action. [Guilas v. Judge of the the estate of deceased persons.
CFI of Pampanga, (1972)]
BOND
INSTANCES WHEN PROBATE Trustee must file bond before performing duties
COURT MAY ISSUE WRIT OF (1) Filed with the clerk of court
(2) Amount fixed by the judge
EXECUTION (3) Payable to the government of Philippines
General Rule: Writ of Execution is not allowed in
(4) Sufficient and available for the protection of
probate proceedings [Vda de Valera v. Ofilada,
any party in interest
59 SCRA 96]
If the trustee fails to furnish a bond as required
Exceptions:
by the court, he fails to qualify as such.
(1) To satisfy the contributive shares of
Nonetheless, the trust is not defeated by such a
devisees, legatees and heirs in possession of
failure to give bond, he is considered to have
the decedent’s assets [Sec. 6, Rule 88] declined or resigned the trust. [Sec. 5, Rule 98]
(2) To enforce payment of expenses of
partition, provided:
- No sufficient effects are retained in the
hands of the executor or administrator
at the time of distribution
PAGE 213
WHEN EXEMPT REQUISITES FOR THE REMOVAL

(1) When testator has directed such exemption;
or
AND RESIGNATION OF A
(2) All persons beneficially interested in the TRUSTEE
trust, request such exemption (1) Petition by parties beneficially interested
(2) Due notice to the trustee
Exemption may be cancelled by the court at any (3) Hearing
time. [Sec. 5, Rule 98]
GROUNDS FOR REMOVAL AND
CONDITIONS RESIGNATION OF A TRUSTEE
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
GROUNDS FOR REMOVAL
(1) Removal appears essential in the interest of
inventory of all the real and personal estate
petitioner;
belonging to him as trustee, which at the
time of the making of such inventory shall (2) Trustee is insane;
(3) Otherwise incapable of discharging his
have come to his possession or knowledge.
trust; or
(4) Evidently unsuitable
Exemption from inventory:
(a) When trustee is not the original trustee
appointed RESIGNATION
(b) Court’s discretion He may resign but the court will determine if
(c) If an inventory has already been filed resignation is proper
(2) Faithful management EXTENT OF AUTHORITY OF

That he will manage and dispose of all such TRUSTEE
estate, and faithfully discharge his trust in
relation thereto, according to law and the
will of the testator or the provisions of the
NATURE OF POSSESSION
The possession of the property by the trustee is
instrument or order under which he is
not an adverse possession, but only a
appointed
possession in the name and in behalf of the
owner of the same.
(3) Accounting
That he will render upon oath at least once
A trustee may acquire the trust estate by
a year until his trust is fulfilled, unless he is
prescription provided there is a repudiation of
excused in any year by the court, a true
the trust, such repudiation being open, clear
account of the property in his hands and the
and unequivocal, known to the cestui que trust
management and disposition thereof, and
[Salinas v. Tuazon (1931)].
will render such other accounts as the court
may order
TERRITORIALITY OF AUTHORITY OF
(4) Settlement of account and delivery of estate. TRUSTEE
That at the expiration of his trust he will The powers of a trustee appointed by a
settle his account in court and pay over and Philippine court cannot extend beyond the
deliver all the estate remaining in his hands, confines of the territory of the Republic.
or due from him on such settlement, to the
person or persons entitled to thereto. [Sec. This is based on the principle that his authority
6, Rule 98] cannot extend beyond the jurisdiction of the
Republic, under whose courts he was
appointed. [Herrera]
PAGE 214
Escheat PROCEDURE
Solicitor General or his representative in behalf of
A proceeding where the real and personal the Republic of the Philippines to file the petition:
property of a person deceased in the  Deceased was a resident of the Philippines—in
Philippines, who dies without leaving any will the RTC of the province where he last resided
and without any legal heirs, becomes the  Deceased was a non-resident—in the RTC of the
property of the State. province in which he had an estate
 Actions for reversion or escheat of properties
It is an incident or attribute of sovereignty and alienated in violation of the Constitution or of
rests on the principle of ultimate ownership by any statute—in the province where the land lies
the state of all property within its jurisdiction. in whole or in part

WHEN TO FILE If the petition is sufficient in form and substance,
(1) Person dies intestate; the court shall fix a date and place for the hearing
(2) Left properties in the Philippines; and 
(3) Leaves no heir or person by law entitled to The court shall direct a copy of the order to be
the same [Sec. 1, Rule 91] published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
REQUISITES FOR FILING OF general circulation published in the province, as
the court shall deem best
PETITION 
(1) A person died intestate The court shall hear the case and judge whether
(2) He left no heirs or persons by law entitled to or not the estate shall be escheated
the same 
(3) Deceased left properties [City of Manila v. If the court rules in favor of the Republic,
Archbishop of Manila, 36 Phil. 815]  It shall assign the personal estate to the
municipality or city where the deceased last
 Escheat proceedings must be initiated by the resided, and the real estate to the municipalities
Government through the Solicitor General. or cities, respectively, in which the same is
 The Court must fix a date and place for situated.
hearing, which shall not be more than 6  If the deceased never resided in the Philippines,
months after the entry of the order the whole estate may be assigned to the
respective municipalities or cities where the
same is located.
Such estate shall be for the benefit of public

schools, and public charitable institutions and
centers in said municipalities or cities.
The right of escheat may be waived, either

expressly or impliedly. [Roman Catholic
Archbishop of Manila v. Monte de Peidad, et al.,
68 Phil. 1]
PAGE 215
REMEDY OF RESPONDENT KINDS OF GUARDIANS [Regalado]

(1) Legal Guardian – deemed as guardian by
AGAINST PETITION; PERIOD provision of law, without need of court
FOR FILING A CLAIM appointment [Art. 320, CC; Art. 225, FC]
(2) Guardian ad Litem – appointed by the court
PERIOD TO APPEAL AND CLAIM THE to prosecute or defend a minor, insane or
ESTATE person declared to be incompetent, in a
Appeal must be made within 5 years from date court action
of judgment; otherwise, barred forever [Sec. 5, (3) Judicial Guardian – appointed by the court
Rule 91] in pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
FILED BY WHOM war veterans and other incompetent
Devisee, legatee, heir, widow, widower, or
 persons.
other person entitled to such estate appears a. Guardian over the person
Such person shall have possession of and title
 b. Guardian of the property
to the same, or if sold, the municipality or city c. General guardian (both person and
shall be accountable to him for the proceeds property)
after deducting reasonable charges for the
care of the estate [Sec. 5, Rule 91] The Rules on Guardianship in the Rules of Court
govern guardianship of incompetent.
PERIOD FOR FILING CLAIM Guardianship of minor is now governed by AM
5 years from date the property was delivered to 03-02-05-SC.
the State [Sec. 5, Rule 91]
GUARDIANSHIP OF INCOMPETENT
PROCEDURE
Guardianship Filing of Petition

Guardianship - the power of protective authority
Court issues order setting time for hearing
given by law and imposed on an individual who
is free and in the enjoyment of his rights, over 
one whose weakness on account of his age or Notice to the incompetent and persons
other infirmity renders him unable to protect mentioned in the petition
himself. [Herrera] Publication only if incompetent is a non-
resident
Guardian - person lawfully invested with power 
and charged with the duty of taking care of a Hearing
person who for some peculiarity or status or 
defect of age, understanding or self-control is If granted, service of judgment to the Local Civil
considered incapable of administering his own Registrar and payment of bond of the guardian.
affairs. [Herrera]
BASIS: PARENS PATRIAE GENERAL POWERS AND

It is the State’s duty to protect the rights of DUTIES OF GUARDIANS
persons/individuals who because of (1) Care and custody of the person of his ward
age/incapacity are in an unfavorable position and management of his property.
vis-à-vis other parties [Nery v. Lorenzo (1972)]. (2) Management of his property only.
(3) Management of property within the
Philippines (in case of non-resident ward).
[Sec. 1, Rule 96]
PAGE 216
SPECIFIC DUTIES (9) To render to the court for its approval an

(1) To pay the just debts of the ward out of: accounting of the property:
(a) Personal property and the income of the (a) One year from his appointment
real property of the ward, if the same is (b) Every year thereafter, and
sufficient (c) As often as may be required. [Secs.
(b) Real property of the ward upon 7 & 8, Rule 96]
obtaining an order for its sale or
encumbrance. [Sec. 2, Rule 96] REIMBURSEMENT OF REASONABLE
(2) To settle all accounts of his ward [Sec. 3, EXPENSES
Rule 96] The court may authorize reimbursement to the
(3) To demand, sue for, receive all debts due guardian, other than a parent, of reasonable
him, or, with the approval of the court, expenses incurred in the execution of his trust.
compound for the same and give discharges [Sec. 8, Rule 96]
to the debtor on receiving a fair and just
dividend of the property and effects [Sec. 3, PAYMENT OF COMPENSATION
Rule 96] Court may order payment of reasonable
(4) To appear for and represent the ward in all compensation not exceeding 10% of the net
actions and special proceedings, unless income of the ward. [Sec. 8, Rule 96]
another person is appointed for that
purpose [Sec. 3, Rule 96]
(5) To manage the property of the ward frugally
EMBEZZLEMENT, CONCEALMENT,
and without waste, and apply the income OR CONVEYANCE OF WARD’S
and profits thereon, insofar as may be PROPERTIES
necessary, to the comfortable and suitable
maintenance of the ward. If such income COMPLAINT FILED BY WHOM
and profits be insufficient for that purpose, (1) The guardian or ward, or
to sell or encumber the real or personal (2) Any person having actual or prospective
property, upon being authorized by the interest in the property of the ward.
court to do so [Sec. 4, Rule 96]
(6) To consent to a partition of real or personal COURT EXAMINATION
property owned by the ward jointly or in The court may:
common with others, upon: (1) require any person suspected of having
(a) Authority granted by the court after embezzled, concealed, or disposed of any
hearing money, goods or interest, or a written
(b) Notice to relatives of the ward, and instrument belonging to the ward or his
(c) A careful investigation as to the property to appear for examination
necessity and propriety of the proposed concerning any thereof, and
action. [Sec. 5, Rule 96] (2) issue such orders as would secure the
(7) To submit to the court a verified inventory of property against such embezzlement,
the property of the ward: concealment or conveyance [Sec. 6, Rule 96]
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever required upon the application
of an interested person. [Sec. 7, Rule 96]
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition [Sec. 4,
Rule 96]
PAGE 217
SELLING AND ENCUMBERING THE (2) To FAITHFULLY EXECUTE THE DUTIES OF

PROPERTY OF THE WARD HIS TRUST, to manage and dispose the
property according to this rule for the best
interests of the ward, and to provide for his
GROUNDS
proper care, custody and education
(1) When the income of a property under
(3) To render a TRUE AND JUST ACCOUNT of
guardianship is insufficient to maintain and
all the property of the ward in his hands,
educate the ward
and of all proceeds or interest derived from
(2) When it is for the benefit of the ward that
them, and of the management and
his personal or real property or any part
disposition of the same, at the time
thereof be sold, mortgaged or otherwise
designated by this rule and such other times
encumbered, and the proceeds invested in
as the court directs and at the expiration of
safe and productive security, or in the
his trust, to settle his accounts with the
improvement or security of other real
court and deliver and pay over all the
property. [Sec. 1, Rule 95]
property, effects, and monies remaining in
his hands, or due from him on such
ORDER FOR SALE OR ENCUMBRANCE
settlement, to the person lawfully entitled
Contents:
thereto
(1) Grounds for the sale or encumbrance.
(4) To perform all orders of the court and such
(2) Manner of sale (public or private)
other duties as may be required by law.
(3) Time and manner of payment
[Sec. 1, Rule 94]
(4) Security, if payment deferred
(5) Additional bond from guardian, if required.
[Sec. 4, Rule 95] RULE ON GUARDIANSHIP OVER
MINORS
INVESTMENT OF PROCEEDS AND [A.M. NO. 03-02-05-SC]
MANAGEMENT OF PROPERTY
The court may authorize and require the General Rule: The father and the mother shall
guardian to invest the proceeds of sales or jointly exercise legal guardianship over the
encumbrances, and any other money of his property of their unemancipated common child
ward in his hands, in real or personal property, without the necessity of a court appointment.
for the best interests of the ward. [Sec. 3; also Art. 225, FC]
The court may make such other orders for the In case of disagreement, the father’s decision
management, investment, and disposition of shall prevail, unless there is a judicial order to
the property and effects, as circumstances may the contrary. [Art. 225, FC]
warrant. [Sec. 1, Rule 95]
However, if the market value of the property or
the annual Income of the child exceeds
CONDITIONS OF THE BOND OF P50,000.00, the parent concerned shall furnish
THE GUARDIAN a bond.
(Applicable for both Guardianship of Minors and
incompetents) PETITION FOR APPOINTMENT OF
(1) To make and return to the court, within GUARDIAN
three months after the issuance of his
letters of guardianship, a TRUE AND
WHO MAY FILE
COMPLETE INVENTORY of all the real and
(1) Resident minor
personal property of his ward which shall
(a) Any relative
come to his possession or knowledge or to
(b) Other person on behalf of a minor
the possession or knowledge of any other
(c) The minor himself, if 14 years of age or
person in his behalf
over
PAGE 218
(d) The Secretary of DSWD or the Secretary No defect in the petition or verification shall
of DOH, in the case of an insane minor render void the issuance of letters of
who needs to be hospitalized. [Sec. 2] guardianship. [Sec. 7]
(2) Non-resident minor WHO MAY FILE OPPOSITION

(a) Any relative or friend of such minor (1) Any interested person [Sec. 10]
(b) Anyone interested in his property, in (2) The social worker ordered to make the case
expectancy or otherwise. [Sec. 12] study report, if he finds that the petition for
guardianship should be denied. [Sec. 9]
WHERE TO FILE
Resident minor - Family Court of the province or
city where the minor actually resides How filed
If by interested person - by filing a written
Non-resident minor - Family Court of the opposition. [Sec. 10]
province or city where his property or any part
thereof is situated [Sec. 3] If by social worker – by filing an intervention if
based on finding the petition should be denied.
GROUNDS FOR FILING [Sec. 9]
(1) Death, continued absence, or incapacity of
his parents Grounds for Opposition
(2) Suspension, deprivation or termination of (1) Majority of the minor
parental authority (2) Unsuitability of the person for whom letters
(3) Remarriage of his surviving parent, if the are prayed.
latter is found unsuitable to exercise
parental authority
(4) When the best interests of the minor so
require. [Sec. 4]
CONTENTS OF PETITION
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment
necessary or convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of
their parental authority
(5) Remarriage of the minor’s surviving parent
(6) Names, ages, and residences of relatives
within the 4th civil degree of the minor, and
of persons having him in their care and
custody
(7) Probable value, character and location of
the property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied

by a certification against forum shopping.
PAGE 219
PROCEDURE ORDER OF PREFERENCE OF APPOINTMENT

Filing of petition. (in default of parents or a court-approved
 guardian)
Court shall fix a time and place for hearing. (1) The surviving grandparent. In case several
 grandparents survive, the court shall select
Notice requirement any of them taking into account all relevant
Court shall cause reasonable notice to be given considerations.
to: (2) The oldest brother or sister of the minor
The persons mentioned in the petition over 21 years of age, unless unfit or
The minor, if he is 14 years of age or over disqualified.
- For non-resident minors, notice shall be (3) The actual custodian of the minor over 21
given to the minor by publication or any years of age, unless unfit or disqualified.
other means as the court may deem (4) Any other person, who in the sound
proper. discretion of the court, would serve the best
interests of the minor
The court may also direct other general or
special notice to be given. QUALIFICATIONS
The court shall consider the guardian’s:
 (1) Moral character
Case Study Report (2) Physical, mental and psychological
Court shall order a social worker to conduct a condition
case study of the minor and all the prospective (3) Financial status
guardians and submit his report and (4) Relationship of trust with the minor
recommendation to the court for its guidance (5) Availability to exercise the powers and
before the scheduled hearing. duties of a guardian for the full period of the
 guardianship
Hearing (6) Lack of conflict of interest with the minor
Compliance with notice requirement must (7) Ability to manage the property of the minor.
be shown. [Secs. 5 & 10]
The prospective ward shall be presented to Grounds are not exhaustive. [Herrera]
the court. If the minor is non-resident, the
court may dispense with his presence. POWERS AND DUTIES
At the discretion of the court, the hearing on In general
guardianship may be closed to the public. (1) Guardian of resident minor: Care and
The records of the case shall not be custody of the person of his ward and the
released without court approval. management of his property, or only the
 management of his property.
Issuance or denial of letters of guardianship. (2) Guardian of non-resident minor:
 Management of all his property within the
Service of final and executory judgment or order Philippines [Sec. 17]
upon the Local Civil Registrar of the
municipality or city where the minor resides and BONDS OF GUARDIANS
the Register of Deeds of the place where his Before a guardian enters upon the execution of
property or part thereof is situated, who shall his trust, or letters of guardianship issue, he
annotate the same in the corresponding title, must file a bond as determined by the Court.
and report to the court their compliance within [Sec. 14]
fifteen days from receipt of the order.
Whenever necessary, the court may require the
guardian to post a new bond and may discharge
from further liability the sureties on the old
bond. [Sec. 15]
PAGE 220
LIABILITY The final and executory judgment or order

In case of breach of any of its conditions, the removing a guardian or terminating the
guardian may be prosecuted in the same guardianship shall be served upon the Local
proceeding for the benefit of the ward or of any Civil Registrar of the municipality or city where
other person legally interested in the property. the minor resides and the Register of Deeds of
[Sec. 15] the province or city where his property or any
part thereof is situated, who shall enter the final
REMOVAL, RESIGNATION, AND and executory judgment or order in the
TERMINATION OF GUARDIANSHIP appropriate books in their offices. [Sec. 26]
REMOVAL
How: Upon reasonable notice to the guardian.
Grounds: The guardian:

(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the
ward
(4) Failed to render an account or make a
return for thirty days after it is due. [Sec. 14]
RESIGNATION
Ground: Any justifiable cause.
Upon the removal or resignation of the
guardian, the court shall appoint a new one.
No motion for removal or resignation shall be

granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same. [Sec. 24]
TERMINATION
Grounds
(1) The ward has come of age.
(2) The ward has died.
How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed
to file a petition for guardianship.
The guardian shall notify the court of the fact of

coming of age or death of the ward within 10
days of its occurrence. [Sec. 25]
PAGE 221
Adoption
A juridical act which creates between two persons a relation similar to that which results from filiation.
[Prasnick v. Republic, 98 Phil. 669 (1956)]
Objective: Best interest of the child
DOMESTIC ADOPTION v. INTER-COUNTRY ADOPTION

Domestic Adoption (RA 8552) Inter-Country Adoption (RA 8043)
Governing Body DSWD Inter-country Adoption Board (ICAB)
Adoption need not be the last resort Adoption only as last resort: No child shall
When may
be matched to a foreign adoptive family
adoption be
unless it is satisfactorily shown that the
resorted to
child cannot be adopted locally [Sec.11]
(1) Any FILIPINO CITIZEN (regardless of (1) FILIPINO CITIZEN permanently
where residing) residing abroad may file an application
(a) of legal age for inter-country adoption of a Filipino
(b) at least sixteen (16) years older than child if he/she:
the adoptee, (may be waived when (a) is at least twenty-seven (27) years of
the adopter is the biological parent age
of the adoptee, or is the spouse of (b) at least sixteen (16) years older than
the adoptee's parent) the child to be adopted, at the time
(c) in possession of full civil capacity of application unless the adopter is
and legal rights, the parent by nature of the child to
(d) of good moral character, has not be adopted or the spouse of such
been convicted of any crime parent:
involving moral turpitude, (c) has the capacity to act and assume
emotionally and psychologically all rights and responsibilities of
capable of caring for children, parental authority under his
(e) who is in a position to support and national laws, and has undergone
care for his/her children in keeping the appropriate counseling from an
Who may adopt
with the means of the family. accredited counselor in his/her
(2) Any ALIEN possessing the same country;
qualifications as above stated for (d) has not been convicted of a crime
Filipino nationals: Provided, involving moral turpitude;
(a) that he/she has been living in the (e) is in a position to provide the proper
Philippines for at least three (3) care and support and to give the
continuous years prior to the filing necessary moral values and
of the application for adoption and example to all his children,
maintains such residence until the including the child to be adopted
adoption decree is entered, (f) if married, his/her spouse must
(b) that his/her country has diplomatic jointly file for the adoption;
relations with the Republic of the (g) is eligible to adopt under his/her
Philippines, national law;
PAGE 222

(c) he/she has been certified by (h) agrees to uphold the basic rights of
his/her diplomatic or consular the child as embodied under
office or any appropriate Philippine laws, the U.N.
government agency that he/she Convention on the Rights of the
has the legal capacity to adopt in Child, and to abide by the rules and
his/her country, and regulations issued to implement
(d) that his/her government allows the the provisions of this Act;
adoptee to enter his/her country as (i) comes from a country with whom
his/her adopted son/daughter; the Philippines has diplomatic
(e) that the requirements on residency relations and whose government
and certification of the alien's maintains a similarly authorized
qualification to adopt in his/her and accredited agency and that
country may be waived for the adoption is allowed under his/her
following: national laws;
(i) a former Filipino citizen who (j) possesses all the qualifications and
seeks to adopt a relative within none of the disqualifications
the fourth (4th) degree of provided herein and in other
consanguinity or affinity; or applicable Philippine laws. [Sec. 9]
(ii) one who seeks to adopt the
legitimate son/daughter of (2) ALIEN with above qualifications [Sec.
his/her Filipino spouse; or 9]
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly
with his/her spouse a relative
within the fourth (4th) degree of
consanguinity or affinity of the
Filipino spouse; or
(3) The GUARDIAN with respect to the

ward after the termination of the
guardianship and clearance of his/her
financial accountabilities. [Sec. 7]
When 16 year difference may be waived:

(1) If adopter is the biological parent of
adoptee
(2) If adopter is the spouse of adoptee’s
parent [Sec. 7]
(a) Any person below eighteen (18) years of (a) Filipino children [Sec. 3(a)]
age who has been administratively or
judicially declared available for adoption; (b) Below 15 years of age [Sec. 3(b)]
(b) The legitimate son/daughter of one (c) Who are legally free, meaning children
Who may be
spouse by the other spouse; who have been voluntarily or involuntarily
adopted
committed to the DSWD [Sec. 3(f) and Sec.
(c) An illegitimate son/daughter by a 8]
qualified adopter to improve his/her status
to that of legitimacy;
PAGE 223

(d) A person of legal age if, prior to the
IRR of 2004 adds that:
adoption, said person has been Any child who has been voluntarily or
consistently considered and treated by the
involuntarily committed to the
adopter(s) as his/her own child since
Department as dependent, abandoned or
minority; neglected pursuant to the provisions of the
Child and Youth Welfare Code may be the
(e) A child whose adoption has been subject of Inter-Country Adoption xxx [Sec.
previously rescinded; or 26]
(f) A child whose biological or adoptive

parent(s) has died: Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s). [Sec. 8]
Petition for adoption shall be filed with Either with the Philippine RTC having
Family Court of the province or city where jurisdiction over the child, or with the Inter-
the prospective adoptive parents reside country Board through an intermediate
[Sec. 6, Adoption Rule] agency, in the country of the adoptive
parents [Sec. 10]
IRR of 2004 provides that:

Application shall be filed with the Board or
the Central Authority or the Foreign
Venue
Adoption Agency in the country where the
applicant resides. In case of foreign
nationals who file petition for adoption
under RA 8552 or Domestic Adoption
Law, the Court after finding petition to be
sufficient in form and substance and
proper case for inter-country adoption
shall immediately transmit the petition to
the board for appropriate action. [Sec. 30]
Trial Custody Takes place in the Philippines Where adoptive parents reside [Sec. 14]
PAGE 224

Only upon petition of adoptee, never by No provision limiting act of rescission only
adopters. However, the adopter may to adoptee.
disinherit the adoptee. [Sec. 19]
In IRR, the procedure is provided for when
adoption process is terminated:
SECTION 47. DISRUPTION AND

TERMINATION OF PLACEMENT. - In the
event of serious damage in the
relationship between the child and the
applicant/s where the continued
placement of the child is not in his/her
best interests, the Central Authority
and/or the FAA shall take the necessary
measures to protect the child, in
particular, to cause the child to be
withdrawn from the applicant/s and to
arrange for his/her temporary care.
The Central Authority and/or FAA shall

exhaust all means to remove the cause of
Rescission the unsatisfactory relationship which
impedes or prevents the creation of a
mutually satisfactory adoptive
relationship. A complete report should be
immediately forwarded to the Board with
actions taken as well as recommendations
and appropriate plans. Based on the
report, the Board may terminate the pre-
adoptive relationship.
SEC. 48. NEW PLACEMENT FOR CHILD. -

In the event of termination of the pre-
adoptive relationship, the Board shall
identify from the Roster of Approved
Applicants a suitable family with whom to
place the child. The Central Authority
and/or the FAA may also propose a
replacement family whose application
shall be filed for the approval of the Board.
No adoption shall take place until after the
Board has approved the application of
such replacement family.
PAGE 225
DOMESTIC ADOPTION ACT (2) LEGITIMACY

The adoptee shall be considered legitimate
RA 8552 (Domestic Adoption Act) and the Rule son/daughter of the adopter for all intents and
on Adoption govern the domestic adoption of purposes, and entitled to all rights and
Filipino children. obligations provided by law to legitimate
children born to them without discrimination of
General Rule: Husband and wife shall adopt any kind. Adoptee is entitled to love, guidance,
jointly and support. [Sec. 17, RA 8552]
Exceptions: (3) SUCCESSION

1) If one spouse seeks to adopt the legitimate Adopter and adoptee shall have reciprocal
child of other rights of succession without distinction from
2) If one spouse seeks to adopt his own legitimate filiation, in legal and intestate
illegitimate child, provided the other spouse succession. If adoptee and his/her biological
has signified his/her consent parents had left a will, the law on testamentary
3) If spouses are legally separated [Sec. 7(c), succession shall govern. [Sec. 18, RA 8552]
RA 8552]
BOOK OF ADOPTIONS
PROCEDURE The Clerk of Court shall keep a book of
Order of hearing adoptions showing the date of issuance of the
 decree in each case, compliance by the Civil
Registrar with the court’s order, and all
Publication at least once a week for three
incidents arising after the issuance of the
consecutive weeks in newspaper of general
decree. [Sec. 17, Adoption Rule (AR)]
circulation in province or city where the court is
situated. Court shall notify the Solicitor General
if the petition prays for a change of name CONFIDENTIALITY OF ADOPTION
 PROCEEDINGS
All hearings in adoption cases, after compliance
Child and Home Study Report
with the jurisdictional requirements shall be
 confidential and shall not be open to the public.
Hearing within six months from issuance of
Order If the court finds that the disclosure of the
 information to a third person is necessary for
Supervised Trial Custody for at least six (6) security reasons or for purposes connected with
months or arising out of the adoption and will be for the
 best interests of the adoptee, the court may,
upon proper motion, order the necessary
Decree of Adoption
information to be released, restricting the
 purposes for which it may be used. [Sec. 15, RA
Amendment of Birth Certificate 8552]
EFFECTS OF ADOPTION RESCISSION OF ADOPTION

Who may file: ADOPTEE
(1) PARENTAL AUTHORITY (1) Adoptee who is over 18 years of age
All legal ties between the biological parents and (2) If the adoptee is a minor, with the
adoptee are severed, and the same shall be assistance of the DSWD
vested on the adopter, except if the biological (3) If the adoptee is over 18 years of age but
parent is the spouse of the adopter [Sec. 16, RA incapacitated, by his guardian or counsel.
8552] [Sec. 19, RA 8552]
PAGE 226
Grounds: Committed by the adopter WHEN ALLOWED

(1) Repeated physical and verbal maltreatment Inter-country Adoption as the Last Resort; “Best
despite having undergone counseling Interest of the child” as objective
(2) Attempt on the life of the adoptee The Inter-country Adoption Board (ICAB) shall
(3) Sexual assault or violence ensure that all possibilities for adoption of the
(4) Abandonment or failure to comply with child under the Family Code (domestic adoption)
parental obligations. have been exhausted and that inter-country
adoption is in the best interest of the child [Sec.
Adoption, being in the best interests of the 7, RA 8043]
child, shall not be subject to rescission by the
adopter. FUNCTIONS OF THE RTC
(1) Filing of petition may be made with the
However, the adopter may disinherit the Family Court having jurisdiction over the
adoptee for causes provided in Article 919 of the place where the child resides or may be
Civil Code. [Sec. 19, RA 8552] found. [Sec. 28, AM 02-6-02 SC or AR Part
II]
Where to file: Family Court of the city or province (2) Court shall determine whether or not
where the adoptee resides. [Sec. 20, AR] petition is sufficient in form and substance
and a proper case for inter-country
When to file: adoption.
(1) Within 5 years after reaching age of majority (3) Transmit the petition to the ICAB for
(2) If he was incompetent at the time of the appropriate action.
adoption, within 5 years after recovery from
such incompetency. [Sec. 21, AR] “BEST INTEREST OF THE MINOR”
STANDARD
EFFECTS OF RESCISSION OF The rule that there should be no contact
ADOPTION between the adoptee and his/her biological
(1) RESTORATION OF PARENTAL AUTHORITY parents shall not apply in exceptional cases
to original parent if adoptee is a minor where the child’s best interests are at stake [Sec.
(2) RECIPROCAL RIGHTS AND OBLIGATIONS 39, IRR of RA 8043]
of adopter and adoptee are EXTINGUISHED
(3) CANCELLATION of amended birth In case physical transfer fails to occur, the ICAB
certificate and RESTORE ORIGINAL shall take appropriate steps for the protection of
(4) SUCCESSIONAL RIGHTS SHALL REVERT to the best interests of the child. [Sec. 44, IRR of
its status PRIOR TO ADOPTION, as of the RA 8043]
date of final judgment of rescission
(5) VESTED RIGHTS shall be RESPECTED [Sec. Placement may be terminated if it is not in the
20, RA 8552] best interests of the child. [Sec. 48, IRR of RA
8043]
INTER-COUNTRY ADOPTION Any doubt or vagueness in the provisions of

RA 8043 (Inter-country Adoption Act) governs these Rules shall be interpreted in
the adoption of Filipino children by: consideration of the best interests of the child.
(1) Foreign nationals, and [Sec. 61, IRR of RA 8043]
(2) Filipino citizens permanently residing
abroad. [Sec. 3 (a)]
PAGE 227
Writ of Habeas Corpus TEMPORARY RELEASE

CONSTITUTE RESTRAINT
MAY
Essentially a writ of inquiry, granted to test the
right under which a person is detained, and to
relieve a person if such restrain is illegal ELEMENTS
(a) Where a person continued to be unlawfully
Extends to all cases of illegal confinement or denied one or more of his constitutional
detention by which any person is deprived of his rights
liberty, or by which the rightful custody of any (b) Where there is present denial of due process
person is withheld from the person entitled (c) Where the restraint is not merely
thereto. [Sec. 1, Rule 102] involuntary but appear to be unnecessary
Can only be suspended in cases of rebellion or (d) Where a deprivation of freedom originally
invasion and when public interest requires it. valid has in light of subsequent
[Art. III Sec. 15] developments become arbitrary [Moncupa
v. Enrile (1986)]
VITAL PURPOSES:
In General General Rule: Release of detained person,
(1) To obtain relief from illegal confinement whether permanent or temporary, makes the
(2) To liberate those who may be imprisoned petition for habeas corpus moot.
without sufficient cause
(3) To deliver them from unlawful custody Exceptions:
[Villavicencio v. Lukban (1919)] 1) Doctrine of Constructive Restraint- Unless
there are restraints attached to his release
Prime specification of the application for a writ which precludes freedom of action in which
of habeas corpus is restraint of liberty. case the Court can still inquire into the
[Moncupa v. Enrile (1986)] nature of his involuntary restraint
In the case of minors The essential object and purpose of the writ
(1) Prosecuted for the purpose of determining of habeas corpus is to inquire into all
the right of custody of a child. manner of involuntary restraint. Any
(2) Question of identity is relevant and material restraint which will preclude freedom of
and must be convincingly established. action is sufficient. [Villavicencio v Lukban
[Tijing v. CA (2008)] (1919)]
The underlying rationale is not the illegality of 2) Violation of freedom from threat by the
the restraint but the right of custody. [Tijing v. apparent threat to life, liberty and security
CA (2001)] of their person from the following facts:
(1) Threat of killing their families if they
WHO MAY ISSUE THE WRIT tried to escape
(1) The SC,CA, and RTC have concurrent (2) Failure of the military to protect them
jurisdiction to issue WHC (Sec.2, Rule 102) from abduction
(2) Family courts have jurisdiction to hear (3) Failure of the military to conduct
petitions for custody of minors and the effective investigation [Secretary of
issuance of the WHC in relation to custody Justice v. Manalo]
of minors
NATURE
Not a suit between private parties, but an
inquisition by the government, at the suggestion
and instance of an individual, but still in the
name and capacity of the sovereign. [Alimpoos
v. CA, 106 SCRA 159 (1981)]
PAGE 228
Proceedings in habeas corpus are separate and WHC IS NOT THE PROPER REMEDY
distinct from the main case from which the FOR THE CORRECTION OF ERRORS
proceedings spring.
OF FACT OR LAW
Exception: Error affects court’s jurisdiction
The question whether one shall be imprisoned is
(making the judgment void) [Herrera]
always distinct from the question of whether the
WHC does not lie where the petitioner has the
individual shall be convicted or acquitted of the
remedy of appeal or certiorari. [Galvez v. CA
charge on which he is tried, and therefore these
(1994)]
questions are separate, and may be decided in
different courts [Herrera, citing 4 Cranch, 75, 101] WHC IS NOT PROPER:
 To assert or vindicate denial of right to bail
In the case of People v. Valte (1922), it was stated [Galvez v. CA (1994)]
that the writ of habeas corpus is not designed to
 For correcting errors in appreciation of fact or
interrupt the orderly administration of the laws
law [Sotto v. Director of Prisons (1962)]
by a competent court acting within the limits of
its jurisdiction, but is available only for the
purpose relieving from illegal restraint. WHC IS PROPER:
 Remedy for reviewing proceedings for
Proceedings on habeas corpus to obtain release deportation of aliens [De Bisschop v. Galang,
from custody under final judgment being in the (1963)]
nature of collateral attack, the writ deals only  Where the court has no jurisdiction to impose
with such radical defects as render the the sentence [Banayo v. President of San
proceeding or judgment absolutely void, and Pablo, 2 Phil. 413 (1903)]
cannot have the effect of appeal, writ of error or
certiorari, for the purpose of reviewing mere CONTENTS OF THE PETITION
error and irregularities in the proceedings. WHO MAY APPLY:
[People v. Valte (1922)] 1) The party for whose relief it is intended, or
2) By some person on his behalf [Sec. 3, Rule
WHC MAY BE USED WITH WRIT OF 102]
 Some person – any person who has a legally
CERTIORARI FOR PURPOSES OF justified interest in the freedom of the person
REVIEW whose liberty is restrained or who shows some
The two writs may be ancillary to each other authorization to make the application [Velasco
where necessary to give effect to the supervisory v. CA (1995)]
powers of higher courts.
REQUISITES OF APPLICATION:
WHC reaches the body of the jurisdictional (1) That the person in whose behalf the
matters, but not the record. Writ of certiorari application is made is imprisoned or
reaches the record but not the body [Galvez v. restrained of his liberty
CA (1994)] (2) The officer or name of the person by whom
he is so imprisoned or retrained or if both
While generally, the WHC will not be granted are unknown or uncertain, such officer or
when there is an adequate remedy like writ of person may be described by an assumed
error, appeal, or certiorari, it may still be appellation, and the person who is served
available in exceptional cases. [Herrera, citing 39 with the writ shall be deemed the person
C.J.S. Habeas corpus §13, 486-488] intended
(3) The place where he is so imprisoned or
restrained, if known
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear.
PAGE 229
PROCEDURE: The return or statement shall be signed by the

(1) Application for the writ by petition [Sec. 3, person who makes it; and shall also be sworn by
Rule 102] him if the prisoner is not produced, and in all
(2) Grant or disallowance by court or judge other cases, unless the return is made and
[Secs. 4 & 5, Rule 102] signed by a sworn public officer in his official
(3) Clerk of Court issues the writ under the seal capacity. [Sec. 11, Rule 102]
of court (in case of emergency, by the judge
himself) [Sec. 5. Rule 105] WHEN THE RETURN
(4) Service:
 By whom: sheriff or other proper officer CONSIDERED EVIDENCE, AND
 How: leaving the original with the person WHEN ONLY A PLEA
to whom it is directed and preserving a When the prisoner is in custody under a warrant
copy on which to make return of commitment in pursuance of law, the return
 To whom: officer in custody or any officer shall be considered prima facie evidence of the
(when in custody of person other than an cause of restraint.
officer) [Sec. 7, Rule 105]
(5) Execution and return: If he is restrained of his liberty by any alleged
 Officer brings the person before the judge, private authority, the return shall be considered
and only as a plea of the facts therein set forth, and
 Officer makes due return [Sec. 8, Rule 102] the party claiming the custody must prove such
facts. (Sec. 13, Rule 102)
CONTENTS OF THE RETURN DISTINCTION BETWEEN

Made by the person or officer in whose custody PEREMPTORY WRIT AND
the prisoner is found: PRELIMINARY CITATION
(1) Whether he has or has not the party in his Preliminary citation – requires the respondent to
custody or power, or under restraint appear and show cause why the peremptory
(2) If he has the party in his custody or power, writ should not be granted
or under restraint, the authority and the true
and whole cause thereof, set forth at large,
Peremptory writ – unconditionally commands
with a copy of the writ, order execution, or the respondent to have the body of the detained
other process, if any, upon which the party is person before the court at a time and place
held therein specified [Lee Yick Hon v. Collector of
(3) If the party is in his custody or power or is Customs, (1921)]
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
WHEN WRIT NOT PROPER OR
of which he cannot, without danger, be APPLICABLE
bought before the court or judge WHC will not issue where:
(4) If he has had the party in his custody or (1) The person alleged to be restrained of his
power, or under restraint, and has liberty is in custody of an officer
transferred such custody or restraint to (2) Under process issued by the court or judge
another, particularly to whom, at what time, (3) By virtue of a judgment or order of a court of
for what cause, and by what authority such record
transfer was made. [Sec. 10, Rule 102] (4) The Court or judge had jurisdiction to issue
the process, render the judgment or make
the order. [Sec. 4, Rule 102]
PAGE 230
The operative act is detention or restraint

(whether or not physical). If there is none, no (b) The filing before a trial court a
WHC will issue despite the possibility of complaint which issued a hold
respondent being liable to civil, criminal, or departure order and denied motion to
administrative action. dismiss and to grant bail [Velasco v.
CA(1995)]
Judicial discretion is exercised in the issuance of
the writ, and will not issue as a matter of course (c) Filing of an information for the offense
[Eugenio, Sr. v. Velez (1990)] for which the accused is detained bars
the availability of WHC [Velasco v. CA
Improper arrest or lack of preliminary (1995)]
investigation is not a valid ground for the
issuance of WHC. The proper remedy is a DISTINGUISHED FROM WRIT OF
motion to quash the warrant of arrest and/or
information before the trial court [Ilagan v. AMPARO AND HABEAS DATA
Enrile, 1985]
See Annex A.
Posting of a bail is not a waiver of the right to
challenge the validity of the arrest, and CUSTODY OF MINORS AND
therefore the right to resort to WHC [Sec. 26, WRIT OF HABEAS CORPUS IN
Revised Rules of Criminal Procedure]
A person discharged on bail is not entitled to RELATION TO CUSTODY OF
WHC, because such person is not imprisoned or MINORS
restrained of his liberty in such a way as to
entitle him to the WHC. [Tan Me Nio v. Collector (A.M. NO. 03-04-04-SC)
of Customs, (1916)
APPLICABILITY
WHEN DISCHARGE NOT Applies to petitions for custody of minors and
AUTHORIZED writs of habeas corpus in relation thereto.
Discharge from custody will not be allowed if: Rules of Court shall apply suppletorily. [Sec. 1]
(1) Jurisdiction appears after the writ is
allowed, despite any informality or defect in PETITION FOR RIGHTFUL CUSTODY
the process, judgment, or order. A verified petition for the rightful custody of a
(2) Person is charged with or convicted of an minor may be filed by any person claiming such
offense in the Philippines right.
(3) Person is suffering imprisonment under
lawful judgment [Sec. 4, Rule 102] Party against whom it may be filed shall be
(4) If it appears that the prisoner was lawfully designated as the respondent. [Sec. 2]
committed, and is plainly and specifically
charged in the warrant of commitment with WHERE TO FILE
an offense punishable by death [Sec. 14, Filed with the Family Court of the province or
Rule 102] city where the petitioner resides or where the
(5) Even if the arrest of a person is illegal, due minor may be found. [Sec. 3]
to supervening events
(a) Issuance of a judicial process CONTENTS
[Sayo v. Chief of Police of Manila (1948)] (1) The personal circumstances of the
petitioner and of the respondent
Judicial process is defined as a writ, (2) The name, age and present whereabouts of
warrant, subpoena, or other formal the minor and his or her relationship to the
writing issued by authority of law. petitioner and the respondent
[Malaloan v. CA (1994)]
PAGE 231
(3) The material operative facts constituting Pre-trial brief contains the following:
deprivation of custody (1) A statement of the willingness of the parties
(4) Such other matters which are relevant to to enter into agreements that may be
the custody of the minor [Sec. 4] allowed by law, indicating its terms
(2) A concise statement of their respective
Verified and accompanied with a certificate claims together with the applicable laws
against forum shopping signed by the petitioner and authorities
personally. [Sec. 4] (3) Admitted facts and proposed stipulations of
facts
If court is satisfied that the petition is sufficient (4) The disputed factual and legal issues
in form and substance, it shall direct the clerk of (5) All the evidence to be presented
court to issue summons, which shall be served (6) The number and names of the witnesses
together with a copy of the petition personally and their respective affidavits
on the respondent. [Sec. 5] (7) Such other matters as the court may require
to be included.
ANSWER TO THE PETITION
General rule: Motion to dismiss the petition is Failure to file the pre-trial brief or to comply
not allowed. Any other ground that might with its required contents has same effect as
warrant the dismissal of the petition may be failure to appear at the pre-trial. [Sec. 10]
raised as an affirmative defense in the answer.
If the petitioner fails to appear personally at the
Exception: On the ground of lack of jurisdiction pre-trial, the case shall be dismissed.
over the subject matter or over the parties. [Sec.
6] Unless his counsel or a duly authorized
representative appears in court and proves a
Verified Answer – Personally verified and filed valid excuse for the non-appearance of the
within 5 days after service of summons. [Sec. 7] petitioner. [Sec. 11]
Case study – upon the filing of the verified If the respondent has filed his answer but fails
answer or the expiration of the period to file it, to appear at the pre-trial, the petitioner shall be
the court may order a social worker to make a allowed to present his evidence ex parte. The
case study of the minor and the parties and to Court shall then render judgment on the basis
submit to the court at least 3 days before pre- of the pleadings and the evidence thus
trial. [Sec. 8] presented. [Sec. 9]
MANDATORY PRE-TRIAL At the pre-trial, the parties may agree on the

Notice - 15 days after the filing of the answer or custody of the minor. If the parties fail to agree,
the expiration of the period to file answer, the the court may refer the matter to a mediator
court shall issue an order: who shall have 5 days to effect an agreement
(1) Fixing a date for the pre-trial conference between the parties. If the issue is not settled
(2) Directing the parties to file and serve their through mediation, the court shall proceed with
respective pre-trial briefs the pre-trial. [Sec. 12]
(3) Requiring the respondent to present the
minor before the court. After an answer has been filed or after
expiration of the period to file it, the court may
The notice of its order shall be served separately issue a provisional order awarding custody of
on both the parties and their respective the minor to:
counsels. [Sec. 9] (1) Both parents jointly
(2) Either parent
PAGE 232
(3) The grandparent, or if there are several (3) Protection Order (PO) - court may issue a
grandparents, the grandparent chosen by PO requiring any person:
the minor over 7 years of age and of (a) To stay away from the home, school,
sufficient discernment business, or place of employment of the
(4) The eldest brother or sister over 21 years of minor, other parent or any other party,
age or from any other specific place
(5) The actual custodian of the minor over 21 (b) To cease and desist from harassing,
years of age intimidating, or threatening such minor
(6) Any other person or institution the court or the other parent or any person to
may deem suitable. [Sec. 13] whom custody of the minor is awarded
(c) To refrain from acts or omission that
INTERIM RELIEFS create an unreasonable risk to minor
(1) Temporary visitation rights - court shall (d) To permit a parent, or a party entitled to
provide in its order awarding provisional visitation by a court order or a
custody appropriate visitation rights to the separation agreement, to visit the minor
non-custodial parent or parents. at stated periods
(e) To permit a designated party to enter
Unless the court finds said parent or parents the residence during a specified period
unfit or disqualified. of time in order to take personal
belongings not contested in a
The temporary custodian shall give the proceeding pending with the Family
court and non-custodial parent or parents Court
at least 5 days' notice of any plan to change (f) To comply with such other orders as are
the residence of the minor or take him out necessary for the protection of the
of his residence for more than 3 days. [Sec. minor. [Sec. 17]
15]
JUDGMENT
(2) Hold Departure Order – the minor child Court shall render judgment awarding the
shall not be brought out of the country custody of the minor to the proper party
without prior order from the court while the considering the best interests of the minor.
petition is pending.
If both parties are unfit to have the care and
The Court, motu proprio or upon application custody of the minor, the court may designate
under oath, may issue ex parte a hold departure either the paternal or maternal grandparent of
order, addressed to the Bureau of Immigration the minor, or his oldest brother or sister, or any
and Deportation (BID), directing it not to allow reputable person to take charge of such minor,
the departure of the minor from the Philippines or commit him to any suitable home.
without court permission.
Court may order either or both parents to give
The Family Court issuing the hold departure an amount necessary for the support,
order shall furnish the DFA and the BID of the maintenance and education of the minor,
DOJ a copy of the hold departure order within irrespective of custodianship.
24 hours from its issuance.
The court may also issue any order that is just
The court may recall the hold departure order and reasonable permitting the parent who is
motu proprio or upon verified motion of any of deprived of the care and custody of the minor to
the parties after summary hearing. [Sec. 16] visit or have temporary custody. [Sec. 18]
PAGE 233
APPEAL Petition may also be filed with the appropriate

Appeal from the decision shall be allowed, regular courts in places where there are no
unless the appellant has filed a motion for Family Courts.
reconsideration or new trial within 15 days from
notice of judgment. The petition may be filed with the SC, CA, or
with any of its members and shall be
An aggrieved party may appeal from the enforceable anywhere in the Philippines. The
decision by filing a Notice of Appeal within 15 writ may be made returnable to a Family Court
days from notice of the denial of the motion for or to any regular court within the region where
reconsideration or new trial and serving a copy the petitioner resides or where the minor may
on the adverse parties. [Sec. 19] be found for hearing and decision on the merits.
WRIT OF HABEAS CORPUS IN Upon return of the writ, the court shall decide
the issue on custody of minors. [Sec. 20]
RELATION TO CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors is filed with the
Family Court. The writ shall be enforceable
within the judicial region the Family Court
belongs.
HOWEVER, the petition may be filed with a

regular court in the absence of the presiding
judge of the Family Court provided that the
regular court shall refer the case to the Family
Court as soon as its presiding judge returns to
duty.
PAGE 234
COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS

HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Right to liberty Petition for the rightful custody of a minor
Rights involved
Rightful custody of the aggrieved party
Actual violation of the aggrieved party’s right to Unlawful deprivation of rightful custody, or
liberty, or rightful custody [Sec. 1] A minor is being kept from a parent by the other
Situations parent (e.g. which parent shall have the care
applicable and custody of a minor, when such parent is in
the midst of nullity or legal separation
proceedings). [Herrera; Secs. 2 & 20]
Party for whose relief it is intended or by some Any person claiming rightful custody – this
person in his behalf [Sec. 1] covers:
Party
(1) Unlawful deprivation of the custody of a
authorized to
minor
file
(2) Which parent shall have the care and
custody of a minor [Herrera]
Respondents May or may not be an officer
(1) RTC or any judge thereof A verified petition for a writ of habeas corpus
(2) CA or any member thereof in instances involving custody of minors shall be filed with
authorized by law the Family Court. The writ shall be enforceable
(3) SC or any member thereof [Sec. 2] within its judicial region to which the Family
(4) Special jurisdiction given to first level courts Court belongs.
in the absence of RTC judges in a province or
city [Sec. 35, BP 129] However, the petition may be filed with the
Before which
(5) In aid of appellate jurisdiction of the regular court in the absence of the presiding
court or judicial
Sandiganbayan [RA 8249 further expanding judge of the Family Court, provided, however,
authority filed
its jurisdiction] that the regular court shall refer the case to the
Family Court as soon as its presiding judge
returns to duty.
The petition may also be filed with the

appropriate regular courts in places where there
are no Family Courts. [Sec. 20]
Signed, verified either by the party for whose The verified petition shall allege the following:
relief it is intended, or by some person in his (1) The personal circumstances of the petitioner
behalf and shall set forth: and of the respondent
(1) That the person in whose behalf the (2) The name, age and present whereabouts of
application is made is imprisoned or the minor and his or her relationship to the
restrained on his liberty; petitioner and the respondent
(2) The officer or name of the person by whom (3) The material operative facts constituting
he is so imprisoned or restrained or, if both deprivation of custody and
are unknown or uncertain, such officer or (4) Such other matters which are relevant to the
person may be described by an assumed custody of the minor.
Contents of the
appellation, and the person who is served
petition
with the writ shall be deemed the person The verified petition shall be accompanied by a
intended; certificate against forum shopping, which the
(3) The place where he is so imprisoned or petitioner must sign personally. [Sec. 4]
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be procured
without impairing the efficiency of the remedy
or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
[Sec. 3]
PAGE 235
Writ of Amparo the protection of law [Sec. of National

Defense v. Manalo (2008)]
WRIT OF AMPARO The writ applies only to the right to life, liberty
Literally means “to protect” and security of persons and not property.
Came originally from Mexico and evolved into “Right to security” as a guarantee of protection
many forms by the government, is violated by the apparent
(1) Amparo libertad – for protection of personal threat to the life, liberty and security of their
freedom person.
(2) Amparo contra leyes – for judicial review of
the constitutionality of statutes
(3) Amaparo casacion – judicial review of DISTINGUISHED FROM WRIT OF
constitutionality and legality of judicial HABEAS CORPUS AND HABEAS
decisions
(4) Amparo agrario – for protection of peasants’ DATA
rights
See Annex A.
AM No 7-9-12-SC (Rules on the Writ of Amparo)
[Amparo Rule] was promulgated by the
Supreme Court by virtue of the 1987 DISTINGUISHED FROM SEARCH
Constitution stating that the SC has the power WARRANT
to “[p]romulgate rules concerning the
protection and enforcement of constitutional Secretary of Defense v. Manalo (2008)
rights…” [Art VIII Sec. 5]. “The production order under the Amparo Rule
should not be confused with a search warrant
for law enforcement under Article III, Section 2 of
COVERAGE the 1987 Constitution.”
Available to any person whose right to life,
liberty and security is violated or threatened The Constitutional provision is a protection of
with violation by an unlawful act or omission of the people from the unreasonable intrusion of
a public official or employee, or of a private the government, not a protection of the
individual or entity. government from the demand of the people
such as respondents.
The writ shall cover:
(1) Extralegal killings (killings committed Instead, the Amparo production order may be
without due process of law) and likened to the production of documents or
(2) Enforced disappearances [Sec. 1, Amparo things under Section 1, Rule 27 of the Rules of
Rule] Civil Procedure i.e. “Upon motion of any party
showing good cause therefor, the court in which
ELEMENTS OF ENFORCED an action is pending may (a) order any party to
DISAPPEARANCE: produce and permit the inspection and copying
(a) An arrest, detention or abduction of a or photographing, by or on behalf of the moving
person by a government official or party, of any designated documents, papers,
organized groups or private individuals books of accounts, letters, photographs, objects
acting with the direct or indirect or tangible things, not privileged, which
acquiescence of the government constitute or contain evidence material to any
(b) The refusal of the State to disclose the fate matter involved in the action and which are in his
or whereabouts of the person concerned or possession, custody or control...”
a refusal to acknowledge the deprivation of
liberty which places such persons outside
PAGE 236
WHO MAY FILE CONTENTS OF PETITION

(1) Aggrieved party (1) The personal circumstances of the
(2) Any member of the immediate family petitioner;
namely: the spouse, children and parents of (2) The name and personal circumstances of
the aggrieved party the respondent responsible for the threat,
(3) Any ascendant, descendant or collateral actor omission or if the name is unknown or
relative of the aggrieved party within the uncertain, the respondent may be described
fourth civil degree of consanguinity or by an assumed appellation;
affinity, in default of those mentioned in the (3) The right to life, liberty and security of the
preceding paragraph or aggrieved party violated or threatened with
(4) Any concerned citizen, organization, violation by an unlawful act or omission of
association or institution if there is no the respondent, and how such threat or
known member of the immediate family or violation is committed with the attendant
relative of the aggrieved party. circumstances detailed in supporting
affidavits;
The filing of a petition by the aggrieved party (4) The investigation conducted, if any,
suspends the right of all other authorized specifying the names, the personal
parties to file similar petitions. [Sec. 2] circumstances and addresses of the
investigating authority or individuals, as
RATIO FOR PREFERENCE well as the manner and conduct of the
(1) Necessary for the prevention of investigation, together with any report;
indiscriminate and groundless filing of (5) The actions and recourses taken by the
petitions for amparo which may even petitioner to determine the fate or
prejudice the right to life, liberty or security whereabouts of the aggrieved party and the
of the aggrieved party identity of the person responsible for the
(2) Untimely resort to the writ by a non- threat, act or omission; and
member of the family may endanger the life (6) The relief prayed for.
of the aggrieved party
May include a general prayer and equitable
WHERE TO FILE reliefs.
(1) RTC where the threat, act or omission was
Signed and verified [Sec. 5]
committed or any of its element occurred
(2) Sandiganbayan—unlike the writ of habeas
No docket fees and other lawful fees. [Sec. 4]
corpus, because public officials and
employees will be respondents in amparo
petitions CONTENTS OF RETURN
(3) Court of Appeals Upon the filing of the petition, the court shall
(4) Supreme Court order the issuance of the writ.
(5) Any justice of such courts [Sec. 3]
The respondent shall file a verified written
May be filed on any day, including Saturdays, return together with supporting affidavits within
Sundays, and holidays; from morning until 72 hours after service of the writ.
evening.
Contents:
(1) 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
PAGE 237
(2) The steps or actions taken by the BUT: The court, justice, or judge may call for a
respondent to determine the fate or preliminary conference to simplify the issues and
whereabouts of the aggrieved party and the determine the possibility of obtaining
person responsible for the threat, act or stipulations and admissions from the parties.
omission [Sec. 13]
(3) All relevant information in the possession of
the respondent pertaining to the threat, act PROHIBITED PLEADINGS AND
or omission against the aggrieved party and MOTIONS
(4) If the respondent is a public official or (1) Motion to dismiss
employee the return shall further state the (2) Motion for extension of time to file return,
actions that have been or will still be taken. opposition, affidavit, position paper and
(5) The return shall also state matters relevant other pleadings
to the investigation, its resolution and the (3) Dilatory motion for postponement
prosecution of the case. (4) Motion for a bill of particulars
(5) Counterclaim or cross-claim
No general denial allowed. [Sec. 9] (6) Third-party complaint
(7) Reply
TO WHOM RETURNABLE (8) Motion to declare respondent in default
(1) If filed with RTC, returnable to RTC or any (9) Intervention
judge (10) Memorandum’
(2) If filed with Sandiganbayan, CA or any (11) Motion for reconsideration of interlocutory
justice, returnable to such court or any orders or interim relief orders and
justice or the RTC where the threat, act or (12) Petition for certiorari, mandamus or
omission was committed or any of its prohibition against any interlocutory order.
elements occurred. [Sec. 11]
(3) If filed with the SC, returnable to the SC or
any justice, or to the CA, SB or any of its Allows motion for new trial and petition for
justices, or the RTC where the threat, act or relief from judgment.
omission was committed or any of its
elements occurred. [Sec. 3] JUDGMENT
The court shall render judgment within ten (10)
days from the time of petition is submitted for
OMNIBUS WAIVER RULE decision.
Defenses not pleaded deemed waived.
All defenses shall be raised in the return, ARCHIVING AND REVIVAL OF CASES
otherwise, they shall be deemed waived. [Sec. If the case cannot proceed for valid cause, the
10] court shall not dismiss the petition but shall
archive it. If after the lapse of two (2) years from
EFFECT OF FAILURE TO FILE A the notice of archiving, the petition shall be
RETURN dismissed for failure to prosecute. [Sec. 20]
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the INSTITUTION OF SEPARATE
petition ex parte.
ACTIONS
The Rule shall neither preclude the filing of
PROCEDURE FOR HEARING ON separate criminal, civil or administrative actions
THE WRIT nor suspend the filing of criminal, civil or
administrative actions. [Sec. 21]
SUMMARY HEARING
Hearing on the petition shall be summary. But a claim for damages should instead be filed
in a proper civil action.
PAGE 238
If the evidence so warrants, the amparo court That the petitioner or the aggrieved party and
may refer the case to the Department of Justice any member of the immediate family be
for criminal prosecution, because the amparo protected in a government agency or by an
proceeding is not criminal in nature and will not accredited person or private institution capable
determine the criminal guilt of the respondent. of keeping and securing their safety. If the
petitioner is an organization, association or
EFFECT OF FILING OF A institution referred to in Section 3(c) of this Rule,
the protection may be extended to the officers
CRIMINAL ACTION concerned. [Sec. 14(a)]
When a criminal action has been commenced,
NO SEPARATE PETITION for the writ shall be
Different from the inspection and production
filed.
order in that the temporary protection order and
the witness protection order do not need a
Reliefs under the writ shall be available by
verification and may be issued motu proprio or
motion in a criminal case.
ex parte.
Procedure under this Rule shall govern the
(2) INSPECTION ORDER.
disposition of the reliefs available under the writ
Issued only upon verified motion and after due
of amparo. [Sec. 22]
hearing
CONSOLIDATION Directed to any person in possession or control
When a criminal action is filed subsequent to of a designated land or other property, to permit
the filing of a petition for the writ, the latter entry for the purpose of inspecting, measuring,
shall be consolidated with the criminal action. surveying, or photographing the property or any
relevant object or operation thereon.
When a criminal action and a separate civil
action are filed subsequent to a petition for a The order shall expire five (5) days after the day
writ of amparo, the latter shall be consolidated of its issuance, unless extended for justifiable
with the criminal action. reasons. [Sec. 14(b)]
After consolidation, the procedure under this Requires hearing, may be availed of both the
Rule shall continue to apply to the disposition of petitioner and the respondent
the reliefs on the petition. [Sec. 23]
If the court, justice or judge gravely abuses his
INTERIM RELIEFS AVAILABLE or her discretion in issuing the inspection order,
TO PETITIONER AND the aggrieved party is not precluded from filing
a petition for certiorari with the Supreme Court
RESPONDENT
(3) PRODUCTION ORDER
When: Upon filing of the petition or at any time Issued only upon verified motion and after due
before final judgment hearing
INTERIM RELIEFS AVAILABLE TO Directed to any person in possession, custody or
THE PETITIONER control of any designated documents, papers,
books, accounts, letters, photographs, objects or
(1) TEMPORARY PROTECTION ORDER. tangible things, or objects in digitized or
Issued upon motion or motu proprio 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.
PAGE 239
Grounds for Opposition IF RESPONDENT IS A PUBLIC

1) National security OFFICIAL OR EMPLOYEE
2) Privileged nature of the information Must prove that extraordinary diligence as
In which case the court, justice or judge may required as required by the applicable laws,
conduct a hearing in chambers to determine the rules and regulations was observed in the
merit of the opposition. [Sec. 14(c)] performance of duty.
Not the same as search warrant for law Cannot invoke the presumption that official duty
enforcement under Art. III, Sec. 2 of the has been regularly performed to evade
Constitution since the latter is a protection of responsibility or liability
the people from unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as
IF RESPONDENT IS A PRIVATE
respondents INDIVIDUAL OR ENTITY
Must prove that ordinary diligence as required
More similar to production of documents or by applicable laws, rules and regulations was
things under Sec. 1 Rule 27 of Rules of Civil observed in the performance of duty. [Sec. 17]
Procedure. Sec. of Justice v. Manalo (supra)
With the secret nature of an enforced
(4) WITNESS PROTECTION ORDER disappearance and the torture perpetrated on
Issued upon motion or motu proprio the victim during detention, it logically holds
that much of the information and evidence of
Order may refer the witnesses to: the ordeal will come from the victims
a) The Department of Justice for admission to themselves.
the Witness Protection, Security and Benefit
Program. Their statements can be corroborated by other
b) Other government agencies, or to accredited evidence such as physical evidence left by the
persons or private institutions capable of torture or landmarks where detained.
keeping and securing their safety. (Sec. 14(d))
INTERIM RELIEFS AVAILABLE TO

Writ of Habeas Data
THE RESPONDENT SCOPE OF WRIT
(1) INSPECTION ORDER The writ of habeas data is a remedy available to
(2) PRODUCTION ORDER [Sec. 15] any person whose right to privacy in life, liberty
or security is violated or threatened by an
Requisites: unlawful act or omission of a public official or
(1) Verified motion of the respondent employee, or of a private individual or entity
(2) Due hearing engaged in the gathering, collecting or storing
(3) Affidavits or testimonies of witnesses having of data or information regarding the person,
personal knowledge of the defenses of the family, home and correspondence of the
respondent. [Sec. 15] aggrieved party. [Sec. 1]
QUANTUM OF PROOF IN AVAILABILITY OF WRIT

Any aggrieved party may file a petition for the
APPLICATION FOR ISSUANCE writ of habeas data.
OF WRIT: SUBSTANTIAL However, in cases of extralegal killings and
EVIDENCE enforced disappearances, the petition may be
The parties shall establish their claims by filed by:
substantial evidence. (a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children
and parents; or
PAGE 240
(b) Any ascendant, descendant or collateral data or information, and the purpose for
relative of the aggrieved party within the its collection;
fourth civil degree of consanguinity or (b) the steps or actions taken by the
affinity, in default of those mentioned in the respondent to ensure the security and
preceding paragraph. [Sec. 2] confidentiality of the data or information;
and
(c) the currency and accuracy of the data or
DISTINGUISHED FROM HABEAS information held; and
CORPUS AND AMPARO (3) Other allegations relevant to the resolution
See Annex A. of the proceeding.
A general denial of the allegations in the
CONTENTS OF THE PETITION petition shall not be allowed. [Sec. 10]
A verified written petition for a writ of habeas
data should contain: INSTANCES WHEN PETITION
(1) The personal circumstances of the petitioner
and the respondent; MAY BE HEARD IN CHAMBERS
(2) The manner the right to privacy is violated or A hearing in chambers may be conducted:
threatened and how it affects the right to life, (1) Where the respondent invokes the defense
liberty or security of the aggrieved party; that the release of the data or information in
(3) The actions and recourses taken by the question shall compromise national security
petitioner to secure the data or information; or state secrets, or
(4) The location of the files, registers or (2) When the data or information cannot be
databases, the government office, and the divulged to the public due to its nature or
person in charge, in possession or in control privileged character. [Sec. 10]
of the data or information, if known;
(5) The reliefs prayed for, which may include the
CONSOLIDATION
When a criminal action is filed subsequent to
updating, rectification, suppression or
the filing of a petition for the writ, the latter
destruction of the database or information or
shall be consolidated with the criminal action.
files kept by the respondent.
In case of threats, the relief may include a prayer When a criminal action and a separate civil
for an order enjoining the act complained of; action are filed subsequent to a petition for a
and writ of habeas data, the petition shall be
(6) Such other relevant reliefs as are just and consolidated with the criminal action. [Sec. 21]
equitable. [Sec. 6]
EFFECT OF FILING OF CRIMINAL
CONTENTS OF THE RETURN ACTION
The respondent shall file a verified written
When a criminal action has been commenced,
return together with supporting affidavits within
NO SEPARATE PETITION for the writ shall be
five (5) work days from service of the writ, which
filed.
period may be reasonably extended by the
Court for justifiable reasons. The reliefs under the writ shall be available to
an aggrieved party by motion in the criminal
CONTENTS:
case.
(1) The lawful defenses such as national security,
state secrets, privileged communication, The procedure under this Rule shall govern the
confidentiality of the source of information of disposition of the reliefs available
media and others; under the writ of habeas data. [Sec. 22]
(2) In case of respondent in charge, in
possession or in control of the data or INSTITUTION OF SEPARATE ACTION
information subject of the petition: The filing of a petition for the writ of habeas
(a) disclosure of the data or information data shall not preclude the filing of separate
about the petitioner, the nature of such criminal, civil or administrative actions. [Sec. 20]
PAGE 241
DIFFERENCES UNDER THE APPLICABLE RULES [RULE 103, RULE 108,

RA 9048]
Rule 103 Rule 108 RA 9048
Substantial Changes in Substantial changes in Change of First Names or
name entries in the civil registry Nicknames
(other than name)
Change brought about by
Applicability clerical or typographical errors
(includes day and month in the
date of birth or sex), except
nationality, age, or status
Judicial Judicial Administrative

Nature
1. The person desiring to Natural person having A natural person having direct
change his name direct and personal and personal interest in the
2. Some other person on interest in the correction change of first name or
Who May File
his behalf of error in an entry in the nickname in the civil register.
civil register
RTC of the province in RTC of the province where The local civil registry office of
which the person the civil registry is located the city or municipality where the
desiring to change his record being sought to be
name resides. corrected/changed is kept.
EXCEPTIONS:
(1) If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
Where Filed
the interested party is
presently residing or
domiciled
(2) If the petitioner is a Filipino

citizen presently residing or
domiciled in a foreign country,
the petition shall be filed in
the nearest Philippine
Consulate.
Not a party to the Made a party to the

Standing of
proceeding proceeding as a
the LCR
respondent
No mention of notice to The court shall cause
Notice be sent reasonable notice to be
requirement given to persons named in
the petition
PAGE 242

Title: In Re: Petition for (1) Facts necessary to establish
Change of Name of X, the merits of the petition.
also known as Y and Z, to
ABC. X, Petitioner. (2) A showing that the petitioner
Names or Aliases of the
is competent to testify to the
Applicant (must appear
in the caption of the matters stated.
petition) (3) Particular erroneous entry or
Omission is fatal to the entries which are sought to
petition be corrected and/or the
change sought to be made.
To allow a reader of the
published petition to
notice the said aliases
Petitioner has been a

bona fide resident of the
province where the
petition is filed for at
Contents of
least 3 years prior to the
Petition
date of such filing.
Cause for which the

change of the petitioner's
name is sought
Petitioner must show a
proper or compelling
reason for the change of
name + the fact that he
will be prejudiced by the
use of his official name.
Name asked for
The petition shall be Verified petition (1) In the form of an affidavit

signed and verified. (2) Verified
(3) Subscribed and sworn to
Form of before any person
Petition
authorized by law to
administer oaths.
PAGE 243

(1) Filing of petition for (1) Filing of petition (1) Filing of petition and its
change of name. supporting papers in 3 copies
(2) Court shall to be distributed to:
(2) Court shall promulgate an order  The concerned city or
promulgate an order fixing the time and municipal civil registrar or
fixing a date and place for hearing the the consul general
place for hearing the petition and cause  The Office of the Civil
petition. The date set reasonable notice to Registrar General
for the hearing shall be given to the
 The petitioner
NOT be: persons named in the
Within 30 days prior to petition. (2) The City or Municipal
an election AND
Registrar or the Consul
Within 4 months after Civil registrar and all
the last publication of persons who have or claim General shall post the
the notice. any interest which would petition in a conspicuous
be affected thereby shall place for ten 10 consecutive
(1) Court shall direct a be made parties to the days after he finds the
copy of the order to proceeding petition and its supporting
be published before documents sufficient in form
the hearing (1) Court shall direct a and substance.
copy of the order to be
At least once a week published before the (3) The petition shall be
Procedure for for 3 successive hearing published at least once a
Changing of weeks At least once a week for week for 2 consecutive weeks
Name 3 successive weeks in a newspaper of general
In some newspaper
circulation.
of general circulation In some newspaper of
published in the general circulation
province. published in the (4) The City or Municipal
province. Registrar or the Consul
(2) Hearing shall be General shall render a
conducted. (2) File opposition decision not later than 5
The SolGen or the Within 15 days from working days after the
proper provincial or notice of the petition or completion of the posting
city fiscal shall from the last date of and/ or publication
appear on behalf of publication
requirement. He shall
the Government of
the Republic. (3) Hearing shall be transmit a copy of his
conducted. decision together with the
(3) Judgment granting records of the proceedings to
or denying the Court may expedite the the Office of the Civil
change of name. proceedings and also Registrar General within 5
grant preliminary working days from the date
injunction for of the decision.
preservation of rights of
the parties
PAGE 244

(4) Copy of judgments (4)Judgment granting or
shall be furnished the denying the change of Where the petition is denied by
civil registrar of the name. the city or municipal civil
registrar or the consul
municipality or city
general, the petitioner may
where the court (5)Copy of judgments either appeal the decision to
issuing the same is shall be furnished the the civil registrar general or
situated, who shall civil registrar concerned file the appropriate petition
forthwith enter the who shall annotate the with the proper court.
same in the civil same in the records
register. (5) The Civil Registrar General
shall, within 10 working days
from receipt of the decision
granting a petition, exercise
the power to impugn such
decision by way of an
objection.
Grounds for objection

(a) The error is not clerical or
typographical
(b) The correction of an entry
or entries in the civil
register is substantial or
controversial as it affects
the civil status of a person
(c) The basis used in
changing the first name or
nickname of a person
does not fall under one of
the valid grounds.
If the civil registrar general fails

to exercise his power to impugn
the decision of the city or
municipal registrar or of the
consul general within the
period, such decision shall
become final and executory.
(6) The civil registrar general

shall immediately notify the
city or municipal civil
registrar or the consul
general of the action taken
on the decision.
PAGE 245
(7) Upon receipt of the notice

thereof, the city or municipal
civil registrar or the consul
general shall notify the
petitioner of such action.
(8) Appeal. The petitioner may

seek reconsideration with the
civil registrar general or file
the appropriate petition with
the proper court.
Any interested person Civil registrar and any N/A

person having or claiming NOTE: The Civil Registrar
Opposition interest under the entry General is given the power to
whose cancellation or object to the decision of the
correction is sought Local Civil Registrar.
Republic v. Hernandez Entries subject to Sec. 4: Grounds for Change of
(1996) cancellation or correction: First Name or Nickname
Valid Grounds for (1) Birth (1) The first name or nickname
Change of Name (2) Marriage is ridiculous, tainted with
(1) The name is (3) Death dishonor or extremely
ridiculous, tainted (4) Legal separation difficult to write or
with dishonor or (5) Judgment of pronounce.
extremely difficult to annulment (2) The new first name or
write or pronounce. (6) Judgment declaring nickname has been
(2) Change results as a marriage null and habitually and continuously
legal consequence void used by the petitioner and
of legitimation (7) Legitimation he has been publicly known
(3) The change will (8) Adoption by the first name or
Grounds for avoid confusion. (9) Acknowledgment of nickname in the community.
Change of (4) A sincere desire to natural children (3) The change will avoid
Name adopt a Filipino (10) Naturalization confusion.
name to erase signs (11) Election, loss or
of former alienage recovery of
(Ang Chay vs. citizenship
Republic, 1970) (12) Civil interdiction
(5) Having continuously (13) Judicial
used and been determination of
known since filiation
childhood by a (14) Voluntary
Filipino name, emancipation of
having been minor
unaware of alien (15) Changes of name
parentage (Uy vs.
Republic, 1965)
PAGE 246
Change of Name and Oshito vs. Republic (1967)
Verification is a formal, not a jurisdictional,
Cancellation or Correction requirement. The lack of verification is not a
ground for dismissing the petition. However,
of Entries in the Civil before setting the petition for hearing, the court
Registry should have required the petitioner to have the
petition verified.
Go Chiung Beng vs. Republic (1972)

GROUNDS FOR CHANGE OF All aliases of the applicant must be set forth in
NAME the petition’s title. Such defect is fatal, even if
Republic v. Hernandez (1996) said aliases are contained in the body of the
petition.
VALID GROUNDS FOR CHANGE OF
NAME Secan Kok vs. Republic (1973)
(1) The name is ridiculous, tainted with A change of name granted by the court affects
dishonor or extremely difficult to write or only a petitioner. A separate petition for change
pronounce. of name must be filed for his/her spouse and
(2) Change results as a legal consequence of children.
legitimation
Silverio vs. Republic (2007)
(3) The change will avoid confusion.
A person’s first name cannot be changed on the
(4) A sincere desire to adopt a Filipino name to
ground of sex reassignment. RA 9048 does not
erase signs of former alienage (Ang Chay vs.
sanction a change of first name on the ground
Republic, 1970)
of sex reassignment. Before a person can legally
(5) Having continuously used and been known
change his given name, he must present proper
since childhood by a Filipino name, having
or reasonable cause or any compelling reason
been unaware of alien parentage (Uy vs.
justifying such change. In addition, he must
Republic, 1965)
show that he will be prejudiced by the use of his
true and official name. Silverio failed to show, or
Laperal vs. Republic (1962) even allege, any prejudice that he might suffer
Legal separation is not a ground for the female as a result of using his true and official name.
spouse to apply for a change of name under Rather than avoiding confusion, changing
Rule 103. petitioner’s first name may only create grave
complications in the civil registry and the public
No Yao Siong v. Republic (1966) interest.
The name that can be changed is the name that
appears in the civil register, and not in the No law allows the change of entry in the birth
baptismal certificate or that which the person is certificate as to sex on the ground of sex
known in the community. reassignment. RA 9048 only allows correction
of clerical or typographical errors. A correction
Ong Huan Tin v. Republic (1967) in the civil registry involving the change of sex is
An alien may petition for change of name but he not a mere clerical or typographical error. The
must be domiciled in the Philippines. birth certificate of petitioner contained no error.
All entries therein, including those
corresponding to his first name and sex, were all
correct. No correction is necessary.
PAGE 247
General Rule: No independent action for

People vs. Cagandahan (2008) declaration of presumption of death [Nicolai v.
Intersexuality is a valid ground for change of Szatrow, 1948)]
name and change of entry of sex in the civil
registry. Where the person is biologically or Exception: For purpose of contracting a second
naturally intersex the determining factor in his marriage [Article 41, Family Code]
gender classification would be what the
individual, having reached the age of majority,
with good reason, thinks of his sex. Sexual
WHO MAY FILE; WHEN TO FILE
development in cases of intersex persons makes
the gender classification at birth inconclusive. It PETITION FOR APPOINTMENT OF A
is at maturity that the gender of such persons is REPRESENTATIVE [PAR] TO
fixed. PROVISIONALLY REPRESENT
Failure to implead the local civil registrar as well ABSENTEE WHEN A PERSON:
as all persons who have or claim any interest did (1) Disappears from his domicile, his
not render the petition fatally defective. whereabouts being unknown
Cagandahan furnished the local civil registrar a (2) Has not left an agent to administer his
copy of the petition, the order to publish, and all property or the power conferred upon the
pleadings, orders or processes in the course of agent has expired. [Sec. 1, Rule 107]
the proceedings. There was therefore
substantial compliance of the provisions of Rules WHO MAY FILE PAR
103 and 108 of the Rules of Court (1) Any interested party
(2) Relative
(3) Friend [Sec. 1, Rule 107]
Absentees
PETITION FOR DECLARATION
PURPOSE OF THE RULE OF ABSENCE AND
In Re: Petition for Declaration of Absence of APPOINTMENT OF TRUSTEE OR
Roberto L. Reyes (1986) ADMINISTRATOR [PDA]
The declaration of absence made in accordance
with the provisions of the Civil Code has for its FILED AFTER 2 YEARS:
SOLE PURPOSE to enable the taking of the (1) From the disappearance of and without any
necessary precautions for the administration of news from the absentee OR
the estate of the absentee. (2) Since the receipt of the last news about him.
FILED AFTER 5 YEARS:
There is a need to have a person judicially If the absentee left an administrator of his
declared an absentee when: property. [Sec. 2, Rule 107]
(1) he has properties which have to be taken
cared of or administered by a representative WHO MAY FILE PDA AND BE
appointed by the Court [Article 384, Civil APPOINTED
Code];
(1) The spouse present
(2) the spouse of the absentee is asking for
(2) The heirs instituted in a will, who may
separation of property [Article 191, Civil
present an authentic copy of the same
Code]; or (3) The relatives who would succeed by the law
(3) his wife is asking the Court that the
of intestacy
administration of an classes of property in
(4) Those who have over the property of the
the marriage be transferred to her [Article
absentee some right subordinated to the
196, Civil Code].
condition of his death. [Sec. 2, Rule 107]
PAGE 248
WHEN TERMINATED APPROPRIATE ADVERSARY PROCEEDING

(1) Absentee appears personally or through an One where the trial court has conducted
agent proceedings where all relevant facts have been
(2) Absentee’s death is proved and heirs appear fully and properly developed, where opposing
(3) Third person appears, showing that he counsel have been given opportunity to
acquired title over the property of the demolish the opposite party’s case, and where
absentee the evidence has been thoroughly weighed and
considered. [Elosida v. Local Civil Registrar of
Quezon City (2002)]
Cancellation or Correction
PROCEDURAL REQUIREMENTS OF AN
of Entries in the Civil ADVERSARY PROCEEDING
Parties – Civil registrar and all persons who
Registry have or claim any interest which would be
affected are made parties [Sec. 3, Rule 108]
ENTRIES SUBJECT TO
Notice and publication – Reasonable notice to
CANCELLATION OR be given to the persons named in the petition,
CORRECTION UNDER RULE 108, and publication once a week for 3 consecutive
IN RELATION TO RA 9048 weeks [Sec. 4, Rule 108]
RULE 108: SUBSTANTIAL CHANGES IN Opposition – 15 days from notice of petition, or

ENTRIES IN THE CIVIL REGISTRY, from last date of publication of notice [Sec. 5,
EXCLUDING NAME (GOVERNED BY RULE Rule 109]
103)
UNDER RA 9048, AS AMENDED BY
Substantial Change – change that affects the RA 10172: CLERICAL OR
civil status, citizenship, or nationality of a party. TYPOGRAPHICAL ERRORS
(1) Births
(2) Marriage General Rule: Entry in a civil register shall be
(3) Deaths changed or corrected with a judicial order.
(4) Legal separations
(5) Judgments of annulments of marriage Exception:
(6) Judgments declaring marriages void from Clerical or typographical errors and
the beginning Change of first name or nickname, the day and
(7) Legitimations month in the date of birth or sex of a person
(8) Adoptions where it is patently clear that there was a
(9) Acknowledgments of natural children clerical or typographical error or mistake in the
(10) Naturalization entry, which can be corrected or changed by the
(11) Election, loss or recovery of citizenship concerned city or municipal civil registrar or
(12) Civil interdiction consul general in accordance with the
(13) Judicial determination of filiation provisions of this Act and its implementing rules
(14) Voluntary emancipation of a minor and regulations. [Sec. 1, RA 9048, as amended]
(15) Changes of name [Sec. 2, Rule 108]
Such changes have public interest implications Clerical or typographical error - A mistake
and must only be made upon approval of the committed in the performance of clerical work
Court. in writing, copying, transcribing or typing an
entry in the civil register that:
Cancellation or correction of substantial errors (1) Is harmless and innocuous.
is allowed provided proceeding is adversary. (2) Is visible to the eyes or obvious to the
[Chiao Ben Lim v. Zosa (2004)] understanding (Patent)
PAGE 249
(3) Can be corrected or changed only by While some of the items in Rule 109. Sec. 1 may
reference to other existing record or be considered as interlocutory under ordinary
records special actions, the nature of special
(4) Does not involve the change of proceedings declares them as appealable as
nationality, age, status or sex of the exceptions to Rule 41, Sec. 1.
petitioner. [Sec. 2(3), RA 9048, as
amended] WHEN TO APPEAL
In a special proceeding, the period of appeal is
The procedure recited in Rule 103 regarding 30 days. [Sec. 3, Rule 41]
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil The appeal period may be interrupted by the
registry are separate and distinct. They may not filing of an MFR/MNT. Once the appeal period
be substituted one for the other. If both reliefs expires without an appeal/MF/MNT, the order
are to be sought in the same proceedings all the becomes final. [Sec. 3, Rule 41]
requirements of Rule 103 and 108 must be
complied with. [Republic v. Valencia (1986)] However, habeas corpus, amparo and habeas
data cases have different periods of appeal. See
Annex A.
Appeals in Special
MODES OF APPEAL
Proceedings
NOTICE and RECORD ON APPEAL
JUDGMENTS AND ORDERS FOR REQUIRED [Sec. 3, Rule 41]
WHICH APPEAL MAY BE TAKEN Rule 109 contemplates multiple appeals during
(1) If it allows or disallows a will the pendency of special proceedings. A record
(2) If it wholly determines who are the lawful on appeal – in addition to the notice of appeal –
heirs or the distributive shares is thus required to be filed as the original
(3) If it wholly or partially allows or disallows a records of the case should remain with the trial
claim against a decedent’s estate, or any court to enable the rest of the case to proceed in
claim presented on the decedent’s estate, or the event that a separate and distinct issue is
any claim presented on the estate’s behalf resolved by said court and held to be final.
on offset to claim against it However, a record on appeal is not necessary
(4) If it settles the account of an where no other matter remained to be heard
executor/administrator/trustee/guardian and determined by the trial court after it issued
(5) If it constitutes a final determination in the the appealed order granting the petition for
lower court of the rights of the party cancellation of birth record and change of
appealing in proceedings relating to estate surname in the civil registry. [Republic v. Nishina
settlement or administration of a (2010)]
trustee/guardian
 Exception: Appointment of a special RULE ON ADVANCE
administrator is not appealable
 Remedy: Petition for certiorari under Rule DISTRIBUTION
65, if there is grave abuse of discretion. Notwithstanding a pending controversy/appeal
(6) If it is the final order/judgment rendered in in estate settlement proceedings, the court may
the case, and affects the substantial rights permit that the estate’s parts which are not
of the person appealing [Sec. 1, Rule 109] affected by the controversy/appeal be
 Exception: Orders granting/denying a distributed, upon compliance with Rule 90. [Sec.
MFR/MNT 2, Rule 109]
PAGE 250
Annex A
WRIT MATRIX (Comparison of the Writs)
WHC – Writ of Habeas Corpus WA – Writ of Amparo
WD – Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD – Rules on Habeas Data SC – Supreme Court
CA - Court of Appeals SB – Sandiganbayan
RTC – Regional Trial Court CoC – Clerk of Court
Habeas Corpus Amparo Habeas Data

1. All cases of illegal Involves right to life, liberty
Involves the right to privacy
confinement and detention and security violated or in life, liberty or security
which any person is threatened with violation by violated or threatened by
deprived of his liberty an unlawful act or omission an unlawful act or omission
2. Deprived of rightful of a public official or of a public official or
custody of any person is employee or a private employee, or of a private
Nature, scope, withheld from the person individual or entity individual or entity engaged
function entitled [Sec. 1] in the gathering, collecting
It covers extralegal killings or storing of data or
Actual violation before writ and enforced information regarding the
issues. Note Villavicencio v. disappearances or threats person, family, home and
Lukban on applicability of thereof. [Sec. 1] correspondence of the
the writ in case of aggrieved party. [Sec. 1]
constructive restraint.
May be suspended in cases Shall not diminish, increase Shall not diminish, increase
of invasion or rebellion or modify substantive rights or modify substantive rights
Limitations when public safety requires [Sec. 23] [Sec. 23]
it [Art. III Sec. 15, 1987
Const.]
By a petition signed and Petition filed by the Any aggrieved party may
verified by the party for aggrieved party or by any file a petition for the WHD
whose relief it is intended, qualified person or entity in
or by some person on his the following order: However, in cases of
behalf [Sec. 3] (1) Any member of the extralegal killings and
immediate family enforced disappearances,
(2) Any ascendant, the petition may be filed by
descendant or (also successive):
collateral relative of (1) Any member of the
the aggrieved within immediate family of
Who may file
the 4th civil degree of the aggrieved
consanguinity or (2) Any ascendant,
affinity descendant or
(3) Any concerned citizen, collateral relative of
organization, the aggrieved party
association or within the fourth civil
institution degree of
Filing by the aggrieved consanguinity or
suspends the right of all affinity [Sec. 2]
others [Sec. 2]
PAGE 251

Granted by: Filed on any day and at any Petition may be filed with
(1) SC or any member time: RTC where the petitioner or
thereof, on any day and (1) SB, CA, SC, or any respondent resides or that
at any time justice of such courts which has jurisdiction over
(2) CA or any member (2) RTC of place where the place where the data or
thereof in instances the threat, act, or information is gathered,
authorized by law omission was collected or stored, at the
(3) RTC or a judge thereof, committed or any option of petitioner
Where filed on any day and at any element occurred
time, enforceable only [Sec. 4] If public data files of
within his judicial district government offices, petition
(Sec. 2) shall be filed with the SC,
(4) MTC OR FIRST LEVEL CA, or SB [Sec. 3]
COURTS in the absence
of RTC judges in a
judicial region [Sec. 35
BP 129]
If SC or CA issued, Writ shall be enforceable Writ shall be enforceable
anywhere in the Philippines anywhere in the Philippines anywhere in the Philippines
[Sec. 4] [Sec. 3]
If granted by the RTC or
judge thereof, it is
Where enforceable in any part of
enforceable the judicial region [Sec 21,
BP 129 which modified the
term judicial district in Sec 2,
Rule 102 into judicial region]
where the judge sits
If the one that granted the If the one that granted the If issued by:
writ: writ: (1) The SC or any of its
(1) Is the SC or CA, or a (1) Is the SC or any of its justices, before such
member thereof, justices, returnable Court or any justice
returnable before such before such court or thereof, or CA or SB or
court or any member any justice thereof, or any of its justices, or
thereof or an RTC before the SB or CA or the RTC of the place
(2) An RTC, or a judge any of their justices, or where the petitioner
thereof, returnable to any RTC of the or respondent
before himself [Sec. 2] place where the resides/has
Where
threat, act or omission jurisdiction over the
returnable
was committed or any place where the data
of its elements or information is
occurred gathered, stored or
collected
PAGE 252

(2) The SB or CA or any of (2) The CA or SB or any of
their justices, its justices, before
returnable before such such court or any
court or any justice justice thereof, or the
thereof, or to any RTC RTC (same with
of the place where the scenario: SC issued
threat, act, or and then returned in
omission was RTC)
committed or any of (3) RTC, returnable
its elements occurred before such court or
(3) The RTC or any judge judge [Sec. 4]
thereof, returnable
before such court or
judge [Sec. 3]
Upon the final disposition Petitioner shall be None for indigent petitioner
of such proceedings the exempted from the
court or judge shall make payment of the docket and Petition shall be docketed
such order as to costs as other lawful fees and acted upon
Docket Fees the case requires [Sec. 19] immediately, without
Court, justice or judge shall prejudice to subsequent
docket the petition and act submission of proof of
upon it immediately [Sec 4] indigency not later than 15
days from filing [Sec. 5]
Signed and verified either Signed and verified and Verified and written petition
by the party for whose relief shall allege: shall contain:
it is intended or by some (1) The personal (1) Personal
person on his behalf, circumstances of the circumstances of
setting forth: petitioner petitioner and
(1) The person in whose (2) Name or appellation respondent
behalf whose the and circumstances of (2) Manner the right to
application is made is the respondent privacy is violated or
imprisoned or (3) The right to life, threatened and its
restrained of his liberty liberty, and security effects
(2) Name of the person violated or threatened (3) Actions and recourses
Essential detaining another or with violation, taken by the petitioner
allegations/ assumed appellation (4) The investigation to secure the data or
Contents of (3) Place where he is conducted, if any, plus information
petition imprisoned or circumstances of each (4) The location of the
restrained of his liberty (5) The actions and files, registers, or
(4) Cause of detention recourses taken by the databases, the
[Sec. 3] petitioner government office,
(6) Relief prayed for and the person in
charge or control
May include a general (5) The reliefs prayed for
prayer for other just and
equitable reliefs [Sec. 5] Such other relevant reliefs
as are just and equitable
[Sec. 6]
PAGE 253
Court or judge must, when Upon the filing of the Upon filing of the petition,
a petition is presented andpetition, the court, justice, the court, justice, or judge
it appears that it ought toor judge shall immediately shall immediately order the
issue, grant the same and order the issuance of the issuance of the writ if on its
then: writ if on its face it ought to face it ought to issue.
 the clerk of court (CoC)issue  CoC shall issue the writ
 CoC shall issue the writ
shall issue the writ under under the seal of the
the seal of the court or under the seal of the court and cause it to be
 in case of emergency, the court or served within 3 days from
judge may issue the writ In case of urgent issuance or
When proper under his own hand, and necessity, the justice or  In case of urgent
may depute any officer or the judge may issue the necessity, the justice or
person to serve it writ under his or her own judge may issue the writ
hand, and may deputize under his or her own
Also proper to be issued any officer or person to hand, and may deputize
when the court or judge serve it. [Sec. 6] any officer or person to
has examined into the serve it [Sec. 7]
cause of restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned [Sec. 5]
Writ may be served in any The writ shall be served The writ shall be served
province by the upon the respondent by a upon the respondent by a
(a) sheriff, judicial officer or by a judicial officer or by a
(b) other proper officer, or person deputized by the person deputized by the
(c) person deputed by the court, justice or judge who court, justice or judge who
court or judge shall retain a copy on which shall retain a copy on which
to make a return of service to make a return of service
Service is made by leaving  In case the writ cannot In case the writ cannot be
the original with the person be served personally on served personally on the
to whom it is directed and the respondent, the respondent, the rules on
Service preserving a copy on which rules on substituted substituted service shall
to make return of service service shall apply apply [Sec. 9]
[Sec. 8]
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
[Sec. 7]
May or may not be an Respondent is a public A public official or

officer [Sec. 6] official or employee or employee or a private
private individual or entity individual or entity engaged
Respondent
[Sec. 1] in gathering, collecting or
storing data [Sec. 1)
PAGE 254

The officer to whom the Respondent files the return Respondent files the return
writ is directed shall convey [Sec. 9] [Sec. 10]
the person so imprisoned or
restrained before:
- the judge allowing the
writ, or
- in his absence or
disability, before some
other judge of the same
court
How executed on the day specified in the

and returned writ,
unless person directed to
be produced is sick or
infirm, and cannot, without
danger, be brought therein
officer shall then make due

return of the writ, with the
day and cause of the
caption and restraint
according to the command
thereof [Sec. 8]
On the day specified on the Within 5 working days after Same with WA [Sec. 10]
When to file
writ [Sec. 8] service of the writ [Sec. 9]
return
When the person to be Within 5 working days after (1) Lawful defenses such
produced is imprisoned or service of the writ, the as national security,
restrained by an officer, the respondent shall file a state secrets,
person who makes the verified written return privileged
return shall state, and in together with supporting communications,
other cases the person in affidavits which shall, confidentiality of the
whose custody the prisoner contain: source of information
is found shall state in (1) Lawful defenses of media etc.
writing to the court or judge (2) The steps or actions (2) In case of respondent
before whom the writ is taken to determine in charge, in
Contents of returnable: the fate or possession or in
return (1) Truth of custody/ whereabouts of the control of the data or
power over the aggrieved party information subject of
aggrieved party (3) All relevant the petition:
(2) If he has custody or information in the (a) A disclosure of the
power, or under possession of the data or info about
restraint, the authority respondent pertaining the petitioner, the
and the cause thereof, to the threat, act or nature of such
with a copy of the writ, omission against the data or
order, execution or aggrieved party information, and
other process, if any the purpose for its
upon which the party collection
PAGE 255

is held (4) If the respondent is a (b) The steps or
(3) If the party is in his public official or actions taken by
custody or power, and employee, the return the respondent to
is not produced, shall further state ensure the
particularly the nature acts: security and
and gravity of the (a) To verify identity confidentiality of
sickness or infirmity of aggrieved party the data or
(4) If he has had the party (b) To recover and information
in his custody or preserve evidence (c) The currency and
power, and has (c) To identify and accuracy of the
transferred such collect witness data or
custody or restraint to statements information held
another, particularly to (d) To determine
whom, at what time, cause, manner, Other allegations relevant
for what cause, and by location, and time to the resolution of the
what authority such of death or proceeding [Sec.10]
transfer was made. disappearance
[Sec. 10] (e) To identify and
apprehend
persons involved
(f) Bring suspected
offenders before a
competent court
[Sec.9]
Return or statement shall …the respondent shall file a Respondent shall file a
be signed and sworn to by verified written return verified written return
the person who makes it if together with supporting together with supporting
the prisoner is not affidavits… [Sec. 9] affidavits… [Sec. 10]
Formalities of produced,
return
Unless the return is made
and signed by a sworn
public officer in his official
capacity [Sec. 11]
Penalties CoC who refuses to issue  CoC who refuses to issue CoC who refuses to issue
the writ after allowance the writ after its the writ after its
For refusing to and demand, or allowance, or allowance, or
issue or serve A person to whom a writ  A deputized person who A deputized person who
is directed, who: refuses to serve the refuses to serve the same,
(1) neglects/refuses to same,
obey or make return shall be punished by the
of the same according shall be punished by the court, justice, or judge for
to the command court, justice or judge for contempt without prejudice
thereof, contempt without prejudice to other disciplinary actions
For faulty (2) or makes false return, to other disciplinary actions (RWD Sec. 8)
return (3) or upon demand (Sec. 7)
made by or on behalf The court, justice, or judge
of the prisoner,  The court, justice, or may punish with
refuses to deliver to judge may order the imprisonment or fine a
the person respondent who refuses respondent who commits
PAGE 256

demanding, within 6 to make a return, or who contempt by:
hours a true copy of makes a false return, or (1) Making a false return
the warrant or order any person who or
of commitment, otherwise disobeys or (2) Refusing to make a
resist a lawful process or return or
shall forfeit to the party order of the court to be (3) Any person who
aggrieved the sum of punished for contempt otherwise disobeys or
P1000, recoverable in a Contempt or may be resists a lawful
proper action, and may also imprisoned or imposed process or order of the
be punished for contempt a fine [Sec. 16) court [Sec. 11]
[Sec. 16]
Is period of No, not even on highly Yes, by the court, for

return meritorious grounds. justifiable reasons [Sec. 10]
extendable?
Is a general Not allowed [Sec. 9] Not allowed [Sec. 10]
denial allowed?
If not raised in return
Defenses not
deemed waived [Sec 10]
pleaded
Court or justice shall Court, judge, or justice shall
proceed to hear the petition hear the motion ex parte,
ex parte [Sec. 12] granting the petitioner such
reliefs as the petition may
Effect of failure
warrant
to file return
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary. However, the Summary. With possibility
court, justice, or judge may of preliminary conference
call for a preliminary similar to the WA [Sec. 14]
conference to simplify the Hearing on chambers may
issues and look at be conducted where
possibility of obtaining respondent invokes the
Nature of stipulations and admissions defense of national security
Hearing
from the parties. or state secrets, or the data
 Hearing shall be from is of privileged character
day to day until [Sec. 12]
completed same priority
as petitions for WHC
[Sec. 13]
As specified in the writ [Sec. As specified in the writ, not As specified in the writ, not
8] later than 7 days from the later than 10 working days
Date and time
issuance of the writ [Sec. 6] from the date of issuance
of hearing
writ [Sec. 7]
PAGE 257

In custody of minors: a Motion to dismiss, Motion for Same as WA [Sec. 13, RWD]
motion to dismiss, except on extension of time to file
the ground of lack of opposition, affidavit, position
jurisdiction [Sec. 6, Rule on paper and other pleadings,
Custody of Minors and WHC] Dilatory motion for
postponement, Motion for
bill of particulars,
Counterclaims or cross-
Prohibited claims, Third-party
pleadings complaint, Reply, Motion to
declare respondent in
default, Intervention,
Memorandum, Motion for
reconsideration of
interlocutory orders or
interim relief orders, petition
for certiorari, mandamus, or
prohibition [Sec.11]
Clear and convincing Establish claims by Substantial evidence
evidence [Dizon v. Eduardo substantial evidence required to prove the
(1988)]  if respondent is a private allegations in the petition
individual or entity, [Sec. 16]
Note: no provision in Rule ordinary diligence
Burden of
but in Dizon v. Eduardo, the  if public official or
Proof/Standard
SC used “clear and employee, extraordinary
of Diligence
convincing evidence”, a diligence [Sec. 17]
stricter standard than
“preponderance of evidence”
but less stricter that “proof
beyond reasonable doubt.”
Yes. Consonant with Sec. Public official or employee
13, stating that if warrant of
cannot invoke the
Presumption of
commitment is in pursuance presumption that official
Official duty
with law, serves as prima duty has been regularly
facie cause of restraint performed [Sec. 17]
The court shall render Within 10 days from the time
judgment within 10 days the petition is submitted for
Judgment from the time the petition is decision [Sec. 16]
submitted for
decision [Sec. 18]
Within 48 hours from notice 5 working days from the date 5 working days from the date
of the judgment of final of notice of adverse of notice of adverse
Appeal
order appealed [Sec. 39, BP judgment to the SC under judgment to the SC under
129] Rule 45 [Sec. 19] Rule 45 [Sec. 19]
Consolidated with a criminal Consolidated with a
Consolidation of action filed subsequent to criminal action filed
actions the petition [Sec. 23] subsequent to the petition
[Sec. 21]
No more separate petition Same as WA [Sec. 21]
Effect of filing shall be filed. Reliefs
criminal action available by motion in the
criminal case [Sec. 22]
PAGE 258
UP LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW
PAGE 259
General Matters JURISDICTION OVER THE PERSON OF

THE ACCUSED
JURISDICTION OVER SUBJECT This is acquired either by:
MATTER AND JURISDICTION (1) Arrest of the accused; or
(2) Voluntary appearance or submission of the
OVER PERSON OF THE ACCUSED accused to the jurisdiction of the court
DISTINGUISHED [Antiporda v. Garchitorena (1999), citing Arula
Jurisdiction over subject Jurisdiction over person v. Espino (1969)].
matter of the accused
Voluntary appearance of the accused is
Conferred by law and May be acquired by
accomplished by:
can never be acquired consent of the accused
(1) By filing pleadings seeking affirmative relief,
solely by consent of the or by waiver of
except in case of special appearance to
accused objections
challenge the jurisdiction of the court over the
Right to object is never Right to object may be person is not voluntary submission [Garcia v.
waived; the absence of waived; failure of the Sandiganbayan (2009)];
jurisdiction over the accused to object in (2) By giving bail.
subject matter may be time would constitute
raised at any stage of waiver REQUISITES FOR EXERCISE OF
the proceeding
CRIMINAL JURISDICTION
(1) Subject matter jurisdiction, that is, whether or
JURISDICTION OVER SUBJECT not the court has jurisdiction over the offense
MATTER by virtue of the imposable penalty and its
This refers to the right to act or the power and nature;
authority to hear and determine a cause (Gomez (2) Jurisdiction over the person of the accused;
v. Montalban (2008)). (3) Territorial jurisdiction, which refers to venue or
the place where the case is to be tried.
It is conferred by law and determined by the
allegations of the complaint [People v. Catalan The action should be instituted and tried in the
(2012)]. municipality or territory where offense has been
committed or where any one of the essential
General rule: Under the principle of adherence of ingredients thereof took place (Sec. 15(a), Rule
jurisdiction or continuing jurisdiction, where a 110).
court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to For transitory/ continuing offenses, the courts of
proceed to the final determination of the cause is the territories where the essential ingredients of
not affected by new legislation placing the crime took place have concurrent jurisdiction.
jurisdiction over such proceedings in another The first court taking cognizance of the case will
tribunal [Palana v. People (2007)]. It is not exclude the others [People v. Grospe (1988)].
affected by subsequent legislation.
Exception: The exception is where the succeeding

statute expressly provides, or is construed to the
effect that it is intended to operate to actions
pending before its enactment [Palana v. People
(2007)].
PAGE 260
JURISDICTION OF CRIMINAL COURTS
REGULAR (CIVIL) COURTS
MTC/MeTC/MCTC RTC Sandiganbayan

(1) Exclusive original jurisdiction (1) Exclusive original jurisdiction (1) Exclusive original jurisdiction
over all violations of city or in all criminal cases not in those cases expressly
municipal ordinances within the exclusive enumerated in PD 1606, as
committed within their jurisdiction of any court, amended by RA 8249,
respective territorial tribunal or body [Sec. 20, BP violations of RA 3019, RA
jurisdiction [Sec. 32(1), BP 129]; 1379, and Chapter II, Sec. 2,
129]; Title VII, Book II, RPC;
(2) Exclusive appellate
(2) Exclusive original jurisdiction jurisdiction over all cases The officials enumerated are:
over all offenses punishable decided by the MTC within (a) Officials of the executive
with imprisonment not its territorial jurisdiction [Sec. branch occupying the
exceeding 6 years 22, BP 129]; positions of regional
irrespective of the amount of director and higher,
fine, and regardless of other (3) Criminal cases where one or otherwise classified as
imposable accessory or other more of the accused is below Grade 27 and higher, of the
penalties, including the civil 18 years of age but not less Compensation and Position
liability arising from such than 15 years, or where one Classification Act of 1989
offenses or predicated or more of the victims is a (RA 6758);
thereon, irrespective of kind, minor at the time of the
nature, value, or amount commission of the offense (b) Members of Congress
thereof [Sec. 32(2), BP 129]; (RA 9344); and officials thereof
classified as Grade'27'and
(3) Exclusive original jurisdiction (4) Cases against minors up under the Compensation
over offenses involving cognizable under the and Position Classification
damage to property through Dangerous Drugs Act, as Act of 1989;
criminal negligence they amended [RA 8369 (Family
shall have exclusive original Courts Act of 1997)]; (c) Members of the judiciary
jurisdiction thereof [Sec. without prejudice to the
32(2), BP 129; RA 7691]; (5) Violations of RA 7610 (Child provisions of the
Abuse Act); Constitution;
For Nos. 1-3, cases falling within
the exclusive jurisdiction of the (6) Cases of domestic violence (d) Chairmen and members
RTC and Sandiganbayan are against women and children. of Constitutional
not included. If an act committed against Commissions, without
(1) Cases classified under the women and children likewise prejudice to the provisions
Revised Rules on Summary constitute a criminal offense, of the Constitution;
Procedure [SC Resolution, the accused or batterer shall
October 15, 1991]; be subject to criminal (e) All other national and
(a) Violations of traffic proceedings and the local officials classified as
laws, rules, or corresponding penalties (RA “Grade 27”
regulations; 8369 (Family Courts Act of
(b) Violations of rental law; 1997));
PAGE 261
MTC/MeTC/MCTC RTC Sandiganbayan

(c) Cases where the (7) Violations of intellectual (2) Other offenses or felonies
penalty prescribed by property rights [AM 03-03- whether simple or
law for the offense 03-SC (2003); RA 8293]; complexed with other
charged is crimes committed by public
imprisonment not (8) Money Laundering Cases officials and employees in
exceeding 6 months, or (RA 9160), except those relation to their office. The
a fine not exceeding committed by public officers following must concur:
P1,000, or both, and private persons who are (a) Accused is any one of the
irrespective of other in conspiracy with such public officials
imposable penalties, public officers shall be under enumerated in
accessory or otherwise, the jurisdiction of the subsection (a) of Sec. 4 of
or of the civil liability Sandiganbayan. RA 8249, grade 27 or
arising therefrom; higher
(d) Offenses involving
damage to property (b) Accused commits any
through criminal other offense or felony,
negligence (imposable than those specified in
fine does not exceed subsection (a), whether
P10,000); simple or complexed with
other crimes
(2) Violations of BP 22 [AM 00-
11-01-SC (2003)]; (c) The offender commits
(3) Special jurisdiction to decide such other offense or
on applications for bail in felony in relation to his
criminal cases in the office
absence of all RTC judges in
a province or city [Sec. 35, (3) Cases filed in pursuant to
BP 129]. and in connection with EO 1,
2, 14, 14-A (1986).
MILITARY COURTS Exceptions:

General rule: Ordinary courts will have jurisdiction (1) When necessary in the protection of the
over cases involving members of the armed constitutional rights of the accused;
forces, and other persons subject to military law, (2) When necessary for the orderly administration
regardless of who the co-accused or victims are. of justice or to avoid oppression or multiplicity
of suits;
Exception: When the offense is service-oriented, it (3) Where there is a prejudicial question which is
will be tried by the court martial, provided that sub judice;
the President may, in the interest of justice, order (4) Where acts of the officer are without or in
or direct, at any time before arraignment, that excess of authority;
any such crimes or offenses be tried by the proper (5) When the prosecution in under an invalid law
civil courts. or stature;
(6) When double jeopardy is apparent;
(7) Where the charges are manifestly false;
WHEN INJUNCTION MAY BE (8) Where there is no prima facie case and a
ISSUED TO RESTRAIN CRIMINAL motion to quash has been denied.
PROSECUTION
General rule: Courts will not issue injunction.
PAGE 262
Prosecution of Offenses WHO MAY FILE; CRIMES THAT

CANNOT BE PROSECUTED DE
CRIMINAL ACTIONS; HOW OFFICIO
INSTITUTED
CASES THAT CANNOT BE
IN GENERAL PROSECUTED DE OFFICIO
A criminal action is commenced by the filing of a (1) Adultery and concubinage [Sec. 5, Rule 110];
complaint or information. The complaint may be (2) Seduction, abduction, and acts of
filed either with the MTC or with a public lasciviousness;
prosecutor for purposes of conducting a (3) Defamation which consists of imputation of
preliminary investigation. any of the foregoing offenses.
OFFENSES REQUIRING PRELIMINARY WHO MAY FILE COMPLAINT

INVESTIGATION (1) For adultery and concubinage, the offended
For offenses which require preliminary spouse. Both guilty parties should be included if
investigation (i.e., under Sec. 1, Rule 112, where the both are alive [Sec. 5, Rule 110]. However,
penalty prescribed by law is at least four years, prosecution will not prosper if the offended party
two months and one day), the criminal action is consented to the offense.
instituted by filing the complaint with the (2) For seduction, abduction and acts of
appropriate officer for preliminary investigation lasciviousness, the offended party or her parents,
[Sec. 1(a), Rule 110]. grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by them
[Sec. 5, Rule 110].
OTHER OFFENSES
For all other offenses, or in offenses cognizable
General rule: If the offended party is a minor, he
by inferior courts (MTCs or MCTCs), the complaint
or she has the right to initiate the prosecution of
or information is filed directly with said courts or
such offenses independently of his/her parents,
the complaint is filed with the fiscal [Sec. 1(b),
grandparents, or guardians.
Rule 110].
Exceptions: He may not do so when he is:
METROPOLITAN MANILA AND OTHER (1) Incompetent, or
CITIES (2) Incapable of doing so
In Metropolitan Manila and other chartered cities, (3) For oral defamation, the complaint can only
the complaint shall be filed with the office of the be brought upon instance and upon complaint
public prosecutor unless otherwise provided in of the offended party.
their charters [Sec. 1(b), Rule 110].
EVENTS SUBSEQUENT TO FILING
EFFECT OF INSTITUTION ON
PRESCRIPTIVE PERIOD DEATH OF OFFENDED PARTY
The institution of a criminal action shall interrupt Death after filing the complaint would not
the running of the period of prescription of the deprive the court of the jurisdiction. The State
offense charged unless otherwise provided in shall initiate the action on behalf of the offended
special laws [Sec. 1, Rule 110]. party in case of his death/incapacity and he has
no known parents/grandparents/guardians.
As per People v. Pangilinan (2012), “there is no
more distinction between cases under the RPC In adultery/concubinage, death does not
and those covered by special laws with respect to extinguish the criminal liability of accused.
the interruption of the period of prescription.”
PAGE 263
DESISTANCE BY OFFENDED PARTY CRIMINAL ACTIONS; WHEN

Desistance does not bar the People of the
Philippines from prosecuting the criminal action, ENJOINED
but it operates as a waiver of the right to pursue General rule: The prosecution of a criminal case
civil indemnity. may not be enjoined by prohibition/injunction
[Domingo v. Sandiganbayan (1986)]
PARDON BY OFFENDED PARTY
(1) In rape, seduction, abduction and acts of Exceptions:
lasciviousness of a minor, the pardon will be (1) To afford protection to the constitutional rights
effective if given by both parents and the of the accused;
offended party; (2) Necessary for the orderly administration for
(2) In seduction, abduction and acts of justice or to avoid multiplicity of actions;
lasciviousness, express pardon by the offended (3) There is a prejudicial question which is sub
party, parents, grandparents or guardian will judice;
prevent prosecution [Sec. 5, Rule 110]: (4) The acts of the officer are without or in excess
(a) The parents/grandparents/guardian of the of authority;
offended minor (in that order) cannot (5) The prosecution is under an invalid
extend a valid pardon without conformity of law/ordinance/regulation;
the offended party, even if the latter is a (6) When double jeopardy is clearly apparent;
minor [US v. Luna (1902)]; (7) The court has no jurisdiction over the offense;
(b) If the offended woman is of age and not (8) A case of persecution rather than prosecution;
incapacitated, only she can extend a valid (9) The charges are manifestly false and
pardon which would absolve the offender. motivated by the lust for vengeance;
(10) There is clearly no prima facie case against
General rule: Pardon must be made before the the accused and MTQ on that ground has
filing of the criminal complaint in court. been denied [Samson v. Guingona (2000)];
(11) Preliminary injunction has been issued by the
Exception: In rape, where marriage between the SC to prevent the threatened unlawful arrest
offender and the offended party would be of petitioners.
effective as pardon even when the offender has
already commenced serving his sentence. CONTROL OF PROSECUTION
General rule: All criminal actions commenced by
If there is more than one accused, the pardon a complaint or information shall be prosecuted
must be extended to all offenders. under the direction and control of the prosecutor
Pardon or desistance extinguishes civil liability. [Sec. 5, Rule 110].
Pardon or express condonation has the effect of Exception: In case of heavy work schedule of the
waiving the civil liability with regard to the public prosecutor or in the event of lack of public
interest of the injured party. Liability arising from prosecutors, the private prosecutor may be
an offense is extinguished in the same manner as authorized in writing by the Chief of the
other obligations. Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the
Pardon Consent approval of the court.
Refers to past acts Refers to future acts
However, the criminal action is still prosecuted
In order to absolve In order to absolve under the direction and control of the public
the accused from the accused from prosecutor [Riano (2011)].
liability, it must be liability, it is
extended to both sufficient even if
offenders granted only to the
offending spouse
PAGE 264
EXTENT OF PROSECUTOR’S CONTROL An information is an accusation in writing,

charging a person with an offense, subscribed by
PRIOR TO FILING OF THE CASE the prosecutor and filed with the court [Sec. 4,
These matters are within the control and Rule 110; People v. Cinco (2009)].
supervision of the prosecutor:
(1) What case to file; TEST OF SUFFICIENCY
(2) Whom to prosecute; A complaint or information is sufficient if it states:
(3) Manner of prosecution; (1) The name of the accused;
(4) Right to withdraw information before (2) The designation of the offense given by the
arraignment even without notice and hearing. statute;
(3) The acts or omissions complained of as
AFTER FILING OF THE CASE constituting the offense;
It is the prosecutor’s duty to proceed with the (4) The name of the offended party;
presentation of his evidence. The prosecutor has (5) The approximate date of the commission of
no power to dismiss the action without the court’s the offense; and
consent. (6) The place where the offense was committed
[Sec. 6, Rule 110].
LIMITATIONS OF CONTROL BY THE COURT
(1) The prosecution is entitled to notice of hearing; The test for sufficiency of the complaint or
(2) The court must await for a petition for review information is whether the crime is described in
(maximum of 60 days); intelligible terms with such particularity as to
(3) The prosecution’s stand to maintain apprise the accused with reasonable certainty of
prosecution should be respected by the court; the offense charged [Lazarte v. Sandiganbayan
(4) The court must make its own independent (2009)].
assessment of evidence in granting or
dismissing motion to dismiss; otherwise, the An accused is deemed to have waived his right to
judgment is void. assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
EFFECTS OF LACK OF INTERVENTION OF
participated in the trial [Frias v. People (2007)].
FISCAL
Although the private prosecutor had previously
been authorized by the special counsel to present Consequently, objections as to form cannot be
made for the first time on appeal. The accused
the evidence for the prosecution, in view of the
should have moved for a bill of particulars or for
absence of the City Fiscal at the hearing, it cannot
quashal of information before arraignment,
be said that the prosecution of the case was
otherwise he is deemed to have waived his
under the control of the City Fiscal. It follows that
objections to such a defect [People v. Teodoro
the evidence presented by the private prosecutor
(2009)].
at said hearing could not be considered as
evidence for the plaintiff [People v. Beriales
(1976)]. DESIGNATION OF OFFENSE
The complaint of information shall:
SUFFICIENCY OF COMPLAINT OR (1) State the designation of the offense given by
INFORMATION the statute;
(2) Aver the acts and omissions constituting the
offense; and
DEFINITION (3) Specify the qualifying and aggravating
Sec. 3, Rule 110. A complaint is a sworn written circumstances.
statement charging a person with an offense,
subscribed by the offended party, any peace If there is no designation of the offense, reference
officer or other public officer charged with the shall be made to the section or section of the
enforcement of the law violated statute punishing it [Sec. 8, Rule 110].
PAGE 265
This is a procedural requirement to safeguard the does not fall within the exemptions. Simply put, if
right of the accused to be informed of the nature the exception is needed for defining the offense,
and cause of the accusation against him. then the information should negate the exception
[US v. Chan Toco (1908)].
Specific acts of accused do not have to be
described in detail in the information, as it is WHERE COMPLEX CRIME IS CHARGED
enough that the offense be described with Where what is alleged in the information is a
sufficient particularity to make sure the accused complex crime and the evidence fails to support
fully understands what he is being charged with the charge as to one of the component offenses,
[Guy v. People (2009)]. the defendant can only be convicted of the
offense proven.
CAUSE OF THE ACCUSATION
DUPLICITY OF THE OFFENSE;
IN GENERAL EXCEPTION
The acts or omissions complained of as
Duplicity of the offense in an information or
constituting the offense and the qualifying and
complaint means the joinder of two or more
aggravating circumstances must be stated
separate and distinct offenses in one and the
(1) In ordinary and concise language; and
same information or complaint.
(2) Not necessarily in the language used in the
statute; but
General rule: The information must charge only
(3) In terms sufficient to enable a person of
one offense [Sec. 13, Rule 110].
common understanding to know what offense
is being charged as well as its qualifying and
Exception: Multiple offenses may be charged
aggravating circumstances and for the court
when the law prescribes a single punishment for
to pronounce judgment [Sec. 9, Rule 110].
various offenses.
Qualifying and aggravating circumstances must
be alleged. Otherwise, they are not to be REMEDY
considered even if proven during the trial. The filing of a motion to quash is the remedy in
case of duplicity of offense in an information.
WHERE THE LAW PRESCIBES Objection to a complaint or information which
EXCEPTIONS charges more than one offense must be timely
General rule: Where the law alleged to have been interposed before trial (Sec. 3, Rule 120). Failure
violated prohibits generally acts therein defined to do so constitutes a waiver [People v. Tabio
and is intended to apply to all persons (2008)] and the court may convict the accused of
indiscriminately, but prescribes certain as many offenses as are charged and proved, and
limitations/exceptions from its violation, the impose on him the penalty for each offense [Sec.
indictment/information is sufficient if it alleges 3, Rule 120].
facts which the offender did as constituting a
violation of law, without explicitly negating the MODES OF COMMITTING OFFENSE
exception, as the exception is a matter of defense
which the accused has to prove. NOT DUPLICITOUS
General rule: In case of crimes susceptible of
Exception: Where the statute alleged to have being committed in various modes, the
been violated applies only to specific classes of allegations in the information of the various ways
persons and special conditions and the of committing the offense would be regarded as a
exemptions from its violation are so incorporated description of only one offense and information is
in the language defining the crime that the not rendered defective.
ingredients of the offense cannot be accurately
and clearly set forth if the exemption is omitted,
then the indictment must show that the accused
PAGE 266
Exceptions: AS TO SUBSTANCE
(1) Complex crimes; Substantial matter in a complaint is the recital of
(2) Special complex crimes; facts constituting the offense charged and
(3) Continuous crimes; determinative of the jurisdiction of the court. All
(4) Crimes susceptible of being committed in other matters are merely of form [Almeda v.
various modes; Villaluz (1975)].
(5) Crimes which another offense is an ingredient
[People v. Camerino (1960)]. General rule: Amendment as to substance at this
state of the case is proscribed [People v. Zulueta
AMENDMENT OR SUBSTITUTION (1951)].
OF COMPLAINT OR Exception: Amendment may be allowed if it is
INFORMATION beneficial to the accused [Ricarze v. CA (2007)].
AMENDMENT IN FORM AND SUBSTITUTION

SUBSTANCE BEFORE PLEA Substitution a complaint or information may be
General rule: It must be made before the accused substituted if it appears at any time before
enters his plea. judgment that a mistake has been made in
charging the proper offense, the court shall
Exception: If the amendment downgrades the dismiss the original complaint or information
nature of the offense charged in, or excludes any upon the filing of a new one charging the proper
accused from, the complaint/information, it can offense, provided the accused would not be
be made only upon motion of the prosecutor, placed in double jeopardy [Sec. 14, Rule 110].
with notice to the offended party and with leave
of court. The court is mandated to state its Subject to the Sec. 19, Rule 119, when it becomes
reasons in resolving the motion of the prosecutor manifest at any time before judgment that a
and to furnish all parties, especially the offended mistake has been made in charging the proper
party, of copies of its order [Sec. 14, Rule 110]. offense and the accused cannot be convicted of
the offense charged or any other offense
AMENDMENT AFTER PLEA AND necessarily included therein, the accused shall
not be discharged if there appears good cause to
DURING TRIAL detain him. The court shall commit the accused
to answer the proper offense and dismiss the
AS TO FORM original case upon the filing of the proper
Amendment as to form can only be made under information.
two conditions:
(1) Leave of court must be secured; Limitations:
(2) It does not cause prejudice to the rights of the (1) No judgment has yet been rendered;
accused [Sec. 14, Rule 110]. (2) The accused cannot be convicted of the
offense charged or of any other offense
The test as to whether or not a defendant is necessarily included therein;
prejudiced by the amendment of information is: (3) The accused would not be placed in double
(1) Whether or not a defense under the jeopardy.
information as it originally stood would be
available after the amendment is made, and
(2) Whether or not any evidence the defendant
might have would be equally applicable to the
information in the one form as in the other.
[People v. Casey (1981)].
PAGE 267
AMENDMENT AND SUBSTITUTION (2) Those committed on a railroad train, aircraft,

DISTINGUISHED or any other public or private vehicle in the
court of its trip, which may be instituted and
Amendment Substitution
tried in the court of any municipality or
Formal or substantial Substantial changes territory where such train, aircraft, or other
changes vehicle passed during such trip, including
Can be effected Must be with leave of place of departure and arrival;
without leave of court court (3) Those committed on board a vessel in the
course of its voyage, which may be instituted
Only as to form, there Another PI is entailed and tried in the proper court of the first port of
is no need for another and accused has to entry or of any municipality or territory
PI and retaking of plea plead anew through which vessel passed, subject to the
The amended Involves a different generally accepted principles of international
information refers to offense which does not law;
the same offense include those provided (4) Piracy, which has no territorial limits and may
charged in the original in the original charge; be instituted anywhere [People v. Lol-lo and
information or to an cannot invoke double Saraw (1922)];
offense which is jeopardy [Teehankee v. (5) Libel, which may be instituted at the election
included in the original Madayag (1992)] of the offended part or suing party in the
charge; can invoke province or city, subject to Article 360, RPC;
double jeopardy (6) In cases filed under BP 22, which may be filed
in the place where the check was dishonored
or issued, or in case of a cross-check, in the
VENUE OF CRIMINAL ACTIONS place of the depositary or collecting bank;
General rule: In all criminal prosecutions, the (7) For violations of RA 10175 (Cybercrime
action must be instituted and tried in the courts Prevention Act of 2012), the RTCs have
of the municipality or territory where: jurisdiction over any violation of the provisions
(1) The offense was committed; or of the Act, including any violation committed
(2) Any of its essential ingredients occurred [Sec. by a Filipino national regardless of the place of
15(a), Rule 110]. commission [Sec. 21];
(8) In exceptional circumstances, where, to
This is the principle of territoriality. Venue in ensure a fair trial and impartial inquiry, the SC
criminal cases is jurisdictional. The court has no have the power to order a change of venue or
jurisdiction to try an offense committed outside place of trial to avoid miscarriage of justice
its territorial jurisdiction. It cannot be waived, or [Art. VII, Sec. 5, Constitution)].
changed by agreement of the parties, or by the
consent of the defendant.
INTERVENTION OF OFFENDED
Thus, where an offense is wholly committed PARTY
outside the territorial limits wherein the court General rule: An offended party has the right to
operates, said court is powerless to try the case. intervene in the prosecution of a crime, where the
For the rule is that one cannot be held to answer civil action for recovery of civil liability is instituted
for any crime committed by him except in the in the criminal action [Sec. 16, Rule 110].
jurisdiction where it was committed [Hernandez v.
Albano (1967)]. The place where the accused was Note: This is still subject to the control of the
arrested is of no moment.’ prosecutor [Phil. Rabbit Bus Lines v. People
(2004)].
Exceptions:
(1) Felonies under Article 2, RPC, which are
cognizable by the proper court where criminal
action was first filed;
PAGE 268
Exceptions: RESERVATION OF RIGHT TO FILE

(1) Where, from the nature of the crime and the CIVIL ACTION
law defining and punishing it, no civil liability The civil action may also proceed independently
arises in favor of a private offended party; of the criminal action when reservation to
(2) Where, from the nature of the offense, the institute the civil action separately is made. The
private offended party is entitled to civil reservation shall be made before the prosecution
indemnity arising therefrom but he has waived starts presenting its evidence and under
the same or has expressly reserved his right to circumstances affording the offended party a
institute a separate civil action or he has reasonable opportunity to make such reservation
already instituted such action; [Sec. 1, Rule 111]
(3) Offended party has already instituted action
for civil claims.
SEPARATE ACTION FILED BY THE
ACCUSED
No counterclaim, cross-claim or third-party
Prosecution of Civil Action complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been the subject thereof may be litigated in
RULE ON IMPLIED INSTITUTION a separate civil action [Sec. 1, Rule 111].
OF CIVIL ACTION WITH
CRIMINAL ACTION WHEN SEPARATE CIVIL ACTION
General rule: The civil action for the recovery of
civil liability arising from the offense charged is IS SUSPENDED
deemed instituted with the criminal action. After the criminal action has been commenced,
the separate civil action arising therefrom cannot
Exception: The civil action is not deemed so be instituted until final judgment has been
instituted if the offended party: entered in the criminal action [Sec. 2, Rule 111].
(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal The civil action, which should be suspended after
action; or the institution of the criminal action, is that
(3) Reserves the right to institute it separately arising from delict or crime.
[Sec. 1, Rule 111].
Civil actions under Articles 32, 33, 34 and 2176,
Civil Code, are exempted from the rule that after a
WHEN CIVIL ACTION MAY criminal action has been commenced, the civil
PROCEED INDEPENDENTLY action which has been reserved cannot be
instituted until final judgment has been rendered
INDEPENDENT CIVIL ACTIONS in the criminal action [Sec. 3, Rule 111].
Under the Rules, only civil liability arising from the
crime charged is deemed instituted. Hence, the EFFECT OF DEATH OF THE ACCUSED
civil actions under the Civil Code, specifically OR CONVICT ON CIVIL ACTION
Articles. 32, 33, 34, and 2176, remain separate, Upon the death of the accused or convict,
distinct, and independent of any criminal criminal liability is extinguished [Article 89, RPC].
prosecution although based on the same act
[Phil. Rabbit Bus Lines Inc. v. People (2004)].
PAGE 269
As regards civil liability: (1) The civil case involves facts intimately related
(1) When death occurs before the arraignment, the to those upon which the criminal prosecution
case is dismissed without prejudice to filing of would be based;
civil action against estate of the deceased (2) In the resolution of the issue/s raised in the
(Sec. 4, Rule 111); civil action, the guilt/innocence of the accused
(2) When death occurs after arraignment and would necessarily be determined;
during pendency of criminal action, it (3) Jurisdiction to try the action is lodged in
extinguishes civil liability arising from the another tribunal [Magestrado v. People
delict; (2009)];
(3) When death occurs during pendency of appeal (4) The action is instituted prior to the institution
extinguishes criminal liability and the civil of the criminal action [Pimentel v. Pimentel
liability based thereon [People v. Ayochok (2010)].
(2010)].
Ratio: The rule seeks to avoid two conflicting
Independent civil actions instituted under Articles decisions in the civil case and in the criminal case
32, 33, 34 and 2176, Civil Code, or those instituted [Sy Thiong Siou vs Sy Chim (2009)].
to enforce liability arising from other sources of
obligation may be continued against the estate or
legal representative of the accused after proper EFFECT
substitution or against his estate. General rule: Where both a civil and a criminal
case arising from the same facts are filed in court,
As regards the parties in the civil action, the heirs the criminal case takes precedence [Sec. 2, Rule
of the accused may be substituted without 111].
requiring the appointment of an
executor/administrator. The court may appoint Exception: If there exists a prejudicial question
guardian ad litem for the minors. which should be resolved first before an action
could be taken in the criminal case.
The court shall order the legal representatives to
appear and be substituted within 30 days from WHERE TO FILE PETITION FOR
notice.
SUSPENSION
(1) Office of the prosecutor (in the PI stage);
PREJUDICIAL QUESTION (2) Court conducting the PI; or
(3) Court where criminal action has been filed for
ELEMENTS trial, at any time before the prosecution rests
A prejudicial question is that which arises in a [Sec. 6, Rule 111].
case the resolution of which is a logical antecedent
of the issue involved therein, and the cognizance Note: The Rules preclude a motu proprio
of which pertains to another tribunal. suspension of the civil action [Riano (2011)].
Under Sec. 7, Rule 111, the elements of a RULE ON FILING FEES IN CIVIL
prejudicial question are:
(1) The previously instituted civil action involves
ACTION DEEMED INSTITUTED
an issue similar or intimately related to the WITH THE CRIMINAL ACTION
issue raised in the subsequent criminal action; Filing fees apply when damages are being
and claimed by the offended party, to be paid upon
(2) The resolution of such issue determines filing of the criminal action.
whether or not the criminal action may
proceed. General rule: The actual damages claimed or
recovered by the offended party are not included
A civil action may be considered prejudicial when in the computation of the filing fees [Sec. 1, Rule
the following concur: 111].
PAGE 270
When the amount of damages, other than actual, WAIVER OF RIGHT

is specified in the complaint or information filed The right to preliminary investigation is a
in court, then the corresponding filing fees shall personal right which the accused may waive
be paid by the offended party upon the filing either expressly or by implication.
thereof in court for trial.
In any other case (i.e., when the amount of When the accused waives his right to preliminary
damages is not so alleged in the complaint or investigation, the fiscal may forthwith file the
information filed in court), the corresponding corresponding information with the proper court
filing fees need not be paid and shall simply [People v. Perez (1960)].
constitute a first lien on the judgment, except on
an award for actual damages [General v. Claravall An application for or admission to bail shall not
(1991)]. bar the accused from assailing the regularity or
questioning the absence of a preliminary
Exceptions: In criminal actions for violation of BP investigation of the charge against him provided
22, the amount of the check involved shall be that he raises the challenge before entering his
considered as the actual damages for which no plea [Sec. 26, Rule 114].
separate civil action is allowed. In estafa cases,
the filing fees shall be paid based on the amount WHEN RIGHT DEEMED WAIVED
involved [AM 04-2-04]. (1) Express waiver or by silence [Herrera, Remedial
Law, Vol. IV (2007)];
Preliminary Investigation (2) Failure to invoke it during arraignment [People
v. De Asis (1993)]; and
(3) Consenting to be arraigned and entering a
NATURE OF RIGHT plea of not guilty without invoking the right to
PI [People v. Bulosan (1988)].
DEFINITION
It is an inquiry or proceeding to determine The waiver, whether express or implied, must be
whether there is sufficient ground to engender a in a clear and unequivocal manner [Herrera
well-founded belief that a crime has been (2007)].
committed and the respondent is probably guilty
thereof, and should be held for trial [Sec. 1, Rule The right cannot be raised for the first time on
112]. appeal [Pilapil v. Sandiganbayan (1993)].
A PI is “merely inquisitorial, and it is often the WHEN RIGHT NOT DEEMED WAIVED
only means of discovering the persons who may (1) Failure to appear before the prosecutor during
reasonably be charged with a crime, to enable the clarificatory hearing or when summoned,
the prosecutor to prepare his complaint or when the right was invoked at the start of the
information. It is not a trial of the case on the proceeding [Larranaga v. CA (1998)]; or
merits” and does not place the persons against (2) When the accused filed an application for bail
whom it is taken in jeopardy. and was arraigned over his objection and the
accused demand that preliminary
RIGHT TO PRELIMINARY investigation be conducted [Go v. CA (1992)].
INVESTIGATION
The right to preliminary investigation is a
statutory right in those instances where it is
required, and to withhold it would violate the
constitutional right to due process [People v.
Oandasa (1968)].
It is not a mere formal or technical right but a

substantial right.
PAGE 271
PURPOSES OF PRELIMINARY COMELEC

The COMELEC may conduct investigation as
INVESTIGATION regards election offenses [Art. IX-C, Sec. 2(6),
(1) To determine whether or not a crime has been
Constitution; Sec. 265, Omnibus Election Code].
committed and whether or not there is
probable cause to believe that the accused is
guilty [Raro v. Sandiganbayan (2000)]; OMBUDSMAN
(2) To secure the innocent against hasty, Art. XI, Sec. 12, Constitution. The Ombudsman and
malicious and oppressive prosecution, and to his deputies, as protectors of the people, shall act
protect him from an open and public promptly on complaints filed in any form or
accusation of a crime, from the trouble, manner against public officials or employees of
expense, anxiety of a public trial, and also the Government, or any subdivision, agency or
protect the state from useless and expensive instrumentality thereof, including GOCCs and
trials [Tandoc v. Resultan (1989)]. shall, in appropriate cases, notify the
complainants of the action taken and the result
WHO MAY CONDUCT thereof
DETERMINATION OF EXISTENCE The Ombudsman is authorized to conduct
OF PROBABLE CAUSE preliminary investigation and to prosecute all
Probable cause means the existence of such facts criminal cases involving public officers and
and circumstances as would excite the belief, in a employees, not only those within the jurisdiction
reasonable mind, acting on the facts within the of the Sandiganbayan, but also those within the
knowledge of the prosecutor, that the person jurisdiction of regular courts as well.
charged was guilty of the crime for which he was
prosecuted.
In general, the following may conduct the

determination of existence of probable cause:
(1) Provincial/city prosecutors and their
assistants;
(2) National and regional state prosecutors;
(3) Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by AM 05-8-26-
SC].
PROSECUTOR
The prosecutor makes a determination of
probable cause for purposes of indictment. Such
finding will not be disturbed by the court unless
there is finding of grave abuse of discretion.
COURT
The court makes a determination of probable
cause for purposes of issuance of warrant of
arrest.
Note: RTC judges have no power to conduct PI;

and MTC judges cannot conduct PI anymore after
AM 05-8-26-SC eliminated judges of the MTC
and MCTC from those authorized to conduct a PI
effective October 3, 2005.
PAGE 272
PROCEDURE FOR PRELIMINARY Clarificatory Hearing

INVESTIGATION Hearing is conducted only if there are
Filing of the Complaint such facts and issues to be clarified from
(1) Stating the respondent’s name and a party or a witness.
address
(2) Include the affidavits of complainant The investigator must conduct a hearing
and the witnesses, and other documents within 10 days from receipt of the
to establish probable cause, which must counter-affidavit. The hearing must be
1 be subscribed and sworn to before a
prosecutor or government official 4
finished in 5 days.
authorized to administer oath or notary Parties may be present evidence, but

public they have no right to examine or cross-
(3) In such number of copies as there are examine. Questions of parties shall be
respondents, plus 2 copies for the official submitted to the investigating officer.
file [Sec. 3(a), Rule 112].
Within 10 day after the investigation, the
Action of the Investigating Officer officer shall determine whether or not
(1) Within 10 days after the filing of the there is sufficient ground to hold
complaint, the investigating officer will respondent for trial [Sec. 3(e), Rule 112].
either:
(a) Dismiss, if he finds no ground to
continue; or
(b) Issue a subpoena to the RESOLUTION OF THE
respondent, attaching the INVESTIGATING PROSECUTOR
2 complaint and other documents. If
subpoena is not possible, the
If he finds probable cause to hold respondent for
trial, he shall prepare a resolution and certify
investigating officer shall decide under oath in the information that:
based on what complainant (1) He or an authorized officer has personally
presented; examined the complainant and his witnesses;
(2) Respondent has the right to examine (2) That there is reasonable ground to believe
the evidence submitted by complainant, that a crime has been committed and that the
and copy evidence at his expense [Sec. accused is probably guilty thereof;
3(b), Rule 112]. (3) That the accused was informed of the
Defendant’s Counter-affidavit complaint and evidences against him;
It must be made within 10 days from (4) That he was given opportunity to submit
receipt of complaint, and must comply controverting evidence
with the same requirements as a
complaint [Sec. 3(c), Rule 112]. If he finds no probable cause, he shall recommend
3 If not made within 10 days, the
the dismissal of the complaint [Sec. 4, Rule 112].
investigating officer shall resolve the

complaint based on the evidence
presented by the complainant [Sec. 3(d),
Rule 112].
PAGE 273
REVIEW WHEN WARRANT OF ARREST MAY

Within 5 days from resolution, the ISSUE
investigating officer will forward the case If the judge finds probable cause, he shall issue a
to the prosecutor or to the Ombudsman warrant of arrest, or a commitment order if the
1 in cases cognizable by the accused has already been arrested, and hold him
Sandiganbayan in the exercise of its for trial.
original jurisdiction.
The PI conducted by the prosecutor is executive in
Within 10 days from receipt of the nature. It is for the purpose of determining
2 resolution, the prosecutor/ombudsman
will act on the case.
whether or not there exists sufficient ground for
the filing of information.
No complaint/information may be filed
or dismissed by an investigating The PI conducted by the judge which is properly
prosecutor without the prior written called preliminary examination is for the
authority or approval of the prosecutor determination of probable cause for the issuance
or ombudsman. of warrant of arrest [P/Supt. Cruz v. Judge Areola
(2002)].
3 In case the investigation officer
recommends the dismissal of the CASES NOT REQUIRING
complaint but the
prosecutor/Ombudsman disagrees, the PRELIMINARY INVESTIGATION
latter may file the in-formation himself NOR COVERED BY THE RULE ON
or any deputy or order any prosecutor to SUMMARY PROCEDURE
do so without conducting a new PI. These are cases punishable by imprisonment of
The DOJ Secretary may file the less than 4 years, 2 months and 1 day, and filed
information without conducting another with the prosecutor or MTC/MCTC.
PI or dismiss the information filed by the
prosecutor. The DOJ Secretary may If filed directly with the prosecutor, Sec. 3(a), Rule
review resolutions, via petition for review 112 applies. Thus, the complaint must be filed
4 to the Secretary of Justice, of his
subordinates in criminal cases despite
(1) Stating the respondent’s name and address;
(2) Include the affidavits of complainant and the
the information being filed in court [Sec. witnesses, and other documents to establish
4, Rule 112; Community Rural Bank of probable cause, which must be subscribed
Guimba v. Talavera (2005)); see also DOJ and sworn to before a prosecutor or
Circ. No. 70]. government official authorized to administer
oath or notary public; and
The resolution of the Secretary of Justice may be (3) In such number of copies as there are
nullified in a petition for certiorari under Rule 65 respondents, plus 2 copies for the official file.
on grounds of grave abuse of discretion resulting
to lack or excess of jurisdiction [Ching v. Sec. of The prosecutor shall act on the complaint based
Justice (2006)]. on the affidavits and other supporting documents
submitted by the complainant within 10 days
The DOJ resolution is appealable administratively from its filing.
before the Office of the President and the
decision of the latter may be appealed before the
CA pursuant to Rule 43 [De Ocampo v. Sec. of
Justice (2006)].
PAGE 274
A complaint, which complies with Sec. After the filing of the complaint/information in
1 3(a), Rule 112, is filed. court without a PI, the accused may within 5 days
from the time he learns of its filing, ask for a PI
Within 10 days after the filing of the with the same right to adduce evidence in his
complaint/information, if the judge finds defense as provided in Rule 112 [Sec. 6, 3rd par.,
no PC after personally evaluating the Rule 112].
evidence or after personally examining in
2 writing and under oath the complainant
RESTRAINING PRELIMINARY
and his witnesses in the form of
searching questions and answers, he INVESTIGATION
shall dismiss the same. General rule: The power of the Fiscal to
investigate crimes committed within his
The judge may require submission of jurisdiction will, ordinarily, not be restrained.
3 additional evidence within 10 days from
notice, to determine the existence of PC. Exceptions: Extreme cases may exist where relief
If the judge still If the judge finds in equity may be availed of to stop a purported
finds no PC PC, he shall issue enforcement of a criminal law where it is
despite the a warrant of arrest necessary:
additional or a commitment (1) For the orderly administration of justice;
evidence, he shall order (if already (2) To prevent the use of the strong arm of the
4 dismiss the case
within 10 days
arrested) and hold
him for trial.
law in an oppressive and vindictive manner;
(3) To avoid multiplicity of actions;
from its (4) To afford adequate protection to
submission or constitutional rights; and
expiration of said (5) In proper cases, because the statute relied
period. upon is unconstitutional, or was “held invalid”
If the judge is [Ladlad v. Velasco (2007)].
satisfied that there
is no need to place INQUEST
5 the accused under
custody, he may DEFINITION
issue summons An inquest is an informal and summary
instead. investigation conducted by a public prosecutor in
criminal cases involving persons arrested and
REMEDIES OF ACCUSED IF detained without the benefit of a warrant of
arrest issued by the court for the purpose of
THERE WAS NO PRELIMINARY determining whether or not said persons should
INVESTIGATION remain under custody and correspondingly be
charged in court [DOJ-NPS Manual].
EFFECT OF DENIAL OF RIGHT General rule: PI is required to be conducted
The absence of PI:
before a complaint/ information is filed for an
(1) Does not impair the validity of the information
offense where the penalty prescribed by law is at
or otherwise render it defective;
least 4 years, 2 months and 1 day, without regard
(2) Does not affect the jurisdiction of the court;
to the fine. [Sec. 1, Rule 112]
(3) Does not constitute a ground for quashing the
information.
Exception: When a person is lawfully arrested
without a warrant involving an offense that
The trial court, instead of dismissing the
requires a PI, a complaint/information may be
information, should hold in abeyance the
filed without conducting the PI if the necessary
proceedings and order the public prosecutor to
inquest is conducted.
conduct a PI [Villaflor v. Vivar (2001)].
PAGE 275
However, before the complaint or information is

filed, the person arrested may ask for a PI, but he Arrest
must sign a waiver of the provisions of Article 125,
RPC in the presence of his counsel. DEFINITION
Notwithstanding the waiver, he may apply for bail Arrest is the taking of a person into custody in
and the investigation must be terminated within order that he may be bound to answer for the
15 days from its inception [Sec. 6, Rule 112]. commission of an offense (Sec. 1, Rule 113).
PROCEDURE PARLIAMENTARY IMMUNITY

An inquest is considered commenced upon Senators and Members of the House of
receipt by the Inquest Officer from the law Representatives, while Congress is in session and
enforcement authorities of the complaint/referral for offenses punishable by not more than 6 years
documents which should include: imprisonment are immune to arrest [Art. VI, Sec.
(1) Affidavit of arrest, investigation report, 11, Constitution].
statement of the complainant and witnesses,
all of which must be subscribed and sworn to DIPLOMATIC IMMUNITY
before him; Ambassadors and ministers of foreign countries
(2) Other supporting evidence gathered by the and their duly registered domestics subject to the
police in the course of the latter's investigation
principle of reciprocity are immune to arrest [RA
of the criminal incident involving the arrested
75].
or detained person.
Note: Diplomatic immunity is not limited to
It must be terminated within the period immunity from arrest only.
prescribed under the provisions of Article 125,
RPC.
HOW MADE
Thus, if after the inquest proceedings: (1) By an actual restraint of a person to be
(1) There is no probable cause, the case is arrested;
dismissed; (2) By his submission to the custody of the person
(2) The accused wants a PI and is willing to waive making the arrest [Sec. 2, 1st par., Rule 113].
Article 125, a preliminary investigation
conducted; It is enough that there be an intent on the part of
(3) The arrest was without warrant, but there one of the parties to arrest the other and an
possibly is PC, the accused is released for intent on the part of the other to submit, under
regular PI; the belief and impression that submission is
(4) There is PC and the arrest was valid, an necessary [Sanchez v. Demetriou (1993)].
information is filed. No violence or unnecessary force shall be used in
making an arrest [Sec. 2, 2nd par., Rule 113].
Application of actual force, manual touching of

the body, physical restraint or a formal
declaration of arrest is not required.
Sec. 6, Rule 113. An arrest may be made on any

day and at any time of the day or night
PAGE 276
ARREST WITHOUT WARRANT, (3) Offense is continuing or has been

consummated at the time arrest is made
WHEN LAWFUL [People v. Evaristo (1992)].
General rule: No peace officer or person has the
power or authority to arrest anyone without a The following are instances of this type of arrest
warrant except in those cases expressly without warrant:
authorized by law [Umil v. Ramos (1991)]. (1) An arrest made after an entrapment does not
require a warrant inasmuch as it is considered
Exceptions: a valid warrantless arrest pursuant to Sec.
(1) In flagrante delicto [Sec. 5(a), Rule 113]; 5(a), Rule 113 [Teodicio v. CA (2004)]. This is
(2) Hot pursuit arrest [Sec. 5(b), Rule 113]; different from instigation, which means luring
(3) Arrest of escaped prisoner [Sec. 5(c),, Rule 113]; the accused into a crime that he, otherwise,
(4) Other lawful warrantless arrests: had no intention to commit, in order to
(a) Where a person who has been lawfully prosecute him, and leads to acquittal [People
arrested escapes or is rescued [Sec. 13, Rule v. Dansico (2011)].
113]; any person may immediately pursue (2) When a person is caught in flagrante as a
or retake him without a warrant at any result of the buy-bust operation, the policemen
time and in any place within the are not only authorized but are also under
Philippines; obligation to apprehend the drug pusher even
(b) By the bondsman, for the purpose of without a warrant of arrest [People v. de Lara
surrendering the accused [Sec. 23, Rule 114]; (1994)].
(c) Where the accused who is released on bail
attempts to leave the country without HOT PURSUIT ARREST
permission of the court where the case is
A peace officer or a private person may, without
pending [Sec. 23, Rule 114].
warrant, arrest a person when an offense has just
been committed and the officer or private person
IN FLAGRANTE DELICTO has probable cause to believe, based on personal
A peace officer or a private person may, without knowledge of facts or circumstances, that the
warrant, arrest a person when the person to be person to be arrested has committed it [Sec. 5(b),
arrested: Rule 113].
(1) Has committed;
(2) Is actually committing; or Requisites:
(3) Is attempting to commit an offense in the (1) An offense has just been committed. There
presence of the peace officer or private person must be a large measure of immediacy
who arrested him [Sec. 5(a), Rule 113]. between the time the offense was committed
and the time of the arrest. If there was an
Requisites: appreciable lapse of time between the arrest
(1) The person to be arrested must execute an and the commission of the crime, a warrant of
overt act indicating that he has just arrest must be secured [People v. del Rosario
committed, is actually committing, or is (1999); People v. Agojo (2009)]; and
attempting to commit a crime; and (2) The person making the arrest has probable
(2) Such overt act is done in the presence or cause to believe, based on personal knowledge
within the view of the arresting officer of facts, that the person to be arrested has
[Zalameda v. People (2009); People v. Laguio committed it.
(2007)].
Probable cause must be based on personal
“In his presence” means: knowledge which means an actual belief or
(1) He sees the offense, even though at a distance; reasonable grounds of suspicion [Abelita III v.
(2) He hears the disturbances created by the Doria (2009)].
offense and proceeds at once to the scene; or
PAGE 277
Note: Where a warrantless arrest is made under A waiver of the right to question an illegal
the in flagrante and hot pursuit exceptions, the warrantless arrest does not also mean a waiver of
person arrested without a warrant shall forthwith the inadmissibility of evidence seized during an
arrested delivered to the nearest police station or illegal warrantless arrest [People v. Nuevas,
jail [Sec. 5, 2nd par., Rule 113]. (2007)].
ARREST OF ESCAPED PRISONER WHEN CURED

A peace officer or a private person may, without (1) When the accused voluntarily submits to the
warrant, arrest a person when the person to be jurisdiction of the trial court [Dolera v. People
arrested is a prisoner who has escaped [Sec. 5(c), (2009); People v. Alunday (2008)];
Rule 113]: (2) By the filing of an information in court and the
(1) From a penal establishment or place where he subsequent issuance by the judge of a warrant
is serving final judgment or temporarily of arrest [Sanchez v. Demetriou (1993)].
confined while his case is pending; or
(2) While being transferred from one confinement METHOD OF ARREST
to another.
Escapee may be immediately pursued or re- BY OFFICER WITH WARRANT

arrested without a warrant at any time and in any
place within the Philippines [Sec. 13, Rule 113]. DUTIES OF ARRESTING OFFICER
(1) Execution of warrant [Sec. 4, Rule 113]:
Ratio: At the time of arrest, the escapee is in (a) The head of the office to whom the warrant
continuous commission of a crime (i.e., evasion of of arrest was delivered shall cause the
service of sentence). warrant to be executed within 10 days from
its receipt;
RULES ON ILLEGALITY OF ARREST (b) The officer to whom it was assigned for
execution shall make a report to the judge
EFFECT who issued the warrant within 10 days after
The legality of the arrest affects only the expiration of the period to execute.
jurisdiction of the court over the person of the (c) In case of the officer’s failure to execute, he
accused [People v. Nuevas (2007)]. shall state the reasons therefor.
(2) The officer shall inform the person to be
WAIVER arrested of the cause of the arrest and the fact
Any objection involving the arrest or the procedure that a warrant has been issued for his arrest
in the court’s acquisition of jurisdiction over the [Rule 113, Sec. 7].
person of an accused must be made before he (a) This duty does not apply:
enters his plea; otherwise the objection is (i) When the person to be arrested flees;
deemed waived [Zalameda v. People (2009)]. (ii) When he forcibly resists before the
officer has opportunity to so inform him;
There is waiver if the accused voluntarily enters (iii) When the giving of such information
his plea and participates during trial, without will imperil the arrest.
previously invoking his objections thereto [Leviste (b) The officer need not have the warrant in his
v. Hon Alameda (2010); Borlongan v. Peña (2010)]. possession at the time of the arrest but
after the arrest, if the person arrested so
An application for or admission to bail shall not requires, the warrant shall be shown to him
bar the accused from challenging the validity of as soon as practicable [Sec. 7, Rule 113].
his arrest or the legality of the warrant issued, (c) This is not a case of a warrantless arrest but
provided that he raises the objection before he merely an instance of an arrest effected by
enters his plea [Sec. 26, Rule 114]. the police authorities without having the
warrant in their possession at that precise
moment [Mallari v. CA (1996)].
PAGE 278
(3) The officer executing the warrant shall arrest BY PRIVATE PERSON (CITIZEN’S
the accused and deliver him to the nearest ARREST)
police station or jail without unnecessary delay (1) The private person shall inform the person to
[Sec. 3, Rule 113]; be arrested of the intention to arrest him and
(4) No violence or unnecessary force shall be the cause of the arrest [Rule 113, Sec. 9], except
used in making an arrest [Sec. 2, 2nd par., in the same cases as those for arrest by an
Rule 113]. officer without a warrant.
(2) The private person must deliver the arrested
RIGHTS OF THE ARRESTING OFFICER person to the nearest police station or jail, and
(1) To summon assistance (Sec. 10, Rule 113). He he shall be proceeded against in accordance
may orally summon as many persons as he with Sec. 7, Rule 112. Otherwise, the private
deems necessary to assist him in effecting the person may be held liable for illegal detention.
arrest.
(2) To break into building or enclosure (Rule 113,
Sec. 11), when the following concur: REQUISITES OF A VALID
(a) The person to be arrested is or is WARRANT OF ARREST
reasonably believed to be in said building;
(b) He has announced his authority and ESSENTIAL REQUISITES
purpose of entering therein; and The warrant must:
(c) He has requested and been denied (1) Be issued upon probable cause determined
admittance. personally by the judge after examination
(3) To break out from the building/enclosure under oath or affirmation of the complainant
when necessary to liberate himself [Sec. 12, and the witnesses he may produce; and
Rule 113]; (2) Particularly describe the person to be arrested
(4) To search the person arrested for dangerous [Art. III, Sec. 2, Constitution].
weapons or anything which may have been
used or constitute proof in the commission of WHEN ISSUED
an offense without a warrant [Sec. 13, Rule
A judge issues a warrant of arrest upon the filing
126].
of the information by the public prosecutor and
after personal evaluation by the judge of the
Note: Nos. 2 and 3 are also applicable where
prosecutor’s resolution and supporting evidence
there is a valid warrantless arrest.
[Sec. 5(a), Rule 112].
BY OFFICER WITHOUT WARRANT The judge does not have to personally examine
General rule: The officer shall inform the person the complainant and his witnesses. Established
to be arrested of: doctrine provides, he shall personally evaluate
(1) His authority; and the report and the supporting documents
(2) The cause of the arrest [Sec. 8, Rule 113]. submitted by the fiscal regarding the existence of
probable cause:
Exceptions: (1) If he finds probable cause, he shall issue a
(1) When the person to be arrested is engaged in warrant of arrest; or
the commission of the offense; (2) If on the basis thereof he finds no probable
(2) When he is pursued immediately after its cause, he may disregard the fiscal’s report and
commission; require the submission of supporting affidavits
(3) When he has escaped, flees or forcibly resists of witnesses [People v. Gray (2010); AAA v.
before the officer has the opportunity to so Carbonell (2007)].
inform him; or
(4) When the giving of such information will
imperil the arrest.
PAGE 279
DETERMINATION OF PROBABLE Bail

CAUSE FOR ISSUANCE OF
WARRANT OF ARREST NATURE
Probable cause, in connection with the issuance
of a warrant of arrest, assumes the existence of
facts and circumstances that would lead a DEFINITION
reasonably discreet and prudent man to believe Bail is the security given for the release of a
that a crime has been committed and that it was person in custody of the law, furnished by him or
likely committed by the person sought to be a bondsman, to guarantee his appearance before
arrested [People v. Tan (2009)]. any court as required under conditions
hereinafter specified [Sec. 1, Rule 114].
Probable cause demands more than suspicion
but it requires less than evidence that would PURPOSE
justify conviction [People v. Gabo (2010)]. (1) To relieve an accused from imprisonment until
his conviction and yet secure his appearance
at the trial [People v. Hon. Donato (2011)];
PROBABLE CAUSE OF FISCAL (2) To honor the presumption of innocence until
AND JUDGE DISTINGUISHED his guilt is proven beyond reasonable doubt
[Art. III, Sec. 14, Constitution]; and
Fiscal Judge (3) To enable him to prepare his defense without
Executive Judicial determination being subject to punishment prior to
determination of PC of PC conviction [Cortes v. Judge Catral (1997)].
Determination of PC to Determination of PC to REQUIREMENT OF CUSTODY
hold a person for trial issue a warrant of General rule: Custody of the law is required
arrest before the court can act on an application for bail
Whether or not there is Whether or not a [Miranda v. Tuliao (2006)].
reasonable ground to warrant of arrest
believe that the should be issued Exceptions: Custody is not required in cases of
accused is guilty of the witnesses posting bail:
offense charged and (1) When bail is required to guarantee the
should be held for trial appearance of a material witness (Sec. 14, Rule
119);
The determination of probable cause for issuing a (2) When bail is required to guarantee the
warrant of arrest is made by the judge. The appearance of a prosecution witness in cases
preliminary investigation proper – whether or not where there is substitution of the information
there is a reasonable ground to believe that the [Riano (2011), citing Sec. 14, Rule 110].
accused is guilty of the offense charged – is the
function of the investigating prosecutor [AAA v. WHEN A MATTER OF RIGHT;
Carbonell (2007)].
EXCEPTIONS
Bail is a matter of right:
(1) Before or after conviction pending appeal by
the MTC;
(2) Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua or life imprisonment [Sec. 4, Rule 114].
PAGE 280
General rule: Bail is not available when evidence WHEN NOT AVAILABLE
of guilt is strong in capital offenses or those Right to bail is also not available:
punishable by death, reclusion perpetua or life (1) To military personnel accused under general
imprisonment. courts martial [Comendador v. de Villa (1991)];
(2) After a judgment of conviction has become
Exception: When the accused is a minor, he is final;
entitled to bail regardless of whether the (3) If he applied for probation before finality, he
evidence of guilt is strong. may be allowed temporary liberty under his
bail;
CAPITAL OFFENSE (4) After the accused has commenced to serve his
sentence [Sec. 24, Rule 114].
Sec. 6, Rule 114. A capital offense is an offense
which under the law existing at the time of WHEN A MATTER OF
commission and of the application for admission DISCRETION
to bail is punishable by death (1) Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
The capital nature of the offense is determined by and evidence of guilt is not strong;
the penalty prescribed by law and not the one (2) Upon conviction by the RTC of an offense not
actually imposed. punishable by death, reclusion perpetua or life
imprisonment.
Note: RA 9346 (An Act Prohibiting the Imposition
of Death Penalty in the Philippines) enacted on No. 2 refers to conviction by the trial court, which
June 24, 2006 (which repealed RA 8177 and RA has not become final, as the accused still has the
7659) prohibited the imposition of death penalty. right to appeal. It may be filed in and acted upon
Under Sec. 7, RA 9346, it stated that “[c]apital by the RTC despite the filing of notice of appeal,
offense or an offense punishable by reclusion provided that it has not transmitted the original
perpetua or life imprisonment.” record to the appellate court.
EXTRADITION PROCEEDINGS If the RTC decision changed nature of the offense

General rule: Right to bail is available only in from non-bailable to bailable, the application for
criminal proceedings and does not apply to bail can be resolved only by the appellate court
extradition proceedings because extradition [Sec. 5, Rule 114].
courts do not render judgments of conviction or
acquittal [Gov. of USA v. Purganan and Jimenez If the conviction by the trial court is for a capital
(2002)]. offense, the accused convicted of a capital offense
is no longer entitled to bail, and can only be
Exception: Only upon a clear and convincing released when the conviction is reversed by the
evidence: appellate court [Art. III, Sec. 13, Constitution].
(1) That once granted, the applicant will not be
flight risk or will not pose danger to the Note: In hearing the petition for bail, the
community; and prosecution has the burden of showing that the
(2) That there exists special humanitarian and evidence of guilt is strong [Sec. 8, Rule 114].
compelling circumstances.
If the penalty imposed by the trial court is
Note: Bail is a matter of discretion in extradition imprisonment exceeding 6 years, the accused
proceedings [Govt. of HK Special Administrative shall be denied bail or his bail shall be cancelled
Region v. Olalia (2007)]. upon showing by the prosecution, with notice to
the accused, of any of the following:
(1) Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused;
PAGE 281
(2) The accused previously escaped from legal DUTIES OF JUDGE HEARING THE
confinement, evaded sentence or violated bail PETITION FOR BAIL
conditions without valid justification; (1) Notify the prosecutor of the hearing and
(3) Commission of offense while under probation, require him to submit his recommendation;
parole or conditional pardon by the accused; (2) Conduct a hearing of the application
(4) Probability of flight; regardless of whether or not prosecution
(5) Undue risk that the accused may commit refuses to present evidence to show that the
another crime during pendency of appeal. guilt of the accused is strong;
(3) Decide whether the evidence of guilt of the
In deportation proceedings, bail is discretionary accused is strong based on the summary of
upon the Commissioner of Immigration and the evidence of the prosecution;
Deportation [Harvey v. Defensor-Santiago (1990)]. (4) If the guilt of the accused is not strong,
discharge the accused upon the approval of
HEARING OF APPLICATION FOR the bail bond. Otherwise, petition should be
denied [Riano (2011), citing Narciso v. Santa
BAIL IN CAPITAL OFFENSES Romana-Cruz (2000)].
IN GENERAL Note: Evidence presented during the bail hearing

At the hearing of an application for bail filed by a are automatically reproduced at the trial [Sec. 8,
person in custody for the commission of an Rule 114].
offense punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of WHERE APPLICATION FOR BAIL IS
showing that evidence of guilt is strong [Sec. 8,
Rule 114]. FILED
General rule: The application may be filed with
Evidence of guilt in the Constitution and the Rules the court where the case is pending.
refers to a finding of innocence or culpability,
regardless of the modifying circumstances. Exceptions:
(1) If the judge of the court where the case is
pending is absent or unavailable, the
MINORS CHARGED WITH CAPITAL application may be filed with any
OFFENSE RTC/MTC/MeTC/ MCTC judge in the province,
If the person charged with a capital offense is city or municipality;
admittedly a minor, which would entitle him, if (2) Where the accused is arrested in a province,
convicted, to a penalty next lower than that city/municipality other than where the case is
prescribed by law, he is entitled to bail regardless pending, the application may be filed with any
of whether the evidence of guilt is strong. The RTC of the said place. If no judge is available,
reason for this is that one who faces a probable then with any MeTC/MTC/MCTC judge in the
death sentence has a particularly strong said place. Judge who accepted the
temptation to flee. application shall forward it, together with the
order of release and other supporting papers
This reason does not hold where the accused has where the case is pending;
been established without objection to be minor (3) When a person is in custody but not yet
who by law cannot be sentenced to death. charged, he may apply with any court in the
province or city/municipality where he is held
[Sec. 17, Rule 114].
Note: Where the grant of bail is a matter of

discretion, or the accused seeks to be released on
recognizance, the application may only be filed in
the court where the case is pending, on trial, or
appeal.
PAGE 282
GUIDELINES IN FIXING AMOUNT (3) When accused is found to have previously

escaped legal confinement, evaded sentence,
OF BAIL or jumped bail;
The considerations are primarily, but not limited, (4) When accused is found to have violated Sec. 2,
to the following: RA 6036, which provides that the violation of
(1) Financial ability of the accused; the accused of the sworn statement (required
(2) Nature and circumstances of the offense; instead of bail) shall justify the court to order
(3) Penalty for the offense charged; his immediate arrest, if the failure of the
(4) Character and reputation of the accused; accused to report is not justified;
(5) Age and health of the accused; (5) Accused is a recidivist or habitual delinquent
(6) Probability of the accused appearing at the or has been previously convicted for an offense
trial; to which the law/ordinance attaches an
(7) Forfeiture of other bail; equal/greater penalty or for two/more
(8) Fact that accused was a fugitive from justice offenses to which it attaches a lighter penalty
when arrested; (6) Accused committed the offense while on
(9) Pendency of other cases where the accused is parole or under conditional pardon;
on bail. (7) Accused has previously been pardoned for
violation of municipal/city ordinance for at
WHEN BAIL IS NOT REQUIRED least two times [Riano (2011), citing Sec. 1, RA
6036].
Bail is not required:
(1) When a person has been in custody for a
period equal to or more than the possible INCREASE OR REDUCTION OF
maximum imprisonment of the offense BAIL
charged to which he may be sentenced; After the accused is admitted to bail and for good
(2) If the maximum penalty is destierro, he shall cause, the court may increase or decrease the
be released after 30 days of preventive amount.
imprisonment [Sec. 16, Rule 114];
(3) In cases filed with the MTC/MCTC for an INCREASED BAIL
offense punishable by an imprisonment of less
The accused may be committed to custody if he
than 4 yrs, 2 mos. and 1 day, and the judge is does not give bail in the increased amount within
satisfied that there is no necessity for placing
a reasonable period of time [Sec. 20, Rule 114].
the accused under custody [Riano (2011), citing
Sec. 8, Rule 112];
(4) In cases where a person is charged with REDUCED BAIL
violation of a municipal/city ordinance, a light A person in custody for a period equal to or more
felony and/or criminal offense, the penalty of than the minimum of the principal penalty
which is not higher than 6 months prescribed for the offense charged may be
imprisonment and/or a fine of 2000 or both released on a reduced bond [Sec. 16, Rule 114].
where it is established that he is unable to
post the required cash or bail bond [Sec. 1, RA
6036].
Bail is nonetheless required when:

(1) When accused was caught committing the
offense in flagrante;
(2) When accused confesses to the commission of
the offense unless he later repudiates the
same in a sworn statement or in open court as
having been extracted through force or
intimidation;
PAGE 283
FORFEITURE AND APPLICATION NOT A BAR TO

CANCELLATION OF BAIL OBJECTIONS ON ILLEGAL
ARREST, LACK OF OR IREGULAR
FORFEITURE OF BAIL PRELIMINARY INVESTIGATION
If the accused failed to appear in person as Bail is no longer a waiver of these objections [Sec.
required, the bondsmen are given 30 days within 26, Rule 114; Leviste v. Alameda (2011)].
which to:
(1) Produce the body of the principal or give Thus, provided that the proper objections are
reason for the non-production. The bondsmen timely raised (i.e., before accused enters a plea),
may: an application or an admission to bail shall not
(a) Arrest the accused; bar the accused from challenging or questioning
(b) Cause him to be arrested by a police officer the:
or any other person of suitable age or (1) Validity of his arrest;
discretion upon written authority endorsed (2) Legality of the arrest warrant;
on a certified copy of the undertaking. (3) Regularity of preliminary investigation;
(2) Explain why the accused failed to appear: (4) Absence of preliminary investigation.
(a) If the bondsmen fail to do these, judgment
is rendered against them, jointly and The court shall resolve the objections as early as
severally, for the amount of the bail. practicable but not later than the start of the trial
(b) Bondsmen’s liability cannot be mitigated of the case.
or reduced, unless the accused has been
surrendered or is acquitted [Sec. 21, Rule
114].
HOLD/ALLOW DEPARTURE
ORDER AND BUREAU OF
Bondsmen can prevent the accused from leaving IMMIGRATION WATCHLIST
country by arresting him or asking for him to be The accused may be prohibited from leaving the
re-arrested by a police officer upon written country during the pendency of his case [People v.
authority [Sec. 23, Rule 114] Uy Tuising (1935); Manotoc v. CA (1986)]. If the
accused released on bail attempts to depart from
CANCELLATION OF BAIL the Philippines without the permission of the
court where his case is pending, he may be re-
APPLICATION BY BONDSMEN arrested without warrant [Sec. 23, Rule 114].
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled A hold-departure order may be issued only by the
upon: RTCs in criminal cases within their exclusive
(1) Surrender of the accused; or jurisdiction [SC Circ. No. 39-97].
(2) Proof of his death.
SC Circular 39-97 deals only with criminal cases
AUTOMATIC CANCELLATION pending in the RTC. As to those cases pending in
(1) Upon acquittal of the accused the MTC as well as those under preliminary
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction investigation, the DOJ promulgated DOJ Circular
[Sec. 22, Rule 114]. No. 41 governing the issuance of HDO, Watchlist
Orders, and Allow Departure Orders.
PAGE 284
Hold Departure Order Watchlist Order

(1) Against the accused, irrespective of (1) Against the accused, irrespective of
nationality, in criminal cases falling within nationality, in criminal cases pending
the jurisdiction of first-level courts (MeTC, before the RTC;
MTC, MCTC); (2) Against the respondent, irrespective of
(2) Against the alien whose presence is nationality, in criminal cases pending
required either as a defendant, preliminary investigation, PFR, or MR
respondent, or witness in a civil or labor before the DOJ or any of its prosecution
case pending litigation, or any case before offices;
an administrative agency of the (3) Against any person pursuant to the
When it government; Anti-Trafficking in Persons Act of 2003 (RA
may issue (3) Against any person, either motu 9208) or in the interest of national
proprio, or upon the request by the Head security, public safety or public health.
of a Department of the Government, the
Chief Justice of the Supreme Court 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.
An HDO is valid for 5 years reckoned from A watchlist order is valid 60 days
the date of its issuance, unless sooner reckoned from the date of its issuance,
Validity terminated. unless sooner terminated or extended for
a non-extendible period of not more than
60 days.
(1) When the validity period has already (1) When the validity period has already
expired; expired;
(2) When the accused has been allowed (2) When the accused has been allowed
Grounds for to leave the country during the pendency by the court to leave the country during
lifting or of the case, or has been acquitted of the the pendency of the case, or has been
cancellation charge, or the case in which the acquitted of the charge;
warrant/order of arrest was issued has (3) When the PI is terminated, or when the
been dismissed or the warrant/order of PFR or MR has been denied and/or
arrest has been recalled. dismissed.
ADOs may issue for exceptional reasons to

allow the person to leave upon submission of
the following:
(1) An affidavit of purpose, including an

undertaking to report to the DOJ
immediately upon return;
(2) Authority to travel or travel clearance from
the court or appropriate government office or
from the investigating prosecutor.
PAGE 285
Rights of the Accused The purpose is served by arraignment (Borja v.

Mendoza (1977)). The title of the complaint, or
the designation of the offense charged or the
RIGHT TO BE PRESUMED particular law violated is not controlling. No
information for a crime will be sufficient if it
INNOCENT UNTIL THE does not accurately and clearly allege the
CONTRARY IS PROVED BEYOND elements of the crime charged [People v.
REASONABLE DOUBT Dimaano (2005)].
The presumption of regularity in the
performance of official duty cannot by itself RIGHT TO BE PRESENT AND
overcome the presumption of innocence nor DEFEND IN PERSON AND BY
constitute proof beyond reasonable doubt.
[People v. Sanchez (2008)] COUNSEL AT EVERY STATE OF
THE PROCEEDINGS
The Rules or the law may, however, provide for a
presumption of guilt [Hizon v. CA (2009)].
RIGHT TO BE PRESENT
In such case, Hizon v. CA (2009) stressed that General rule: Presence of the accused during
the statutory presumption is merely prima facie. the criminal action is not required and shall be
At no instance can the accused be denied the based on his sole discretion.
right to rebut the presumption.
Exceptions: Presence of the accused is
Proof beyond reasonable doubt does not mean mandatory:
such a degree of proof as, excluding possibility (1) For purposes of identification;
of error, produces absolute certainty. Moral (2) At arraignment; [Sec. 1(b), Rule 116];
certainty only is required, or that degree of proof (3) At the promulgation of judgment.
which produces conviction in an unprejudiced
mind. [Sec.2, Rule 133] Exception to the exception: If the conviction is
for a light offense. [Sec. 6, Rule 120]
Where the evidence in a criminal case is evenly
balanced, the constitutional presumption of The right to be present at trial is deemed waived
innocence tilts the scales in favor of the accused when:
[People v. Erguioza (2008)]. This is the (1) The accused is absent without just cause at
“equipoise rule.” the trial of which he had notice; or
(2) The accused under custody escapes, until
custody over him is regained.
RIGHT TO BE INFORMED OF
THE NATURE AND CAUSE OF TRIAL IN ABSENTIA
THE ACCUSATION AGAINST HIM Requisites:
An accused cannot be convicted of an offense, (1) Prior arraignment;
unless it is clearly charged in the complaint or (2) Proper notice of the trial;
information [People v. Ortega (1997)]. (3) Failure to appear is unjustifiable [Parada v.
Veneracion (1997)].
The charge must be set forth with sufficient
particularity to enable the accused to In this case, there is waiver of right to be
intelligently prepare his defense [Balitaan v. CFI present, the right to present evidence and right
of Batangas (1982)]. to cross-examine witnesses [Gimenez v.
Nazareno (1988)].
PAGE 286
RIGHT TO COUNSEL accused is permissible [Villafor vs. Summers

(1) It means reasonably effective legal (1920)].
assistance [Gideon v. Wainright (1963)];
(2) It is absolute and may be invoked at all The right is applicable to one who is compelled
times, even on appeal [Telan v. CA (1991)]; to produce a document, and one who is
(3) Duty to appoint counsel de oficio is compelled to furnish a specimen of his
mandatory only at the time of arraignment handwriting, for in both cases, the witness is
[Sayson v. People (1988)]; required to furnish evidence against himself
(4) Violation of this right entitles the accused to [People v. Nicandro (1986)].
new trial [People v. Serzo (1997)]. The right to
counsel may be waived but to insure that the An accused “occupies a different tier of
waiver is voluntary and intelligent, the waiver protection from an ordinary witness.” He is
must be in writing and in the presence of the entitled:
counsel of the accused [People v. Del Castillo (1) To be exempt from being a witness against
(2004)]. It must also not be contrary to law, himself; and
public order, public policy, morals or good (2) To testify as witness in his own behalf.
customs;
(5) Even a person under investigation for an But if he offers himself as a witness he may be
offense shall the right to have a “competent cross-examined as any other witness; however,
and independent counsel preferably of his his neglect or refusal to be a witness shall not in
own choice.” Included in this right is the right any manner prejudice or be used against him
to be informed of his right to counsel [Art. III, [People v. Judge Ayson (1989)].
Sec. 12(1), Constitution; Sec. 2(b) RA 7438].
Thus, the right may be waived by the failure to
RIGHT TO DEFEND IN PERSON timely assert the right, that is, by answering an
The accused may be allowed to defend himself incriminating question (Beltran v. Samson (1929))
in person when it sufficiently appears to the when the accused testifies in his own behalf and
court that he can properly protect his rights is cross-examined on matters covered by the
without the assistance of counsel [Sec. 1(c), Rule direct examination (Sec. 1(f), Rule 115). The
115]. questions on cross examination should be on
matters related to his direct examination
[People v. Judge Ayson (1989)].
RIGHT TO TESTIFY AS WITNESS
IN HIS BEHALF RIGHT TO CONFRONTATION
This is subject to cross-examination on any This applies to any witness against the accused
matter covered by his direct examination [Sec. at the trial.
1(d), Rule 115]. Silence will not, in any manner,
prejudice him. Where the adverse party is deprived of the right
to cross-examine the persons who executed the
RIGHT AGAINST SELF- affidavits, said affidavits are generally rejected
INCRIMINATION for being hearsay [Estrella v. Robles (2007)].
The right against self-incrimination has no
application to juridical persons [BASECO v. However, either party may utilize as part of its
PCGG (1987)]. evidence the testimony of a witness who is
deceased, out of or cannot with due diligence be
The constitutional guaranty, that no person found in the Philippines, unavailable or
shall be compelled in any criminal case to be a otherwise unable to testify, given in another
witness against himself, is limited to a case or proceeding, judicial or administrative,
prohibition against compulsory testimonial self- provided they involve the same parties and
incrimination. The corollary to the proposition is subject matter and the adverse party had the
that, an ocular inspection of the body of the opportunity to cross-examine him [Sec. 1(f), Rule
115].
PAGE 287
This right is waived by non-appearance. RIGHT TO APPEAL

[Carredo v. People (1990)]. In all criminal prosecutions, the accused shall
have the right to appeal in the manner
The right does not apply in a preliminary prescribed by law [Hilario v. People (2008)].
investigation. They parties may, however,
submit to the investigating officers questions An appeal in criminal case opens the entire case
which may be asked to the party or witness for review and the appellate court may correct
concerned [Sec. 3(e), Rule 112]. even unassigned errors [People v. Tambis
(2008)].
Identification by a witness of the accused is
The right to appeal is a statutory right and the
inadmissible if the accused had no opportunity
requirements must be complied with; otherwise,
to confront witness [People v. Lavarias (1968)].
the right is lost [People v. Sabellano (1991)].
RIGHT TO COMPULSORY If the accused escapes from confinement,

appeal is not allowed unless he voluntarily
PROCESS surrenders within period for appeal [People v.
This right may be invoked by the accused to Omar (1991)].
secure the attendance of witnesses and the
production of evidence in his behalf. The right to appeal is lost by the unjustified
failure to appear at the promulgation of
If a subpoena is issued and the witness failed to judgment of conviction [Villena v. People (2011)].
appear, the court should order the arrest of the
witness if necessary [People v. Montejo (1967)]. RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATIONS
RIGHT TO SPEEDY, IMPARTIAL Custodial Investigation involves any questioning
AND PUBLIC TRIAL initiated by law enforcement officers after a
In determining whether or not the right to person has been taken into custody or otherwise
speedy disposition of cases has been violated, deprived of his freedom of action in any
this Court has laid down the following significant way [Aquino v. Paiste (2008)].
guidelines [Tan v. People (2009); Olbes v.
Buemio (2009)]: It shall include the practice of issuing an
(1) Length of the delay; “invitation” to a person who is investigated in
(2) Reasons for such delay; connection with an offense he is suspected to
(3) Assertion or failure to assert such right by have committed, without prejudice to the
the accused; and liability of the “inviting” officer for any violation
(4) Prejudice caused by the delay. of law.
When the accused is denied of this right, he may IN GENERAL

pursue the following remedies: A persons under custodial investigation has the
(1) Motion to dismiss [Corpuz v. Sandiganbayan following rights:
(2004)]; (1) To be assisted by counsel at all times;
(2) Mandamus [Lumanlao v. Peralta (2006)]. (2) To remain silent;
(3) To be informed, in a language known to and
The accused is not entitled to a dismissal where understood by him, of his rights to remain
delay was caused by proceedings or motions silent and to have competent and
instituted by him. A dismissal based on a independent counsel, preferably of his own
violation of the right to speedy trial is equivalent choice, who shall at all times be allowed to
to an acquittal and double jeopardy may attach confer privately with the person arrested,
even if the dismissal is with the consent of the detained or under custodial investigation;
accused [Condrada v. People (2003)]. (4) To be allowed visits by and conferences with
specified persons.
PAGE 288
RIGHT TO BE ASSISTED BY COUNSEL RIGHT TO BE ALLOWED VISITS

AT ALL TIMES A person under custodial investigation has a
Waiver of the right to counsel must be made right to be allowed visits by and conferences
with the assistance of counsel [Art. III, Sec. 1(1), with:
Constitution]. (1) Any member of his immediate family, which
includes his or her spouse, fiancé or fiancée,
This applies specifically in the following parent or child, brother or sister, grandparent
instances: or grandchild, uncle or aunt, nephew or
(1) Signing of the written custodial report; niece, and guardian or ward;
(2) Signing of the written extra-judicial (2) Any medical doctor; or
confession. (3) Priest or religious minister, chosen by him or
(3) Signing of the waiver to the provisions of Art. by any member of his immediate family or by
125, RPC. his counsel, or by any national NGO duly
accredited by the Commission on Human
For a valid extrajudicial confession made by a Rights or by any international NGO duly
person arrested, detained or under custodial accredited by the Office of the President.
investigation, the following must concur:
(1) It shall be in writing and signed by such CONSEQUENCES OF VIOLATION OF
person; and CUSTODIAL RIGHTS
(2) It must be signed in the presence of his
counsel or, in the latter’s absence, upon a FAILURE TO INFORM
valid waiver. The arresting public officer or employee, or any
investigating officer, shall suffer a fine of
In the event of a valid waiver, it must be signed P6,000 or a penalty of imprisonment of not less
in the presence of any of the parents, elder than 8 years but not more than 10 years, or
brothers and sisters, his spouse, the municipal both.
mayor, the municipal judge, district school The investigating officer who has been
supervisor, or priest or minister of the gospel as previously convicted of a similar offense shall
chosen by him. suffer the penalty of perpetual absolute
disqualification [Sec. 4, 1st par., RA7438].
If he cannot afford to have his own counsel, he
must be provided with a competent and OBSTRUCTION, PREVENTION OR
independent counsel by the investigating PROHIBITION OF RIGHT TO VISITS AND
officer. CONFERENCES
Any person guilty thereof shall suffer the
The modifier competent and independent in the penalty of imprisonment of not less than 4 years
1987 Constitution is not an empty rhetoric. It nor more than 6 years and a fine of P4,000.00
stresses the need to accord the accused, under [Sec. 4, 2nd par., RA7438].
the uniquely stressful conditions of a custodial
investigation, an informed judgment on the
choices explained to him by a diligent and
capable lawyer [Lumanog v. People (2010)]
The assisting counsel may be any lawyer, except

those:
(1) Directly affected by the case;
(2) Charged with conducting preliminary
investigation;
(3) Charged with the prosecution of crimes. [Sec.
3, RA 7438].
PAGE 289
Arraignment and Plea PROCEDURE OF ARRAIGNMENT
ARRAIGNMENT AND PLEA; The Court shall issue an order directing

the public prosecutor to submit the
HOW MADE
1 record of the PI to the branch COC for
the latter to attach the same to the
DEFINITION record of the case.
This is the stage where the accused is formally The court shall inform the accused of his
informed of the charge against him by reading right to counsel and ask him if he desires
before him the information/complaint and to have one. Unless the accused is
asking him whether he pleads guilty or not
guilty [Sec. 1(a), Rule 116]. 2 allowed to defend himself in person or
has employed counsel of his choice, the
court must assign a counsel de oficio to
It is the stage where the issues are joined and defend him.
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja (1) If the accused plead not guilty, either:
v. Mendoza (1977)) (a) He raises an affirmative defense,
that is, he admits the charge but
DUTY OF THE COURT BEFORE raises exempting or justifying
circumstances, in which case the
ARRAIGNMENT order of trial is reversed;
The court shall: (b) He raises a negative defense, that
(1) Inform the accused of his right to counsel; is, he denies the charge, in which
(2) Ask him if he desires to have one; and case regular trial proceeds;
(3) Must assign a counsel de oficio to defend (2) If the accused pleads guilty:
him, unless the accused: 3 (a) For a non-capital offense, the court
(a) Is allowed to defend himself in person; or will promulgate a judgment of
(b) Has employed a counsel of his choice conviction;
[Sec. 6, Rule 116]. (b) For a capital offense, the
prosecution is still required to
Before arraignment and plea, the accused may prove guilt beyond reasonable
avail of any of the following: doubt;
(1) Bill of particulars to enable him to properly (3) If the accused does not enter any
plead and prepare for trial; plea, a plea of not guilty is entered by
(2) Suspension of arraignment; upon motion, he the court.
may ask for suspension of arraignment to
pursue a petition for review before the DOJ
Secretary under Sec. 11, Rule 116, for a period The time of the pendency of a motion to quash
of suspension shall not exceed 60 days from or for a bill of particulars or other causes
filing of petition with the reviewing office; justifying suspension of the arraignment shall
(3) Motion to quash the complaint or be excluded in computing the period [Sec. 1(g),
information on any of the grounds under Sec. Rule 116].
3, Rule 117 in relation to Sec. 1, Rule 117;
(4) Challenge the validity of the arrest or legality HOW MADE
of the warrant or assail the regularity or (1) In open court where the complaint or
question the absence of preliminary information has been filed or assigned for
investigation of the charge. trial;
(2) By the judge or clerk of court;
If the accused does not question the legality of (3) By furnishing the accused with a copy of the
the arrest or search, this objection is deemed complaint or information;
waived.
PAGE 290
(4) Reading it in a language or dialect known to (4) Generally, judgment is void if accused has
the accused; not been validly arraigned.
(5) Asking the accused whether he pleads guilty (5) If accused went into trial without being
or not guilty. arraigned, subsequent arraignment will cure
the error provided that the accused was able
WHEN HELD to present evidence and cross examine the
General rule: The accused should be arraigned witnesses of the prosecution during trial.
within 30 days from the date the court acquires
jurisdiction over his person. If an information is amended in substance which
changes the nature of the offense (not merely as
Exceptions: When the law provides for another to form), arraignment on the amended
period, arraignment should be held within said information is mandatory [Teehankee v.
period, as in the following cases: Madayag (1992)].
(1) When an accused is under preventive
detention, his case should be raffled within 3 WHEN A PLEA OF NOT GUILTY
days from filing and accused shall be
arraigned within 10 days from receipt by the SHOULD BE ENTERED
judge of the records of the case [RA 8493 (1) When the accused so pleaded;
(Speedy Trial Act)]; (2) When he refuses to plead;
(2) Where the complainant is about to depart (3) When he makes a conditional or qualified
from the Philippines with no definite date of plea of guilt [Sec. 1(c), Rule 116];
return, the accused should be arraigned (4) When the plea is indefinite or ambiguous;
without delay [RA 4908]. (5) When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116].
In case of failure of the offended party to appear
despite due notice, the court may allow the If the accused who pleaded guilty presents
accused to enter a plea of guilty to a lesser exculpatory evidence, his plea of guilt is
offense which is necessarily included in the withdrawn. The judge must order the accused to
offense charged with the conformity of the trial plead again or at least direct that a new plea of
prosecutor alone [Sec. 1(f), Rule 116; AM No. 03-1- “not guilty” be entered for him, otherwise there
09-SC Part B(2)]. shall be no standing plea for the accused. This
is significant because if there is no standing
In case of failure of accused to appear despite plea, the accused cannot invoke double
due notice, there is no arraignment in absentia jeopardy later on.
[Nolasco v. Enrile (1985)]. The presence of the
accused is not only a personal right but also a WHEN ACCUSED MAY ENTER A
public duty, irrespective of the gravity of the PLEA OF GUILTY TO A LESSER
offense and the rank of the court.
OFFENSE
There can be no trial in absentia without first Requisites:
arraigning the accused; otherwise, the (1) The lesser offense is necessarily included in
judgment is null and void. the offense charged;
(2) The plea must be consistent with the
SPECIFIC RULES consent of both the offended party and the
(1) Trial in absentia may be conducted only after prosecutor, except when the offended party
valid arraignment. fails to appear despite due notice;
(2) Accused must personally appear during (3) The penalty for the lesser offense is not more
arraignment and enter his plea; counsel than two degrees lower than the imposable
cannot enter plea for the accused. penalty for the crime charged.
(3) Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
PAGE 291
DURING ARRAIGNMENT
At arraignment, the accused, with the consent The judge must ask whether the accused was
of the offended party and prosecutor, may be assisted by counsel during custodial
allowed by the trial court to plead guilty to a investigation and PI; ask questions on age,
lesser offense which is necessarily included in educational attainment and socio-economic
the offense charged. status; and ask the defense counsel whether or
not he conferred with the accused [People v.
AFTER ARRAIGNMENT BUT BEFORE Nadera (2000)].
TRIAL Ratio: This is to enjoin courts to proceed with
After arraignment but before trial, the accused
more care where the possible punishment is in
may still be allowed to plead guilty to said
its severest form and to avoid improvident pleas
lesser offense after withdrawing his plea of not
of guilt [People v. Samontanez (2000)].
guilty. No amendment of the complaint or
information is necessary [Sec. 2, Rule 116].
People v. Pastor (2002) listed guidelines for
conducting a search inquiry:
AFTER TRIAL HAS BEGUN (1) Ascertain from the accused himself:
After the prosecution has rested its case, a (a) How he was brought into the custody of
change of plea to a lesser offense may be the law;
granted by the judge, with the approval of the (b) Whether he had the assistance of a
prosecutor and the offended party if the competent counsel during the custodial
prosecution does not have sufficient evidence to and preliminary investigations; and
establish the guilt of the accused for the crime (c) Under what conditions he was detained
charged. The judge cannot on its own grant the and interrogated during the
change of plea. investigations. This is intended to rule out
the possibility that the accused has been
ACCUSED PLEADS GUILTY TO coerced or placed under a state of duress
CAPITAL OFFENSE; DUTY OF either by actual threats of physical harm
coming from malevolent quarters or
THE COURT simply because of the judge's intimidating
(1) Conduct a searching inquiry into the robes.
voluntariness and full comprehension of the (2) Ask the defense counsel a series of questions
consequences of the pleas; as to whether he had conferred with, and
(2) Require prosecution to present evidence to completely explained to, the accused the
prove the guilt and precise degree of meaning and consequences of a plea of
culpability of the accused; guilty.
(3) Ask the accused if he desires to present (3) Elicit information about the personality
evidence in behalf and allow him to do so if profile of the accused, such as his age, socio-
he desires [Sec. 3, Rule 116]. economic status, and educational
background, which may serve as a
Note: A plea of guilty to a capital offense does trustworthy index of his capacity to give a
not result to an immediate rendering of free and informed plea of guilty.
judgment. (4) Inform the accused the exact length of
imprisonment or nature of the penalty under
SEARCHING INQUIRY the law and the certainty that he will serve
The procedure in Sec. 3, Rule 116, when the such sentence. For not infrequently, an
accused pleads guilty to a capital offense, is accused pleads guilty in the hope of a lenient
mandatory. treatment or upon bad advice or because of
promises of the authorities or parties of a
The plea must be clear, definite and lighter penalty should he admit guilt or
unconditional. It must be based on a free and express remorse. It is the duty of the judge to
informed judgment. ensure that the accused does not labor
PAGE 292
under these mistaken impressions because a The withdrawal of a plea of guilty is not a
plea of guilty carries with it not only the matter of right of the accused but of sound
admission of authorship of the crime proper discretion of the trial court [People v. Lambino
but also of the aggravating circumstances (1958)].
attending it, that increase punishment.
(5) Inquire if the accused knows the crime with The reason for this is that trial has already
which he is charged and fully explain to him begun and the withdrawal of the plea will
the elements of the crime which is the basis change the theory of the case and put all past
of his indictment. Failure of the court to do proceedings to waste. Moreover, at this point,
so would constitute a violation of his there is a presumption that the plea was made
fundamental right to be informed of the voluntarily
precise nature of the accusation against him
and a denial of his right to due process. GROUNDS FOR SUSPENSION
(6) All questions posed to the accused should
be in a language known and understood by OF ARRAIGNMENT
the latter.
(7) The trial judge must satisfy himself that the UNSOUND MENTAL CONDITION OF
accused, in pleading guilty, is truly guilty. THE ACCUSED AT THE TIME OF THE
The accused must be required to narrate the AGREEMENT
tragedy or reenact the crime or furnish its
When the accused can neither comprehend the
missing details.
full import of the charge nor can he give an
intelligent plea, the court shall order his mental
IMPROVIDENT PLEA OF GUILTY examination and, if necessary, his confinement.
TO A CAPITAL OFFENSE
The need for suspension may be determined
from physical and outward manifestations at
DEFINITION the time of arraignment indicative of a mental
An improvident plea is one without proper disorder which the court had observed and
information as to all the circumstances affecting defense counsel had called attention to [People
it; based upon a mistaken assumption or v. Alcalde (2002)].
misleading information/advice [Black’s Law
Dictionary]. In People v. Dungo (1991), there are three major
criteria to determine insanity:
General rule: An improvident plea should not be (1) Delusion test, where insanity is manifested by
accepted. If accepted, it should not be held to a false belief for which there is no reasonable
be sufficient to sustain a conviction [People v. De basis and which would be incredible under
Ocampo Gonzaga (1984)]. The case should be the given circumstances;
remanded to the lower court for further (2) Irresistible impulse test, where the accused
proceedings. has lost the power to choose between right
and wrong, to avoid the act in question, his
Exception: If the accused appears guilty beyond free agency being at that time destroyed.
reasonable doubt from the evidence adduced by (3) Right and wrong test, where a perverted
the prosecution and defense. condition of mental and mortal faculties
afflicts the accused as to render him
WHEN IMPROVIDENT PLEA MAY BE incapable of distinguishing between right
WITHDRAWN and wrong.
At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty.
PAGE 293
In People v. Pascual (1993), there are two tests to

determine insanity: Motion to Quash
(1)Test of cognition, which requires complete
deprivation of intelligence in committing the FORM AND CONTENT
criminal act. It is the test adopted in this At any time before entering his plea, the
jurisdiction. accused may move to quash the complaint or
(2) Test of volition, which requires a total information [Sec. 1, Rule 117].
deprivation of free will. The motion must:
(1) Be in writing;
EXISTENCE OF PREJUDICIAL (2) Be signed by the accused/his counsel; and
QUESTION (3) Distinctly specify the factual and legal
Rationale: A prejudicial question would be grounds [Sec. 2, Rule 117].
determinative of guilt or innocence.
In cases covered by the Rules on Summary
It may be raised during PI. If the information is Procedure, MTQ is allowed only if made on the
filed in court, it may be raised as ground to grounds of lack of jurisdiction or failure to
suspend the arraignment. comply with barangay conciliation proceedings
[Sec. 19, Rules on Summary Procedure].
PENDENCY OF PETITION FOR
REVIEW GROUNDS
When the accused filed a petition for review of
the resolution of the prosecutor with the DOJ or IN GENERAL
the Office of the President, the accused may file The following grounds for MTQ are exclusive:
a motion to suspend the arraignment and (1) Facts charged do not constitute an offense;
secure a ruling on his petition for review within (2) Court trying the case has no jurisdiction over
60 days from the filing of the petition [DOJ Circ. the offense charged;
No. 70]. (3) Court trying the case has no jurisdiction over
the person of the accused;
Rationale: This is to observe judicial courtesy (4) Officer who filed the information had no
and avoid legal complications in case the authority to do so;
resolution would be different from the offense (5) The information does not conform
for which the accused was arraigned, especially substantially to the prescribed form;
if it would upgrade the offense. (6) More than one offense is charged, except
when a single punishment for various
If petition for review is not resolved within 60 offenses is prescribed by law;
days, court may insist on the arraignment. (7) Criminal action or liability has been
extinguished;
With the arraignment of the accused, the DOJ (8) Averments which, if true, would constitute a
Secretary can no longer entertain the appeal or legal excuse or justification;
petition for review because petitioner had (9) Accused has been previously convicted or
already waived or abandoned the same. acquitted of the offense charged, or the case
[Gandarosa v. Flores (2007). against him was dismissed or otherwise
terminated without his express consent [Sec.
3, Rule 117].
PAGE 294
Note: Although the rule is that grounds not Exceptions:

asserted in the motion to quash are waived, the (1) Facts already admitted by the prosecution
following objections are not subject to waiver: [People v. Navarro (1997)];
(1) Facts charged do not constitute an offense; (2) Undisputed facts apparent from the records
(2) Court trying the case has no jurisdiction over of the PI and not denied by the prosecutor
the offense charged; [Salonga v. Pano (1985)];
(3) Criminal action or liability has been (3) Undisputed or undeniable facts that destroy
extinguished; the prima facie truth accorded to allegations
(4) Double jeopardy. of the information [People v. de la Rosa
(1988)];
FACTS CHARGED DO NOT (4) The Rules expressly permits the investigation
CONSTITUTE AN OFFENSE of facts alleged [People v. Alagao (1966);
An information which does not charge an Sec.s 2(f) and (h), 4 and 5].
offense or does not allege essential elements of
a crime is void. COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED
The test is whether or not the facts alleged, if This refers to jurisdiction over the subject matter,
hypothetically admitted, would establish the which is The power to adjudge concerning the
essential elements of the offense, as defined by general question involved.
law without considering matters aliunde [People
v. Romualdez (2008)]. In a criminal prosecution, the place where the
offense was committed not only determines
That the missing element may be proved during venue, but is an essential element of jurisdiction
the trial or that the prosecution has presented [Sec. 15, Rule 110; Lopez v. City Judge (1966)].
evidence to establish the same cannot have the
effect of validating the void information or of In private crimes, the complaint of the offended
proving an offense which does not exist [People v. party is necessary to confer authority to the
Asuncion (1988)]. court.
The defect is not cured by a failure to move to COURT HAS NO JURISDICTION OVER
quash or by a plea of guilty [Suy Sui v. People THE PERSON OF THE ACCUSED
(1953)]. When the accused files a MTQ based on this
ground, he must do so only on this ground. If he
Instead of dismissing, however, the court should raises other grounds, he is deemed to have
give the prosecution an opportunity to amend submitted his person to the jurisdiction of the
the information. court [Sanchez v. Demetriou (1993)].
Should the prosecutor fail to make the When the objection is raised, the court should
amendment or should the information suffer resolve it before conducting trial to avoid
from the same defect despite amendment, the unnecessary expenditure of time and money
MTQ shall be granted [Sec. 4, Rule 117]. [Mead v. Argel (1982)].
When the court dismisses the case, the
prosecutor should file a valid information, not a
petition for review for certiorari.
General rule: In the MTQ, facts other than those

alleged in the complaint/information may not
be considered by the court.
PAGE 295
OFFICER WHO FILED THE MORE THAN ONE OFFENSE IS

INFORMATION HAD NO AUTHORITY CHARGED
TO DO SO General rule: The complaint or information must
Authority to file and prosecute criminal cases is charge only one offense [Sec. 13, Rule 110)]
vested in:
(1) Provincial fiscals and their assistants. Exceptions:
(2) City fiscals and their assistants. (1) Those cases in which existing laws prescribe
(3) Chief State Prosecutor and his deputies a single punishment for various offenses;
(4) Other officers authorized by law (e.g., (2) Complex and compound crimes, except
Ombudsman, COMELEC). where one offense was committed to conceal
another;
The prosecutor who signed the information (3) An offense incidental to the gravamen of the
must have territorial jurisdiction to conduct offense charged;
preliminary investigation of the offense [Cudia v. (4) A specific crime set forth in various counts,
CA (1998)]. each of which may constitute a distinct
offense.
An information filed in the Sandiganbayan must
be signed by a graft investigating officer with However, this ground is waivable. The accused
prior approval of the Ombudsman. may be convicted of all the offenses alleged and
proved if he goes to trial without objecting to
For election offenses, it must be signed by the the inclusion of two or more separate offenses
duly deputized prosecutors and legal officers of in the same information [People v. Villamor
the COMELEC. (1998)].
Lack of authority of the officer is not cured by
silence, acquiescence, express consent or even If the criminal acts are committed on different
by amendment. occasions, each constitutes a separate offense.
COMPLAINT OR INFORMATION CRIMINAL ACTION OF LIABILITY HAS

DOES NOT CONFORM BEEN EXTINGUISHED
SUBSTANTIALLY TO THE Criminal liability is extinguished by:
(1) Death of the accused, but liability for
PRESCRIBED FORM pecuniary penalties is extinguished only if
The formal and substantial requirements are
death occurs before final judgment;
provided for in Secs. 6 to 12, Rule 110.
(2) Service of sentence, which must be by virtue
of a final judgment and in the form
General rule: Lack of substantial compliance prescribed by law;
renders the accusatory pleading nugatory.
(3) Amnesty;
(4) Absolute pardon;
Exception: Mere defects in matter of form may
(5) Prescription of the crime;
be cured by amendment.
(6) Prescription of the penalty;
(7) Pardon in private offenses.
Objections not raised are deemed waived, and
the accused cannot seek affirmative relief on
Protection from prosecution under a statute of
such ground nor raise it for the first time on limitation is a substantive right. [People v.
appeal [People v. Garcia (1997)].
Sandiganbayan (1992)]
Vague or broad allegations are generally not
grounds for a MTQ. The correct remedy is to file
for a bill of particulars [Sec. 9, Rule 116].
PAGE 296
MOTION TO QUASH AND EFFECTS OF SUSTAINING THE

DEMURRER DISTINGUISHED MOTION TO QUASH
Motion to quash Demurrer to evidence
FILING ANOTHER
Filed before entering Filed after the COMPLAINT/INFORMATION
plea prosecution has General rule: Court may order that another
rested its case complaint or information be filed [Sec. 5, Rule
117].
Does not go into the Based upon the
merits of the case inadequacy of the Exception: The court may not do so if MTQ was
evidence adduced by based on the following:
the prosecution (1) Criminal action or liability has been
extinguished;
Grounds are stated in Ground is (2) Double jeopardy.
Rule 117 “insufficiency of
evidence” to convict DISCHARGE OF THE ACCUSED
General rule: If in custody, the accused shall not
be discharged unless admitted to bail [Sec. 5,
Does not require a May be filed either Rule 117]. The order granting the MTQ must
prior leave of court with leave or without state either release of the accused or
leave of court cancellation of his bond.
Grant does not Grant is deemed an Exception: When there is no order to file another
necessarily follow a acquittal and would complaint/information or, if there is one, when
dismissal (Court may preclude the filing of no new information is filed within the time
order the filing of a another information or specified in the order or within such further time
new complaint or appeal by the as the court may allow for good cause, the
information) prosecution accused shall be discharged.
If the court, in denying The order denying the Exception to the exception: The accused will not
the motion to quash motion for leave to file be discharged if he is in custody for another
acts with grave abuse a demurrer “shall not charge.
of discretion, then be reviewable by REMEDIES OF THE PROSECUTION
certiorari or prohibition appeal or by certiorari General rule: The prosecution may amend the
lies before judgment” information to correct the defects if the TC
If the court denies makes the order, and thereafter prosecute on
the demurrer to the basis of the amended information [Sec. 4,
evidence filed with Rule 117].
leave of court, the
accused may adduce Exception: Prosecution is precluded where the
evidence in his ground for quashal would bar another
defense. When the prosecution for the same offense.
demurrer is filed The prosecution may appeal from the order of
without leave, the quashal to the appellate court.
accused waives the
right to present If the information was quashed because it did
evidence and submits not allege the elements of the offense, but the
the case for judgment facts so alleged constitute another offense
[Sec. 23, Rule 119] under a specific statute, the prosecution may
file a complaint for such specific offense where
dismissal is made prior to arraignment and on
MTQ [People v. Purisima (1978)].
PAGE 297
Order denying MTQ Order granting MTQ RULE OF DOUBLE JEOPARDY

Interlocutory Final Order When a person is charged with an offense and
the case is terminated either by acquittal or
Not appealable Immediately conviction or in any other manner without the
absent a showing of appealable but express consent of the accused, the latter cannot
GAD. If there is GAD, subject to rules on again be charged with the same or identical
then file petition for double jeopardy offense [Sec. 3(i), Rule 117].
certiorari
Does not dispose of Disposes of the case KINDS OF DOUBLE JEOPARDY
the case upon its upon its merits (1) No person shall be put twice in jeopardy for
merits the same offense;
Proper remedy: Proper remedy: (2) When an act punished by a law and an
appeal after the trial appeal the order ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
Consequence: Consequence: same act [Art. III, Sec. 21, Constitution].
Arraignment Amend information
if possible SAME OFFENSE
The offenses are penalized either by different
Note: The remedy for an order denying a MTQ is
Sec.s of the same law or by different statutes.
to go to trial, without prejudice to reiterating the
The essential elements of each must be
special defenses invoked in their MTQ [Serana v.
examined.
Sandiganbayan (2008)]. However, if the court in
denying the motion to quash acts without or in
The test is whether or not evidence that proves
excess of jurisdiction or with grave abuse of
one likewise proves the other [People v. Ramos
discretion, then certiorari or prohibition lies
(1961)].
[Lazarte v. Sandiganbayan (2009); Javier v.
Sandiganbayan (2009)].
It is not necessary to have absolute identity
[People v. Relova (1987)].
EXCEPTION TO THE RULE THAT General rule: There is identity between the two
SUSTAINING THE MOTION IS offenses not only when the second offense is
exactly the same as the first, but also when the
NOT A BAR TO ANOTHER second offense is an attempt to or frustration of
PROSECUTION or is necessarily included in the offense charged
General rule: Grant of the MTQ will not be a bar in the first information.
to another prosecution for the same offense
[Sec. 6, Rule 117]. Exceptions:
(1) The graver offense developed due to
Exception: It will bar another prosecution when supervening facts arising from the same act
the ground for the quashal is either: or omission constituting the former charge;
(1) The criminal action or liability has been (2) The facts constituting the graver charge
extinguished; or became known or were discovered only after
(2) The accused has been previously convicted, a plea was entered in the former complaint
or in jeopardy of being convicted, or or information;
acquitted of the offense charged. (3) The plea of guilty to the lesser offense was
made without the consent of the prosecutor
DOUBLE JEOPARDY and of the offended party except when
The right against double jeopardy prohibits the offended party failed to appear during such
prosecution for a crime of which he has been arraignment.
previously convicted or acquitted [Caes v. IAC
(1989)].
PAGE 298
SAME ACT WITHOUT EXPRESS CONSENT

An offense penalized by ordinance is, by This refers only to dismissal or termination of
definition, different from an offense penalized the case. It does not refer to the conviction or
under a statute. Hence, they would never acquittal [People v. Labatete (1960)].
constitute double jeopardy.
If consent is not express, dismissal will be
However, the second sentence of the regarded as final (i.e., with prejudice to refilling)
constitutional protection was precisely intended [Caes v. IAC (1989)].
to extend to situations not covered by the first
sentence. Although the prior offense charged Even with the consent of the accused, however,
under an ordinance be different from the dismissal has the effect of acquittal when
offense charged under a national statute, the predicated on:
constitutional protection is available provided (1) Insufficiency of the prosecution’s evidence or
that both arise from the same act or set of acts. (2) Denial of the right to a speedy trial [Alamario
[People v. Relova (1987)]. v. CA (2001)].
REQUISITES TO SUCCESSFULLY WHEN DISMISSAL CONSTITUTES

INVOKE DOUBLE JEOPARDY ACQUITTAL
(1) A first jeopardy must have attached; Dismissal constitutes acquittal when it is
(2) The first jeopardy must have been validly granted:
terminated; and (1) Upon demurrer to evidence;
(3) The second jeopardy must be for the same (2) Due to violation of right to speedy trial (even
offense or the second offense necessarily if dismissal was upon motion of the accused
includes or is necessarily included in the or with his express consent).
offense charged in the first information, or is
an attempt to commit the same or a Dismissal Acquittal
frustration thereof [People v. Espinosa Does not decide the Always based on the
(2003)]. case on the merits. merits. Defendant’s
Does not determine guilt was not proven
REQUISITES FOR FIRST JEOPARDY innocence or guilt beyond reasonable
TO ATTACH doubt
(1) The accused has been convicted/acquitted, Double jeopardy will Double jeopardy
or the case against him was not always attach always attaches
dismissed/terminated without his express
consent;
(2) The conviction, acquittal or dismissal was PROVISIONAL DISMISSAL
made by the court with competent
jurisdiction; DEFINITION
(3) There is a valid complaint or information or Provisional dismissal is dismissal without
other formal charge is sufficient in form and prejudice to its being refiled or revived. Cases
substance to sustain conviction; are provisionally dismissed where there has
(4) The accused pleaded to the charge [Riano already been arraignment and the accused
(2011), citing several cases; People v. Honrales consented to a provisional dismissal.
(2010)].
However, a dictated, coerced and scripted

verdict of acquittal is a void judgment. It neither
binds nor bars anyone [Galman v.
Sandiganbayan (1986)].
PAGE 299
GROUNDS (4) The public prosecutor is served with a copy

Sec. 8 does not state the grounds for provisional of the order of provisional dismissal of the
dismissal. However, according to the case of Los case [People v. Lacson (2003)].
Baños v. Pedro (2007), the delimitation of the
grounds available in MTQ suggests that where A case may be revived by:
the grounds cited are those listed under Sec. 3, (1) Refiling of the information;
then the appropriate remedy is to file a motion (2) Filing of a new information for the same
to quash, and not any other remedy. offense or one necessarily included in the
original offense charged.
Conversely, where a ground does not appear
under Sec. 3, then a motion to quash is not a General rule: Upon revival of the case, there is
proper remedy. A motion for provisional no need for a new PI.
dismissal may then apply if the conditions
required by Sec. 8 obtain. Exceptions:
(1) If the original witnesses have recanted their
WHEN DISMISSAL BECOMES testimonials or have died;
(2) If the accused is charged under a new
PERMANENT (TIME BAR RULE) criminal complaint for the same offense;
(1) One year after issuance of the order without
(3) If the original charge is upgraded;
the case having been revived for offenses
(4) If the criminal liability is upgraded from
punishable:
accessory to principal.
(a) By imprisonment not exceeding 6 years;
(b) By fine of any amount;
(c) By both [Sec. 8, Rule 117];
(2) Two years after issuance of the order without Pre-Trial
the case having been revived for offenses
punishable by imprisonment of more than 6
years.
APPLICATION OF JUDICIAL
AFFIDAVIT RULE
The State may revive beyond the periods Under Sec. 9, AM 12-8-8-SC:
provided there is a justifiable necessity for the (1) This Judicial Affidavit Rule shall apply to all
delay. criminal actions:
(a) Where the maximum of the imposable
The Court is not mandated to apply Sec. penalty does not exceed six years;
8retroactively simply because it is favorable to (b) Where the accused agrees to the use of
the accused. The time-bar under the new rule judicial affidavits, irrespective of the penalty
was fixed for the benefit of the State and the involved; or
accused, and not for the accused only [People v. (c) With respect to the civil aspect of the
Lacson (2003)]. actions, whatever the penalties involved are.
(2) The prosecution shall submit the judicial
The following are conditions sine qua non for affidavits of its witnesses not later than five
the application of the time-bar rule: days before the pre-trial, serving copies if the
(1) The prosecution with the express conformity same upon the accused. The complainant or
of the accused or the accused moves for the public prosecutor shall attach to the
provisional (sin perjucio) dismissal of the affidavits such documentary or object
case; or both the prosecution and the evidence as he may have, marking them as
accused move for a provisional dismissal of Exhibits A, B, C, and so on. No further judicial
the case (Sec. 8, Rule 117); affidavit, documentary, or object evidence
(2) The offended party is notified of the motion shall be admitted at the trial.
for the provisional dismissal of the case
(3) The court issues an order granting the
motion and dismissing the case provisionally;
PAGE 300
(3) If the accused desires to be heard on his ROLE OF THE JUDGE

defense after receipt of the judicial affidavits During the pre-trial, the judge shall be the one
of the prosecution, he shall have the option to ask questions on issues raised therein and all
to submit his judicial affidavit as well as questions must be directed to him to avoid
those of his witnesses to the court within ten hostilities between the parties [AM 03-1-09-SC].
days from receipt of such affidavits and serve
a copy of each on the public and private STIPULATION OF FACTS
prosecutor, including his documentary and This is no longer prohibited in criminal cases
object evidence previously marked as [People v. Hernandez (1996)].
Exhibits 1, 2, 3, and so on. These affidavits
shall serve as direct testimonies of the However, in a case of rape with the allegation
accused and his witnesses when they appear that the victim is below 12 years of age which
before the court to testify. qualifies said crime and increases its penalty to
death, nothing short of proof beyond
MATTERS TO BE CONSIDERED reasonable doubt of every fact necessary to
DURING PRE-TRIAL constitute the elements of the crime must be
Pre-trial is mandatory in all criminal cases. Its established. Circumstances that qualify a crime
main objective is to achieve an expeditious and increases its penalty to death cannot be the
resolution of the case. subject of stipulation [People v. Sitao (2002)].
COVERAGE MARKING FOR IDENTIFICATION OF

The court shall order pre-trial in all criminal EVIDENCE
cases cognizable by the Sandiganbayan, RTC Proffer of exhibits is not allowed. It ought to be
and MTC or MTCC or MCTC or MeTC. done at the time a party closes the presentation
of evidence.
PERIOD
General rule: The court shall order a pre-trial WHAT THE COURT SHOULD DO
conference after arraignment and within 30 WHEN PROSECUTION AND
days from the time the court acquires
jurisdiction over the person of the accused. OFFENDED PARTY AGREE TO
THE PLEA OFFERED BY THE
Exception: A shorter period may be provided by ACCUSED
special laws or SC circulars.
THINGS CONSIDERED PLEA BARGAINING

(1) Plea bargaining; It is the process in criminal procedure whereby
(2) Stipulation of facts; the accused, offended party, and the
(3) Marking for identification of evidence; prosecution work out a mutually satisfactory
(4) Waiver of objections to admissibility of disposition of the case subject to court approval
evidence; [See DOJ Circ. No. 35, as amended by Circ. No.
(5) Modification of the order of trial if accused 55 for the guidelines on plea bargaining as well
admits the charge but interposes a lawful as note on Rule 116].
defense (reverse trial);
(6) Other matters that will promote a fair and It usually involves the defendant pleading guilty
expeditious trial of the civil and criminal to a lesser offense or to one or some of the
aspects of the case [Sec. 1, Rule 118]. counts of a multi-count indictment in return for
a lighter sentence than that for the graver
charge [People v. Mamarion (2003)].
PAGE 301
The conviction of the accused of the lesser Even if placed at a disadvantageous position, a
offense precludes the filing and prosecution of party may not be allowed to rescind them
the offense originally charged in the unilaterally; he must assume the consequences
information, except when the plea of guilty to a of the disadvantage [Bayas v. Sandiganbayan
lesser offense is without the consent of the (2002)].
offended party and the prosecutor [People v. De
Luna (1989); Sec. 7(c), Rule 117; see Sec. 2, Rule NON-APPEARANCE DURING
116].
PRE-TRIAL
EFFECT WHEN THE PROSECUTION The court may impose proper sanctions or
penalties (reprimand, fine or imprisonment), if
AND THE OFFENDED PARTY AGREE counsel for the accused or the prosecutor:
TO THE PLEA OFFERED BY THE (1) Does not appear at the pre-trial conference;
ACCUSED and
The Court shall: (2) Does not offer an acceptable excuse [Sec. 3,
(1) Issue an order which contains the plea Rule 118].
bargaining arrived at;
(2) Proceed to receive evidence on the civil Ratio: This is to enforce the mandatory
aspect of the case; and requirement of pre-trial in criminal cases [Sec. 1,
(3) Render and promulgate judgment of Rule 118].
conviction, including the civil liability or
damages duly established by the evidence Note: The accused is not included because his
[AM 03-1-09-SC]. constitutional right to remain silent may be
violated. The accused is not required to attend
PRE-TRIAL AGREEMENT (unless ordered by the court) and is merely
required to sign the written agreement arrived
at in the pre-trial conference, if he agrees to the
FORM contents of such. The complainant is also not
(1) Must be in writing; required to appear during pre-trial. It is the
(2) Signed by the accused; prosecutor who is required to appear at the pre-
(3) Signed by his counsel, trial.
If this is not followed, the admissions cannot be
used against the accused (i.e., inadmissible in PRE-TRIAL ORDER
evidence). The constitutional right to present
evidence is waived expressly. ISSUANCE
The pre-trial order is:
General rule: Court approval is required. (1) Issued by the court;
(2) Within 10 days after the pre-trial [AM 03-1-
Exception: Agreements not covering matters 09-SC].
referred to in Sec. 1, Rule 118, need not be so
approved [AM 03-1-09-SC]. Judgment of acquittal based on pre-trial
despite disputed documents and issues of fact
EFFECT amounts to grave error and renders the
The stipulations become binding on the parties judgment void [People vs Santiago (1989)].
who made them. They become judicial
admissions of the fact or facts stipulated.
PAGE 302
CONTENT (3) Informing the parties that no evidence shall

(1) Actions taken; be allowed to be presented and offered
(2) Facts stipulated; during the trial other than those identified
(3) Evidence marked; and marked during the pre-trial except when
(4) Admissions made; allowed by the court for good cause shown.
(5) The number of witnesses to be presented; In mediatable cases, the judge shall refer the
and parties and their counsel to the PMC unit for
(6) The schedule of trial [Sec. 4, Rule 118]. purposes of mediation if available.
Note: Nos. 4 to 6 are added by AM 03-1-09-SC

to the requirements under Sec. 4, Rule 118.
Trial
EFFECT
(1) Binds the parties. The procedure is INSTANCES WHEN PRESENCE
substantially the same in civil cases, except that OF ACCUSED IS REQUIRED BY
any modification of the pre-trial order in civil
cases must be made before the trial. No such
LAW
General rule: The presence of the accused
limitation is provided for in criminal cases;
during the trial may be waived.
(2) Limits the trial to those matters not disposed
of;
Exception: The presence of the accused during
(3) Controls the course of the action during trial,
the trial is required by law for purposes of
except if modified by the court to prevent
identification.
manifest injustice;
Exception to the exception: The presence of the
REFERRAL OF SOME CASES accused is no longer required when he
FOR COURT ANNEXED unqualifiedly admits in open court after
arraignment that he is the person named as
MEDIATION AND JUDICIAL defendant in the case on trial [Lavides v. CA
DISPUTE RESOLUTION (2000)].
Under AM No. 03-1-09 (Proposed Rule on
Guidelines to be Observed by Trial Court Judges Note: The presence of the accused is also
and Clerks of Court in the Conduct or Pre-Trial required in the following cases:
and use of Deposition-Discovery Measures), after (1) At arraignment; [Sec. 1(b), Rule 116]
the arraignment, the court shall forthwith set (2) At the promulgation of judgment, unless the
the pre-trial conference within 30 days from the conviction is for a light offense [Sec. 6, Rule
date of arraignment, and issue an order: 120].
(1) Requiring the private offended party to
appear thereat for purposes of plea- REQUISITES BEFORE TRIAL
bargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002, CAN BE SUSPENDED ON
and for other matters requiring his presence; ACCOUNT OF ABSENCE OF
(2) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be
WITNESS
(1) The witness must be either absent or
set at least three days prior to the pre-trial to
unavailable;
mark the documents or exhibits to be
(2) The absent or unavailable witness must be
presented by the parties and copies thereof
essential [Riano (2011)].
to be attached to the records after
comparison and to consider other matters as
may aid in its prompt disposition; and Absent - his whereabouts are unknown or
cannot be determined by due diligence.
PAGE 303
Unavailable - his whereabouts are known but (3) His failure to appear is unjustified.
presence for trial cannot be obtained by due
diligence. Ratio: This is to speed up disposition of cases.
Essential - indispensable, necessary, or REMEDY WHEN ACCUSED IS
important in the highest degree [Black’s Law
Dictionary]. NOT BROUGHT TO TRIAL
WITHIN THE PRESCRIBED
The period of delay resulting from the absence PERIOD
or unavailability of an essential witness shall be
excluded in computing the time within which
trial must commence [Sec. 3, Rule 119]. EFFECT OF DELAY
On motion of the accused, the information may
be dismissed on the ground of denial of his right
RESPONSIBILITY OF THE COUNSEL to speedy trial [Sec. 9, Rule 119].
However, the court may, without prejudice to
any appropriate criminal and administrative
Factors to consider are:
charges to be instituted by the proper party
(1) Duration of the delay;
against the erring counsel if and when
(2) Reason therefor;
warranted, punish the counsel for the accused,
(3) Assertion of the right or failure to assert it;
the public prosecution or public attorney who;
and
(1) Knowingly allows the case to be set for trial
(4) Prejudice caused by such delay [Mari and
without disclosing the fact that a necessary
People v. Hon. Gonzales (2011)].
witness would be unavailable for trial; or
(2) Otherwise willfully fails to proceed to trial
Must be raised prior to trial; otherwise, the right
without justification consistent with the
to dismiss is considered waived under Sec. 9,
provisions of the Speedy Trial Act.
Rule 119.
CONDITIONAL EXAMINATION BURDEN OF PROOF
When it satisfactorily appears that a witness for
(1) The accused has the burden of proving the
the prosecution is too sick or infirm to appear at
ground of denial of right to speedy trial for
the trial as directed by the court, or has to leave
the motion.
the Philippines with no definite date of
(2) The prosecution has the burden of going
returning, he may forthwith be conditionally
forward with the evidence to establish the
examined before the court where the case is exclusion of time under Sec. 3, Rule 119.
pending.
This is subject to the rules on double jeopardy.
Hence, if with prejudice, the case cannot be
Such examination, in the presence of the
revived anymore.
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same REQUISITES FOR DISCHARGE
manner as an examination at the trial. OF ACCUSED TO BECOME A
Failure or refusal of the accused to attend the
STATE WITNESS
examination after notice shall be considered a
waiver. The statement taken may be admitted in DISCHARGE OF A CO-ACCUSED
behalf of or against the accused [Sec. 15, Rule It is the duty of the prosecutor to include all the
119]. accused in the complaint/information.
He may ask the court to discharge one of them

TRIAL IN ABSENTIA after complying with the conditions prescribed
Requisites: by law [Sec. 17, Rule 119]. This applies only when
(1) Accused has been arraigned; the information has already been filed in court.
(2) He was duly notified of trial;
PAGE 304
Thus, even the state witness is include as

accused prior to discharge.
Any error in asking for and in granting the
REQUISITES discharge cannot deprive the discharge of the
Two or more persons are jointly charged with acquittal and the constitutional guaranty
the commission of any offense. against double jeopardy [People v. Verceles
(1) Upon motion of the prosecution before (2002)].
resting its case
(2) Petition for discharge is filed before the Conviction of the accused against whom
defense has offered its evidence. [People v. discharged state witness testified is not
Aniňon (1988)] required.
(3) Hearing in support of the discharge where
the prosecution is to present evidence and Subsequent amendment of the information
the sworn statement of each proposed state does not affect discharge [People v. Taruc
witness. (1962)].
(4) The court is satisfied of the following:
(a) Absolute necessity for the testimony of Note: If the discharge is not granted, the
the accused whose discharge is affidavit of the accused cannot be used by the
requested; This means he alone has the prosecution.
knowledge of the crime, and not when his
testimony would simply corroborate or DEMURRER TO EVIDENCE
strengthen the evidence in the hands of
the prosecution. [Flores v. Sandiganbayan DEFINITION
(1983)]; A demurrer to evidence is defined as “an
(b) There is no other direct evidence available objection or exception by one of the parties in
for the proper prosecution of the offense, an action at law, to the effect that the evidence
except the testimony of the said accused; which his adversary produced is insufficient in
(c) The testimony can be substantially point of law (whether true or not) to make out
corroborated in its material points; his case or sustain the issue” [Pasag v. Parocha
(d) The accused does not appear to be the (2007), citing Black’s Law Dictionary].
most guilty;
(e) The accused has not, at any time, been General rule: An order granting the accused’s
convicted of any offense involving moral demurrer to evidence amounts to an acquittal.
turpitude [Sec. 17, Rule 119].
Note: The evidence adduced in support of the Exception: When there is a finding that there
discharge shall automatically form part of the was grave abuse of discretion on the part of the
trial. trial court in dismissing a criminal case by
granting the accused’s demurrer to evidence.
EFFECTS OF DISCHARGE OF [Hon. Mupas v. People (2011)].
ACCUSED AS STATE WITNESS The order granting the demurrer is not
General rule: The order of discharge shall: appealable but may be reviewed via certiorari
(1) Amount to an acquittal of the discharged [Rule 65] [People v. Sandiganbayan, Marcos
accused; (2012)].
(2) Bar future prosecutions for the same offense
[Sec. 18, Rule 119]. Ratio: This is to prevent the filing of demurrer
based on frivolous and flimsy grounds.
Exception: If the accused fails/refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis for his
discharge, these effects do not set in.
PAGE 305
HOW INITIATED RIGHT OF THE ACCUSED TO

By the court motu proprio, after giving the PRESENT EVIDENCE AFTER
prosecution the opportunity to be heard; DEMURRER IS DENIED
Upon demurrer to evidence filed by the accused:
Filed with leave of Filed without leave of
(1) With leave of court;
court court
(2) Without leave of court [Sec. 23, Rule 119].
May adduce Waives the right to
MOTION FOR LEAVE TO FILE evidence in his present evidence
DEMURRER defense [Sec. 23, Rule 119]
(1) It must specifically state its grounds. Purpose is to Submits the case for
(2) It must be filed within a non-extendible determine whether judgment on the
period of 5 days after the prosecution rests or not the demurrer basis of the evidence
(i.e. after the court shall have ruled on the was filed merely to for the prosecution
prosecution’s formal offer). Prosecution may stall the proceedings
then oppose within a non-extendible period Implied leave of If there are 2 or more
of 5 days from receipt. court is no longer accused and only
(3) If leave of court is granted, the demurrer sufficient and one presents a
must be filed within a non-extendible period prevents accused demurrer without
of 10 days from notice. Prosecution may from presenting leave of court:
oppose within a similar period [Sec. 23, Rule evidence (e.g. 1. The court may
119]. accused files motion defer resolution until
with reservation to decision is rendered
EFFECT GRANTING DEMURRER present evidence in on the other accused
The court dismisses the action on the ground of case motion is 2. If it can be
insufficiency of evidence [Sec. 23, Rule 119]. This denied) shown from the
amounts to acquittal of the accused. decision that the
resolution on the
Sufficient evidence for frustrating a demurrer is demurrer was
evidence that proves: rendered not only on
(1) Commission; and the basis of the
(2) Precise degree of participation [Gutib v. CA prosecution’s
(1999)]. evidence but also on
the evidence
EFFECT OF DENIAL OF MOTION FOR adduced by his co-
LEAVE TO FILE DEMURRER accused, then the
(1) Accused should choose to insist on filing demurrer is deemed
demurrer even without leave or to present resolved
evidence for his defense;
(2) Order denying the motion for leave or order
denying the demurrer itself, is not reviewable
by appeal or by certiorari before judgment
[Sec. 23, Rule 119];
(3) It is interlocutory, but it may be assigned as
error and reviewed in the appeal that may be
taken from the decision on the merits [Cruz v.
People (1999)].
PAGE 306
Judgment (2) The participation of the accused in the

offense, whether as principal, accomplice or
accessory after the fact;
REQUISITES OF A JUDGMENT (3) The penalty imposed upon the accused;
A judgment is the adjudication by the court that (4) The penalty should not be imposed in the
the accused is guilty or not guilty of the offense alternative. There should be no doubt as to
charged and the imposition on him of the the offense committed and the penalty for it;
proper penalty and civil liability, if any. (5) The civil liability or damages caused by his
wrongful act/omission to be recovered from
FORM the accused by the offended party, if there is
(1) Written in official language. If given verbally, any, unless the enforcement of the civil
it is incomplete [People v. Catolico (1972)]; liability by a separate civil action has been
(2) Personally and directly prepared by the reserved/waived [Sec. 2, Rule 120].
judge;
(3) Signed by the judge. The judge who presided PROOF BEYOND REASONABLE DOUBT
over the entire trial would be in a better It is that degree of proof which produces
position to ascertain the truth or falsity of the conviction in an unprejudiced mind [People v.
testimonies. But the judge who only took Bacalzo (1991)].
over can render a valid decision by relying on
the transcript. It does not violate due process JUDGMENT FOR TWO OR MORE OFFENSES
[People v. Badon (1999)]; Where the accused fails to object to two or more
(4) Contains clearly and distinctly a statement offenses charged in a single
of facts proved and the law upon which information/complaint before trial, the court
judgment is based [Sec. 1, Rule 120]. may:
(1) Convict him of as many offenses as are
There is sufficient compliance if the decision charged and proved, except when one of the
summarizes the evidence of both parties, offenses has been a necessary means for
synthesizes the findings and concisely narrates committing the other offense and where
how the offense was committed. both have been the result of a single act; and
(2) Impose on him the penalty for each offense,
Failure on the part of the TC to make a finding setting out separately the findings of fact
of fact is a revocable error. and law in each offense [Sec. 3, Rule 120],
subject to the three-fold rule on the service
of penalty.
JUDGE WHO RENDERS DECISION
The fact alone that the judge who heard the JUDGMENT IN CASE OF VARIANCE
evidence was not the one who rendered the
BETWEEN ALLEGATION AND PROOF
judgment but merely relied on the record of the
General rule: The defendant can be convicted
case does not render his judgment erroneous or
only of the crime with which he is charged.
irregular, especially when the evidence on
record is sufficient to support its conclusion
Ratio: He has the right to be informed of the
[People v. Alfredo (2010)].
nature of the offense with which he is charged
before he is put on trial [People v. Guevarra
CONTENTS OF JUDGEMENT (1989)].
IN CASE OF CONVICTION However, minor variance between the

The judgment of conviction shall state: information and the evidence:
(1) The legal qualification of the offense (1) Does not alter the nature of the offense;
constituted by the acts committed by the (2) Does not determine or qualify the crime or
accused and the aggravating/mitigating penalty;
circumstances which attended its (3) Cannot be ground for acquittal.
commission;
PAGE 307
Exception: He can be convicted of an offense STATE LIABILITY FOR UNJUST CONVICTION

proved provided it is included in the charge, or The DOJ Board of Claims is authorized to
of an offense charged which is included in that receive/evaluate/process/investigate claims of
which is proved [Sec. 4, Rule 120]. victims of unjust imprisonment/detention and
(1) The accused can be convicted of an offense victims of violent crimes [RA 7309].
only when it is both charged and proven.
(2) The mere fact that the evidence presented The following may file claims for compensation
would indicate that a lesser offense outside before the Board:
the court’s jurisdiction was committed does (1) Any person who was unjustly accused,
not deprive the court of its jurisdiction, which convicted and imprisoned but subsequently
had vested in it under the allegations in the released by virtue of a judgment of acquittal;
information. (2) Any person who was unjustly detained and
released without being charged;
Exception to the exception: Where there are (3) Any victim of arbitrary or illegal detention by
facts that supervened after the filing of the the authorities as defined in the RPC under a
information which change the nature of the final judgment of the court; and
offense. (4) Any person who is a victim of violent crimes,
include rape and shall likewise refer to
WHEN AN OFFENSE INCLUDES OR IS offenses committed with malice which
INCLUDED IN ANOTHER resulted in death or serious physical and/or
The offense charged necessarily includes the psychological injuries, permanent incapacity
offense proved when some of the essential or disability, insanity, abortion, serious
elements/ingredients of the former, as alleged trauma, or committed with torture, cruelly or
in the complaint/information, constitute the barbarity [Sec. 3, 7309].
latter.
For victims of unjust imprisonment or detention,
An offense charged is necessarily included in the compensation shall be based on the
the offense proved when the essential number of months of imprisonment or
ingredients of the former constitute or form part detention and every fraction thereof shall be
of those constituting the latter [Sec. 5, Rule 120]. considered one month; Provided, however,
That in no case shall such compensation
The effect is that the accused may be convicted exceed P1,000 per month.
of: In all other cases, the maximum amount for
(1) The offense proved which is included in the which the Board may approve a claim shall
offense charged; or not exceed P10,000 or the amount necessary
(2) The offense charged which is included in the to reimburse the claimant the expenses
offense proved [Sec. 4, Rule 120]. incurred for hospitalization, medical
treatment, loss of wage, loss of support or
The right to be informed of the charges has not other expenses directly related to injury,
been violated because where an accused is whichever is lower. This is without prejudice
charged with a specific crime, he is duly to the right of the claimant to seek other
informed also of lesser crimes/offenses remedies under existing laws [Sec. 4, RA
included therein [People v. Villamar (1998)]. 7309].
Where a complex crime is charged and the IN CASE OF ACQUITTAL

evidence fails to support the charge as to one of Acquittal Dismissal
the component offenses, the accused can be
convicted of the one which is proven. Terminates the case
Decision on the Not on the merits
merits based on a but no finding that
finding that the accused is not guilty
accused is not guilty
PAGE 308
Acquittal means a finding of not guilty based on General rule: The court has authority to express
the merits, either: disapproval of certain acts even if judgment is
(1) Because the evidence does not show that his for acquittal.
guilt is beyond reasonable doubt; or
(2) Upon motion of the accused, after the Exception: The court is not permitted to censure
prosecution rested its case, on the ground the accused in a judgment for acquittal – no
that the evidence fails to show beyond doubt matter how light, a censure is still a
that accused is guilty. punishment.
Reasonable doubt is doubt engendered by an PROMULGATION OF

investigation of the whole proof and an inability,
after such investigation, to let the mind rest JUDGEMENT; INSTANCES OF
upon the certainty of guilt. PROMULGATION IN ABSENTIA
The judgment shall state whether: PROMULGATION
(1) The evidence of the prosecution absolutely Promulgation is the official proclamation or
failed to prove the guilt of the accused; or announcement of a judgment or order.
(2) It merely failed to prove his guilt beyond
reasonable doubt. Requisites:
(1) There must be a judge or judges legally
In either case, the judgment shall determine if appointed or elected and actually acting
the act or omission from which the civil liability either de jure or de facto, and
might arise did not exist [Sec. 2, Rule 120]. (2) The said judgment must be duly signed and
promulgated during the incumbency of the
Acquittal based on failure to prove guilt beyond judge who signed it [Miguel v Municipal Trial
reasonable doubt does not extinguish the civil Court (1986)].
liability arising from his acts, since the civil
liability arose not from a crime but from the The judgment or sentence does not become a
damage caused by such acts, which can be judgment or sentence in law until it is:
proven by a lower quantum of evidence. Thus, it (1) Read and announced to the defendant; or
does not bar a separate civil action based on (2) Has become a part of the record of the court
quasi-delict [Lontoc v. MD Transit (1988)]. [US v. CFI of Manila (1913)].
The court may hold the accused civilly liable Where there is no promulgation of judgment, no
even when it acquits him. Acquittal extinguishes right to appeal accrues. Merely reading the
civil liability only when the judgment includes a dispositive portion of the decision is not
declaration that the facts from which the civil sufficient. Judgment must state the facts and
liability might arise did not exist. Thus: the law on which it is based.
(1) The court may nonetheless hold the accused
civilly liable in favor of the offended party, or While SC has expressed approval of the practice
it may deny the award of civil damages of some judges withholding the dispositive
expressly or impliedly by being silent on the portion from their opinions until the very last
matter. moment of promulgation in order to prevent
(2) The losing party may appeal the ruling on leakage, such refers to the preparation of the
the civil liability, as in any other ordinary decision and not to promulgation.
appeal, in his name and not in the name of
the People. There is no more reason to keep it a secret at
the stage of promulgation.
The judge acquitting an accused cannot punish
him at the same time.
PAGE 309
NOTICE FOR PROMULGATION PROMULGATION WHEN ACCUSED IS

The Clerk of Court gives notice to the accused CONFINED OR DETAINED IN ANOTHER CITY
personally or through the bondsman or warden Promulgation will be done in the RTC which has
and counsel. jurisdiction over the place of confinement. In
this case, the court promulgating the judgment
If the accused jumps bail or escapes from prison shall have authority to accept notice of appeal
and was tried in absentia, notice will be served and to approve the bail bond pending appeal
in last known address [Sec. 6, Rule 120]. [Sec. 6, Rule 120].
SIN PERJUICIO JUDGMENT FAILURE OF THE ACCUSED TO APPEAR AT

It is a judgment without a statement of the facts THE SCHEDULED DATE OF PROMULGATION
in support of its conclusion to be later Promulgation is made by recording the
supplemented by the final judgment [Dizon v. judgment in the criminal docket and serving a
Lopez (1997)]. copy at the accused’s last known address or
through counsel [Sec. 6, Rule 120].
PROMULGATION IN CERTAIN PROMULGATION WHEN A JUDGE IS NO
CIRCUMSTANCES LONGER A JUDGE
If at the time of the promulgation, the judge
PROMULGATION WHERE THE JUDGE IS penning the decision has ceased being a judge
ABSENT of the court, the decision would not be an act of
The judgment may be promulgated by the clerk the court. [People v. Dimalanta)
of court when the judge is absent or outside the Promulgation by a succeeding judge produces
province or city [Sec. 6, Rule 120]. no legal effect since it cannot restore validity to
a document already void.
WHERE PRESENCE OF ACCUSED IS
REQUIRED; EXCEPTIONS WHEN DOES JUDGMENT
General rule: Presence of the accused is
mandatory in the promulgation of judgment. BECOME FINAL
(1) After the lapse of the period for perfecting an
Exception: Convictions for light offenses [Sec. 6, appeal;
Rule 120]. (2) When the sentence has been partially/totally
If the judgment is for conviction and the failure satisfied or served;
of the accused to appear was without justifiable (3) The accused has expressly waived in writing
cause, he shall lose the remedies available in his right to appeal;
the Rules against the judgment and the court (4) When the accused applies for probation, and
shall order his arrest. thereby waives right to appeal.
However, within 15 days from promulgation of Judgment also becomes final when judgment is
judgment, he may surrender and file a motion an acquittal [People v. Sandiganbayan (2010)].
for leave of court to avail of these remedies. He
shall state the reasons for his absence. Note: Before the judgment becomes final, the
TC has plenary power to make, either on motion
If he proves his absence was for a justifiable or motu proprio, such amendment or alterations
cause, shall be allowed to avail of the remedies as it may deem best, within the frame of law, to
within 15 days from notice [Sec. 6, Rule 120; promote the ends of justice [Sec. 7, Rule 120].
People v. De Grano (2009)].
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors.
PAGE 310
New Trial or REQUISITES BEFORE A NEW

TRIAL MAY BE GRANTED ON
Consideration GROUND OF NEWLY
GROUNDS FOR NEW TRIAL DISCOVERED SPECIES
Requisites: The evidence:
(1) Was discovered after the trial;
ERRORS OF LAW OR (2) Could not have been discovered and
IRREGULARITIES produced at the trial even with the exercise
The court shall grant a new trial when errors of of reasonable diligence [US v. Pico (1982)];
law or irregularities prejudicial to the (3) Burden of proving this is on the accused. [US
substantial rights of the accused have been v. Torrente (1922)];
committed during the trial. (4) Is material, not merely cumulative/
corroborative/impeaching; and
General rule: Errors of the defense counsel in (5) Is of such weight that it would probably
the conduct of the trial is neither an error of law change the judgment if admitted [Jose v. CA
nor an irregularity. (1997)].
Exception: They become an error of law or It must be of weighty influence and will affect
irregularity when acquittal would, in all the result of the trial [People v. Alfaro (2003)].
probability, have followed the introduction of
certain testimony which was not submitted at INTEREST OF JUSTICE AS GAUGE
the trial under improper or injudicious advice of FOR INTRODUCTION OF NEW
incompetent counsel of the accused.
EVIDENCE
Irregularities must be with such seriousness as In People v. Almendras (2003), the court ruled
to affect prejudicially the substantial rights of that a motion for a new trial may be granted on
the accused. a ground not specifically provided in the rules,
provided that it is sought in the interest of
justice. In that case, the relief of a new trial was
NEW AND MATERIAL EVIDENCE granted to a client who has suffered by reason
The court shall grant a new trial when new and
of his/her counsel’s gross mistake and
material evidence has been discovered which
negligence.
the accused could not with reasonable diligence
have discovered and produced at the trial and
which if introduced and admitted would WHEN THERE IS VARIANCE IS TWO
probably change the judgment [Estino v. People REPORTS
(2007)]. In People v. del Mundo (1996), the court allowed
the presentation in a new trial of a police report,
The determinative test is the presence of due or not new, and which could have been discovered
reasonable diligence to locate the thing to be with due diligence, because the evidence
used as evidence in the trial [Briones v. People contained in such was at such variance with the
(2009)]. health officer’s report at trial, that its contents
raised doubts to the guilt of the accused.
GROUNDS FOR
RECONSIDERATION EFFECTS OF GRANTING NEW
The court shall grant reconsideration on the TRIAL OF RECONSIDERATION
ground of errors of law or fact in the judgment, IN ALL CASES
which requires no further proceedings [Sec. 3, (1) The original judgment set aside or vacated;
Rule 121]. (2) A new judgment is rendered accordingly;
PAGE 311
OTHER EFFECTS
Other specific effects (see table) also result
when granted upon different grounds [Sec. 6,
Rule 121].
Ground Effect Action of the court

Errors of law or irregularities All proceedings and evidence The court will allow introduction
committed during the trial affected shall be set aside and of additional evidence in the
taken anew. interest of justice.
If error or irregularity goes into

the jurisdiction, the entire
proceeding is void and must be
set aside.
Newly-discovered evidence Evidence already adduced shall The court will allow introduction
stand and the newly-discovered of other such evidence in the
and such other evidence shall be interest of justice.
taken and considered together
with the evidence already in the
record.
IN CASE OF GRAVE ABUSE OF APPLICATION OF THE NEYPES

DISCRETION DOCTRINE IN CRIMINAL CASES
The remedy of the prosecution in case of grave The Neypes doctrine allows a fresh period of 15
abuse of discretion in the grant of the MNT/MR is days within which to file the notice of appeal in
certiorari or prohibition. Otherwise, it may no the RTC, counted from receipt of the order
longer have opportunity to question the order if dismissing a MNT or MR. Neypes v. CA (2005)
accused is acquitted after a new trial is declared that:
conducted, because of the rule on double
jeopardy [Luciano v. Estrella (1970)]. “Henceforth, this ‘fresh period rule’ shall also
apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies
to the Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court.
PAGE 312
Appeal HOW APPEAL IS TAKEN

The right to appeal is not a natural right nor a
part of due process but merely a statutory
EFFECT OF AN APPEAL privilege and may be exercised only in the
An appeal in a criminal proceeding throws the manner and in accordance with the provisions
whole case open for review and it becomes the of the law [Estarija v. People (2009)].
duty of the appellate court to correct an error as
may be found in the appealed judgment, WON WHO MAY APPEAL
it is made the subject of assignment of errors General rule: Any party may appeal from a
[People v. Calayca (1999)]. judgment or final order [Sec. 1, Rule 122].
Exceptions:
WHERE TO APPEAL (1) A party may not appeal if the accused will be
placed in double jeopardy by such action
For cases decided by Appeal to
[Sec. 1, Rule 122];
MTC/MeTC/MCTC RTC (2) If the judgment is for conviction and the
RTC or MTC/MeTC/ Sandiganbayan accused fails to appear without justifiable
MCTC (if it is government cause, he would lose the remedy to appeal
duty-related, i.e., filed [Sec. 6, Rule 120].
under EO 1, 2, 4 and 14-A)
PROCEDURE IN LOWER COURTS
RTC (if it involves CA When appeal to be taken. Within 15 days
questions of fact and of from promulgation of the judgment or
law) from notice of the final order appealed
RTC SC from.
(1) If it involves questions
of law only 1 The period to appeal shall be suspended
(2) If it involves from the time a MNT or MR is filed until
constitutionality or notice of the order overruling the motion
validity of any has been served upon the accused or his
treaty/law/ordinance/ counsel.
EO/ regulation or the Transmission of record to RTC. Within 5
jurisdiction of the days from perfection of the appeal, the
inferior court 2 COC shall transmit the original record to
(3) In criminal cases the appropriate RTC.
involving offenses for
which the penalty Notification of parties. Upon receipt of
the complete record, TSN and evidence
imposed is death or
life imprisonment
3 of the case, the RTC COC shall notify the
(4) Other offenses, which, parties of such fact.
although not so Submission of memoranda/briefs. Within
punished, arose out of 15 days from receipt of said notice, the
the same occurrence 4 parties may submit memoranda/briefs,
or which may have or may be required by the RTC to do so.
been committed by the
Decision. After submission of such
accused on the same
memoranda/briefs or upon the
occasion, as that
expiration of the period to file the same,
giving rise to the more
serious offense 5 the RTC shall decide the case on the
basis of the entire record of the case and
CA or Sandiganbayan SC of such memoranda/briefs as may have
been filed.
PAGE 313
General rule: The procedure to be observed in It shall be filed within 30 days from receipt by
the MeTC/MTC/MCTC shall be the same as that the appellant (his counsel) of the CA clerk of
in the RTC. court’s notice that the evidence is already
attached to the record [Sec. 3, Rule 124].
Exceptions:
(1) Where a particular provision applies only to BRIEF FOR THE APPELLEE
either of said courts; Appellee shall file seven copies of his brief with
(2) Criminal cases governed by the Revised Rules the clerk of court, accompanied by proof of
on Summary Procedure [Sec. 1, Rule 123]. service of two copies on the appellant.
OFFENSES FALLING UNDER THE It shall be filed within 30 days from receipt of
JURISDICTION OF THE MTC/MCTC the appellant’s brief [Sec. 4, Rule 124].
Notwithstanding the uniform procedure rule, if REPLY TO APPELLEE’S BRIEF
the offense falls under the jurisdiction of the Filing a reply is optional. Thus, the appellant
MTC/MCTC, complaint/information may be may file a reply brief covering matters raised in
filed directly with said courts or with the City the appellee’s brief but not in the brief of the
Prosecutor’s Office [Salcedo v. Nobles-Bans appellant.
(1985)].
It must be filed within 20 days from receipt of
OFFENSES FALLING UNDER THE the appellee’s brief [Sec. 4, Rule 124].
JURISDICTION OF THE METC
In Metro Manila and other chartered cities, EXTENSION OF TIME FOR FILING BRIEFS
criminal cases shall be commenced only by General rule: Extension of time for the filing of
information; thus, the complaint may be filed briefs is not allowed.
only with the Office of the City Prosecutor
Exception: Extension may be granted for good
If the case is directly filed with the court, the and sufficient cause.
case should not be dismissed. The court should
just refer it to the City Prosecutor for the filing of It is sought through a motion for extension,
the corresponding information [Salcedo v. which must be filed before the expiration of the
Nobles-Bans (1985)]. time sought to be extended [Sec. 5, Rule 124].
PROCEDURE IN THE COURT OF The court may grant as many extensions as may
APPEALS be asked [Gregorio v. CA (1976)].
PARTIES AND TITLE FORM OF BRIEFS

In all criminal cases appealed to the CA, the Briefs shall be printed/encoded/ typewritten, in
party appealing shall be called the “appellant” double space, on legal size good quality
and the adverse party the “appellee.” unglazed paper, 330mm in length by 216mm in
width.
The title of the case shall remain as it was in the
court of origin (i.e., People v. John Doe) [Sec. 1, Mimeographed copies are not allowed [Sec. 6,
Rule 124]. Rule 124].
BRIEF FOR THE APPELLANT CONTENT OF BRIEFS

The appellant shall file seven copies of his brief The briefs in criminal cases shall have the same
with the clerk of court, accompanied by proof of contents as provided in Secs. 13 to 14, Rule 44
service of two copies on the appellee. [Sec. 7, Rule 124].
PAGE 314
DISMISSAL OF APPEAL FOR (2) If there was absolutely no evidence against

ABANDONMENT OR FAILURE TO the accused as found by the appellate court,
PROSECUTE (GROUNDS) he should be acquitted in order to prevent an
injustice by technicalities [People v.
Appellant fails to file his brief within the Buenaventura (1994)];
prescribed time (3) In case of automatic review [People v.
The CA may, upon motion of the appellee or Cornelio (1971)].
motu proprio and with notice to the appellant in
either case, dismiss the appeal if the appellant PROMPT DISPOSITION OF APPEAL
fails to file his brief with the time prescribed, Appeals of accused who are under detention are
except where the appellant is represented by a given precedence in their disposition over other
counsel de oficio. appeals.
If failure to file brief on time is the ground,
appellant must be given notice to give him The accused need not be present in court during
opportunity to reason out why his appeal should the hearing of the appeal [Sec. 9, Rule 124].
not be dismissed.
However, dismissal is proper despite lack of REVERSAL/MODIFICATION OF JUDGMENT
notice: ON APPEAL
(1) If appellant has filed a MFR or motion to set General rule: No judgment shall be reversed or
aside the order dismissing the appeal, in modified.
which he stated the reason why he failed to
file his brief on time and the appellate court Exception: When the CA, after an examination of
denied the motion after considering reason the record and of the parties’ evidence, is of the
[Baradi v. People (1948)]; opinion that error was committed and such
(2) If appeal was dismissed without notice but error injuriously affected the appellant’s
appellant took no steps to have the appeal substantial rights [Sec. 10, Rule 124].
reinstated. Such action amounts to
abandonment [Salvador v. Reyes (1949)]. When it involves credibility of witnesses,
appellate courts will not generally disturb the
Appellant escapes, jumps bail, or flees TC’s findings.
The CA may also, upon motion of the appellee
or motu proprio, dismiss the appeal if the Ratio: The TC is in a better position to decide the
appellant escapes from prison/confinement, question, having seen and heard the witnesses
jumps bail or flees to a foreign country during themselves. [People v. Cabiling (1976)]
the pendency of the appeal [Sec. 8, Rule 124].
SCOPE OF CA’S JUDGMENT
Likewise, when accused flees after the case has The CA may:
been submitted for decision, he is deemed to (1) Reverse/affirm/modify the judgment;
have waived his right to appeal [People v. Ang (2) Increase/reduce the penalty imposed by the
Gioc (1941)]. TC;
(3) Remand the case to the RTC for new trial or
However, the appeal will not be dismissed retrial;
despite escape: (4) Dismiss the case [Sec. 11, Rule 124].
(1) In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured two hours
after, the SC said circumstances were not
sufficient to justify dismissal of the appeal
[People v. Valencia (1949)];
PAGE 315
When the accused appeals from the sentence of CERTIFICATION OR APPEAL OF CASES TO
the TC, he waives the constitutional safeguard THE SC
against double jeopardy and throws the whole (1) If the CA finds that death penalty should be
case open to the review of the appellate court, imposed, it shall render judgment but refrain
which is then called upon to render such from making an entry of judgment. It shall
judgment as law and justice dictate, WON then certify the case and elevate its entire
favorable to the accused and WON made the record to the SC for review. The accused does
subject of assignment of errors [Ko Bu Lin v. CA not have to do anything.
(1982)]. (2) If the judgment also imposes a lesser
penalty for offenses committed on the same
CA’S POWER TO RECEIVE EVIDENCE occasion or which arose from the same
The CA has power to try cases and conduct occurrence that gave rise to the more severe
hearings, receive evidence and perform any and offense for which death is imposed, and the
all acts necessary to resolve factual issues in accused appeals, the appeal shall be
cases: automatically included in the case certified
(1) Falling within its original jurisdiction; for review in the SC
(2) Involving claims for damages arising from (3) If the CA imposes reclusion perpetua, life
provisional remedies; imprisonment or a lesser penalty:
(3) Where the court grants a new trial based (a) It shall render and enter judgment
only on the ground of newly-discovered imposing such penalty.
evidence. (b) Appeal here is not automatic. The
accused has to file a notice of appeal with
CA’s trials and hearings must be continuous the CA [Sec. 113, Rule 124].
and completed within three months, unless
extended by the Chief Justice [Sec. 12, Rule 124]. JUDGMENT TRANSMITTED AND FILED IN
THE TC
QUORUM IN THE CA When the CA’s entry of judgment is issued, a
(1) Three CA Justices constitute a quorum for the certified true copy of the judgment shall be
sessions of a division; attached to the original record. These shall be
(2) The unanimous vote of the three Justices of a remanded to the clerk of the court from which
division is necessary for the pronouncement the appeal was taken [Sec. 17, Rule 124].
of a judgment or final resolution; This copy of the entry serves as the formal
(3) Decision is reached through a consultation notice to the court from which the appeal was
before the writing of the opinion by a taken of the disposition of the case in the
member of the division; appellate court, so that the judgment may be
(4) If there is lack of unanimity, the Presiding executed and/or placed or noted in the proper
Justice shall direct the CA raffle committee file.
to designate two additional Justices to sit
temporarily with them. They shall then form MNT DURING THE PENDENCY OF APPEAL
a special division of five members; (1) Appellant may file MNT on the ground of newly
(5) The concurrence of a majority of that special discovered evidence material to his defense any
division is necessary for the pronouncement time:
of a judgment or final resolution; (a) After the appeal from the lower court has
(6) Designation of the additional Justices shall been perfected; but
be made strictly by raffle and rotation among (b) Before the CA judgment convicting him
all other CA Justices [Sec. 11, BP 129]. becomes final;
(2) The motion shall conform to Sec. 4, Rule 121
(Sec. 14, Rule 124);
(3) If the CA grants a MNT, it may either:
(a) Conduct the hearing and receive evidence;
(b) Refer the trial to the court of origin [Sec. 15,
Rule 124].
PAGE 316
RECONSIDERATION OF CA JUDGMENT MODES BY WHICH A CASE MAY REACH THE

MFR may be filed within 15 days from notice of SC
the CA judgment or final order, with copies
served on the adverse party. The mittimus shall Automatic review
be stayed during the MFR’s pendency. Automatic review is not a matter of right on the
part of the accused, but a matter of law.
General rule: No party shall be allowed a second
MFR of a judgment or final order [Sec. 16, Rule It is available when:
124; Sec. 11, BP 129]. (1) The RTC judgment upon the accused
imposes death penalty [Sec. 10, Rule 122];
Exception: Where the first MFR resulted in a (2) The RTC decision is appealed to CA and the
reversal or substantial modification of the latter is of the opinion that the penalty
original decision or final resolution. imposed should be death or life
imprisonment. CA judgment is imposed but
In this case, the party adversely affected by the no entry of judgment is made; instead, the
reversal/modification may himself file a MFR of case is certified and the entire record is
the latest judgment of the court, because with elevated to the SC for review [Sec. 13, Rule
respect to him, said motion is a first pleading of 124].
that nature.
Ordinary appeal
APPLICABLE CIVIL PROCEDURE RULES It is available when:
Sec. 18, Rule 124. Provisions of Rules 42, 44-46 (1) The penalty imposed by the RTC is life
and 48-56 relating to procedure in the CA and imprisonment, decision is appealable directly
the SC in original and appealed civil cases, shall to the SC by filing a notice of appeal with the
be applied to criminal cases insofar as they are RTC [Sec. 3, Rule 122];
applicable and not inconsistent with the (2) An accused was charged with two or more
provision of this Rule offenses committed on the same occasion or
arising out of the same occurrence, and in
one of those 2 cases, he was sentenced to life
PROCEDURE IN THE SUPREME imprisonment or death penalty, the appeal
COURT with respect to the others, though punished
with a lesser penalty, is to the SC [Sec. 3, Rule
UNIFORM PROCEDURE 122];
General rule: The procedure in the SC in original (3) The penalty of reclusion perpetua or death is
and in appealed cases shall be the same as in imposed on some of the defendants and a
the CA [Sec. 1, Rule 125]. lesser penalty on the other co-defendants,
on account of their varying degree of
Exception: The procedure changes when the participation in the commission of the
Constitution or law so provides. offense or due to the presence of modifying
circumstances, in which case the decision on
WHAT THE SC MAY DO ON REVIEW the non-life convicts is directly appealable to
 In a criminal case, an appeal to the SC throws the SC [People v. Carino (2002)].
open the whole case for review and it becomes
its duty to correct such errors as may be found In these cases, the SC reviews not only errors of
in the judgment appealed from, whether or law but also the findings of fact by the TC.
not they were assigned as errors [People v.
Olfindo (1924)].
 It may examine the judgment as to the
qualification of the crime and the degree of
the penalty imposed [Macali v. Revilla (1926)].
 It may also assess and award civil indemnity
[Quemel v. CA (1946)].
PAGE 317
Petition for review on certiorari The SC said that in cases similarly situated, and
It is available when: as long as the steps formally required for the
(1) The constitutionality or validity of any treaty, perfection of an appeal were taken in due time,
executive agreement, law, ordinance or appeal may be given due course, without
executive order or regulation is in question; prejudice to requiring the appellant to file the
(2) When validity of law is questioned by an necessary petition for review on certiorari which
accused convicted under it by the TC, the SC is also a form of appeal.
cannot review the evidence or pass upon any
other question of law which may appear on REVIEW OF CA DECISIONS
the record, but will only confine itself to the Sec. 2, Rule 125. The procedure for the review by
question of the in/validity of that law the SC of CA decisions on criminal shall be the
[Trinidad v. Sweeney (1904)]; same as in civil cases
(3) When the jurisdiction of any inferior court is
in issue; General rule: The appellate jurisdiction of the
(4) When only an error or question of law is SC in cases brought to it from the CA is limited
involved. to reviewing and revising the errors of law
incurred by the latter. The CA’s findings of fact
On decisions of the CA and the Sandiganbayan, are final. If an appeal in the SC involves
as a rule, review here is limited to errors of law. questions of facts, the SC has no jurisdiction
and should dismiss appeal [Guico v. Mayuga
General rule: Certiorari is used to correct only (1963)].
errors of jurisdiction and not errors of judgment
of an inferior court. For errors of judgment, Exceptions:
ordinary appeal is available. (1) When the conclusion is a finding founded
entirely on
Exception: In the following cases, certiorari is speculations/surmises/conjectures;
granted despite existence of the remedy of (2) When the inference made is manifestly
appeal: mistaken/absurd/impossible;
(1) Where public welfare and advancement of (3) When there is GAD;
public policy so dictate; (4) When the judgment is based on a
(2) Where the broader interests of justice so misapprehension of facts;
require; (5) When the findings of facts are conflicting;
(3) Where the orders complained of were found (6) When the CA, in making its findings, went
to be completely null and void; beyond the issues of the case and the same
(4) Where appeal was not considered as the are contrary to the admissions of both
appropriate remedy. appellant and appellee [Napolis v. CA (1972)].
FAILURE TO SPECIFY APPELLATE COURT DECISION IF OPINION IS EQUALLY DIVIDED
Failure of appellant to specify in his notice of When the SC en banc is equally divided in
appeal the court to which the appeal is being opinion or the necessary majority cannot be had
made is not fatal [RA 296]. on whether or not to acquit the appellant, the
case shall again be deliberated upon.
ERRONEOUS MODE OF APPEAL
In the case of People v. Resuello (1969), the
If no decision is reached after re-deliberation,
contention of the adverse party that the
the lower court’s judgment of conviction shall
ordinary appeal filed by appellant shall be
be reversed and the accused is acquitted.
dismissed because the proper remedy is petition
for review on certiorari (only questions of law
If case is decided by a division of the SC whose
were involved) was rejected.
members are equally divided, the case shall be
heard and decided by the SC en banc [Sec. 3,
Rule 125].
PAGE 318
COMPOSITION OF THE SC The prosecution cannot appeal from a

(1) SC is composed of one Chief Justice and 14 judgment of acquittal
Associate Justices.
(2) SC may sit en banc or (in its discretion) in Ratio: A verdict of that nature is immediately
divisions of 3, 5 or 7 members. final and to try on the merits, even in an
(3) No doctrine or principle of law laid down by appellate court, places the accused in double
the SC in a decision rendered en banc or in jeopardy [Central Bank v. CA (1989)].
division may be modified/reversed except by
the court sitting en banc [Art. VIII, Sec. 4, Dismissal of case upon filing of demurrer by the
Constitution]. accused was held to be final even though based
on erroneous interpretation of the law. Hence,
EFFECT OF APPEAL BY ANY OF an appeal therefrom by the prosecution would
constitute double jeopardy [US v. Kilayko (1916)].
SEVERAL ACCUSED
General rule: An appeal taken by one or more of Where the TC has jurisdiction but mistakenly
several accused shall not affect those who did dismisses the complaint/information on the
not appeal. ground of lack of it, the order of dismissal is
(1) As to the appealing party, the execution of unappealable [People v. Duran (1960)].
judgment appealed from is stayed upon the
perfection of the appeal. An appeal by the People will not lie if the
(2) As to the co-accused who did not appeal, the purpose is to correct the penalty imposed by the
judgment of the TC insofar as it relates to trial court or to include in a judgment a penalty
him becomes final and the appellate court erroneously omitted [People v. Paet (1956)].
has no power to interfere with it [Salvatierra
v. CA (1996)]. The preclusion against appeal by the State from
judgments or final orders having the effect of
Exception: Insofar as the judgment of the acquittal, applies even though accused did not
appellate court is favorable and applicable to raise question of jeopardy [People v. Ferrer
those who did not appeal or who withdrew his (1956)].
appeal [People v. Gandia (2008)].
The appeal of the offended party from the civil

aspect shall not affect the criminal aspect of the Search and Seizure
judgment or order appealed from [Sec. 11, Rule
122].
NATURE OF SEARCH WARRANT
GROUNDS FOR DISMISSAL OF
APPEAL DEFINITION
It is an order in writing; issued in the name of
the People of the Philippines; signed by a judge;
WHEN APPEAL BY THE PEOPLE WILL and directed to a peace officer, commanding
NOT LIE him to search for personal property described in
The People/State cannot appeal when it will the warrant and bring it before the court [Sec. 1,
put the accused in double jeopardy. The Rule 126].
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a If it is without the judge’s signature, it is fatally
new and independent cause but extends also to defective.
appeal in the same case by the prosecution
after jeopardy had attached [Republic v. CA
(1982)].
PAGE 319
NATURE However, if the private person is acting upon

A search warrant is in the nature of a criminal orders of government officials, the principle of
process akin to a writ of discovery, employed by agency applies, because in fact such private
the state to procure relevant evidence of a crime person is acting in the interest of government,
[Malaloan v. CA (1994)]. and is therefore subject to the prohibition
against unreasonable searches and seizures.
It is not available to individuals in the course of
civil proceedings. General rule: Search of property is unreasonable
unless it has been authorized by a valid search
It is interlocutory in character – it leaves warrant.
something more to be done, which is the
determination of the guilt of the accused. Exceptions: There are valid warrantless
searches.
CONSTITUTIONAL SAFEGUARD
No search warrant or warrant of arrest shall ARREST AND SEARCH
issue except upon probable cause to be WARRANTS DISTINGUISHED
determined personally by the judge after the
examination under oath/affirmation of the Search warrant Warrant of arrest
complaint and the witness he may produce, and Nature
particularly describing the place to be searched, Order in writing in Order directed to the
and the things/persons to be seized [Art. III, Sec. the name of the RP peace officer to
2, Constitution]. signed by the judge execute the warrant
and directed to the by taking the person
Under the exclusionary rule, any evidence peace officer to stated therein into
obtained in violation of this is inadmissible for search personal custody that he may
any purpose in any proceeding [Art. III, Sec. 3, property described be bound to answer
2nd par. Constitution]. therein and to bring for the commission
it to court [Sec. 1, of the offense
Under the doctrine of attenuation, despite the Rule 126]
illegality in obtaining evidence, such evidence
may be admissible if the connection between Determination of probable cause
the evidence and the illegal method is
sufficiently remote or attenuated so as to The judge must The judge does not
dissipitate the taint [Wong Sun v. US (1963)]. personally examine have to personally
the complainant and examine the
The constitutional guarantee is not a blanket witnesses in the complainant and his
prohibition against all searches and seizures. It form of searching witnesses. Instead,
operates only against “unreasonable” searches questions and he may opt to
and seizures. answers [Sec. 5, Rule personally evaluate
126] the report and
What constitutes a reasonable or unreasonable supporting
search or seizure in any particular case is purely documents
a judicial question [Rodriguez v. Villamiel (1937)]. submitted by the
prosecutor [AAA v.
The constitutional protection is directed against Carbonell (2007)]
the acts of the government and its agents, not The examination Examination must
private persons [People v. Marti (1991); People v. must be under oath be under oath.
Bongcarawan (2002)]. or affirmation of the
complainant and his
witnesses.
PAGE 320
Search warrant Warrant of arrest (4) Violations of the Comprehensive Dangerous

Drugs Act of 2000;
Form (5) Violations of the Intellectual Property Code;
It must particularly It must particularly (6) Violations of the Anti-Money Laundering Act
describe the place to describe the person of 2001;
be searched and the to be arrested. (7) Violations of the Tariff and Customs Code;
things to be seized. and
When executed (8) Other relevant laws that may hereafter be
enacted by Congress and included herein by
Generally served in May be made at any the Supreme Court.
the day time, unless time of the day or
there be a direction night [Sec. 2, Rule SUBSTANCE OF APPLICATION
in the warrant that it 113] A search warrant shall not issue except:
may be served at any (1) Upon probable cause in connection with one
time of the day or specific offense;
night [Sec. 9, Rule (2) To be determined personally by the judge;
126] (3) After examination under oath or affirmation
Period of validity of the complainant and the witness he may
Valid for 10 days Does not expire (no produce;
[Sec. 9, Rule 126] terminal life) (4) Particularly describing the place to be
searched and the things to be seized which
may be anywhere in the Philippines [Sec. 4,
APPLICATION FOR SEARCH Rule 126].
WARRANT; WHERE FILED
It may be filed in any court within whose ISSUANCE AND FORM OF SEARCH
territorial jurisdiction the crime was committed. WARRANT
Sec. 6, Rule 126. If the judge is satisfied of the
For compelling reasons, which must be stated existence of facts upon which the application is
in the application, it may also be filed: based or that there is probable cause to believe
(1) If the place of the commission of the crime is that they exist, he shall issue the warrant, which
known, any court within the judicial region must be substantially in the form prescribed by
where the crime was committed; these Rules
(2) Any court within the judicial region where
the warrant shall be enforced. Thus, the search warrant must be in writing and
contain:
However, if the criminal action has already been (1) Name of person against whom it is directed;
filed, the application shall only be made in the (2) Offense for which it was issued;
court where the criminal action is pending [Sec. (3) The place to be searched and
2, Rule 126]. (4) The description of the specific things to be
seized;
Under AM 03-8-02-SC, Executive Judges and, (5) A directive to law enforcement officers to
whenever they are on official leave of absence or search and seize;
are not physically present in the station, the (6) And for them to bring in court the things
Vice-Executive Judges of Manila and Quezon seized;
City RTCs shall have authority to act on (7) Signature of the judge issuing it.
applications for search warrants involving:
(1) Heinous crimes;
(2) Illegal gambling;
(3) Illegal possession of firearms and
ammunitions
PAGE 321
VALIDITY OF THE SEARCH WARRANT SEARCH IN PRESENCE OF TWO WITNESSES

Sec. 10, Rule 126. The search warrant is valid Sec. 8, Rule 126. No search of a house, room, or
for 10 days from its date. Thereafter, it shall any other premises shall be made except in the
be void presence of the lawful occupant thereof or any
member of his family or in the absence of the
The lifetime of the search warrant also ends latter, two witnesses of sufficient age and
when a return has already been made [Mustang discretion residing in the same locality
Lumber v. CA (1996)].
TIME OF MAKING SEARCH
SERVICE OF THE SEARCH WARRANT The search shall be made at day time, unless the
affidavit asserts that the property is on the
RIGHT TO BREAK DOOR OR WINDOW TO person or in the place ordered to be searched, in
EFFECT SEARCH which case a direction may be inserted that it be
served at any time of the day or night [Sec. 9,
Sec. 7, Rule 126. The officer, if refused Rule 126].
admittance to the place of directed search after
giving notice of his purpose and authority, may A search warrant violates Sec. 9, Rule 126 if the
break open any outer or inner door or window of time for making the search is left blank, thus
a house or any part of a house or anything enabling the officers to conduct the search in
therein to execute the warrant to liberate the evening of the appointed search, causing
himself or any person lawfully aiding him when untold conveniences to the person searched.
unlawfully detained therein
Where a search is to be made during the night
KNOCK AND ANNOUNCE PRINCIPLE time, the authority for executing the same at
Generally, officers executing a search must do that time should appear in the directive on the
the following acts: face of the search warrant [Asian Surety v.
(1) Announce their presence; Herrera (1973)].
(2) Identify themselves to the accused and to
the persons who rightfully have possession of POST SERVICE
the premises to be searched;
(3) Show to them the search warrant; and RECEIPT OF PROPERTY SEIZED
(4) Explain the warrant in a language or dialect Receipt is given differently depending on the
known and understood by them. presence of the lawful occupant. Thus:
(1) If the lawful occupant is present, the officer
WHEN UNANNOUNCED INTRUSION seizing the property under the search
PERMISSIBLE warrant must give a detailed receipt for the
(1) Person in the premises refuses to open it same to the lawful occupant of the premises
upon demand; in whose presence the search and seizure
(2) Person in the premises already knew of the were made.
identity and authority of the officers; (2) If the lawful occupant is not present, the
(3) When the officers have an honest belief that officer seizing the property under the search
there is an imminent danger to life and limb; warrant must, in the presence of at least two
(4) When those in the premises, aware of the witnesses of sufficient age and discretion
presence of someone outside, are then residing in the same locality, leave a receipt
engaged in activities which justifies the in the place in which he found the seized
officers to believe that an escape or the property [Sec. 11, Rule 126].
destruction of evidence is imminent.
DELIVERY AND INVENTORY OF PROPERTY
The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath.
PAGE 322
Ten days after issuance of the search warrant, PROBABLE CAUSE JUSTIFYING
the issuing judge shall ascertain if the return WARRANTLESS ARREST AND
has been made, and if none, shall summon the
person to whom the warrant was issued and
WARRANTLESS SEARCH
This implies probability of guilt and requires
require him to explain why no return was made.
more than bare suspicion but less than evidence
which would justify conviction. It is not
If the return has been made, the judge shall
determined by a fixed formula but is resolved
ascertain whether Sec. 11, Rule 126, on giving or
according to the facts of each case.
receipts, has been complied with and shall
require that the property seized be delivered to
him. The judge shall see to it that delivery has PERSONAL EXAMINATION BY
been complied with. JUDGE OF THE APPLICANT AND
The return on the search warrant shall be filed WITNESSES
and kept by the custodian of the log book on Aside from the requirements mandated by Sec.
search warrants who shall enter therein the 4, Rule 126, the Rules require the judge to
date of the return, the result, and other actions comply with a specific procedure in the conduct
of the judge [Sec. 12, Rule 126]. of the examination of the complainant and the
witnesses he may produce [Sec. 5, Rule 126]:
Goods seized remain under the court’s custody (1) The examination must be personally
and control until the institution of the conducted by the judge;
appropriate criminal action with the proper (2) The examination must be in the form of
court [Tenorio v. CA (2003)]. searching questions and answers;
(3) The complainant and the witnesses shall be
examined on those facts personally known to
PROBABLE CAUSE them;
(4) The statements must be in writing and under
WARRANTS ISSUED UPON oath; and
PROBABLE CAUSE (5) The sworn statements of the complainant
Probable cause means such facts and and the witnesses, together with the
circumstances which would lead a reasonably affidavits submitted, shall be attached to the
discreet and prudent man to believe that an record.
offense has been committed, and that objects
sought in connection with the offense are in the SEARCHING QUESTIONS AND
place sought to be searched [Santos v. Pryce ANSWERS
Gases Inc. (2007)]. Searching questions are such questions which
have the tendency to show the commission of a
This probable cause must be shown to be within crime and the perpetrator thereof [Luna v. Plaza
the personal knowledge of the complainant or (1968)].
the witnesses he may produce and not based on
mere hearsay. In search cases, the application must be
supported by substantial evidence:
The probable cause must refer only to one (1) That the items sought are in fact seizable by
specific offense [Roan v. Gonzales (1986)]. virtue of being connected with criminal
activity; and
Note: Probable cause to arrest does not (2) That the items will be found in the place to
necessarily involve a probable cause to search be searched [People v. Tuan (2010)].
and vice-versa.
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid [Uy v. BIR
(2000)].
PAGE 323
An apparent typographical error will not

Although there is no hard-and-fast rule necessarily invalidate the search warrant, as
governing how a judge should conduct his long as the application contains the correct
investigation, it is axiomatic that the address [Burgos v. Chief of Staff (1984)].
examination must be probing and exhaustive,
not merely routinary, general, peripheral, PARTICULARITY OF THINGS TO BE
perfunctory or pro forma. The judge must not SEIZED
simply rehash the contents of the affidavit but The scope of the search warrant is limited to
must make his own inquiry on the intent and personal property only. It does not issue for
justification of the application. [Yao v. People seizure of immovable properties.
(2007)]
General rule: Things to be seized must be
A warrant not based on personal knowledge is described particularly. General search warrants
void. are not allowed. Otherwise, the search and
seizure of the items in the implementation of
EXAMINATION UNDER OATH such search warrant is illegal and the items
The judge must examine under oath or seized are inadmissible in evidence [Art. III, Sec.
affirmation the complainant and the witness he 2, Constitution].
may produce. Oath includes any form of (1) SWs authorizing the seizure of books of
attestation by which a party signifies that he is accounts and records “showing all the
bound in conscience to perform an act faithfully business transactions” of certain persons,
and truthfully. regardless of whether the transactions were
legal or illegal, are general warrants
The oath required must refer to the truth of prohibited by law [Stonehill v. Diokno (1967)].
facts within the personal knowledge of the (2) Likewise, a description of things to be seized
petitioner or his witnesses [Alvarez v. CFI (1937)]. as “subversive documents, propaganda
materials, FAs, printing paraphernalia and
Mere affidavits of the complainant or his all other subversive materials” hardly
witnesses are not sufficient. The examining provided a definite guideline to the executing
judge has to take depositions in writing of the officers [Dizon v. Castro (1985)].
complaint or his witnesses, and attach the same (3) Where the language used is too all-
to the record [Prudente v. Judge Dayrit (1989)]. embracing as to include all the
paraphernalia of petitioner in the operation
PARTICULARITY OF PLACE TO of its business, the SW is constitutionally
objectionable [Columbia Pictures v. Flores
BE SEARCHED AND THINGS TO (1993)].
BE SEIZED
Warrant issued must particularly describe the Exceptions:
place to be searched and the things to be (1) Where, by the nature of the goods to be
seized. seized, their description must be rather
general, it is not required that a technical
PARTICULARITY OF PLACE TO BE description be given, for this would mean
SEARCHED that no search warrant could issue [People v.
Description of place to be searched is sufficient Rubio (1932)].
if the officer with the search warrant can, with (2) The general description of the documents
reasonable efforts, ascertain and identify the listed in the search warrant does not render
place intended [People v. Veloso (1925)]. the it void if it is severable, and those items
not particularly described may be cut off
without destroying the whole [Uy v. BIR
(2001)].
PAGE 324
PERSONAL PROPERTY TO BE decided on its own facts and circumstances

[Nolasco v. Paño (1985)].
SEIZED
Where a search is first undertaken, and an arrest
WHAT MAY BE SEIZED was effected based on evidence produced by
(1) Personal property subject of the offense; such search, both search and arrest are illegal
(2) Personal property stolen/embezzled and [Lui v. Matillano (2004)].
other proceeds/fruits of the offense;
(3) Personal property used or intended to be CONSENTED SEARCH
used as the means of committing an offense Jurisprudence requires that in case of consented
[Sec. 3, Rule 126]. searches or waiver of the constitutional
guarantee against obtrusive searches, it must
The rule does not require that the property to be first appear that:
seized should be owned by the person against (1) The right exists;
whom the search warrant is directed. It is (2) The person involved had knowledge, either
sufficient that the person against whom the actual or constructive, of the existence of
warrant is directed has control of possession of such right; and
the property sought to be seized [Burgos v. Chief (3) The said person had an actual intention to
of Staff (1984)]. relinquish the right [People v. Nuevas (2007)].
EXCEPTIONS TO SEARCH Consent to a search is not to be lightly inferred,

WARRANT REQUIREMENT but must be shown by clear and convincing
evidence. It is the State which has the burden of
proving, by clear and positive testimony, that
SEARCH INCIDENTAL TO LAWFUL the necessary consent was obtained and that it
ARREST was freely and voluntarily given [Valdez v. People
In a search incidental to an arrest, even without a (2007)].
warrant, the person arrested may be searched
for: A peaceful submission to a search or seizure is
(1) Dangerous weapons; not a consent or an invitation thereto, but is
(2) Anything which may have been used in the merely a demonstration of regard for the
commission of an offense; or supremacy of the law [People v. Nuevas (2007)].
(3) Anything which may constitute proof in the
commission of the offense [Sec. 13, Rule 126]. Consented search is reasonable only if kept
within the bounds of the actual consent. A
The arrest must precede the search; generally, person’s consent may limit the extent/scope of
the process cannot be reversed. Nevertheless, a a warrantless search in the same way that the
search substantially contemporaneous with an specifications of a warrant limit the search
arrest can precede the arrest as if the police pursuant thereto.
have probable cause to make the arrest at the
outset of the search [Riano (2011)]. SEARCH OF MOVING VEHICLE
Ratio: Peace officers may lawfully conduct
The rule assumes that the arrest is legal. If the searches of moving vehicles without need of a
arrest is illegal, then the search is illegal and as warrant as it is impracticable to secure a judicial
a result, the things seized are inadmissible as warrant before searching a vehicle since it can
evidence [People v. Aruta (1998)]. be quickly moved out of the locality or
jurisdiction in which the warrant may be sought
The search is confined to his person, but as an [People v. Tuazon (2007)].
incident of an arrest, the place or premises
where the arrest was made can also be
searched without a search warrant. The extent
and reasonableness of the search must be
PAGE 325
However, these searches would be limited to (2) Evidence was inadvertently discovered by the
visual inspection and the vehicles or their police who have a right to be where they are;
occupants cannot be subjected to physical or (3) Evidence must be immediately apparently
body searches, except where there is probable illegal (i.e., drug paraphernalia);
cause to believe that the occupant is a law (4) Plain view justified mere seizure of evidence
offender or the contents of the vehicles are without further search [People v. Valdez
instruments or proceeds of some criminal (1999); People v. Salanguit (2001)].
offense.
Limitations:
The search and seizure without warrant of (1) It may not be used to launch unbridled
vessel and aircrafts for violation of customs laws searches and indiscriminate seizures.
has been a traditional exception to the (2) It does not extend to a general exploratory
requirement of search warrant [Roldan v. Arca search made solely to find evidence of
(1975)]. defendant’s guilt [People v. Musa (1993)].
Nonetheless, in all cases falling under this The doctrine is usually applied where a police
category, there must be a showing of a probable officer is not searching for evidence against the
cause of a violation of the law [Caroll v. US accused, but nonetheless inadvertently comes
(1924)]. across an incriminating object. Even if an object
is in plain view, before it can be seized without a
CHECKPOINTS; BODYCHECKS IN search warrant, its incriminating nature must
AIRPORTS first be apparent.
Searches conducted in checkpoints are valid as
long as they are warranted by the exigencies of Where police officers are on the premises
public order and conducted in a way least pursuant to a valid consent to a search, an item
intrusive to motorists [People v. Vinecario falling into their plain view may properly be
(2004)]. seized even if the item is not connected with
their purpose in entering.
Routine inspections are not regarded as
violative of an individual’s right against STOP AND FRISK SITUATION
unreasonable search: Stop and frisk is a limited protective search of
(1) Where the officer merely draws aside the outer clothing for weapon [Malacat v. CA (1997)].
curtain of a vacant vehicle which is parked on
the public fair grounds; Where a police officer observes unusual conduct,
(2) Officer simply looks into a vehicle; which leads him reasonably to conclude in the
(3) Officer flashes a light therein without light of his experience that criminal activity may
opening car’s doors; be afoot, and that a person with whom he is
(4) Occupants not subjected to a physical dealing may be armed and presently dangerous,
search; he is entitled to conduct a stop and frisk search.
(5) Inspection is limited to usual search or
inspection; or Where in the course of investigating this
(6) Routine check is conducted in a fixed area behavior he identifies himself as a policeman and
[People v. CA (2002)]. makes reasonable inquiry, and where nothing in
the initial stage of the encounter serves to
PLAIN VIEW SITUATION dispel his reasonable fear for his own or others’
Requisites: safety, he is entitled for the protection of himself
(1) A prior valid intrusion i.e., based on the valid and others in the area to conduct a carefully
warrantless arrest in which the police are limited search of outer clothing of such persons
legally present in the pursuit of their official in an attempt to discover weapons which might
duties; be used to assault him [Terry v. Ohio (1968)].
PAGE 326
Under this theory, probable cause is not BUY-BUST OPERATION

required to conduct a “stop and frisk” but mere This is a form of entrapment legally employed
suspicion or hunch will not validate a “stop and by peace officers as an effective way of
frisk.” The test is whether or not there is a apprehending drug dealers in committing an
reasonable belief based on genuine reason and offense. There is no need for a search warrant
in the light of the officer’s experience and the (or warrant of arrest) because the accused is
surrounding circumstances, that a crime has caught in flagrante delicto.
either taken place or is about to take place and
the person to be stopped is armed and PRIVATE SEARCHES
dangerous. In one case, the evidence was obtained by a
private person acting in a private capacity, while
ENFORCEMENT OF CUSTOMS LAW performing company standard operating
For the enforcement of customs duties and procedures and without state participation and
tariff laws, the Collector of Customs is intervention. It was held that the constitutional
authorized to effect searches and seizure rights cannot be invoked when there is no
[General Travel Services v. David (1966)]. government interference [People v. Marti (1999)].
The Tariff Code authorizes customs officers to: REMEDIES FROM UNLAWFUL
(1) Enter, pass through or search any land,
enclosure, warehouse;
SEARCH AND SEIZURE
(2) Inspect/search/examine any vessel or
aircraft and any WHO MAY AVAIL
trunk/package/box/envelope or any person Only the party whose rights have been impaired
on board, or stop and examine any thereby; the objection to an unlawful search and
vehicle/beast/person suspected of seizure is purely personal and cannot be availed
holding/conveying any dutiable/prohibited of by third parties [Stonehill v. Diokno (1967);
article introduced into the Philippines Santos v. Pryce Gases, Inc. (2007)].
contrary to law.
REMEDIES
General rule: The Tariff and Customs Code does
not require a warrant for such searches. EMPLOY ANY MEANS TO PREVENT THE
SEARCH
Exception: In the search of a dwelling house, a Without a search warrant, the officer cannot
search warrant is required. insist on entering a citizen’s premises. If he does
so, he becomes an ordinary intruder.
OTHER EXCEPTIONS
The person to be searched may resist the search
EXIGENT AND EMERGENCY and employ any means necessary to prevent it,
CIRCUMSTANCES without incurring any criminal liability [People v.
In one case, there was a prevailing general Chan Fook (1921)].
chaos and disorder because of an ongoing coup,
and the raid of the office/building was FILE CRIMINAL ACTION AGAINST OFFICER
precipitated by an intelligence report that said A public officer/employee who procures a
office was being used as HQ by the RAM. Also, search warrant without just cause is criminally
the surveillance team before the raid was fired liable under Article 129, RPC, on search warrants
upon by the people inside. The raiding team had maliciously obtained and abuse in the service of
no opportunity to apply for warrant as the court those legally obtained.
then was closed [People v. de Gracia (1994)].
FILE A MOTION TO QUASH THE ILLEGAL
WARRANT
This remedy is employed if search is not yet
conducted.
PAGE 327
Who may file Where the motion will be filed follows the same
(1) Person injured; rules as in a motion to quash. An accused may
(2) Person searched; file a motion to suppress evidence if he is not
(3) Owner of the property. among the persons who can file a motion to
quash.
Where to file
General rule: The motion must be filed before General rule: Goods seized by virtue of an illegal
the sala of the judge who issued it. Only the warrant must be returned [Castro v. Pabalan
court that issued the SW may order revocation (1976)].
of search warrant or release of things seized
[Pagkalinawan v. Gomez (1967)]. Exception: If possession of the things seized is
prohibited by law, they should not be returned.
Exception: Where the search is issued by one Where the accused obtained goods from
court and the criminal action based on the another through payment of bouncing checks
results of the search is afterwards filed in and thereafter sold said goods to a buyer in
another court, the motion may be filed in either good faith, but said goods were taken from the
court [People v. CA (1999)]. purchaser with the use of a search warrant
although the criminal case for estafa against the
Grounds accused was still pending, the goods should be
The following may be raised in the MTQ: returned to the buyer. The buyer is entitled to
(1) Absence of probable cause at the time of the possession of goods until restitution is ordered
issuance of the search warrant; by the court in the criminal case (Yu v. Honrado
(2) Non-compliance with substantive and (1980)).
procedural requisites, such as:
(a) No personal examination by the judge; MOTION TO SUPRESS EVIDENCE
(b) More than one specific offense; This refers to a motion to suppress as evidence
(c) No particular description [Bache & Co. v. the objects illegally taken pursuant to the
Ruiz (1971)]. exclusionary rule, which states that any
evidence obtained through unreasonable
These may also be raised in the criminal action searches and seizures shall be inadmissible for
as matters of defense [DOH v. Sy Chi Siong any purpose in any proceeding.
(1989)].
CIVIL AND CRIMINAL LIABILITY
Failure to file motion to quash The following offenses may result from unreasonable
Where no MTQ the search warrant was filed in search and seizure:
or resolved by the issuing court, the interested (1) Violation of domicile [Article 128, RPC];
party may move in the court where the criminal (2) SW maliciously obtained [Article 129, RPC];
case is pending for the suppression of the (3) Searching domicile without witnesses [Article
personal property seized if the same is offered 130, RPC];
therein as evidence [Regalado (2010)]. (4) Unjust interlocutory order [Article 206, RPC].
The MTQ and Motion to Suppress Evidence are The public officer or employee may be held
alternative, not cumulative remedies. liable for:
(1) Entering without authority; against the will;
FILE A MOTION TO RETURN THINGS SEIZED refuses to leave;
This is the remedy used if the search was (2) A search warrant procured without just
already conducted and goods were seized as a cause or if with just cause, exceeds his
consequence thereof. authority or uses unnecessary severity of
force;
(3) Conducting the search without the required
witnesses.
PAGE 328
The judge may be held liable for:

(1) Knowingly rendering an unjust interlocutory Provisional Remedies
order;
(2) Inexcusable negligence or ignorance.
NATURE
It may also result in civil liability for: Sec. 1, Rule 127. The provisional remedies in civil
(1) Violation of rights and liberties [Article 32 (9), actions, insofar as they are applicable, may be
Civil Code]; availed of in connection with the civil action
(2) Malicious prosecution and acts referred to deemed instituted with the criminal action
Article 32 [Article 2218, Civil Code].
Where the civil action has actually been
Malice or bad faith is not required. instituted, or proceeded independently of the
Not only official actions, but all persons who are criminal action, these provisional remedies
responsible for the violation are liable for cannot be availed of in the criminal action but
damages [MHP Garments v. CA (1994)]. may be applied for in the separate civil action.
[Regalado (2010)]
WAIVER OF IMMUNITY If the civil action is suspended on account of
filing of the criminal action, the court with which
AGAINST UNREASONABLE the civil case is filed is not thereby deprived of
SEARCH AND SEIZURE its authority to issue auxiliary writs that do not
The constitutional immunity against go into the merits of the case (Ramcar, Inc v. de
unreasonable searches and seizure is a personal Leon (1947)).
right that may be waived expressly/impliedly
only by the person whose right is being invaded Provisional remedies are not available when:
or one who is expressly authorized to do so in (1) Offended party has waived the civil claim;
his behalf [Pasion v. Locsin (1938)]. (2) Offended party has reserved the civil claim;
(3) Offended party has already instituted a
Requisites: separate civil action;
(1) It must appear that the right exists; (4) Criminal action carries with it no civil liability.
(2) That the person involved had knowledge,
(actual or constructive) of the existence of
such right;
KINDS OF PROVISIONAL
(3) That the person had an actual intention to REMEDIES
relinquish the right.
IN GENERAL
Reference to provisional remedies in Sec. 1, Rule
127 is made in general terms, hence preliminary
injunction, preliminary attachment, receivership,
replevin or support pendent lite may be availed
of [Riano, Criminal Procedure (2011)].
However, only preliminary attachment is

provided for under the same rule.
Sec. 11(b), Rule 119. The accused may present

evidence to prove his defense and damages, if
any, arising from the issuance of a provisional
remedy in the case
PAGE 329
PRELIMINARY ATTACHMENT
WHEN PROPER
When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for
the satisfaction of any judgment that may be
recovered from the accused in the following
cases:
(1) When the accused is about to abscond from
the Philippines
(2) When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public/corporate
officer, attorney, factor, broker, agent or
clerk, in the course of his employment as
such, or by any other person in a fiduciary
capacity, or for a willful violation of duty
(3) When the accused has concealed, removed
or disposed of his property, or is about to do
so
(4) When the accused resides outside the
Philippines [Sec. 2, Rule 127].
ISSUANCE AND IMPLEMENTATION

The writ may be issued ex parte before
acquisition of jurisdiction over the accused.
However, it may be enforced only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties (2001)].
No notice to the adverse party, or hearing on the

application is required before a writ of
preliminary
PAGE 330
UP LAW BOC EVIDENCE REMEDIAL LAW
PAGE 331
General Principles EVIDENCE IN CIVIL CASES

VERSUS EVIDENCE IN
CONCEPT OF EVIDENCE CRIMINAL CASES
The means, sanctioned by these rules, of In Civil Cases In Criminal Cases
ascertaining in a judicial proceeding, the truth Preponderance of Proof beyond
respecting a matter of fact [Sec. 1, Rule 128] evidence [Sec. 1, Rule reasonable doubt [Sec.
133] 2, Rule 133]
SCOPE OF THE RULES OF Offer of compromise EXCEPT for quasi-
EVIDENCE [SEC. 2, RULE 128] NOT an admission of offenses or those
General Rule: Principle of uniformity any liability [Sec. 27, allowed by law to be
The rules of evidence shall be the same in all Rule 130] compromised, Offer of
courts and in all trials and hearings. compromise by the
accused may be
Exceptions: If otherwise provided by: received in evidence as
(1) Law [e.g. 1987 Constitution, statutes]; an implied admission
(2) Rules of Court. of guilt.
EXCEPTIONS:
Applicability (1) Sec 204, RA 8424 Tax
 The rules of evidence are specifically Reform Act of 1997
applicable only in judicial proceedings. [Sec. 1, which provides that
Rule 128] payment of any
internal revenue tax
 In quasi-judicial proceedings, the same apply
and all criminal
by analogy or suppletorily AND whenever
violations may be
practicable and convenient [Sec. 4, Rule 1],
compromised, except
except in cases where the governing law in
those already filed in
the particular proceeding specifically adopts
Court and those
the rules of evidence in the Rules of Court.
involving fraud.
[Regalado]
(2) Rape cases, through
 Administrative investigations shall be marriage [Art. 344,
conducted without necessarily adhering RPC]
strictly to the technical rules of procedure and
evidence applicable to judicial proceedings A plea of guilty later
[Dela Cruz v. Malunao (A.M. No. P-11-3019, withdrawn or an
March 20, 2012)] unaccepted offer of a
plea of guilty to a
Note: There is a different rule for Rules on lesser offense, is not
Electronic Evidence since it covers quasi-judicial admissible in evidence
and administrative bodies [Sec. 2, Rule 1, Rules against the accused
on Electronic Evidence] who made the plea or
offer [Sec. 27, Rule 130]
Presumption of Presumption of
innocence does NOT innocence a
apply constitutional
guarantee on the
accused [sec. 14, Art. III]
PAGE 332
 An offer to pay or the payment of medical, OTHER CLASSIFICATIONS

hospital or other expenses occasioned by an
injury is NOT admissible as proof of criminal CUMULATIVE AND CORROBORATIVE
or civil liability for the injury. [Sec. 27, Rule 130]
EVIDENCE
Cumulative Evidence Corroborative Evidence
PROOF VERSUS EVIDENCE
Proof Evidence Evidence of the same Additional evidence of
kind and to the same a different character to
Result or effect of Mode and manner of state of facts the same point
evidence [Regalado] proving competent
facts in judicial PRIMA FACIE AND CONCLUSIVE
proceedings [Bustos v. EVIDENCE
Lucero, G.R. No. L- Prima Facie Conclusive
2068, October 20,
1948] Standing alone, Class of evidence
unexplained or which the law does not
uncontradicted, is allow to be
FACTUM PROBANS VERSUS sufficient to maintain contradicted
FACTUM PROBANDUM the proposition
Factum Probans Factum Probandum affirmed
Facts or material The proposition to be PRIMARY AND SECONDARY

evidencing the established
proposition
EVIDENCE
Primary Secondary
The evidentiary fact The ultimate fact
tending to prove the sought to be Best Evidence Substitutionary
fact in issue established That which the law Evidence
regards as affording Inferior to primary;
3 CLASSES OF EVIDENCE the greatest certainty permitted only when
of the fact in question the best evidence is
ACCORDING TO FORM not available
(1) Object- those addressed to the senses of the
court. [Sec. 1, Rule 130]
(2) Documentary- consists of writings or any ADMISSIBILITY OF EVIDENCE
material containing letters, words, numbers,
figures, symbols or other modes of written REQUISITES FOR ADMISSIBILITY OF
expressions offered as proof of their contents
[Sec. 2, Rule 130] EVIDENCE
(3) Testimonial- evidence elicited from the Evidence is admissible when it is:
mouth of a witness [Riano , citing Black’s (1) Relevant to the issue; and
Law Dictionary] (2) Competent i.e.not excluded by law or the
ROC. [Sec. 3, Rule 128]
When determined: Admissibility is determined

at the time the evidence is offered to the court
[Sec. 35, Rule 132]
PAGE 333
 Every objection to the admissibility of NOTE: What is prohibited by the Rules is not
evidence shall be made at the time such evidence of all collateral matters, but
evidence is offered, or as soon thereafter as evidence of irrelevant collateral facts.
the objection to its admissibility have become [Regalado]
apparent, otherwise the objection shall be  Circumstantial evidence is the evidence of
considered waived. [Abrenica v. Gonda, 94 collateral facts or circumstances from which
Phil. 739] an inference may be drawn as to the
probability or improbability of the fact in
 In case of: dispute. They are evidence of relevant
Testimonial evidence- objection to the collateral facts. [Regalado]
qualification of the witness must be made
at the time he is called to the stand and if COMPETENCE
the witness is qualified, objections should  Evidence is competent when it is not be
be raised when the objectionable question excluded by (i) law or (ii) the ROC [Sec. 3, Rule
is asked or after the answer was given if the 128]
objectionable feature became apparent by  Determined by the prevailing exclusionary
reason of such answer. rules of evidence [Regalado]
 Exclusionary rules of evidence by law are
Object or real evidence- objection must be either constitutional or statutory.
made either at the time it is presented in an  Constitutional exclusionary rules -
ocular inspection or demonstration or when Unreasonable searches and seizures [Sec. 2,
it is formally offered. Art. III]; privacy of communication and
correspondence [Sec. 3, Art. III];right to
Documentary evidence – objection must be counsel, prohibition on torture, force,
made at the time it is formally offered.[Sec. violence, threat, intimidation or other means
35 to 37, Rule 132] which vitiate the free will; prohibition on
secret detention places, solitary,
RELEVANCE OF EVIDENCE AND incommunicado. [Sec. 12, Art. III]; right
COLLATERAL MATTERS against self-incrimination [Sec. 17, Art. III]
 Statutory exclusionary rules - Lack of
RELEVANCY documentary stamp tax to documents
 Evidence is relevant when it has “such a required to have one makes such document
relation to the fact in issue as to induce belief inadmissible as evidence in court until the
in its existence or non-existence”. [Sec. 4, Rule requisite stamp/s shall have been affixed
128] thereto and cancelled [Sec. 201, NIRC]; Any
 Determinable by the rules of logic and human communication obtained by a person, not
experience. being authorized by all the parties to any
private communication, by tapping any
COLLATERAL MATTERS wire/cable or using any other
 Matters other than the fact in issue which are device/arrangement to secretly
offered as a basis for inference as to the overhear/intercept/record such information
existence or non-existence of the facts in issue by using any device, shall not be admissible
[Regalado] in evidence in any judicial/quasi-
 General Rule: Evidence on collateral matters judicial/legislative/ administrative hearing
is NOT allowed. [Sec. 4, Rule 128] or investigation. [Secs. 1 and 4, R.A. 4200
 Exception: When it tends in any reasonable (Wire-Tapping Act)]
degree to establish the probability or  Under the ROC, Rule 130 is the applicable
improbability of the fact in issue. [Sec. 4, Rule rule in determining the admissibility of
128] evidence.
PAGE 334
DOCTRINES OF ADMISSIBILITY DIRECT V. CIRCUMSTANTIAL

Direct Evidence Circumstantial
MULTIPLE ADMISSIBILITY
Where the evidence is relevant and competent Proves the fact in Proof of a fact/s from
for two or more purposes, such evidence shall dispute without the aid which, taken either
be admitted for any or all the purposes for of any inference or singly or collectively,
which it is offered, provided it satisfies all the presumption the existence of a
requisites of law for its admissibility therefor. particular fact in
[Regalado] dispute may be inferred
as a necessary or
CONDITIONAL ADMISSIBILITY probable consequence
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it POSITIVE EVIDENCE V. NEGATIVE
is connected with the other facts to be EVIDENCE
subsequently proved, such evidence may be Positive Evidence Negative Evidence
received, on condition that the other facts will
be proved thereafter; otherwise, the evidence Witness affirms that a Witness states he/she
already given shall be stricken out. fact did or did not did not see or know of
 This was applied in the case of People v. Yatco occur the occurrence of a fact
[G.R. No. L-9181, November 28, 1955] subject
to the qualification that there should be no COMPETENCE V. CREDIBILITY
bad faith on the part of the proponent. The Competence Credibility
qualification appears to avoid unfair surprises.
[Regalado] Eligibility of evidence to Worthiness of belief;
be received as such “believability”
CURATIVE ADMISSIBILITY
 Where the court has admitted incompetent
evidence adduced by the adverse party, a BURDEN OF PROOF AND
party has a right to introduce the same kind of BURDEN OF EVIDENCE
evidence in his/her behalf. [Regalado]
 What determines the rule of curative Burden of proof - duty of a party to present
admissibility: evidence on the facts in issue necessary to
(1) Whether the incompetent evidence was establish his/her claim or defense by the
seasonably objected to - Lack of objection to amount of evidence required by law [Sec. 1, Rule
incompetent evidence constitutes waiver on 131]
the part of the party against whom it was
introduced but the opposing party is not In civil cases, the quantum of evidence required
deprived of his right to similar rebutting to sustain the proponent of an issue is
evidence; and preponderance of evidence. The burden of proof
(2) Whether the admission of such evidence will is on the party who would be defeated if no
cause a plain and unfair prejudice to the party evidence were given in either side, the plaintiff
against whom it was admitted [Regalado] with respect to his complaint, the defendant
with respect to his counterclaim, and the cross-
claimant, with respect to his cross-claim.
In criminal cases:
 For the issuance of warrant of arrest -
evidence of probable cause that there exist a
reasonable ground that the accused has
committed an offense [Algas v. Garrido, A.M.
No. 289-MJ, November 15, 1974]
PAGE 335
 To warrant the filing of an information - prima EQUIPOISE RULE OR

facie evidence EQUIPONDERANCE DOCTRINE
 To sustain a conviction - evidence of guilt  The doctrine refers to the situation where the
beyond reasonable doubt. evidence of the parties are evenly balanced or
there is doubt on which side the evidence
THE BURDEN OF PROOF RESTS ON preponderates. In this case, the decision
THE PROSECUTION. should be against the party with the burden of
 A party will have the burden of evidence only proof. [Rivera v. CA, G.R. No. 115625, January
(i.e., will have to be a proponent) if there is 23, 1998; Marubeni v. Lirag,G.R. No. 130998,
any factum probandum (whether evidentiary August 10, 2001]
or otherwise) that the adverse party has  In criminal cases, the equipoise rule provides
already established (whether by law, rule, or that where the evidence is evenly balanced,
by virtue of evidence that he has presented) the constitutional presumption of innocence
that he (the potential proponent) has to tilts the scales in favor of the accused.
overcome. That factum probandum may, but [Malana v. People, G.R. No. 173612, August 27,
does not have to be, nor is limited to a "prima 2008]
facie presumption." Likewise, a party will not
have any burden of evidence at all if the PRESUMPTIONS
adverse party has not established any factum
Conclusive Disputable
probandum in the first place. [Prof. Victoria A.
Avena] Inferences which the Satisfactory if
 In both civil and criminal cases, the burden of law makes so uncontradicted, but
evidence lies with the party who asserts an peremptory that it will may be contradicted
affirmative allegation. [Regalado] not allow them to be and overcome by other
overturned by any evidence.[Sec. 3, Rule
BURDEN OF PROOF V. BURDEN OF contrary proof however 131]
strong [Datalift Movers
EVIDENCE v. Belgravia Realty, G.R.
Burden of Proof Burden of Evidence No. 144268, August 30,
2006]
Does not shift Shifts from party to
throughout the trial party depending upon
the exigencies of the CONCLUSIVE PRESUMPTIONS
case in the course of the UNDER THE RULES [SEC. 2, RULE
trial
131]:
Generally determined by Generally determined by (1) A party is not permitted falsify a thing if:
the pleadings filed by the developments at the  By his own declaration, act or omission;
the party trial, or by the provisions
of substantive law or  He intentionally and deliberately led
procedural rules which another to believe a particular thing is true;
may relieve the party  To act upon such belief; and
from presenting  The litigation arises out of such declaration
evidence on the fact act or omission.
alleged (presumptions, (2) A tenant is not permitted to deny the title of
judicial notice and his landlord at the time of the
admissions) commencement of the relation of landlord
and tenant between them.
 These conclusive presumptions are based

upon the doctrine of estoppel in pais under
the Civil Code. [Regalado]
PAGE 336
DISPUTABLE PRESUMPTIONS was made before the instrument was

UNDER THE RULES [SEC. 3, RULE overdue and at the place where the
instrument is dated;
131] (21) A writing is truly dated;
(1) Person is innocent of a crime or wrong;
(22) Letter duly directed and mailed was
(2) Unlawful act is done with an unlawful
received in the regular course of the mail;
intent;
(23) Presumptions concerning absence:
(3) Person intends the ordinary consequences
(a) Ordinary but continued absence of:
of his voluntary act;
(i) 7 years, it being unknown WON the
(4) Person takes ordinary care of his concerns;
absentee still lives, he is
(5) Evidence willfully suppressed would be
considered dead for all purposes,
adverse if produced;
except for those of succession
(6) Money paid by one to another was due to
(ii) 10 years—the absentee shall be
the latter;
considered dead for the purpose of
(7) Thing delivered by one to another
opening his succession; but if he
belonged to the latter;
disappeared after the age of 75
(8) Obligation delivered up to the debtor has
years, an absence of 5 years shall
been paid;
be sufficient to open his succession
(9) Prior rents or installments had been paid
(iii) 4 consecutive years—the spouse
when a receipt for the later ones is
present may contract a
produced;
subsequent marriage if s/he has a
(10) A person found in possession of a thing
well-founded belief that the
taken in the doing of a recent wrongful act
absent spouse is already dead; but
is the taker and doer of the whole act;
where there is danger of death, an
otherwise, that things which a person
absence of only 2 years shall be
possesses or exercises acts of ownership
sufficient for remarriage
over are owned by him;
(b) Qualified absence
(11) Person in possession of an order on himself
(i) A person on board a vessel lost
for the payment of the money or the
during a sea voyage, or an aircraft
delivery of anything has paid the money or
which is missing, who has not been
delivered the thing accordingly;
heard of for 4 years since the loss
(12) Person acting in public office was regularly
of the vessel or aircraft
appointed or elected to it;
(ii) A member of the armed forces who
(13) Official duty has been regularly performed;
has taken part in armed hostilities,
(14) A court or judge acting as such, whether in
and has been missing for 4 years
the Philippines or elsewhere, was acting in (iii) A person who has been in danger
the lawful exercise of jurisdiction;
of death under other
(15) All the matters within an issue raised in a
circumstances and whose
case were laid before the court and passed
existence has not been known for 4
upon by it; all matters within an issue
years
raised in a dispute submitted for
(24) Acquiescence resulted from a belief that
arbitration were laid before arbitrators and
the thing acquiesced in was conformable
passed upon by them;
to the law/fact;
(16) Private transactions have been fair and (25) Things have happened according to the
regular;
ordinary course of nature and ordinary
(17) Ordinary course of business has been
nature habits of life;
followed;
(26) Persons acting as co-partners have
(18) There was a sufficient consideration for a
entered into a contract of co-partnership;
contract;
(27) A man and woman deporting themselves
(19) Negotiable instrument was given or
as husband and wife have entered into a
indorsed for a sufficient consideration;
lawful contract of marriage;
(20) An indorsement of negotiable instrument
PAGE 337
(28) Property acquired by a man and a woman (35) A trustee or other person whose duty it was
who are capacitated to marry each other to convey real property to a particular
and who live exclusively with each other as person has actually conveyed it to him
husband and wife without the benefit of when such presumption is necessary to
marriage or under a void marriage, has perfect the title of such person or his
been obtained by their joint efforts, work or successor in interest;
industry; (36) Presumptions regarding survivorship:
(29) In cases of cohabitation by a man and a (Applicable for all purposes except
woman who are not capacitated to marry succession)
each other and who have acquired (a) When 2 persons perish in the same
property through their actual joint calamity,
contribution of money, property or (b) and it is not shown who died first,
industry, such contributions and their (c) and there are no particular
corresponding shares including joint circumstances from which it can be
deposits of money and evidences of credit inferred,
are equal; (d) the survivorship is determined from the
(30) Presumptions governing children of probabilities resulting from the strength
women who contracted another marriage and the age of the sexes:
within 300 days after termination of her
former marriage (in the absence of proof to Person presumed to
the contrary): Situation
have survived
Both < 15 y/o The older
When Child was Born Presumption
Both > 60 y/o The younger
Before 180 days after Considered to have One < 15 y/o,
the solemnization of been conceived during The one <15
the other > 60 y/o
the subsequent the former marriage,
marriage provided it be born Both > 15 and < 60 y/o,
The male
within 300 days after of different sexes
the termination of the Both > 15 and <60 y/o,
former marriage The older
of the same sex
After 180 days Considered to have One < 15 or > 60 y/o, The one between those
following the been conceived during and the other between ages
celebration of the the subsequent those ages
subsequent marriage marriage, even though
it be born within the
300 days after the (37) As between 2 or more persons called to
termination of the succeed each other: If there is a doubt as to
former marriage. which of them died first, whoever alleges
the death of one prior to the other, shall
(31) A thing once proved to exist continues as prove the same. In the absence of proof,
long as is usual with things of the nature; they shall be considered to have died at
(32) The law has been obeyed; the same time.
(33) A printed/published book, purporting to be
printed/published by public authority, was
so printed/published;
(34) A printed/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;
PAGE 338
NO PRESUMPTION OF LEGITIMACY PREPONDERANCE OF EVIDENCE

OR ILLEGITIMACY  Applicable quantum of evidence in civil cases
There is no presumption of legitimacy or [Sec. 1, Rule 133]
illegitimacy of a child born after three hundred  Means that the evidence adduced by one side
days following the dissolution of marriage or the is, as a whole, superior to or has greater
separation of spouses. Whoever alleges the weight than that of the other. [Habagat Grill v.
legitimacy or illegitimacy of such child must DMC-Urban Property Developer, Inc., G.R. No.
prove his allegation. [Sec. 4, Rule 131] 155110, March 31, 2005; Bank of the Philippine
Islands v. Reyes, G.R. No. 157177, February 11,
LIBERAL CONSTRUCTION OF 2008]
 In determining preponderance of evidence,
THE RULES OF EVIDENCE the court may consider:
 Like all other provisions under the ROC, rules (1) All the facts and circumstances of the case;
of evidence must be liberally construed. [Sec. (2) The witnesses’ manner of testifying, their
6, Rule 1] intelligence, their means and opportunity
 Rules on Electronic Evidence shall likewise be of knowing the facts to which they testify,
construed liberally. [Sec. 2, Rule 2, Rules on the nature of the facts to which they testify,
Electronic Evidence] the probability or improbability of their
testimony, their interest or want of interest,
QUANTUM OF EVIDENCE and also their personal credibility so far as
(WEIGHT AND SUFFICIENCY OF the same may legitimately appear upon
the trial;
EVIDENCE) (3) Number of witnesses (although
preponderance is not necessarily with the
PROOF BEYOND REASONABLE number of witnesses). [Sec. 1, Rule 133]
DOUBT
 Applicable quantum of evidence in criminal SUBSTANTIAL EVIDENCE
cases. The accused is entitled to an acquittal if  Degree of evidence required in cases filed
his guilt is not shown beyond reasonable before administrative or quasi-judicial bodies.
doubt. [sec. 2, Rule 133] [Sec. 5, Rule 133]
 It does not mean such a degree of proof  Substantial evidence is that amount of
excluding possibility of error and producing relevant evidence which a reasonable mind
absolute certainty. Only moral certainty is might accept as adequate to justify a
required – that degree of proof which conclusion [Sec. 5, Rule 133]
produces conviction in an unprejudiced mind.
[Sec. 2, Rule 133] CLEAR AND CONVINCING EVIDENCE
 The burden is on the prosecution to prove The standard of proof required in granting or
guilt beyond reasonable doubt, NOT on the denying bail in extradition cases is “clear and
accused to prove his/her innocence. [Boac v convincing evidence” that the potential extradee
People, G.R. No. 180597, November 7, 2008] is not a flight risk and will abide with all the
 The prosecution must not rely on the orders and process of the extradition court.
weakness of the evidence of the defense. [Government of Hongkong Special Administrative
[Ubales v People, G.R. No. 175692, October 29, Region v.Olalia, Jr., G.R. No. 153675, April 19,
2008; People v. Hu, G.R. No. 182232, October 2007]
6, 2008]
Intermediate in character – lower than proof
beyond reasonable doubt, but higher than
preponderance of evidence
PAGE 339
Judicial Notice And DISCRETIONARY

(1) Matters of public knowledge;
Judicial Admissions (2) Matters capable
demonstration; and
of unquestionable
(3) Matters ought to be known to judges

WHAT NEED NOT BE PROVED because of their judicial functions. [Sec. 2,
(1) Facts of Judicial Notice Rule 129]
(2) Judicial Admissions
(3) Conclusive Presumptions REQUISITES:
For the court to take judicial notice, three
JUDICIAL NOTICE material requisites should be present:
Judicial notice is the cognizance of certain facts (1) The matter must be one of common and
that judges may properly take and act on general knowledge;
without proof because these facts are already (2) It must be well and authoritatively settled
known to them. Put differently, it is the and not doubtful or uncertain;
assumption by a court of a fact without need of (3) It must be known to be within the limits of
further traditional evidentiary support. The the jurisdiction of the court. [State
principle is based on convenience and Prosecutors v, Muro, A.M. No. RTJ-92-876,
expediency in securing and introducing September 19, 1994]
evidence on matters which are not ordinarily
capable of dispute and are not bona  Judicial notice is not judicial knowledge. The
fide disputed. [Republic v. Sandiganbayan, G.R. mere personal knowledge of the judge is not
No. 166859, April 12, 2011] the judicial knowledge of the court, and he is
not authorized to make his individual
knowledge of a fact, not generally or
MATTERS OF JUDICIAL NOTICE professionally known, the basis of his action.
Judicial cognizance is taken only of those
MANDATORY matters which are "commonly" known. [State
(1) Existence and territorial extent of states; Prosecutors v, Muro (supra)]
(2) Their political history, forms of government,
and symbols of nationality;
(3) Law of nations;
WHEN HEARING NECESSARY
(4) Admiralty and maritime courts of the world
and their seals; DURING THE TRIAL
(5) Political constitution and history of the The court, on its own initiative, or on request of
Philippines; a party, may announce its intention to take
(6) Official acts of the legislative, executive and judicial notice of any matter and allow the
judicial departments of the Philippines; parties to be heard thereon.
(7) Laws of nature;
(8) Measure of time; and AFTER THE TRIAL
(9) Geographical divisions. [Sec. 1, Rule 129] Before judgment or on appeal
Note: It would be error for the court not to take Note: The proper court, on its own initiative or on
judicial notice of an amendment to the Rules of request of a party, may take judicial notice of
Court [Riano citing Siena Realty v. Gal-lang (428 any matter and allow the parties to be heard
SCRA 422)] thereon if such matter is decisive of a material
issue in the case. [Sec. 3, Rule 129]
PAGE 340
WITH RESPECT TO COURT’S OWN (2) In a case on appeal before them and
ACTS AND RECORDS wherein the inferior court took judicial
A court MAY take judicial notice of its own acts notice of an ordinance involved in said
and records in the same case, of facts case. [U.S. v. Blanco, 37 Phil. 126; U.S. v.
established in prior proceedings in the same Hernandez, 31 Phil. 342]
case, of the authenticity of its own records of
another case between the same parties, of the Note: The principal guide in determining what
files of related cases in the same court, and of facts may be assumed to be judicially known is
public records on file in the same court. that of notoriety. It is either (1) generally known
[Republic v Court of Appeals,G.R. No. 119288, within the territorial jurisdiction of the trial
August 18, 1997] court; or (2) capable of accurate and ready
determination by resorting to sources whose
accuracy cannot reasonably be questionable.
WITH RESPECT TO RECORDS OF [Riano]
OTHER CASES
General Rule: Courts are not authorized to take
judicial notice of the contents or records of other JUDICIAL ADMISSIONS
cases even if both cases may have been tried or
To be a judicial admission, the same:
are pending before the same judge. [Prieto v.
(1) Must be made by a party to the case;
Arroyo (G.R. No. L-17885 June 30, 1965)] (2) Must be made in the course of the
proceedings in the same case; and
Exceptions: In the absence of objection, and as a
 Note: As regards judicial admissions made
matter of convenience to all parties, a court may
in the trial of another case, the same would
properly treat all or any part of the original
be considered an extrajudicial admission
record of a case filed in its archives as read into
for the purpose of the other proceeding
the record of a case pending before it, when:
where such admission is offered.[Riano]
(1) With the knowledge of the opposing party,
(3) May be verbal or written. [Sec. 4, Rule 129]
reference is made to it for that purpose, by
name and number or in some other manner
Judicial admissions may be—
by which it is sufficiently designated; or
Made in:
(2) The original record of the former case or any
part of it, is actually withdrawn from the  Pleadings filed by the parties (including
archives by the court's direction, at the admissions made in pleadings which are
request or with the consent of the parties, withdrawn/superseded by an amended
and admitted as a part of the record of the pleading [Regalado])
case then pending. [Tabuena v. CA, G.R. No.  Stipulations of facts by the parties in a pre-
85423, May 6, 1991] trial conference [People v. Hernandez, G.R.
No. 108028, July 30, 1996]
WITH RESPECT TO ORDINANCES  The course of the trial either by verbal or
written manifestations/stipulations
 Municipal trial courts are required to take
judicial notice of the ordinances of the  Other stages of judicial proceedings
municipality or city wherein they sit.
Obtained through:
 Regional Trial Courts must take judicial notice
of such ordinances only:  Depositions
(1) When required to do so by statute e.g. in  Written interrogatories
Manila as required by the city charter [City  Request for admissions [Regalado; See also
of Manila v. Garcia, et al., L-26053, February Civil Procedure Rules]
21, 1967]; and
PAGE 341
 There are averments made in pleadings which  This may be invoked when the statement of a
are not deemed admissions even if the party is taken out of context or that his
adverse party fails to make a specific denial of statement was made not in the sense it is
the same like immaterial allegations (Sec. 11, made to appear by the other party. [Phil.
Rule 8), conclusions, non-ultimate facts in the Health Care Providers v. Estrada, G.R. No.
pleading (Sec. 1, Rule 8) as well as the 171052, January 28, 2008 citing Atillo, III v. CA,
amount of liquidated damages (Sec. 11, Rule 1997]
8). [Riano]
 Although an admission made during the pre- JUDICIAL NOTICE OF FOREIGN
trial is deemed to have been made in the
course of the judicial proceeding and is LAWS, LAW OF NATIONS AND
necessarily a judicial admission, an admission MUNICIPAL ORDINANCE
made by the accused in the pre-trial of a
criminal case is not necessarily admissible FOREIGN LAWS
against him. To be admissible, it must comply General Rule: Courts cannot take judicial notice
with the conditions set forth under Sec. 2, of foreign laws. They must be alleged and
Rule 118: proved as any other fact. [Yao-Kee v. Sy-
(1) Reduced in writing, and Gonzales, G.R. No. L-55960, November 24, 1988]
(2) Signed by the accused and counsel.
[Riano] Written foreign law may be proved by:
(1) An official publication; or
EFFECT OF JUDICIAL ADMISSIONS (2) A duly attested and authenticated copy.
(1) It does NOT require proof. [Sec. 4, Rule 129]
(2) General rule: Judicial admissions CANNOT ATTESTED COPY
be contradicted. [Sec. 4, Rule 129] (1) Attestation must be made by the officer
having legal custody of the record or by his
 An original complaint, after being amended, deputy. [Sec. 24, Rule 132]
loses its character as a judicial admission, (2) It must state, in substance, that the copy is a
which would have required no proof. It correct copy of the original, or a specific part
becomes merely an extra-judicial admission thereof [Sec. 25, Rule 132]
requiring a formal offer to be admissible. (3) It must be under the official seal of the
[Torres v CA, G.R. No. L-37420, July 31, 1984]. attesting officer, if there be any, or if he be a
 A party who judicially admits a fact cannot clerk of court having a seal, under the seal of
later challenge that fact as judicial admissions such court. [Sec. 25, Rule 132]
are a waiver of proof; production of evidence is (4) It must be accompanied by a certificate that
dispensed with. [Alfelor v Halasan,G.R. No. attesting officer has custody [Sec. 24, Rule
165987 March 31, 2006] 132]
 The certificate may be made by a secretary
HOW JUDICIAL ADMISSIONS MAY BE of the embassy or legation, consul general,
CONTRADICTED consul, vice consul, or consular agent or by
As an exception to the general rule, judicial any officer in the foreign service of the
admissions may be contradicted only by Philippines stationed in the foreign country
showing that: in which the record is kept, and
(1) It was made through palpable mistake; or authenticated by the seal of his office
(2) No such admission was made. [Sec. 4, Rule
129]
PAGE 342
Unwritten foreign law may be proved through  However, in the case of the RTC, they must
Sec. 46, Rule 130— take such judicial notice only
Published treatise, periodical or pamphlet on a (1) when required to do so by statute (City of
subject of history, law, science or art is Manila v. Garcia (1967));
admissible as tending to prove the truth of a  All courts sitting in the City of Manila
matter stated therein if: shall take judicial notice of the
(1) the court takes judicial notice, or ordinances by the Municipal Board. [Sec.
(2) a witness expert in the subject testifies, that 50, RA 409 – Revised Charter of the City
the writer of the statement in the treatise, of Manila]
periodical or pamphlet is recognized in his (2) in a case of appeal before them wherein
profession or calling as expert in the subject. the inferior court took judicial notice of an
ordinance involved in said case [US v.
Doctrine of Processual Presumption: In the Blanco (supra)] [Regalado]
absence of proof, the foreign law will be
presumed to be the same as the laws of the
jurisdiction hearing the case. [Northwest Orient
Airlines v Court of Appeals (G.R. No. 112573 Object (Real) Evidence
February 9, 1995)]
THE COURT MAY TAKE JUDICIAL

NATURE OF OBJECT EVIDENCE
 Those addressed to the senses of the court
NOTICE OF THE FOREIGN LAW— [sec. 1, Rule 130]
(1) Where the foreign law is within the actual
 The right against self-incrimination CANNOT
knowledge of the court such as when the law
be invoked against object evidence. [People v.
is well and generally known such as when
Malimit, G.R. No. 109775 November 14, 1996]
they are well and generally known or they
had been ruled upon in other cases before it
and none of the parties claim otherwise REQUISITES FOR
[PCIB v Escolin (G.R. L-27860 and L-27896 ADMISSIBILITY
March 29,1974)]
(2) When the foreign law is part of a published BASIC REQUISITES FOR
treatise, periodical or pamphlet and the
writer is recognized in his/her profession or
ADMISSIBILITY (RIANO)
calling as expert in the subject [sec. 46, Rule (1) Evidence must be relevant;
130] (2) Evidence must be authenticated;
(3) Authentication must be made by a
competent witness; and
LAW OF NATIONS (4) Object must be formally offered [Sec. 34,
 The Philippines adopts the generally accepted Rule 132]
principles of international law as part of the
law of the land. [Sec. 2, Art. II, 1987 REQUISITES FOR THE ADMISSIBILITY
Constitution]
OF TAPE RECORDING:
 Being part of the law of the land, they are
(1) A showing that the recording was capable of
therefore in the nature of local laws, and
taking testimony
hence, subject to mandatory judicial notice
(2) A showing that the operator of the recording
under sec. 1 of Rule 129.
device is competent
(3) Establishment of the authenticity and
MUNICIPAL ORDINANCES correctness of recording
 Municipal trial courts are required to take (4) A showing that no changes, deletions, or
judicial notice of the ordinances of the additions have been made on the recordings
municipality or city wherein they sit. [US v. (5) A showing of the manner of preservation of
Blanco (37 Phil 126 November 9, 1917)] the recording
(6) Identification of speakers
PAGE 343
(7) A showing that the testimony elicited was Objects Made Unique
voluntarily made without any kind of Objects with no unique characteristic but are
inducement. [Torralba v. People (G.R. No. made readily identifiable, e.g., a typical kitchen
153699, August 22, 2005)] knife with identifying marks placed on it by the
witness
RELEVANT
General Rule: When an object is relevant to the Non-Unique Objects
fact in issue, it may be exhibited to, examined or Objects with no identifying marks and cannot be
viewed by the court. [Sec. 1, Rule 130] marked, e.g., narcotic substances
Exceptions: Court may refuse exhibition of DEMONSTRATIVE EVIDENCE

object evidence and rely on testimonial evidence  Not the actual thing, rather it represents or
alone if— “demonstrates” the real thing, E.g.,
(1) Exhibition is contrary to public policy, morals photographs, motion pictures and recordings
or decency; [Riano]
(2) It would result in delays, inconvenience,
 Audio, photographic and video evidence of
unnecessary expenses, out of proportion to
events, acts or transactions shall be
the evidentiary value of such object; [People
admissible provided it shall be:
v. Tavera (47 Phil. 645 March 17, 1925)]
(1) shown, presented or displayed to the court,
(3) Evidence would be confusing or misleading.
and
(4) The testimonial or documentary evidence
(2) identified, explained or authenticated
already presented clearly portrays the object
(a) by the person who made the recording,
in question as to render a view thereof
or
unnecessary
(b) by some other person competent to
testify on the accuracy thereof [Sec. 1,
COMPETENT Rule 11, Rules on Electronic Evidence]
EVIDENCE BE AUTHENTICATED
To authenticate the object is to show that the
object is the very thing that is either the subject
EPHEMERAL ELECTRONIC
matter of the lawsuit or the very one involved to COMMUNICATIONS
prove an issue in the case. Refers to telephone conversations, text
messages, chatroom sessions, streaming audio,
AUTHENTICATION BE MADE BY streaming video, and other electronic forms of
COMPETENT WITNESS communication the evidence of which is not
 To authenticate the object, the witness must recorded or retained. [Sec. 1(k), Rule 2, Rules on
have the capacity to identify the object as the Electronic Evidence]
very thing involved in the litigation.
 A witness can testify to those facts which HOW PROVEN
he/she knows of his/her personal knowledge; (1) by the testimony of a person who was a party
that is, which are derived from his/her own to the same;
perception. [Sec. 36, Rule 130] (2) by the testimony of a person who has
personal knowledge thereof; or
(3) in the absence or unavailability of such
CATEGORIES OF OBJECT witnesses, by other competent evidence [Sec.
EVIDENCE 2, Rule 11, Rules on Electronic Evidence]
THE “THING ITSELF”  When recorded, the communication ceases to

Unique Objects be ephemeral and shall be proven in the same
Objects that have readily identifiable marks, manner as proving audio, photographic and
e.g., a caliber 45 pistol by virtue of its serial video evidence [Sec. 2, Rule 11, Rules on
number Electronic Evidence].
PAGE 344
VIEW OF AN OBJECT OR SCENE  Non-compliance with sec. 21 of R.A. 9165,

 When an object is relevant to the fact in issue, particularly the making of the inventory and
it may be viewed by the court. [Sec. 1, Rule 130] their photographing of the drugs confiscated
will not render the drugs inadmissible in
 Court has an inherent power to order view
evidence. The issue if there is non-compliance
when there is a need to do so. [Riano citing
with the law is not admissibility, but of weight
Sec. 1, Rule 130]
– evidentiary merit or probative value. [People
 Inspection may be made inside or outside the
v Del Monte (G.R. No. 179940 April 23, 2008)]
courtroom. An inspection outside should be
made in the presence of the parties or at least
Purpose of Establishing Chain of Custody: To
with the previous notice to them. [Riano citing guaranty the integrity of the physical evidence
Moran]
and to prevent the introduction of evidence
which is not authentic. [Riano]
CHAIN OF CUSTODY IN
RELATION TO SECTION 21 OF Note: A unique characteristic of narcotic
substances is that they are not readily
THE COMPREHENSIVE identifiable. Hence, in authenticating the same,
DANGEROUS DRUGS ACT OF a more stringent standard than that applied to
2002 readily identifiable objects is necessary. This
exacting standard entails a chain of custody of
the item with sufficient completeness to render
MEANING OF CHAIN OF CUSTODY it improbable for the original item to be
A method of authenticating evidence which exchanged with another, contaminated or
requires that the admission of an exhibit be
tampered with [Lopez v. People (G.R. No. 172953
preceded by evidence sufficient to support a
April 30, 2008)]
finding that the matter in question is what the
proponent claims it to be. It would include
testimony about every link in the chain, from the RULE ON DNA EVIDENCE (A.M.
moment the item was picked up to the time it is NO. 06-11-5-SC)
offered into evidence [Lopez v People (G.R. No.
172953 April 30, 2008)] DNA EVIDENCE
The totality of the DNA profiles, results and
IN RELATION TO DRUG CASES other genetic information directly generated
The apprehending team having initial custody from DNA testing of biological samples. [Sec.
and control of the drugs shall: 3(c)]
(1) physically inventory, and
(2) photograph the same, APPLICATION FOR DNA TESTING
(3) in the presence of
(a) accused or the person/s from whom the
ORDER
drugs were seized, or his/her
WITH PRIOR COURT ORDER
representative or counsel
(1) The appropriate court may, at any time,
(b) representative from the media and the
either (i) motu proprio or (ii) on application of
Department of Justice
any person who has a legal interest in the
(c) any elected public official
matter in litigation, order a DNA testing.
(4) who shall be required to sign the copies of
(2) Such order shall issue after due hearing and
the inventory and be given a copy thereof.
notice to the parties upon a showing of the
[Sec. 21, Art. II, R.A. 9165 or the
following:
Comprehensive Dangerous Drugs Act of
(a) A biological sample exists that is relevant
2002]
to the case;
PAGE 345
(b) The biological sample: (i) was not FACTORS IN ASSESSING THE
previously subjected to the type of DNA PROBATIVE VALUE OF DNA
testing now requested; or (ii) was
previously subjected to DNA testing, but
EVIDENCE
(1) Chain of custody
the results may require confirmation for
(a) How the biological samples were
good reasons;
collected
(c) The DNA testing uses a scientifically valid
(b) How they were handled
technique;
(c) Possibility of contamination
(d) The DNA testing has the scientific
(2) DNA testing methodology
potential to produce new information that
(a) Procedure followed in analyzing the
is relevant to the proper resolution of the
samples
case; and
(b) Advantages and disadvantages of the
(e) The existence of other factors, if any,
procedure
which the court may consider as
(c) Compliance with scientifically valid
potentially affecting the accuracy of
standards in conducting the tests
integrity of the DNA testing. [Sec. 4]
(3) Forensic DNA laboratory
(a) Accreditation by any reputable
WITHOUT PRIOR COURT ORDER
standards-setting institution
(1) This Rule shall not preclude a DNA testing,
(b) Qualification of the analyst who
without need of a prior court order, at the
conducted the tests
behest of any party. [Sec. 4]
(c) If not accredited, relevant experience of
(2) Post-conviction DNA testing [Sec. 6]
the laboratory in forensic work and its
credibility
POST-CONVICTION DNA TESTING (4) Reliability of the testing result [Sec. 7]
HOW OBTAINED
(1) Without need of prior court order
(2) Available to the prosecution or any person
VALLEJO STANDARD
In assessing the probative value of DNA
convicted by final and executory judgment
evidence, courts should consider the following:
REQUISITES (1) How the samples were collected
(2) How they were handled
(1) A biological sample exists
(3) The possibility of contamination of the
(2) Such sample is relevant to the case
samples
(3) The testing would probably result in the
(4) The procedure followed in analyzing the
reversal or modification of the judgment of
samples, whether the proper standards and
conviction. [Sec. 6]
procedures were followed
(5) Qualification of the analyst who conducted
REMEDY IF RESULTS FAVORABLE TO the tests [People v. Vallejo (May 9, 2002)]
THE CONVICT
Convict or the prosecution may file a petition for FACTORS THAT DETERMINE THE
a writ of habeas corpus in the court of origin, CA
or SC or any member of said courts. [Sec. 10]
RELIABILITY OF THE DNA TESTING
METHODOLOGY
General Rule: If the court, after due hearing, (1) Falsifiability of the principles or methods
finds the petition meritorious, it shall reverse or used, that is, whether the theory or technique
modify the judgment of conviction and order the can be and has been tested
release of the convict. [Sec. 10] (2) Subject to peer review and publication of the
principles or methods
Exception: If continued detention is justified for (3) General acceptance of the principles or
a lawful cause. [Sec. 10] methods by the scientific community
(4) Existence and maintenance of standards and
controls to ensure the correctness of data
generated
PAGE 346
(5) Existence of an appropriate reference  Affidavits and depositions are considered as

population database not being the best evidence, hence not
(6) General degree of confidence attributed to admissible if the affiants or deponents are
mathematical calculations used in available as witnesses. [Regalado citing 4
comparing DNA profiles; and Martin, op cit., p. 82]
(7) Significance and limitation of statistical
calculations used in comparing DNA profiles ORIGINAL DOCUMENT
[Sec. 5] (1) A document, the contents of which is the
subject of inquiry
(2) All such copies executed at or about the
Documentary Evidence same time, and with identical contents
Note: Carbon copies are deemed duplicate
originals. [People v Tan (105 Phil. 1242 July 31,
MEANING OF DOCUMENTARY 1959)]
EVIDENCE (3) All such entries made and repeated in the
 Consist of writings or any material containing regular course of business, at/near the time
letters, words, numbers, figures, symbols or of the transaction [Rule 130, Sec. 4]
other modes of written expressions offered as
proof of their contents [Rule 130, sec. 2] SECONDARY EVIDENCE [IN ORDER]
 To be deemed documentary evidence, such (1) Copy
writings or materials must be offered as proof (2) Recital of contents in some authentic
of their contents. If offered for some other document
purpose, they constitute OBJECT EVIDENCE. (3) Testimony of witnesses [Rule 130, Sec. 5]
REQUISITES FOR REQUISITES FOR INTRODUCTION OF

SECONDARY EVIDENCE
ADMISSIBILITY (EXCEPTIONS TO BER) [RULE 130,
(1) Relevant
(2) Competent SEC. 3]
(a) Document be Authenticated (1) When the original has been lost or destroyed,
(b) Authenticated by Competent Witness or cannot be produced in court, without bad
(3) Formally Offered in Evidence [Riano] faith on the offeror’s part
 Proponent must prove due execution, loss,
destruction or unavailability of the original
BEST EVIDENCE RULE [Section 5, Rule 130] and reasonable
diligence and good faith in the search
MEANING OF THE RULE for/attempt to produce the original [Tan v.
When the subject of inquiry is the contents of a CA (G.R. No. L-56866 June 27, 1985)]
document, no evidence shall be admissible  ALL duplicates or counterparts must be
other than the original document itself. [Rule accounted for before using copies [De Vera
130, Sec. 3] v. Aguilar (G.R. No. 83377 February 9, 1993)]
 Due execution of the document should be
WHEN APPLICABLE (GENERAL RULE) proved through the testimony of either:
 Only when the subject of inquiry is the contents (1) the person or persons who executed it;
of a document [Rule 130, Sec. 3] (2) the person before whom its execution
 The best evidence rule does not apply when was acknowledged; or
the issue is only as to whether or not such
document was actually executed or in the
circumstances relevant to its execution.
[People v Tandoy (G.R. No. 80505 December 4,
1990)]
PAGE 347
(3) any person who was present and saw it ELECTRONIC DOCUMENT
executed and delivered, or who, after its (1) Information or the representation of
execution and delivery, saw it and information, data, figures, symbols or other
recognized the signatures, or by a modes of written expression,
person to whom the parties to the (2) Described or however represented, by which
instruments had previously confessed a right is established or an obligation
the execution thereof. [Director of Lands extinguished, or by which a fact may be
v. CA (G.R. No. L-29575 April 30, 1971)] proved and affirmed,
(3) Which is received, recorded, transmitted,
(2) When the original is in the custody or under stored, processed, retrieved or produced
the control of the party against whom it is electronically.
offered, and the latter fails to produce it after (4) It includes digitally signed documents and
reasonable notice any print-out or output, readable by sight or
(3) When the original consists of numerous other means, which accurately reflects the
accounts or other documents which cannot electronic data message or electronic
be examined in court without great loss of document.
time, and the fact sought to be established
from them is only the general result of the  For purposes of these Rules, the term
whole “electronic document” may be used
(4) When the original is a public record in the interchangeably with electronic data
custody of a public officer or is recorded in a message”. [Sec. 1(h), REE]
public office
(5) When the original is outside the jurisdiction ELECTRONIC DATA MESSAGE
of the court, secondary evidence is
Information generated, sent, received or stored
admissible [PNB v. Olila (98 Phil 1002,
by electronic, optical or similar means. [Sec. 1(g),
unreported, March 23, 1956)]
REE]
RULES ON ELECTRONIC FACTORS IN ASSESSING

EVIDENCE [A.M. NO. 01-7-01- EVIDENTIARY WEIGHT OF
SC] ELECTRONIC EVIDENCE [RULE 7,
SEC. 1]
APPLICABILITY In assessing the evidentiary weight of an
These Rules shall apply to all civil actions and electronic document, the following factors may
proceedings, as well as quasi-judicial and be considered:
administrative cases. [REE, Rule 1, Sec. 2] (1) The reliability of the manner or method in
which it was generated, stored or
APPLICATION IN CRIMINAL ACTIONS communicated, including but not limited to
While the case of Ang v. CA (G.R. No. 182835 (a) input and output procedures,
April 20, 2010)held that the Rules on Electronic (b) controls, tests and checks for accuracy
Evidence applies only to civil actions, quasi- and reliability of the electronic data
judicial proceedings and administrative message or document,
proceeding, not to criminal action, People vs. (c) in the light of all the circumstances as
Enojas [G.R. No. 204894, March 10, 2014], the well as any relevant agreement;
SC upheld the RTC’s admission of text (2) The reliability of the manner in which its
messages as evidence in a murder case as originator was identified;
conforming with the Court’s earlier Resolution (3) The integrity of the information and
[A.M. NO. 01-7-01] applying the Rules on communication system in which it is
Electronic Evidence to criminal actions. recorded or stored, including but not limited
to the hardware and computer programs or
software used as well as programming
errors;
PAGE 348
(a) Whether the information and (a) Affiant shall affirm the contents of the
communication system or other similar affidavit in open court.
device was operated in a manner that did (b) Affiant may be cross-examined as a
not affect the integrity of the electronic matter of right by the adverse party.
document, and there are no other
reasonable grounds to doubt the integrity AUTHENTICATION OF ELECTRONIC
of the information and communication DOCUMENTS AND ELECTRONIC
system;
(b) Whether the electronic document was
SIGNATURES (R5, SS1-3; R11, SS1-2,
recorded or stored by a party to the REE)
proceedings with interest adverse to that
of the party using it; or OF ELECTRONIC DOCUMENTS
(c) Whether the electronic document was  Burden of Proving Authenticity: The person
recorded or stored in the usual and seeking to introduce the electronic document
ordinary course of business by a person in any legal proceeding has the burden of
who is not a party to the proceedings and proving its authenticity. [Rule 5, sec. 1]
who did not act under the control of the  Before any private electronic document can
party using it [Rule 7, Sec. 2] be offered as authentic is received in evidence,
(4) The familiarity of the witness or the person its authenticity must be proved by any of the
who made the entry with the communication following manner:
and information system; (1) By evidence that it had been digitally
(5) The nature and quality of the information signed by the person purported to have
which went into the communication and signed the same;
information system upon which the (2) By evidence that other appropriate security
electronic data message or electronic procedures or devices as may be
document was based; or authorized by the Supreme Court or by law
(6) Other factors which the court may consider for authentication of electronic documents
as affecting the accuracy or integrity of the were applied to the document; or
electronic document or electronic data (3) By other evidence showing its integrity and
message. reliability to the satisfaction of the judge.
[Rule 5, sec. 2]
 Text messages have been classified as
“ephemeral electronic communication” under OF ELECTRONIC SIGNATURES [RULE 6,
Section 1(k), Rule 2 of the Rules on Electronic SEC. 2]
Evidence, and “shall be proven by the (1) By evidence that a method or process was
testimony of a person who was a party to the utilized to establish a digital signature and
same or has personal knowledge thereof.” verify the same;
[Vidallon-Magtolis v. Salud (A.M. No. CA-05- (2) By any other means provided by law; or
20-P September 9, 2005)] (3) By any other means satisfactory to the judge
METHOD OF PROOF ELECTRONIC DOCUMENTS AND THE BEST

EVIDENCE RULE
(1) Affidavit of Evidence [Rule 9, sec. 1]
The following are originals/equivalent of
(a) Must state facts (i) of direct personal
originals (Rule 4, Secs. 1and 2)
knowledge, or (ii) based on authentic
(1) A printout or output readable by sight or
records
other means, shown to reflect data
(b) Must affirmatively show the
competence of the affiant to testify on accurately
(2) Copies executed at or about the same time
the matters contained in the affidavit
(2) Cross-Examination of Deponent [Rule 9, sec. with identical contents
(3) Counterpart produced by the same
2]
impression as the original
PAGE 349
(4) Copies or duplicates produced from the AUDIO, PHOTOGRAPHIC, VIDEO AND
same matrix, or by mechanical or electronic EPHEMERAL EVIDENCE
re-recording, or by chemical reproduction, or Audio, video and similar evidence, to be
by other equivalent techniques which admissible shall be—
reproduces the original (1) shown, presented or displayed to the court
and
ELECTRONIC DOCUMENTS AND THE (2) identified, explained or authenticated by the
HEARSAY RULE person who made the recording or by some
other person competent to testify on the
BUSINESS RECORDS AS EXCEPTION TO THE accuracy thereof [Rule 11, Sec.1]
HEARSAY RULE
What Constitute Business Records: Records of  Ephemeral electronic communications shall
any business, institution, association, profession, be proven by the testimony of a person who
occupation, and calling of every kind, whether or was a party to the same or has personal
not conducted for profit, or for legitimate knowledge thereof. In the absence or
purposes [Rule 2, sec. 1b] unavailability of such witnesses, other
competent evidence may be admitted. [Rule
REQUISITES TO AN EXCEPTION TO THE 11, Sec. 2]
RULE ON HEARSAY EVIDENCE  If ephemeral electronic communication and
A memorandum, report, record, or data recording of telephone conversation under
compilation of acts, events, conditions, opinions Rule 11, Sec 2 of the REE are recorded or
or diagnosis: embodied in an electronic document, then the
(1) Made by electronic, optical or other similar provisions of Rule 5 (“Authentication of
means Electronic Documents”) shall apply.
(2) Made at or near the time of or from
transmission or supply of information PAROL EVIDENCE RULE
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a MEANING OF PAROL EVIDENCE
business activity, Any evidence aliunde, whether oral or written,
(5) Such was the regular practice to make the which is intended or tends to vary or contradict
memorandum, report, record, or data a complete and enforceable agreement
compilation by electronic, optical or similar embodied in a document. [Regalado]
means
(6) Abovementioned facts shown by the
testimony of the custodian or other qualified
APPLICATION OF THE PAROL
witnesses [Rule 8, Sec. 1] EVIDENCE RULE (GENERAL RULE)
 When the terms of an agreement (including
THE PRESUMPTION PROVIDED ABOVE MAY wills) have been reduced to writing, it is
BE OVERCOME BY EVIDENCE OF— considered as containing all the terms agreed
(1) Untrustworthiness of the source of upon and there can be, between the parties
information and their successors in interest, no evidence of
(2) Untrustworthiness of the method of the such terms other than the contents of the
preparation, transmission or storage thereof written agreement. [Rule 130, Sec. 9]
(3) Untrustworthiness of the circumstances of  It does not apply when third parties are
the preparation, transmission or storage involved or those not privy to the written
thereof [Rule 8, Sec. 2] instrument in question and does not base a
claim or assent a right originating in the
instrument. [Lechugas v. CA (G.R. No. L-39972
& L-40300 August 6, 1986)]
PAGE 350
WHEN PAROL EVIDENCE CAN BE (4) Collateral agreement constitutes a

INTRODUCED condition precedent which determines
whether the written contract may become
(a) When a party presents parol evidence to
operative or effective (does not apply to
modify, explain or add to the terms of a conditions subsequent not stated in the
written agreement AND agreement) [Regalado]
(b) Ground/s for presenting parol evidence is
put in issue in the pleading
DISTINCTIONS BETWEEN THE BEST
GROUNDS FOR PRESENTING PAROL EVIDENCE RULE AND PAROL
EVIDENCE: EVIDENCE RULE [REGALADO]
(1) An intrinsic ambiguity, mistake or imperfection Best Evidence Rule Parol Evidence Rule
in the written agreement
Contemplates the Presupposes that the
 Intrinsic ambiguity – writing admits of two
situation wherein the original document is
constructions both of which are in harmony
original writing is not available in court
with the language used
Note: If ambiguity is intermediate (both available and/or there
latent and patent), parol evidence is is a dispute as to
admissible [Regalado citing 20 Am. Jur 1011] whether said writing is
 Mistake refers to mistake of fact which is the original
mutual to the parties [BPI v. Fidelity and Prohibits the Prohibits the varying of
Surety, Co(G.R. No. L-26743 October 19, 1927)] introduction of the terms of a written
 Imperfectionincludes inaccurate statement in substitutionary agreement
the agreement or incompleteness in the evidence in lieu of the
writing or the presence of inconsistent original document
provisions [Regalado] regardless of WON it
(2) Failure of the written agreement to express the varies the contents of
true intent and agreement of the parties the original
thereto
 Purpose: To enable court to ascertain the Applies to all kinds of Applies only to
true intention of the parties [Tolentino v. documents documents contractual
Gonzales SyChiam (G.R. No. 26085 August in nature (Exception:
12, 1927] wills)
(3) Validity of the written agreement Can be invoked by any Can be invoked only
 Parol Evidence may be admitted to show: party to an action when the controversy is
 True consideration of a contract regardless of WON between the parties to
 Want/Illegality of consideration such party participated the written agreement,
 Incapacity of parties in the writing involved their privies or any
 Fictitious/simulated contract party directly affected
 Fraud in inducement [Regalado]
thereby
(4) Existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement. AUTHENTICATION AND PROOF
 Re Collateral Agreements: OF DOCUMENTS
General Rule: Parol Evidence Rules applies
Exceptions: MEANING OF AUTHENTICATION
(1) Collateral agreement is not inconsistent  The preliminary step in showing the
with the terms of the written contract admissibility of evidence
(2) Collateral agreement has not been  Proving that the objects and documents
integrated in and is independent of the presented in evidence are not counterfeit
written contract
(3) Collateral agreement is subsequent to
and novatory of the written contract
PAGE 351
PUBLIC AND PRIVATE DOCUMENTS (2) Notarial document acknowledged,

Private Documents Public Documents proved/certified [Rule 132, Sec. 30]
(3) When authenticity and due execution has
When offered as Admissible without been admitted as in the case of actionable
authentic, due further proof of its due documents under Rule 8, Sec. 8
execution and execution and (4) That which it is claimed to be: Authentication
authenticity must be authenticity not necessary [Rule 132, sec. 20]
proved
How to prove genuineness of handwriting
WHEN A PRIVATE WRITING (1) By any witness who believes it to be the
handwriting of such person because:
REQUIRES AUTHENTICATION; (a) he has seen the person write;
PROOF OF A PRIVATE WRITING (b) he has seen writing purporting to be his
upon which the witness has acted or been
PRIVATE DOCUMENTS charged, and has thus acquired
knowledge of the handwriting of such
When offered as authentic person [Rule 132, sec. 22]
General Rule: Authentication necessary (2) A comparison by the witness or the court of
the questioned handwriting, and admitted
How to Prove Due Execution and Authenticity genuine specimens thereof or proved to be
(1) By anyone who saw the document executed genuine to the satisfaction of the judge [Rule
or written; OR 132, sec. 22]
(2) By evidence of the genuineness of the (3) Expert evidence [Rule 130, sec. 49]
signature or handwriting of the maker [Rule
132, sec. 20] PUBLIC DOCUMENTS
Kinds of public documents
Additional Modes of Authentication under (1) Written official acts or records of the official
American Jurisprudence [Regalado] acts of the sovereign authority, official bodies
(1) Doctrine of Self-Authentication – Where the and tribunals, and public officers, whether of
facts in writing could only have been known the Philippines or of a foreign country
by the writer (2) Public records, kept in the Philippines, of
(2) Rule of Authentication by adverse part – private documents required by law to be
Where the reply of the adverse party refers to entered therein
and affirms the transmittal to him and his (3) Notarial documents (except last wills and
receipt of the letter in question, a copy of testaments) [Rule 132, Sec. 19]
which the proponent is offering as evidence
Proof of public documents
When evidence of authenticity of a private Records of Official Acts [Rule 132, sec. 24]
writing is not required (1) By an official publication thereof; or
Ancient Documents – authentication NOT (2) By an attested copy of the document
necessary provided that private document be:
(a) More than 30 years old; Note: Documents without documentary stamp
(b) Produced from a custody in which it would affixed thereto, unless specifically exempted by
naturally be found if genuine; and law, may not be admitted or used in evidence in
(c) Unblemished by any alterations or any court until the requisite stamp shall have
circumstances of suspicion. [Rule 132, sec. 21] been affixed. [Sec. 201, NIRC] Also, there is a
presumption that the requisite stamps have
Other instances when authentication is not been affixed in the original copy when only the
required: carbon copies of the same is available. [Mahilum
(1) Writing is a public document/record [Rule v CA (G.R. No. L-17666 June 30, 1966)]
132, Sec. 19]
PAGE 352
Attestation of a copy of a document or record What to Establish to Impeach Judicial Record

[Rule 132, Sec. 25] [Rule 132, sec. 29]
(1) Must be made by the officer having the legal (1) Want of jurisdiction in the court or judicial
custody of the record, or by his deputy officer;
(2) Must state that the copy is a correct copy of (2) Collusion between the parties; OR
the original or a specific part thereof, as the (3) Fraud in the party offering the record, with
case may be respect to the proceedings
(3) Must be under the official seal of the
attesting officer, if there be any, or if he be Proof of notarial documents
the clerk of a court having a seal, under the Notarial Documents (except last wills and
seal of such court testaments): every instrument duly
acknowledged or proved and certified as
If the record is not kept in the Philippines, provided by law which may be presented in
attested copy must be accompanied with a evidence without further proof, the certificate of
certificate, which acknowledgment being prima facie evidence of
(1) May be made by a secretary of the the execution of the instrument or document
embassy/legation, consul-general, consul, involved.[Rule 132, sec. 30]
vice-consul, consular agent or any officer in  Such notarized documents are evidence, even
the foreign service of the Philippines against 3rd persons, of the facts which gave
stationed in the foreign country in which the rise to their execution and of the date of
record is kept; execution. [Rule 132, sec. 23]
(2) Must state that such officer has the custody;
and How to explain alterations in a document
(3) Must be authenticated by the seal of his [Rule 132, sec. 31]
office. [Rule 132, Sec. 24] (1) Document is being presented as genuine;
(2) Document has been altered and appears to
Public Records of Private Documents [Rule have been altered;
132, sec. 27] (3) Alteration was made after execution of the
(1) By the original record; or document; and
(2) By a copy thereof, attested by the legal (4) Alteration is in a part material to the
custodian of the record, with an appropriate question in dispute
certificate that such officer has the custody.
[Rule 132, sec. 27] What to Show about the Alteration
(1) Was made by another, without his
Note: Please refer to “Attestation of Copy” concurrence;
under Sec. 25, Rule 132. (2) Was made with the consent of the parties
affected by it;
Proof of lack of record [Rule 132, sec. 28] (3) Was otherwise properly or innocently made;
(1) Written statement or
(a) Signed by an officer having the custody of (4) Did not change the meaning or language of
an official record or by his deputy the instrument.
(b) Must state that after diligent search, no Whose Burden of Proof
record or entry of a specified tenor is Party producing the document must account for
found to exist in the records of his office the alteration. Failure to do so would result in
(2) Certificate the inadmissibility of evidence.
(a) Accompanying the written statement
(b) Must state that that such officer has the Documentary evidence in an unofficial
custody language [Rule 132, Sec. 33]
 NOT admissible unless accompanied by a
translation into English or Filipino.
 Parties or their attorneys are directed to have
the translation prepared before trial.
PAGE 353
Testimonial Evidence IN CASE PERSON IS CONVICTED OF A

CRIME
General Rule: Not disqualified
QUALIFICATIONS OF A Exception: Otherwise provided by law, e.g.
WITNESS under Art. 821 of the Civil Code, a person
convicted of any of the following crimes cannot
WITNESS DEFINED be a witness to a will:
A witness is one who, being present, personally (1) Falsification of documents,
sees or perceives a thing, a beholder, spectator (2) Perjury; or
or eyewitness. One who testifies to what he has (3) False testimony
seen or heard, or otherwise observed. [Herrera
citing Black’s Law Dictionary] COMPETENCY VERSUS
CREDIBILITY
QUALIFICATIONS OF A WITNESS
[RULE 130, SEC. 20] COMPETENCY OF A WITNESS
 All persons who can perceive, and, in [HERRERA, PG. 282]
perceiving, can make their known perception One is qualified to take the witness stand if:
to others, may be witnesses. (1) He is capable of perceiving at the time of the
 Religious/political belief, interest in the occurrence of the fact; and
outcome of the case, or conviction of a crime (2) He came make his perception known
unless otherwise provided by law, shall not be
ground for disqualification.
Competency Credibility
QUALIFICATIONS OF A WITNESS A matter of law and of Has nothing to do with
ACCORDING TO HERRERA rules the law or rules
(1) To observe, the testimonial quality of Refers to the basic Refers to the weight
perception; [Rule 130, sec. 20] qualifications of a and trustworthiness or
(2) To remember, the testimonial quality of witness as his capacity reliability of the
memory; to perceive and his testimony
(3) To relate, the testimonial quality of narration; capacity to
[Rule 130, sec. 20] communicate his
(4) To recognize a duty to tell the truth, the perception to others
testimonial quality of sincerity; [Rule 132, sec.
1] REMEDY FOR ERRORS OR
(5) He must not possess any of the
disqualifications imposed by the law or rules. QUESTIONS ON COMPETENCE OF
[Rule 132, sec. 1] WITNESS IS BY APPEAL
Appeal, not certiorari, is the proper remedy for
WHEN DETERMINED the correction of any error as to the competency
of a witness committed by an inferior court in
 Qualification of a witness is determined at the
the course of the trial. [Icutanim v. Hernandez,
time the said witness are produced for
examination or at the taking of their June 8, 1948; G.R. No. L-1709]
depositions.
 With respect to children of tender years, CREDIBILITY NOT REVIEWABLE BY
competence at the time of the occurrence is THE SUPREME COURT
also taken into account. Credibility of a witness is a question of fact,
which is not reviewable by the Supreme Court
[Addenbrook v. People, June 29, 1967; G.R. No. L-
22995]
PAGE 354
TWO KINDS OF INCOMPETENCY TO BY REASON OF IMMATURITY [RULE

TESTIFY: [HERRERA, PG. 278] 130, SEC. 21(B)]
(1) Absolute – forbidden to testify on any matter. Requisites:
(2) Partial – forbidden to testify only on certain (1) Mental maturity of the witness (child) must
matters specified under Rule 130, secs. 22 render him incapable of perceiving the facts
and 23 due to interest or relationship, or to respecting which he is examined.
privileges of the parties. (2) He is incapable of relating his perception
truthfully. [Riano]
COMPETENCY PRESUMED
A person who takes the witness stand is WHEN INCAPACITY IS DETERMINED
presumed to possess the qualifications of a Incapacity must occur at the time the witness
witness. His competence may be questioned by perceives the event.
the other party by interposing an objection.
[Herrera, pg. 280] PRESUMPTION OF SANITY
[HERRERA, PG. 285]
INCOMPETENCE DISTINGUISHED General rule: the law presumes that every
FROM PRIVILEGE person is of sound mind, in the absence of proof
Incompetency disqualifies a witness. Privilege to the contrary. [Civil Code, Art. 800]
excuses him from testifying. [Herrera, pg. 281] Exception: if the witness is a lawful inmate of an
asylum for the insane. [Herrera citing Torres v.
DISQUALIFICATIONS OF Lopez (1926)]
WITNESSES  A mental retardate is not therefore, per se,
disqualified from being a witness. As long as
EFFECT IF WITNESS HAS INTEREST his senses can perceive facts and if he can
IN THE SUBJECT MATTER convey his perceptions in court, he can be a
[REGALADO] witness. [People v. Española, (G.R. No. 119308.
 A person is not disqualified (except if covered April 18, 1997) citing People v. Salomon (G.R.
by the Dead Man’s statute) No. 96848 January 21, 1994)]
 Interest only affects credibility, not
competency. UNSOUND MIND
 Includes any mental aberration
EFFECT OF RELATIONSHIP (organic/functional), induced by drugs/
Mere relationship does not impair credibility. To hypnosis
warrant rejection, it must be clearly shown:  Not disqualified as long as the witness can
(1) Testimony was inherently improbable or convey ideas by words/signs
defective
(2) Improper/evil motives had moved the
DEAF-MUTES
witness to incriminate falsely  Deaf-mutes are competent witnesses where
they have sufficient knowledge to understand
and appreciate the sanctity of an oath and
BY REASON OF MENTAL CAPACITY comprehend the facts as to which they wish to
OR IMMATURITY speak, and are capable of communicating
their Ideas with respect thereto. [People v.
BY REASON OF MENTAL INCAPACITY Hayag (G.R. No. L-38635 November 17, 1980)]
[RULE 130, SEC. 21(A)]  They may give evidence by signs, or through
Requisites: an interpreter or in writing, and such
(1) Person must be incapable of intelligently testimony, through an interpreter, is not
making known his perception to others hearsay. But sign language must be capable
(2) His incapability must exist at the time of his of verification. [People v. Hayag (G.R. No. L-
production for examination [Riano] 38635 November 17, 1980)]
PAGE 355
CHILD WITNESS SCOPE OF RULE

The competency of a child witness is The rule also includes utterance as to facts or
determined by his capacity for observation, mere production of documents. It does not only
recollection and communication. [People v. prevent disclosure of matters communicated in
Mendoza (G.R. No. 113791. February 22, 1996)] nuptial confidence but is an absolute
prohibition against the spouse’s testifying to any
BY REASON OF MARRIAGE (ALSO facts affecting the other however these facts
may have been acquired. [Herrera, pg. 306]
KNOWN AS “MARITAL
DISQUALIFICATION RULE” OR Duration
“SPOUSAL IMMUNITY”) The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
REQUISITES [RULE 130, SEC. 22] [Herrera, pg. 307]
(1) Marriage is valid and existing as of the time
of the offer of testimony. BY REASON OF DEATH OR INSANITY
(2) That the spouse for or against whom the OF ADVERSE PARTY (ALSO KNOWN
testimony is offered is a party to the case;
(3) That the case is not one against the other. AS “DEAD MAN’S STATUTE” OR
[Herrera, pg. 302] “SURVIVORSHIP RULE”)
EXCEPTIONS [RULE 130, SEC. 22]: REQUISITES [RULE 130, SEC. 23]
Spouse may testify for or against the other even (1) Defendant is the executor or administrator or
without the consent of the latter— a representative of the deceased or of the
(1) In a civil case by one against the other; or person of unsound mind;
(2) In a criminal case for a crime committed by (2) Suit is upon a claim by the plaintiff against
one against the other or the latter's direct the estate of said deceased or person of
descendants/ascendants. unsound mind;
(3) Witness is the plaintiff, or an assignor of that
RATIONALE [ALVAREZ V. RAMIREZ (G.R. party, or a person in whose behalf the case is
NO. 143439, OCTOBER 14, 2005)] prosecuted; and
(1) There is identity of interests between (4) Subject of the testimony is as to any matter
husband and wife; of fact occurring before the death of such
(2) If one were to testify for or against the other, deceased person or before such person
there is a consequent danger of perjury; became of unsound mind.
(3) Policy of the law is to guard the security and
confidence of private life, and to prevent APPLICABILITY
domestic disunion and unhappiness; and  This rule is applied only to civil cases.
(4) Where there is want of domestic tranquillity,  It is still applicable even if the property has
there is danger of punishing one spouse already been judicially adjudicated to the
through the hostile testimony of the other. heirs regardless whether the deceased died
before or after the suit.
WAIVER OF MARITAL DISQUALIFICATION
If a spouse imputed the conviction to the other. RATIONALE
To close lips of the plaintiff when death has
SPOUSES AS CO-ACCUSED closed the lips of the defendant in order to
The other cannot be called as an adverse party discourage perjury and protect the estate from
witness under this Rule. fictitious claims.
PAGE 356
FACTS FAVORABLE TO THE DECEASED ARE HUSBAND AND WIFE (MARITAL PRIVILEGE)
NOT PROHIBITED [SEC. 24(A), RULE 130]
The rule does not operate to exclude testimony Rationale: Confidential nature of the privilege;
favorable to the deceased because the rule to preserve marital and domestic relations.
seeks to protect his interests. [Herrera citing Go
Chi Gun v. Co Cho (L-13342 November 28, 1962) Requisites:
which cited Jones on Evidence, pg. 313] (1) There must be a valid marriage between the
husband and wife;
WHEN THE DEAD MAN’S STATUTE IS NOT (2) There is a communication received in
APPLICABLE confidence by one from the other; and
(1) The survivor may testify against the estate (3) The confidential communication was
of the deceased where the latter was guilty received during the marriage.
of fraud which fraud was established by (4) The spouse against whom such is being
evidence other than the testimony of the offered has not given his consent to such
survivor. [Ong Chua v. Carr (G.R. No. L-29512 testimony.
January 17, 1929)]
(2) He may also testify where he was the one  A widow of a victim allegedly murdered may
sued by the decedent’s estate since the testify as to her husband’s dying declaration
action then is not against the estate. as to how he died the since the same was not
[Tongco v. Vianzon (G.R. No. 27498 intended to be confidential. [US v. Antipolo (37
September 20, 1927)] Phil. 726, March 6, 1918)]
(3) He may likewise testify where the estate had
filed a counterclaim against him or where Scope: “Any Communication”
the estate cross-examined him as to Includes utterances, either oral or written, or
matters occurring during the lifetime of the acts. [Herrera, pg. 318]
deceased. [Goñi v. CA (G.R. No. L-27434
September 23, 1986)] When not applicable
(4) No application to a mere witness (1) When the communication was not intended
(5) No application to nominal parties, officers to be kept in confidence
and stockholders against corporations (2) When the communication was made prior to
(6) Cannot be used in a negative testimony the marriage
(7) If the testimony is offered to prove a claim (3) When the communication was
less than what is written overheard/comes into the hands of a third
(8) If the defendant did not object party whether legally or not
(9) When there is an existence of fraud (4) Waiver of the privilege
(10) When the party cross-examines the witness (5) In a civil case by one against the other
(6) In a criminal case for a crime committed by
BY REASON OF PRIVILEGED one against the other or the latter's direct
COMMUNICATIONS descendants/ascendants.
PRIVILEGE (DEFINED)
A privilege is a rule of law that, to protect a Waiver [Herrera, pg. 322]
particular relationship or interest, either permits (1) Failure of the spouse to object; or
a witness to refrain from giving testimony he (2) Calling spouse as witness on cross
otherwise could be compelled to give, or examination
permits someone usually one of the parties, to (3) Any conduct constructed as implied consent.
prevent the witness from revealing certain
information. [Herrera, pg. 315]
PAGE 357
IN CONTRAST TO MARITAL When not applicable

DISQUALIFICATION (1) When the communication made was not for
Marital Disqualification Marital Privilege [Sec. the purpose of creating relationship (even if
[Sec. 22] 24 (a)] afterwards he become counsel)
(2) When the communication was intended to
One spouse should be Neither of the spouses
be made public
a party to the case; needs to be a party;
(3) When the communication was intended to
Applies only if the Does not cease even be communicated to others. When the
marriage is existing at after the marriage is communication was intended for an unlawful
the time the testimony dissolved; and purpose
is offered; and (4) When the communication was received from
Constitutes a total Prohibition is limited to third persons not acting in behalf/as agents
prohibition on any testimony on of clients
testimony for or confidential (5) When the communication was made in the
against the spouse of communications presence of third parties stranger to the
the witness. between spouses. attorney-client relationship
(6) When the communication has something to
do with a client’s contemplated criminal act
ATTORNEY AND CLIENT [SEC. 24(B), RULE
[People v. Sandiganbayan (G.R. Nos. 115439-
130]
41 July 16, 1997)]
Requisites:
(7) When there is a controversy between the
(1) There must be a communication made by
client and attorney [Herrera, pg. 335]
the client to the attorney or an advice given
by the attorney to his client;
Identity Of Client
(2) The communication must have been given in
General Rule: The attorney-client privilege may
confidence; and
not be invoked to refuse to divulge the identity
(3) The communication or advice must have
of the client.
been given either in the course of the
professional employment or with a view to
Exceptions [Regala v. Sandiganbayan (G.R. No.
professional employment.
105938 and G.R. No. 108113 September 20,
(4) The client has not given his consent to the
1996)]:
attorney’s testimony thereon.
(1) When a strong probability exists that
revealing the name would implicate that
 Attorney’s secretary, stenographer, or clerk person in the very same activity for which he
are also covered by the rule and cannot be sought the lawyer’s advice;
examined concerning any fact the knowledge (2) When disclosure would open the client to
of which has been acquired in such capacity liability;
without the consent of the client AND their (3) When the name would furnish the only link
employer. that would form the chain of testimony
necessary to convict.
SUBJECT-MATTER OF THE PRIVILEGE
[HERRERA PG. 329-337] Duration Of The Privilege
(1) Communications In the absence of a statute, the privilege is
(2) Observations by the lawyer (regardless of permanent. It may even be claimed by a client’s
medium of transmission which may include executor or administrator after the client’s
oral or written words and actions) death. [Herrera, pp. 39-40]
(3) Tangible evidence delivered to a lawyer
(4) Documents entrusted to a lawyer
PAGE 358
PHYSICIAN AND PATIENT [SEC. 24(C), RULE Implied waiver [Herrera, pg. 355]
130] (1) By failing to object
Requisites [Krohn v. CA (G.R. No. 108854 June (2) When the patient testifies
14,1994) citing Lim v. CA (G.R. No. 91114 (3) A testator procures an attending doctor to
September 25, 1992)] subscribe his will as an attesting witness
(1) Physician is authorized to practice medicine, (4) Disclosure of the privileged information
surgery or obstetrics; either made or acquiesced by the privilege
(2) Information was acquired or the advice or holder before trial
treatment was given by him in his (5) Where the patient examines the physician as
professional capacity for the purpose of to matters disclosed in a consultation
treating and curing the patient; (6) Also check Rule 28 on Mental or Physical
(3) The information was necessary to enable him Examination (Rules on Civil Procedure)
to act in that capacity;
(4) Information, advice or treatment, if revealed, Professional capacity (defined)
would blacken the reputation of the patient; When the doctor attends to a patient for
and curative treatment, or for palliative or preventive
(5) Privilege is invoked in a civil case, whether or treatment. [Herrera, pg. 343]
not the patient is a party thereto.
Extent of rule
 Physician-patient relationship need not be The privilege extends to communications which
entered into voluntarily. have been addressed to physician’s assistants or
agents. [Herrera, pg. 345]
Where applicable
(1) All forms of communication, advice or Physician allowed to testify as an expert
treatment A doctor is allowed to be an expert witness
(2) Information acquired by the physician from when he does not disclose anything obtained in
his personal observations and examination of the course of his examination, interview and
the patient treatment of a patient. [Lim v. CA, supra]
When not applicable Autopsical information

(1) Communication was not given in confidence If the information was not acquired by the
(2) Communication was irrelevant to the physician in confidence, he may be allowed to
professional employment testify thereto. But if the physician performing
(3) Communication was made for an unlawful the autopsy was also the deceased’s physician,
purpose he cannot be permitted either directly or
(4) Communication was intended for the indirectly to disclose facts that came to his
commission/concealment of a crime knowledge while treating the living patient.
(5) Communication was intended to be made [Herrera citing US Case Travelers’ Insurance Co. v.
public/divulged in court Bergeron)]
(6) When there was a waiver
(7) When the doctor was presented as an expert Duration of privilege
witness and only hypothetical problems were The privilege continues until the death of the
presented to him. [Lim v. CA (supra)] patient. It may be waived by the personal
representative of the decedent. [Herrera, pg.
Waiver 356]
Express waiver – may only be done by the
patient.
PAGE 359
PRIEST AND PENITENT [SEC. 24(D), RULE Exception: Court/House/Committee in Congress

130] finds that such revelation is demanded by
Requisites: security of the State
(1) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in INFORMATION IN CONCILIATION
the course of discipline of the sect or PROCEEDINGS
denomination of the priest. All information and statements made at
(2) Confession or advice was confidential and conciliation proceedings shall be treated as
penitential in character. privileged communications [Article 233, Labor
 The priest or minister must be duly ordained Code]
in the sect in which he belongs.
DATA PRIVACY ACT
PUBLIC OFFICERS [SEC. 24(E), RULE 130] Personal information controllers may invoke the
Requisites: principle of privileged communication over
(1) Communication was made to the public privileged information that they lawfully control
officer in official confidence; and or process. Subject to existing laws and
(2) Public interest would suffer by the disclosure regulations, any evidence gathered on
of such communication. privileged information is inadmissible. [Sec. 15,
RA 10173]
Elements of “presidential communications
privilege” FOOD AND DRUG ADMINISTRATION ACT
(1) Must relate to a “quintessential and non- Prohibits the use of a person to his own
delegable presidential power;” advantage, or revealing, other than to the
(2) Must be authored or “solicited and received” Secretary of Health or officers or employees of
by a close advisor of the President or the the Department of Health or to the courts when
President himself; and relevant in any judicial proceeding under this
(3) Privilege may be overcome by a showing of Act, any information acquired under authority
adequate need such that the information Board of Food Inspection and Board of Food
sought “likely contains important evidence” and Drug, or concerning any method or process
and by the unavailability of the information which as a trade secret is entitled to protection.
elsewhere. [Neri v. Senate (G.R. No. 180643 [Secs. 9, 11 (f) and 12, RA 3720]
September 4, 2008)]
TRIPS AGREEMENT
Purpose of privilege: protection of public  Undisclosed information or trade secrets are
interest considered privileged communication.
The privilege is not intended for the protection  It is protected information if it complies with 3
of public officers but for the protection of the requisites: 1) A secret in a sense that it is not
public interest. When no public interest would generally known among or readily accessible
be prejudiced, this privilege cannot be invoked. to persons within the circles that normally
[Banco Filipino v. Monetary Board (G.R. No. deal with the kind of info in question, 2) Has
70054 July 8, 1986)] commercial value because it is a secret; 3) Has
been subject to reasonable steps, under the
OTHER PRIVILEGED circumstances by the person lawfully in
COMMUNICATION NOT IN THE ROC control of the information, to keep it a secret.
[Art. 39]
NEWSMAN’S PRIVILEGE [RA 53, AS
AMENDED BY RA 1477] Note: Electronic Document as Privileged
General Rule: Publisher, editor or duly Communication
accredited reporter cannot be compelled to The confidential character of a privileged
reveal the source of any news report or communication is not solely on the ground that
information related in confidence it is in the form of an electronic document.
[Rules on Electronic Evidence Rule 3, sec. 3]
PAGE 360
PARENTAL AND FILIAL PRIVILEGE RULE ONE-DAY EXAMINATION OF WITNESS RULE

[SEC. 25, RULE 130] [AM 03-1-09-SC] [2009 BAR]
General Rule: A person cannot be compelled to A witness has to be fully examined in one (1) day
testify against his parents (parental privilege), only. It shall be strictly adhered to subject to the
other direct ascendants, children or other direct courts' discretion during trial on whether or not
descendants (filial privilege). to extend the direct and/or cross-examination
for justifiable reasons.
Exception [Art. 215, Family Code]:
Descendant may be compelled to give his ORDER OF EXAMINATION OF AN
testimony in a criminal case when— INDIVIDUAL WITNESS
(1) [against parent or grandparent] The DIRECT EXAMINATION [RULE 132, SEC. 5]
testimony is indispensable in a crime
 Examination-in-chief of a witness by the party
committed against said descendant; or
presenting him, on the facts relevant to the
(2) [against parent] In a crime committed by
issue.
one parent against the other.
 The purpose is to elicit facts about the client’s
Applicability cause of action or defense.
The rule is applied to both civil and criminal
CROSS EXAMINATION [RULE 132, SEC. 6]
cases. [Herrera, pg. 364]
 Examination of the witness by the adverse
party after said witness has given testimony
EXAMINATION OF A WITNESS on direct examination.
 The purpose is to test the witness’s accuracy
RIGHTS AND OBLIGATIONS OF A and truthfulness, and freedom from interest
WITNESS [SEC. 3, RULE 132] or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
OBLIGATION OF A WITNESS
To answer questions, although his answer may Matters covered
tend to establish a claim against him. Any matters stated in the direct examination, or
connected therewith
RIGHTS OF A WITNESS
(1) To be protected from irrelevant, improper, or Right to Cross-Examination
insulting questions, and from harsh or  Cross-examination is the most reliable and
insulting demeanor effective way known of testing the credibility
(2) Not to be detained longer than the interests and accuracy of testimony. This is an essential
of justice require element of due process. [Herrera, pg. 175 citing
(3) Not to be examined except only as to Alford v. US (1931)]
matters pertinent to the issue  The right to cross-examine under the
(4) Not to give an answer which will tend to constitution is superior to technical rules on
subject him to a penalty for an offense unless evidence. [Herrera, pg. 176 citing People v.
otherwise provided by law, e.g., Sec. 8, RA Valero (1982)]
1379 and other immunity statutes which  Partial cross-examination is sufficient where
grant the witness immunity from criminal the witness was cross-examined on material
prosecution for offenses admitted points, and full cross-examination was not
(5) Not to give an answer which will tend to due to prosecutors’ fault but that of the
degrade his reputation, unless it to be the defense who repeatedly moved for
very fact at issue or to a fact from which the postponement, direct examination cannot be
fact in issue would be presumed. But a thrown off the case. [Herrera, pg. 178 citing
witness must answer to the fact of his People v. Caparas, 102 SCRA 782]
previous final conviction for an offense.
PAGE 361
Effect of denial of right to cross-examine LEADING AND MISLEADING

 Most courts require that the testimony given QUESTIONS [SEC. 10, RULE 132]
on direct examination be stricken off –
provided the unavailability of the witness is
QUESTIONS NOT ALLOWED
through no fault of the party seeking to cross-
(1) Misleading Questions – These are questions
examine. [Herrera, pg. 175]
that assume as true a fact not yet testified to
 Cross-examination must be completed or by the witness, or contrary to that which he
finished. When cross-examination is not and has previously stated. These are never
cannot be done or completed due to causes allowed.
attributable to the party offering the witness, (2) Leading Questions – These are questions
the uncompleted testimony is thereby that suggest to the witness the answer,
rendered incompetent. [Herrera, pg. 176 citing which the examining party desires.
Ortigas, Jr. v. Lufthansa German Airlines (1975)]
Leading questions
RE-DIRECT EXAMINATION [RULE 132, SEC. General Rule: Leading questions are not
7] allowed.
 Examination of a witness by the counsel who
Test of leading questions—by putting the words
conducted the direct examination after the
or though in the witness’ mind to be echoed
cross examination. back, the examiner is in effect the one testifying,
 The purpose is for the witness to explain or not the witness. [Herrera, pg. 200 citing Escato v
supplement his answers given during the Pineda, CA 53 OG 7742]
cross-examination.
Exceptions to leading questions:
Matters covered (1) On cross examination;
Those stated in the cross-examination, and (2) On preliminary matters;
matters not dealt with, if allowed by the Court (3) When there is a difficulty is getting direct and
intelligible answers from a witness who is
RE-CROSS EXAMINATION [RULE 132, SEC. ignorant, or a child of tender years, or is of
8] feeble mind, or a deaf-mute;
Examination conducted by adverse party upon (4) On an unwilling or hostile witness;
conclusion of the re-direct examination. (a) Adverse interest;
(b) Unjustified reluctance to testify;
Matters covered (c) His having misled the party into calling
Those stated in his re-direct examination, and him to the witness stand.
also on such other matters as may be allowed (5) On a witness who is an adverse party or an
by the court in its discretion. officer/director or managing agent of a
public/private corporation or of a
RECALLING THE WITNESS [RULE 132, SEC. partnership/association which is an adverse
9] party.
After both sides have concluded the
examination of a witness, either party with leave Misleading questions
of court may recall a witness. Questions containing facts not in evidence.
[Herrera, pg. 207]
Why conducted Methods of Impeachment of Adverse Party’s
(1) Particularly identified material points were Witness [Sec. 11, Rule 132]
not covered in cross-examination (1) By contradictory evidence;
(2) Particularly described vital documents were (2) By evidence that his general reputation for
not presented to the witness truth, honesty or integrity is bad;
(3) Cross-examination was conducted in so inept (3) By evidence that he has made at other times
a manner as to result in a virtual absence statements inconsistent with his present
thereof [People v. Rivera (G.R. No. 98376 testimony.
August 16, 1991)]
PAGE 362
How the witness is impeached by evidence of (2) The parties' documentary or object
inconsistent statements (laying the evidence, if any, shall be marked and
predicate) attached to the judicial affidavits
(1) The alleged statements must be related to (b) Should a party or a witness desire to keep
the witness including the circumstances of the original document or object evidence in
the times and places and the persons his possession, he may, after the same has
present. If the statements are in writing they been identified, marked as exhibit, and
must be shown to him. authenticated, warrant in his judicial affidavit
(2) Witness may be asked whether he made that the copy or reproduction attached to
such statements and also to explain them if such affidavit is a faithful copy or
he admits making those statements. reproduction of that original. In addition, the
party or witness shall bring the original
Purpose: To allow the witness to admit or deny document or object evidence for comparison
the prior statement and afford him an during the preliminary conference with the
opportunity to explain the same. attached copy, reproduction, or pictures,
failing which the latter shall not be admitted
Evidence of the good character of a witness
 Evidence of the witness’ good character is not  This is without prejudice to the introduction of
admissible until such character has been secondary evidence in place of the original
impeached. [Sec. 14, Rule 132] when allowed by existing rules. [Sec. 2]
 Because a witness is presumed to be truthful
and of good character, the party presenting CONTENTS [SECTION 3]
him does not have to prove he is good A judicial affidavit shall be prepared in the
because he is presumed to be good. language known to the witness and, if not in
English or Filipino accompanied by a translation
JUDICIAL AFFIDAVIT RULE [AM 12-8- in English or Filipino, and shall contain the
8-SC] following:
(a) The name, age, residence or business
address, and occupation of the witness;
SCOPE
(b) The name and address of the lawyer who
Applies to all actions and proceedings, and
conducts or supervises the examination of
incidents requiring the reception of evidence
the witness and the place where the
before the courts, quasi-judicial bodies, whose
examination is being held;
rules of procedure are subject to disapproval of
(c) A statement that the witness is answering
the Supreme Court, insofar as their existing
the questions asked of him, fully conscious
rules of procedure contravene the provisions of
that he does so under oath, and that he may
this Rule, and investigating officers and bodies
face criminal liability for false testimony or
authorized by the SC to receive evidence,
perjury;
including the IBP [Sec. 1]
(d) Questions asked of the witness and his
corresponding answers, consecutively
SUBMISSION OF JUDICIAL AFFIDAVITS AND
numbered, that:
EXHIBITS IN LIEU OF DIRECT TESTIMONIES
(1) Show the circumstances under which the
(a) The parties shall file with the court and serve
witness acquired the facts upon which he
on the adverse party, personally or by
testifies;
licensed courier service, not later than five
(2) Elicit from him those facts which are
days before pre-trial or preliminary
relevant to the issues that the case
conference or the scheduled hearing with
presents; and
respect to motions and incidents, the
(3) Identify the attached documentary and
following:
object evidence and establish their
(1) The judicial affidavits of their witnesses,
authenticity;
which shall take the place of such
(e) The signature of the witness over his printed
witnesses' direct testimonies; and
name; and
PAGE 363
(f) A jurat with the signature of the notary EFFECT OF NON-COMPLIANCE [SECTION
public who administers the oath or an officer 10]
who is authorized by law to administer the  Party who fails to submit is deemed to have
same. waived the submission of the same. The court,
however, may allow, only once, late
 The judicial affidavit shall also contain a submission, provided the delay is for a valid
sworn attestation executed by the lawyer who reason and the defaulting party pays a fine.
conducted or supervised the examination of  Court shall not consider affidavit of witness
the ·witness, to the effect that: who fails to appear at the scheduled hearing.
(1) He faithfully recorded or caused to be Counsel who failed to appear shall be
recorded the questions he asked and the deemed to have waived his client’s right to
corresponding answers that the witness cross-examine the witnesses there present.
gave; and  Judicial affidavits that do not conform with
(2) Neither he nor any other person then the requirements cannot be admitted as
present or assisting him coached the evidence.
witness regarding the latter's answers.
[Section 4] ISSUANCE OF SUBPOENA [SECTION 5]
If the government employee or official, or the
 A false attestation shall subject the lawyer requested witness, who is neither the witness of
mentioned to disciplinary action, including the adverse party nor a hostile witness,
disbarment. [Section 4] unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make
OFFER the relevant books, documents, or other things
When made: Upon the termination of the under his control available for copying,
testimony of his last witness authentication, and eventual production in
court, the requesting party may avail himself of
How made: Party shall immediately make an the issuance of a subpoena ad testificandum or
oral offer of evidence of his documentary or ducestecum under Rule 21 of the Rules of Court.
object exhibits, piece by piece, in their The rules governing the issuance of a subpoena
chronological order, stating the purpose or to the witness in this case shall be the same as
purposes for which he offers the particular when taking his deposition except that the
exhibit. taking of a judicial affidavit shall be understood
to be ex parte.
OBJECTION
When made: After each piece of exhibit is ADMISSIONS AND
offered,
How made: Party shall state the legal ground CONFESSIONS
for his objection, if any, to its admission.
RES INTER ALIOSACTA RULE (2
 The court shall immediately make its ruling BRANCHES)
respecting that exhibit. (1) First branch: Admission by a third party [Rule
 It is sufficient that the exhibits are simply cited 130, sec. 28]
by their markings during the offers, the (2) Second branch: Similar acts as evidence
objections, and the rulings, dispensing with [Rule 130, sec. 34]
the description of each exhibit.
First branch With Respect to Admissions by a
“Third-Party”
General Rule: Admission by a third party is

inadmissible
PAGE 364
Exceptions: (see detailed explanations below) RATIONALE

(1) Partner’s or Agent’s Admission [Rule 130, sec. No man would make any declaration against
29] himself unless it is true. [Republic v. Bautista
(2) Admission by conspirator [Rule 130, sec. 30] (G.R. No. 169801 September 11, 2007)]
(3) Admission by privies [Rule 130, sec. 31
AS DISTINGUISHED FROM JUDICIAL
ADMISSION BY A PARTY [RULE 130, ADMISSIONS
SEC. 26] Judicial Extrajudicial
 The act, declaration or omission of a party, as Made in connection Any other admission
to a relevant fact may be given in evidence with a judicial (Rule 130, secs. 26 and
against him. proceeding in which it 32)
 Any statement of fact made by a party against is offered (Rule 129,
his interest or unfavorable to the conclusion sec. 4)
for which he contends or is inconsistent with
the facts alleged by him. May be conclusive Rebuttable
 A statement by the accused, direct or implied, (Rule 192, sec. 2)
of facts pertinent to the issue, and tending in May be written, oral express or implied
connection with proof of other facts, to prove
his guilt. [People v. Lorenzo (G.R. No. 110107 EXCEPTION TO RES INTER ALIOS
January 26, 1995)]
ACTA BRANCH 1—PARTNER’S OR
 This rule talks about extra-judicial admission.
AGENT’S ADMISSION [SEC. 29, RULE
ADMISSION MUST— 130]
(1) Involve matters of fact, not of law
(2) Be categorical and definite REQUISITES FOR ADMISSIBILITY:
(3) Knowingly and voluntarily made [HERRERA, PG. 398]
(1) The act or declaration of a partner or agent
REQUISITES FOR ADMISSIBILITY of the party;
(1) Made by a party; (2) Within the scope of his authority and
(2) Outside of court; (3) During the existence of the partnership or
(3) Relates to a relevant fact; and agency;
(4) Is against admitter’s interest. [sec. 26, Rule (4) After the partnership or agency is shown by
130] evidence other than such act or declaration
(5) May be given in evidence against such party.
EFFECT
 It may be given in evidence against the  This rule also applies to the act or declaration
admitter. [sec. 26, Rule 130] of a joint owner, joint debtor, or other persons
 Flight from justice is an admission by conduct jointly interested with the party. [sec. 29, Rule
and circumstantial evidence of consciousness 130]
of guilt. [US v. Sarikala (G.R. No. L-12988
January 24, 1918)] JOINT INTERESTS [HERRERA, PG. 401]
 It is essential first that the joint interest be
ADMISSION MUST BE MADE IN CONTEXT made to appear by evidence other than the
It is a rule that a statement is not competent as admission itself. Second, it must be shown
an admission where it does not, under that the admission relates to the subject-
reasonable construction, appear to admit or matter of joint interest.
acknowledge the fact which is sought to be  The word “joint” must be construed according
proved by it. [CMS Logging, Inc. v. CA (G.R. No. to its meaning in the common law system,
L-41420 July 10, 1992)] that is, in solidum for the whole [Jaucian v.
Querol (G.R. No. L-11307 October 5, 1918)].
PAGE 365
 A mere community of interests between Doctrine of interlocking confessions: [People v.

several persons is not sufficient to make the Molleda (G.R. No. L-34248 November 21, 1978)]
admissions of one admissible against all. Extrajudicial statements of co-accused may be
[Herrera, pg. 402] taken as circumstantial evidence against the
 Just like in partnership and agency, the person implicated to show the probability of the
interest must be a subsisting one unless for latter’s actual participation, provided that the
the admission to be admissible. [Herrera, pg. statements are made by several accused are:
402] (1) made without collusion
(2) identical with each other in their essential
EXCEPTION TO RES INTER ALIOS details;
(3) corroborated by other evidence on record
ACTA BRANCH 1—CO-
CONSPIRATOR’S ADMISSION [SEC. APPLICABLE TO EXTRAJUDICIAL
30, RULE 130] STATEMENTS
The evidence adduced in court by the
REQUISITES FOR ADMISSIBILITY conspirators as witnesses are not declarations
(1) Act or declaration must relate to the of conspirators, but direct testimony to the acts
conspiracy; to which they testify. This is applicable only
(2) It must have been made during the existence when it is sought to introduce extrajudicial
of the conspiracy; and declarations and statements of the co-
(3) Conspiracy must be shown by evidence other conspirators. [Herrera, pg. 410, citing People v.
than such act/declaration. Vizcarra (G.R. No. L-38859 July 30, 1982)]
 Existence of the conspiracy may be inferred ADMISSION BY PRIVIES [SEC. 31,

from acts of the accused. [People v. Belen (G.R. RULE 130]
No. L-13895 September 30, 1963)]
 Rule 130, sec. 30 applies only to extra-judicial REQUISITES
statements, not to testimony given on the (1) There must be an act, declaration or an
stand. [People v. Serrano (G.R. No. L-7973 April omission by a predecessor-in-interest;
27, 1959)] (2) Act, declaration or omission must have
occurred while he was holding (not after) the
AS REGARDS EXTRAJUDICIAL ADMISSIONS title to the property; and
AFTER TERMINATION OF CONSPIRACY, (3) Act, declaration or omission must be in
BEFORE TRIAL relation to the property.
General Rule: Not admissible PRIVIES DEFINED
Exceptions:  Persons who are partakers or have an interest
(1) made in the presence of the co-conspirator in any action or thing, or any relation to
who expressly/impliedly agreed (tacit another [Riano citing Black’s Law Dictionary]
admission)  It denotes the idea of succession, not only be
(2) facts in admission are confirmed in the
right of heirship and testamentary legacy, but
independent extrajudicial confessions made also that of succession by singular title,
by the co-conspirators after apprehension
derived from acts inter vivos, and for special
(3) as a circumstance to determine credibility of
purposes. (example: assignee of a credit and
witness one subrogated to it are privies.) [Alpuerto v.
(4) circumstantial evidence to show the
Perez Pastor and Roa (G.R. No. L-12794
probability of the latter’s participation
October 14, 1918)]
[Regalado]
PAGE 366
FORMER OWNER OF REAL ESTATE (5) No violation of Secs. 12 and 17, Art. III of the
It is necessary that the admission of the former Constitution [Regalado]
owner of a property has been made while he
holds title to the property in order that such  If the accused admits having committed the
admission may be binding upon the present act in question but alleges a justification
owner. [Herrera, pg. 421 citing Gevero v. IAC (G.R. therefore, the same is merely an admission.
No. 77029 August 30, 1990)] [Ladiana v. People (G.R. No. 144293.
December 4, 2002)]
ADMISSION BY SILENCE  Any confession, including a re-enactment,
without admonition of the right to silence and
REQUISITES FOR ADMISSIBILITY to counsel, and without counsel chosen by the
When silence is deemed an admission: [People accused is inadmissible in evidence. [People v.
v. Paragsa (G.R. No. L-44060 July 20, 1978)] Yip Wai Ming (G.R. No. 120959. November 14,
(1) Person heard or understood the statement; 1996)]
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter EFFECT OF EXTRAJUDICIAL CONFESSION
affecting his rights or in which he was OF GUILT
interested and which naturally calls for a General Rule: An extra-judicial confession made
response; by an accused is not a sufficient ground for
(4) That the facts were within his knowledge; conviction. [Sec. 3, Rule 133]
and
(5) That the fact admitted from his silence is Exception: When corroborated by evidence of
material to the issue the actual commission of a particular crime
(corpus delicti). [Sec. 3, Rule 133]
WHEN NOT APPLICABLE
(1) Statements adverse to the party were made Corpus Delicti- substance of the crime; the fact
in the course of an official investigation, that a crime has actually been committed
neither asked to reply nor comment [Sec. [People v. De Leon (G.R. No. 180762. March 4,
2(b), R.A. 7438] 2009)]
(2) Party had justifiable reason to remain silent,
ex. Acting on advice of counsel [Regalado] AS DISTINGUISHED FROM ADMISSIONS OF
A PARTY
CONFESSIONS Admission of a Party Confession
 A declaration of an accused acknowledging
Merely a statement of Acknowledgment of
his guilt of the offense charged, or of any
fact guilt or liability
offense necessarily included therein [Sec. 33,
Rule 130] Maybe express or tacit Must be express
 An acknowledgment in express words or Maybe made by 3rd Can be made only by
terms, by a party, in a criminal case, of the parties, and in certain the party himself, and
crime charged or some essential parts of it. cases, admissible admissible against his
[People v. Lorenzo (G.R. No. 110107 January 26, against a party co-accused in some
1995)] instances
REQUISITES Acts, declarations or Declarations

(1) Express and categorical acknowledgement omissions
of guilt May be in any Criminal case
(2) Facts admitted constitutes a criminal offense proceeding
(3) Given voluntarily
(4) Intelligently made, realizing the importance
or legal significance of the act
PAGE 367
SIMILAR ACTS AS EVIDENCE MEANING OF HEARSAY

 It is an out-of-court statement which is
SIMILAR ACTS PREVIOUSLY DONE offered by the witness in court to prove the
General Rule: Evidence that one did or did not truth of the matters asserted by the
do a certain thing at one time is not admissible statement.
to prove that he did or did not do the same or  It is any evidence, whether oral or
similar thing at another time. (2nd Branch of res documentary, if its probative value is not
inter alios acta rule) [sec. 34, Rule 130] based on personal knowledge of witness but
on knowledge of some other person not on
witness stand [Regalado 11th ed.]
Exceptions: Said evidence may be received to
prove: DOCTRINE OF INDEPENDENTLY
(1) specific intent or knowledge;
(2) identity;
RELEVANT STATEMENTS
(3) plan, system, or scheme;  Statements or writings attributed to a person
(4) habit; not on the witness stand, which are being
(5) custom, usage and the like. [sec. 34, Rule 130] offered not to prove the truth of the facts
stated therein, but only to prove that such
REASON FOR GENERAL RULE were actually made.
The rule is founded upon reason, justice and  These are not covered by the hearsay rule
judicial convenience. The lone fact that a person [People v. Cusi (G.R. No. L-20986. August 14,
committed the same or similar act at some prior 1965)]
time affords, as a general rule, no logical  These are statements which are relevant
guaranty that he committed the act in question. independently of whether they are true or not.
A man’s mind and even his modes of life may [Estrada v. Desierto (G.R. Nos. 146710-15. April
change; and objectively, the conditions which he 3, 2001)]
may find himself at a given time make likewise
change and induce him to act a different way. TWO CLASSES OF INDEPENDENTLY
[Herrera, pg. 539 citing Justice Moran] RELEVANT STATEMENTS:
(1) those statements which are the very facts in
HEARSAY RULE issue, and
(2) those statements which are circumstantial
GENERAL RULE ON HEARSAY evidence of the facts in issue. [Estrada v.
 A witness can testify only as to those facts Desierto (supra)]
which he knows of his personal knowledge, or
those derived from his own perception. [Rule  The second class includes the following:
130, sec. 36] (1) Statement of a person showing his state of
mind, that is, his mental condition,
 The hearsay rule is not limited to oral
knowledge, belief, intention, ill will and
testimony or statements; it applies to written,
other emotions;
as well as oral statements. [Consunji v. CA
(2) Statements of a person which show his
(G.R. No. 137873. April 20, 2001)]
physical condition, as illness and the like;
 If a party does not object to hearsay evidence, (3) Statements of a person from which an
the same is admissible, as a party can waive inference may be made as to the state of
his right to cross-examine [People v. Ola (G.R. mind of another, that is, the knowledge,
No. L-47147 July 3, 1987)] belief, motive, good or bad faith, etc. of the
 Repeated failure to cross-examine is an latter; d. Statements which may identify
implied waiver [Savory Luncheonette v. Lakas the date, place and person in question; and
ng Manggagawang Pilipino (G.R. No. L-38964 e. Statements showing the lack of
January 31, 1975)] credibility of a witness. [Estrada v. Desierto
(supra)]
PAGE 368
REASON FOR EXCLUSION OF RATIONALE FOR ADMISSIBILITY

HEARSAY EVIDENCE  As a general rule, when a person is at the
The underlying rule against hearsay are serious point of death, every motive to falsehood is
concerns about the worth (trustworthiness, silenced. [People v Bacunawa (G.R. No.
reliability) of hearsay evidence. Because such 136859. April 16, 2001)]
evidence:  The law considers the point of death as a
(1) was not given under oath or solemn situation so solemn and awful as creating an
affirmation; and obligation equal to that which is imposed by
(2) was not subject to cross-examination by an oath administered by the court. [People v.
opposing counsel to test the perception, Cerilla (G.R. No. 177147 November 28, 2007)]
memory, veracity and articulateness of out-  If the declarant’s statement is made under
of-court declarant or actor upon whose consciousness of impending death, a
reliability on which the worth of the out-of- subsequent belief in recovery before his actual
court testimony depends. [Herrera, pg. 565] death does not bar admissibility of his
statement [Riano citing People v. Black (1979),
EXCEPTIONS TO THE HEARSAY RULE 96 CA3d 846, 158 CR 449]
(1) Dying declaration
(2) Declaration against interest  The foreboding may be gleaned from
(3) Act or declaration about pedigree surrounding circumstances, such as the
(4) Family reputation or tradition regarding nature of the declarant’s injury and conduct
pedigree that would justify a conclusion that there was
(5) Common reputation consciousness of impending death. [People v.
(6) Part of the res gestae Latayada (G.R. No. 146865. February 18,
(7) Entries in the course of business 2004)]
(8) Entries in official records  The admissibility of an ante mortem
(9) Commercial lists and the like declaration is not affected by the fact that the
(10) Learned treaties declarant died hours or several days after
(11) Testimony or deposition at a former trial making his declaration. It is sufficient that he
believe himself in imminent danger of death
DYING DECLARATION at the time of such declaration. [Herrera, pg.
Also known as “antemortem statement” or 600 citing People v. Ericta 77 SCRA 199]
“statement in articulo mortis” [Sec. 37, Rule 130]
OBJECTIONS TO THE DYING DECLARATION
REQUISITES FOR ADMISSIBILITY  May be premised on any of the requisites for
(1) Declaration is one made by a dying person; its admissibility embodied in Sec. 37 of Rule
(2) Declaration was made under the 130. Counsel who wants a dying declaration
consciousness of an impending death; excluded must have to deal with the primary
(3) Declaration refers to cause and surrounding question of whether or not the evidentiary
circumstances of such death; foundations for the introduction where met.
(4) Declaration is offered in any case wherein his [Riano]
death is the subject of inquiry;  Dying declarations are admissible in favor of
(5) Declarant is competent as a witness had he the defendant as well as against him. [US v.
survived [Geraldo v People (G.R. No. 173608. Antipolo(37 Phil. 726, March 6, 1918)]
November 20, 2008)]; and
(6) Declarant should have died. [People v.
Macandog (G.R. No. 129534 and 1411691, June
6, 2001)]
PAGE 369
DECLARATION AGAINST INTEREST AS DISTINGUISHED FROM ADMISSIONS

[ESTRADA V. DESIERTO (APRIL 3, 2001)]
REQUISITES FOR ADMISSIBILITY Admission by a party Declaration against
(1) Declarant is dead or unable to testify; (Rule 130.26) Interest (Rule 130.38)
(2) Declaration relates to a fact against the Admitter is a party Declarant is neither a
interest of the declarant; himself, or in privity party nor in privity with
(3) At the time he made said declaration, with such party; a party;
declarant was aware that the same was
contrary to his interest; and Admissible whether or Admissible only when
(4) Declarant had no motive to falsify and not admitter is declarant is
believed such declaration to be true [sec. 38, available as a witness unavailable as a
Rule 130] witness;
Can be made any time, Must have been made
 Inability to testify means that the person is even during trial; ante litem motam;
dead, mentally incapacitated or physically Admissible only Admissible even
incompetent. Mere absence from the against the admitter; against 3rd persons;
jurisdiction does not make him ipso facto and and
unavailable. [Fuentes v. CA (G.R. No. 111692.
February 9, 1996)] Admissible not as an Admissible as an
 Declaration against interest made by the exception to any rule exception to the
deceased, or by one unable to testify, is hearsay rule
admissible even against the declarant’s Made against one’s Made against one’s
successors-in-interest or even against third claim or defense, pecuniary or moral
persons [Sec. 38, Rule 130] although not moral or interest
pecuniary interest
ACTUAL OR REAL INTEREST
Primary evidence Secondary evidence
It is essential that at the time of the statement,
the declarant’s interest affected thereby should
be actual, real or apparent, not merely ACT OR DECLARATION ABOUT
contingent, future or, conditional; otherwise the PEDIGREE
declaration would not in reality be against
interest. (example: declarations regarding a REQUISITES FOR ADMISSIBILITY
declarant’s inheritance are not admissible (1) Declarant is dead or unable to testify;
because these are future interests) [Herrera, pg. (2) The pedigree is in issue or is relevant thereto;
625] [Herrera, pg. 641]
(3) Declarant must be related by birth or
ADMISSIBLE AGAINST THIRD PERSONS marriage to the person whose pedigree is in
If all the requisites for admission of a issue;
declaration against interest are present, the (4) Declaration was made before the
admission is admissible not only against the controversy; and
declarant but against third persons. [Herrera, (5) Relationship between the declarant and the
pg. 626 citing Viacrusis v. CA, 44 SCRA 176] person whose pedigree is in question must
be shown by evidence other than such
declaration. [Sec. 39, Rule 130]
PAGE 370
PEDIGREE INCLUDES OTHER ADMISSIBLE EVIDENCE

(1) Relationship; (1) Entries in family bibles or other family books;
(2) Family genealogy; (2) Charts;
(3) Birth; (3) Engravings on rings;
(4) Marriage; (4) Family portraits and the like [Sec. 40, Rule
(5) Death; 130]
(6) Dates when these facts occurred;
(7) Places where these facts occurred;  This enumeration, by ejusdem generis, is
(8) Names of relatives; and limited to "family possessions," or those
(9) Facts of family history intimately connected articles which represent, in effect, a family's
with pedigree. [Sec. 39, Rule 130] joint statement of its belief as to the pedigree
of a person. [Jison v. CA (G.R. No. 124853.
“PROOF OTHER THAN DECLARATION” February 24, 1998)]
General Rule: Proof of relationship must be  A person’s statement as to his date of birth
shown in evidence other than the declaration. and age, as he learned of these from his
parents or relatives, is an ante litem motam
Exception: The general rule does not apply declaration of a family tradition. [Gravador v.
where the claim is sought to reach the estate of Mamigo (G.R. No. L-24989 July 21, 1967)]
the declarant himself, and not merely to
establish a right through his declarations to the Distinguished from Declaration about Pedigree
property of some other member of the family. [Herrera, pp. 662-663]
[Tison v. CA (G.R. No. 121027. July 31, 1997)]
Sec. 39 – Declaration Sec. 40 – Family
about Pedigree Reputation or Tradition
NOT APPLICABLE TO ADOPTION
The rule allowing proof of pedigree is not There must be a The witness testifying
applicable to adoption. The absence of proof of declarant and a to the family reputation
an order of adoption by the court, as provided witness and tradition must be a
by statute, cannot be substituted by parol The witness need not member of the family
evidence that the child has lived with a person, be a relative of the member of the person
not his parent, and was treated as child during person whose pedigree whose pedigree is in
the latter’s lifetime. [Herrera, pg. 468 citing is in question, it must controversy.
Lazatin v. Campos (G.R. No. L-43955-56 July 30, be the declarant.
1979)]
Independent evidence The witness may testify
PEDIGREE DECLARATION BY CONDUCT is needed to establish on the relationship
This rule may also consist of proof of acts or relationship between between such
conduct of relatives and the mode of treatment declarant and person relationship himself.
in the family of one whose parentage is in whose pedigree is in The author of the
question. [Herrera, pg. 649] issue reputation need not be
established by
independent evidence.
FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
COMMON REPUTATION
REQUISITES FOR ADMISSIBILITY
(1) Witness must be a member, by REQUISITES FOR ADMISSIBILITY
consanguinity or affinity, of the same family (1) Reputation pertains to:
as the subject; and (a) facts of public or general interest more
(2) Such reputation or tradition must have than 30 years old,
existed in that family ante litem motam. [sec. (b) marriage, or
40, Rule 130] (c) moral character
(2) Common reputation existed ante litem
motam. [sec. 41, Rule 130]
PAGE 371
OTHER ADMISSIBLE EVIDENCE (c) Statement refer to occurrence in question

(1) Monuments and attending circumstances (Sec. 42,
(2) Inscriptions in public places [sec. 41, Rule 130] Rule 130) or that the statements must
concern the occurrence in question and its
 Pedigree may be established by reputation in immediate attending circumstances
the family, but not in the community. [Rule [Talidano v. Falcom Maritime (2008)]
130, Secs. 40-41] (2) Verbal acts - Statements, which accompany
 Common reputation is hearsay like any other an equivocal act material to the issue and
exception to the hearsay rule, but is give it a legal significance
admissible because of trustworthiness. [Riano (a) Principal act must be equivocal
citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL (b) Act must be material to the issue
535, 542] (c) Statement must accompany the equivocal
 Reputation has been held admissible as act
evidence of age, birth, race, or race-ancestry, (d) Statement gives legal significance to
and on the question of whether a child was equivocal act [Talidano v. Falcom Maritime
born alive. [In re: Florencio Mallare (A.M. No. (2008)]
533 September 12, 1974)] (e) Must be made at the time, not after, the
 Unlike that of matters of pedigree, general equivocal act was being performed
reputation of marriage may proceed from
persons who are not members of the family —  A dying declaration can be made only by the
the reason for the distinction is the public victim after the attack while a statement as
interest that is taken in the question of the part of the res gestae may be that of the killer
existence of marital relations. [n re: Florencio himself after or during the killing. [People v.
Mallare (supra)] Reyes]
 A statement not admissible as dying
PART OF THE RES GESTAE declaration because it was not made under
consciousness of impending death, may still
RES GESTAE (MEANING) be admissible as part of res gestae if made
This expression signifies merely “transactions” immediately after the incident. [People v.
or “things done” and is used in common law as Reyes]
meaning the circumstances which are
automatic and undersigned incidents of the ENTRIES IN THE COURSE OF
particular act in issue, and which are admissible BUSINESS
in evidence when illustrative and explanatory of
the act. [Herrera, pg. 683] REQUISITES FOR ADMISSIBILITY
(1) Entries were made at, or near the time of the
ADMISSIBLE STATEMENTS transactions referred to;
(1) Spontaneous statements - Statements made (2) Such entries were made in the ordinary or
by a person while a startling occurrence is regular course of business or duty;
taking place or immediately prior or (3) Entrant was in a position to know the facts
subsequent thereto, with respect to the stated in the entries;
circumstances thereof: (4) Entrant did so in his professional capacity, or
(a) Principal act be a startling occurrence in the performance of duty and in the regular
(b) Statement made before declarant had course of business; and
opportunity to contrive [Talidano v. (5) Entrant is now dead or unable to testify.
Falcom Maritime (2008)] [Northwest Airlines v. Chiong (2008)]
PAGE 372
 If the entrant is available as a witness, the COMMERCIAL LISTS AND THE LIKE
entries will not be admitted, but they may
nevertheless be availed of by said entrant as a REQUISITES FOR ADMISSIBILITY
memorandum to refresh his memory while (1) Statements of matters of interest to persons
testifying on the transactions reflected engaged in an occupation; [Herrera, pg. 758]
therein. [CangYui v. Gardner (1916)] (2) Such statements are contained in a list;
 “Business records” are exempt from the (3) Compilation is published for use by persons
hearsay rule. [Rule 8, sec. 1, Rules on engaged in that occupation; and
Electronic Evidence] (4) It is generally used and relied upon by them.
 Entries in the payroll, being entries in the
course of business, enjoy the presumption of NEED OF PRELIMINARY PROOF OF
regularity [Sapio v. Undaloc Construction TRUSTWORTHINESS
(2008)] There should be requirements of preliminary
proof of trustworthiness before such lists are
REASON FOR RULE rendered admissible. Some proof must be
 The duty of the employees to communicate shown how or in what manner it was made up,
facts is of itself a badge of trustworthiness of where the information it contained was
the entries [Security Bank and Trust Company obtained, or whether the quotation of prices
v. Gan (2006)] made were derived from actual sales or
 These entries are accorded unusual reliability otherwise. [Herrera, pg. 760]
because their regularity and continuity are
calculated to discipline record keepers in the LEARNED TREATISES
habit of precision. [LBP v. Monet’s Export and
Manufacturing Corp. (2010)] REQUISITES FOR ADMISSIBILITY
(1) Published treatise, periodical or pamphlet is
ENTRIES IN OFFICIAL RECORDS on a subject of history, law, science, or art;
REQUISITES FOR ADMISSIBILITY and
(1) Entries were made by a public officer in the (2) Court takes either:
performance of his duties or by a person in (a) judicial notice of it, or
the performance of a duty specially enjoined (b) witness expert in the subject testifies that
by law [sec. 44, Rule 130]; the writer of the statement in the treatise,
(2) Entrant must have personal knowledge of periodical or pamphlet is recognized in his
the facts stated by him or such facts acquired profession or calling as expert in the
by him from reports made by persons under subject
a legal duty to submit the same [Barcelon,
Roxas Securities v. CIR (2006)]; and TESTIMONY OR DEPOSITION AT A
(3) Entries were duly entered in a regular FORMER TRIAL
manner in the official records.
REQUISITES FOR ADMISSIBILITY [SEC. 47,
 Entries in official records, just like entries in RULE 130; MANLICLIC V. CALAUNAN (G.R.
the course of business, are merely prima facie NO. 150157 JANUARY 25, 2007)]
evidence of the facts therein stated. [secs. 43- (1) Witness is dead or unable to testify;
44, Rule 130] (2) His testimony or deposition was given in a
 Entries in a police blotter are not conclusive former case or proceeding, judicial or
proof of the truth of such entries. [People v. administrative, between the same parties or
Cabuang (G.R. No. 103292 January 27, 1993)] those representing the same interests;
 Baptismal certificates or parochial records of (3) Former case involved the same subject as
baptism are not official records. [Fortus v. that in the present case although on
Novero (G.R. No. L-22378 June 29, 1968)] different causes of action;
PAGE 373
(4) Issue testified to by the witness in the former COURT DISCRETION TO EXCLUDE OR
trial is the same issue involved in the present INCLUDE EXPERT EVIDENCE
case; and If men of common understanding are capable of
(5) Adverse party had the opportunity to cross- comprehending the primary facts and drawing
examine the witness in the former case. correct conclusions from them, expert testimony
may be excluded by the Court. [Herrera pg. 787]
INABILITY TO TESTIFY (MEANING AND
COMPETENCY OF WITNESS IS A
STANDARD)
PRELIMINARY QUESTION BEFORE
The inability of the witness to testify must
TESTIMONY IS ADMITTED
proceed from a grave cause, almost amounting
It must be shown that the witness is really an
to death, as when the witness is old and has lost
expert; determination of competency is a
the power of speech. Mere refusal shall not
preliminary question. [Herrera, pg. 790]
suffice. [Tan v. CA (G.R. No. L-22793 May 16,
1967)] MODE OF EXAMINATION OF EXPERT
WITNESS
OPINION RULE He may base his opinion either on a first-hand
General Rule: The opinion of witness is not knowledge of the facts or on the basis of
admissible [Sec. 48, Rule 130.] hypothetical questions where the facts are
presented to him hypothetically, and on the
Exceptions [NOTE: Please refer to succeeding assumption that they are true, formulates his
subsections for discussion] opinion on this hypothesis. [Herrera, pg. 793]
(1) Expert witness [Rule 130, sec. 49] TEST OF HYPOTHETICAL QUESTIONS
(2) Ordinary witness [Rule 130, sec. 50] Fairness is the ultimate test of hypothetical
questions. The Court shall reject a question
OPINION OF EXPERT WITNESS [SEC. 49, which unfairly selects parts of the facts proved
RULE 130] or omits material facts. If it omits facts, it may
The opinion of a witness on a matter requiring be opposed on the ground that it is misleading.
special knowledge, skill, experience or training [Herrera, pg. 798]
which he shown to possess, may be received in
evidence. ADMISSIBILITY OF HYPOTHETICAL
QUESTION
Expert witness is one who has made the subject Admissibility of hypothetical questions depends
upon which he gives his opinion a matter of on whether it furnishes the tribunal with the
particular study, practice or observation and he means of knowing upon what premises of fact
must have particular and special knowledge on the conclusion is based. [Herrera citing Magiore
the subject. [People v. Dekingco, (G.R. No. 87685 v. Sheed (195 A. 392, 173 Md 33)]
September 13, 1990)] OPINION OF ORDINARY WITNESS [SEC. 50,
RULE 130]
Expert evidence is the testimony of one (1) If proper basis is given, and
possession in regard to a particular subject or (2) Regarding:
department of human activity not usually (a) Identity of a person about whom he has
acquired by other persons. [Herrera, pg. 787] adequate knowledge;
(b) Handwriting with which he has sufficient
QUESTION IN ADMITTING EXPERT familiarity;
TESTIMONY (c) Mental sanity of a person with whom he is
Whether the opinion called for will aid the fact sufficiently acquainted; and
finder in resolving an issue, or whether the jury (d) Impressions of the
or the judge is as well qualified as the witness to (i) emotion,
draw its own or his own deductions from the (ii) behavior,
hypothetical facts. [Herrera, pg. 787] (iii) condition, or
(iv) appearance of a person.
PAGE 374
IDENTITY OF A PERSON ABOUT WHOM HE CHARACTER EVIDENCE

HAS ADEQUATE KNOWLEDGE General Rule [Sec. 51, Rule 130]: Character
 Statements of a witness as to identity are not evidence is not admissible.
to be rejected because he is unable to
describe features of the person in question. Exceptions
[Herrera, pg. 824] (1) Criminal cases [Sec. 51(a), Rule 130]
 Identification by voice is recognized by the (2) Civil case [Sec. 51 (b), Rule 130]
courts, especially in a case where it was (3) In the case provided for in Rule 132, Sec. 14.
impossible to see the accused but the witness
has known the accused since their childhood. CHARACTER EVIDENCE (DEFINITION)
[Herrera, pp. 824-825 citing US v. Manabat The aggregate of the moral qualities which
(G.R. No. 3093, 7 Phil. 209)] belong to and distinguish an individual person;
the general result of one’s distinguishing
HANDWRITING WITH WHICH HE HAS attributes. [Herrera citing Black’s Law Dictionary,
SUFFICIENT FAMILIARITY pg. 834]
 The ordinary witness must be acquainted with
the characteristics of the handwriting of a CHARACTER DISTINGUISHED FROM
person. He may only draw on the knowledge REPUTATION
which he already has and which enables him  Character is what a man is and depends on
to recognize the handwriting. attributes he possesses. It signifies reality.
 Only experts are allowed to give conclusions  Reputation is what he is supposed to be in
from the comparison of samples of what people say he is, it depends on attributes
handwriting of a person whose handwriting which others believe one to possess. It
he is not familiar with. [Herrera, pg. 825] signifies what is accepted to be reality at
present. [Herrera citing Black’s Law Dictionary,
MENTAL SANITY OF A PERSON WITH pg. 834]
WHOM HE IS SUFFICIENTLY ACQUAINTED
These are allowed where the witness can CRIMINAL CASES
adequately describe the actions, looks or (1) Accused – May prove his good moral
symptoms of a person’s sanity or insanity which character, which is pertinent to the moral
is impossible for the court to determine. trait involved in the offense charged.
[Herrera, pg. 825] (2) Prosecution – May not prove the bad moral
character of the accused, except in rebuttal.
IMPRESSIONS OF THE EMOTION, (3) Offended Party – His/her good or bad moral
BEHAVIOR, CONDITION OR APPEARANCE character may be proved if it tends to
OF A PERSON establish in any reasonable degree the
The rule recognizes instances when a witness probability or improbability of the offense
may be permitted to state his inferences that charged.
are drawn from minute facts and details which
the witness cannot fully and properly describe in GOOD MORAL CHARACTER OF ACCUSED
court. Such expressions are expressed to the The purpose of presenting evidence of good
countenance, the eye and the general manner moral character is to prove the improbability of
and bearing of the individual; appearance which his doing the act charged. The accused may
are plainly enough recognized by a person of prove his good moral character only if it is
good judgment, but which he cannot otherwise pertinent to the moral trait involved in the
communicate by an expression of results in the offense charged. [Herrera, pg. 835]
shape of an opinion. [Herrera citing US case
Hardy v. Merill]
PAGE 375
BAD MORAL CHARACTER OF ACCUSED IN such circumstance must be proved by the

REBUTTAL proponent.
Unless and until the accused gives evidence of (b) In ruling on the admissibility of such hearsay
his good moral character the prosecution may statement, the court shall consider the time,
not introduce evidence of his bad character. content and circumstances thereof which
[Herrera citing People v. Rabanes (G.R. No. provide sufficient indicia of reliability. It shall
93709 May 8, 1992)] consider the following factors:
(1) Whether there is a motive to lie;
GOOD OR BAD MORAL CHARACTER OF (2) The general character of the declarant
OFFENDED PARTY child;
 This is usually offered in rape cases and where (3) Whether more than one person heard the
the accused invokes the defense of self- statement;
defense. (4) Whether the statement was spontaneous;
 In rape cases, the character of a woman may (5) The timing of the statement and the
be relevant and admissible on the question of relationship between the declarant child
the presence or absence of her consent. While and witness;
in homicide and assault cases, it may be used (6) Cross-examination could not show the
as evidence of the victim’s character for lack of knowledge of the declaration child;
turbulence and violence warranting the (7) The possibility of faulty recollection of the
response of the accused. [Herrera pg. 837 and declarant of child is remote; and
839] (8) The circumstances surrounding the
statement are such that there is no reason
CIVIL CASES to suppose the declarant child
 Moral character is admissible only when misrepresented the involvement of the
pertinent to the issue of character involved in accused.
the case. [Sec. 51(b), Rule 130] (c) The child witness shall be considered
 Evidence of the witness’ good character is not unavailable under the following situations:
admissible until such character has been (1) Is deceased, suffers from physical
impeached. [Sec. 14, Rule 130] infirmity, lack of memory, mental illness,
or will be exposed to severe psychological
injury; or
RULE ON EXAMINATION OF A (2) Is absent from the hearing and the
CHILD WITNESS [A.M. NO. 004- proponent of his statement has been
07-SC] unable to procure his attendance by
process or other reasonable means.
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe  When the child witness is unavailable, his
admitted in evidence in any criminal or non- hearsay testimony shall be admitted only if
criminal proceeding subject to the following corroborated by other admissible evidence.
rules:
(a) Before such hearsay statement may be APPLICABILITY OF THE RULE
admitted, its proponent shall make known to  Shall apply in all criminal proceedings and
the adverse party the intention to offer such non-criminal proceedings involving child
statement and its particulars to provide him witnesses. [Sec. 1]
a fair opportunity to object. If the child is  The ROC provisions on deposition, conditional
available, the court shall, upon motion of the examination of witnesses and evidence shall
adverse party, require the child to be present be applied suppletorily. [Sec. 32]
at the presentation of the hearsay statement
for cross-examination by the adverse part.
When the child is unavailable, the fact of
PAGE 376
MEANING OF “CHILD WITNESS” (i) If there is a substantial likelihood that

[SEC. 4 (A)] the child would suffer trauma from
(1) Any person who at the time of giving testifying in the presence of the
testimony is less than 18 years; accused, his counsel or the prosecutor.
(2) In child abuse cases a child includes one over (ii) Trauma must be of a kind which would
18 years, impair the completeness or
(a) But is found by the court as: truthfulness of the child’s testimony.
(i) Unable to fully take care of himself, or (b) Videotaped Deposition of a Child Witness
(ii) Protect himself from abuse, neglect, [Sec. 27]
cruelty, exploitation, or discrimination (i) If the court finds that the child will not
(b) Because of a physical or mental disability be able to testify in open court at trial,
or condition. it shall issue an order that the
deposition of the child be taken and
preserved by videotape.
COMPETENCY OF CHILD WITNESS (ii) The rights of the accused during trial,
especially the right to counsel and to
PRESUMPTION OF COMPETENCE
confront and cross-examine the child,
Every child is presumed qualified to be a
shall not be violated during the
witness. To rebut the presumption of
deposition.
competence enjoyed by a child, the burden of
proof lies on the party challenging his
LIVE-LINK TV TESTIMONY OF A CHILD
competence. [Sec. 6(b)]
WITNESS [SEC. 25]
 Live-link television testimony, in criminal
REQUISITES OF COMPETENCY OF A CHILD
AS WITNESS [PEOPLE V. MENDOZA (G.R. cases where the child is a victim or a witness
NO. 113791. FEBRUARY 22, 1996)]  The court may order that the testimony of the
(1) Capacity of observation; child be taken by live-link television if there is
(2) Capacity of recollection; and a substantial likelihood that the child would
(3) Capacity of communication. suffer trauma from testifying in the presence
of the accused, his counsel or the prosecutor.
 When the court finds that substantial doubt  The trauma must be of a kind which would
exists regarding the ability of the child to impair the completeness/truthfulness of the
perceive/remember/ communicate, child’s testimony.
distinguish truth from falsehood, or  If it is necessary for the child to identify the
appreciate the duty to tell the truth in court, a accused at trial, the court may allow the child
competency exam shall be conducted. to enter the courtroom for the limited purpose
 The age of the child by itself is not a sufficient of identifying the accused, or the court may
basis for a competency examination. [Sec. allow the child to identify the accused by
6(a)] observing the image of the latter on a
 The court has the duty of continuously television monitor.
assessing the competence of the child
throughout his testimony. [Sec. 6(f)] VIDEOTAPED DEPOSITION OF A CHILD
WITNESS [SEC. 27]
EXAMINATION OF A CHILD WITNESS  If the court finds that the child will not be able
(1) In open court [Sec. 11] to testify in open court at trial, it shall issue an
(2) Alternative Modes order that the deposition of the child be taken
(a) Live-Link TV Testimony, in Criminal Cases and preserved by videotape.
where Child is a Victim or a Witness [Sec.  The rights of the accused during trial,
25] especially the right to counsel and to confront
and cross-examine the child, shall not be
violated during the deposition.
PAGE 377
ADMISSIBILITY OF VIDEOTAPED AND  The individual conducting the interview of the

AUDIOTAPED IN-DEPTH INVESTIGATIVE OR child shall be available at trial for examination
DISCLOSURE INTERVIEWS IN CHILD ABUSE by any party. Before the videotape or
CASES [SEC. 29] audiotape is offered in evidence, all parties
Requisites for admissibility: shall be afforded an opportunity to view or
(a) The child witness is unable to testify in court listen to it and shall be furnished a copy of a
on grounds and under conditions established written transcript of the proceedings.
under section 28 (c) which are:  The fact that an investigative interview is not
videotaped or audiotaped as required by this
(1) Is deceased, suffers from physical section shall not by itself constitute a basis to
infirmity, lack of memory, mental illness, exclude from evidence out-of-court
or will be exposed to severe psychological statements or testimony of the child. It may,
injury; or however, be considered in determining the
reliability of the statements of the child
(2) Is absent from the hearing and the describing abuse.
proponent of his statement has been
unable to procure his attendance by HEARSAY EXCEPTION IN CHILD ABUSE
process or other reasonable means. CASES [SEC. 28]
 Proponent of hearsay statement shall make
(b) The interview of the child was conducted by known to the adverse party the intention to
duly trained members of a multidisciplinary offer such statement and its particulars.
team or representatives of law enforcement  If the child is available, court shall require the
or child protective services in situations child to be present at the presentation of the
where child abuse is suspected so as to hearsay statement for cross-examination by
determine whether child abuse occurred. the adverse party.
 If unavailable, the fact of unavailability must
(c) The party offering the videotape or audiotape be proved by the proponent and his hearsay
must prove that: testimony must be corroborated by other
admissible evidence.
(1) the videotape or audiotape discloses the
identity of all individuals present and at SEXUAL ABUSE SHIELD RULE
all times includes their images and voices; General Rule [Sec. 30(a)]: The following are
inadmissible in any criminal proceeding
(2) the statement was not made in response involving alleged child sexual abuse:
to questioning calculated to lead the child (1) Evidence offered to prove that the alleged
to make a particular statement or is victim engaged in other sexual behavior;
clearly shown to be the statement of the (2) Evidence offered to prove the sexual
child and not the product of improper predisposition of the alleged victim.
suggestion;
Exception [Sec. 30(b)]: Evidence of specific
instances of sexual behavior by the alleged
(3) the videotape and audiotape machine or
victim to prove that a person other than the
device was capable of recording
testimony; accused was the source of semen, injury or other
physical evidence.
(4) the person operating the device was PROTECTIVE ORDERS
competent to operate it;
 Video/audio tapes that are part of the court
record may be viewed only by parties, their
(5) the videotape or audiotape is authentic counsel, their expert witness and the guardian
and correct; and ad litem. [Sec. 31(b)]
(6) it has been duly preserved.
PAGE 378
 The court may issue additional orders to  However, where the absence of an offer of a
protect the child’s privacy. [Sec. 31(c)] testimonial evidence was not objected to as
 Publication (or causing it) in any format any when the witness was cross-examined by the
identifying information of a child who is or is adverse party despite failure to make an offer
alleged to be a victim/accused of a crime or a of the testimony, the court must consider the
witness thereof, or an immediate family of the testimony.
child, shall be liable for contempt of court.  The provisions of the ROC on the inclusion on
[Sec. 31(d)] appeal of documentary evidence or exhibits in
 A child has a right at any court proceeding not the records, cannot be stretched as to include
to testify regarding personal identifying such pleadings or documents not offered at
information that could endanger his physical the hearing of the case [Candido v. CA, G.R.
safety or his family. [Sec. 31(e)] No. 107493. February 1, 1996)]
WHEN FORMAL OFFER IS NOT

Offer and Objection REQUIRED
(1) In a summary proceeding because it is a
proceeding where there is no full-blown trial;
OFFER OF EVIDENCE (2) Documents judicially admitted or taken
Rule: Court shall consider no evidence which judicial notice of;
has not been formally offered. [Rule 132, Sec. 34] (3) Documents, affidavits, and depositions used
Purpose: The purpose for which the evidence is in rendering a summary judgment;
offered must be specified. (4) Documents or affidavits used in deciding
quasi-judicial or administrative cases
AS DISTINGUISHED FROM [Bantolino v. Coca Cola Bottlers (G.R. No.
IDENTIFICATION OF DOCUMENTARY 153660. June 10, 2003)]
EVIDENCE [INTERPACIFIC TRANSIT V. (5) Lost objects previously marked, identified,
described in the record, and testified to by
AVILES (G.R. NO. 86062 JUNE 6, 1990)]
witness who had been subjects of cross-
examination in respect to said objects
Identification of [Tabuena v. CA, (G.R. No. 85423 May 6, 1991)
Formal Offer of Exhibit
Documentary Evidence citing People v. Napat-a, (G.R. No. 84951
November 14, 1989)] [Riano]
Done in the course of Done only when the
the trial and party rests his/her
accompanied by the case WAIVER OF RIGHT TO MAKE A
marking of the FORMAL OFFER
evidence It is deemed waived by a party if it fails to
submit within a considerable period of time its
formal offer. [Heirs of Pasag v. Parocha (G.R. No.
WHY FORMAL OFFER IS NEEDED 155483 April 27, 2007)] In this case, the court did
 There is a need for a formal offer of evidence not allow the petitioners to present their formal
because without such offer, the court cannot offer 10 years after resting its case. In an earlier
determine whether the evidence is admissible case of Constantino v. CA (G.R. No. 116018,
or not. [Riano] November 13, 1996), the Court did not allow a
 No evidentiary value can be given to pieces of formal offer even only after three months
evidence not formally offered. [Dizon v. CTA because such would, “condone an inexcusable
(G.R. No. 140944 April 30, 2008)] laxity if not non-compliance with a court order
which, in effect, would encourage needless
delays and derail the speedy administration of
justice.”
PAGE 379
WHEN TO MAKE AN OFFER EXCLUDING INADMISSIBLE

[SEC. 35, RULE 132] EVIDENCE
(1) One has to object to the evidence;
Kind of When to offer
(2) The objection must be timely made; and
evidence
(3) The grounds for the objection must be
Testimonial At the time the witness is called specified. [Herrera, pg. 321]
to testify
Documentary After the presentation of a party’s PURPOSES OF OBJECTION [RIANO]
and Object testimonial evidence (1) Made to keep out inadmissible evidence that
would cause harm to client’s cause (rules of
 Offer shall be done orally unless allowed by evidence are not self-operating)
the court to be done in writing. (2) To protect the record (for future appeal)
(3) To protect witness from being embarrassed
 Absence of an offer is a defect which is waived
or harassed
when a party fails to object when the ground
(4) To expose adversary’s unfair tactics
became reasonably apparent, as when the
(5) To give trial court an opportunity to correct
witness is called to testify without any prior
its own errors and at the same time warn the
offer. [Catuira v. CA (G.R. No. 105813
court that a ruling adverse to the objector
September 12, 1994)]
may supply a reason to invoke a higher
 The defect caused by the absence of formal court’s appellate jurisdiction; and
offer of exhibits can be cured by the (6) To avoid a waiver of inadmissibility
identification of the exhibits by testimony duly
recorded and the incorporation of the said
 Objections must be specific enough to
exhibits in the records of the case. [People v.
adequately inform the court the rule of
Mate (G.R. No. L-34754 March 27, 1981)]
evidence or of substantive law that authorizes
 The defendant cannot offer his evidence the exclusion of evidence [Riano]
before the plaintiff has rested. [Herrera citing
 General Objections do not clearly indicate to
Engersail v. Malabon Sugar Co., 53 Phil. 7450]
the judge the ground upon which the
objections are predicated. In cases where the
OBJECTION [SEC. 36, RULE 132] incompetency of the evidence is so palpable
CONCEPT that a mere general objection is deemed
What to object to When to object sufficient and where the portion of the
evidence objected to is clearly pointed out,
Testimonial evidence Immediately after offer and its illegality is apparent on its face, then
is made the objection must be allowed. [Riano]
Question propounded As soon as the grounds
in the course of oral become reasonably FORMAL V. SUBSTANTIVE
examination apparent OBJECTIONS [RIANO]
Offer done in writing Within 3 days after Formal – one directed against the alleged
notice of the offer, defect in the formulation of the question
unless a different
period is allowed by the Substantive – objections made and directed
court against the very nature of the evidence
The grounds for objection must be specified in WAIVER OF OBJECTION
any case. When the party should have objected but did
not. The failure to point out a defect, irregularity
or wrong in the admission or exclusion of
evidence. [Riano]
PAGE 380
EFFECT OF WAIVER NO EXPRESS RULING NEEDED

A waiver of objection should not be construed  The trial court need not make an express
as an admission that the evidence is credible. ruling admitting the exhibits if there is no
The scope of the waiver is only either on the objection interposed to their admission.
relevance or competence of the evidence. [Herrera, pg. 336 citing Boix v. Rivera, CA Rep.
[Riano] 2d 104]
 The ruling of the court is required only when
REPETITION OF AN OBJECTION there is an objection to a question or to the
[SEC. 37, RULE 132] admission of an exhibit. [Herrera, pg. 336]
 A court may, motu proprio, treat the objection
as a continuing one. [Keller v. Ellerman & STRIKING OUT AN ANSWER
Bucknall Steamship (G.R. No. L-12308 [SEC. 39, RULE 132]
August 28, 1918)] MOTION TO STRIKE
 An objection must be seasonably made at the (1) Court may sustain an objection and order the
time it is formally offered. Objection prior to answer given to be stricken off the record if:
the formal offer is premature and could not be (a) witness answers the question before the
considered by the Court as basis for a adverse party had the opportunity to
continuing one. [Interpacific Transit v. Aviles object, and
(supra)] (b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the
RULING ON THE OBJECTION striking out of answers, which are
[SEC. 38, RULE 132] (a) incompetent,
 The ruling should be given immediately after (b) irrelevant or
(c) otherwise improper.
the objection is made, unless the court desires
to take a reasonable time to inform itself on
the question presented. OTHER CASES WHEN MOTION TO
 The reason for sustaining or overruling an STRIKE IS PROPER
objection need not be stated. However, if the (1) When the answer of the witness is
objection is based on two or more grounds, a unresponsive;
ruling sustaining the objection on one or some (2) When the witness becomes unavailable for
of them must specify the ground/s relied cross-examination through no fault of the
upon. cross-examining party;
 Reservation of a ruling by the court on an (3) When the testimony is allowed conditionally
objection to the admissibility of evidence, and the condition for its admissibility was not
without subsequently excluding the same, fulfilled; [Riano]
amounts to a denial of an objection. [People v. (4) Where evidence has been properly received,
Tavera (G.R. No. L-23172 March 17, 1925)] and its effect has been destroyed by other
evidence, or its admissibility has afterward
POR LO QUEPUEDOVALER become apparent; [Herrera, pg. 340]
PRINCIPLE  A motion to strike out goes to admissibility
The Supreme Court encourages the admission and not to weight; evidence should not be
or borderline evidence for whatever it is worth or stricken out because of its little probative
por lo quepuedovaler. [Prats & Co. v. Phoenix value. [Herrera, pg. 340]
Insurance (52 Phil. 807 February 25, 1930)]
MOTION TO STRIKE OUT SHOULD
SPECIFY OBJECTION
A motion to strike out should specify the
objection as well as the portion of the evidence
which is objected to. [Herrera, pg. 340]
PAGE 381
TENDER OF EXCLUDED HARMLESS ERROR RULE [PEOPLE V.

EVIDENCE [SEC. 40, RULE 132] TEEHANKEE (G.R. NOS. 111206-08
Documents marked as exhibits during the OCTOBER 6, 1995)]
hearing but which were not formally offered in In dealing with evidence improperly admitted in
evidence cannot be considered as evidence nor trial, we examine its damaging quality and its
shall they have evidentiary value. [Vda. De Flores impact to the substantive rights of the litigants.
v. Workmen’s Compensation Commission (G.R. If the impact is slight and insignificant, we
No. L-43316 July 21, 1977)] disregard the error as it will not overcome the
weight of the properly admitted evidence
HOW TO TENDER EVIDENCE against the prejudiced party.
Kind of evidence How to tender the evidence
Documentary Offeror may have the same
attached or made part of
the record
Testimonial Offeror may state for the
record the name and other
personal circumstances of
the witness and the
substance of the proposed
testimony
Rationale
(a) to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the
evidence or testimony; and
(b) even if he is not convinced to reverse his
earlier ruling, the tender is made to create
and preserve a record for appeal [Riano]
TWO METHODS OF MAKING THE

TENDER: [RIANO]
(a) Where the counsel tells the court what the
proposed testimony would be;
(b) By using the question and answer form
ERRONEOUS WAY OF MAKING

TENDER
 To make a mere general “offer of proof”
without producing the witness or stating the
evidence where by the fact in issue is to be
proved. [Riano]
 The SC had advised trial courts to allow the
rejected [documentary] evidence to be
attached to the record to enable the appellate
court to examine the same and determine
whether the exclusion of the same was proper
or not. [Herrera citing Banez v. CA, (G.R. No. L-
30351 September 11, 1974)]
PAGE 382
UP LAW BOC RULES OF PROCEDURE FOR ENVIRONMENTAL CASES REMEDIAL LAW
PAGE 383
Scope and Applicability of (18) R.A. No. 8749, Clean Air Act;
(19) R.A. No. 9003, Ecological Solid Waste
the Rule Management Act;
(20) R.A. No. 9072, National Caves and Cave
Resource Management Act;
These Rules shall govern the procedure in
(21) R.A. No. 9147, Wildlife Conservation and
(1) civil,
Protection Act;
(2) criminal and
(22) R.A. No. 9175, Chainsaw Act;
(3) special civil actions
(23) R.A. No. 9275, Clean Water Act;
(24) R.A. No. 9483, Oil Spill Compensation Act
Involving enforcement or violations of
of 2007; and
environmental and other related laws, rules and
(25) Provisions in C.A. No. 141, The Public Land
regulations such as but not limited to the
Act; R.A. No. 6657, Comprehensive
following:
Agrarian Reform Law of 1988; R.A. No.
7160, Local Government Code of 1991; R.A.
(1) Act No. 3572, Prohibition Against Cutting
No. 7161, Tax Laws Incorporated in the
of Tindalo, Akli, and Molave Trees;
Revised Forestry Code and Other
(2) P.D. No. 705, Revised Forestry Code;
Environmental Laws (Amending the NIRC);
(3) P.D. No. 856, Sanitation Code;
R.A. No. 7308, Seed Industry Development
(4) P.D. No. 979, Marine Pollution Decree;
Act of 1992; R.A. No. 7900, High-Value
(5) P.D. No. 1067, Water Code;
Crops Development
(6) P.D. No. 1151, Philippine Environmental
(26) Rules of Procedure for Environmental
Policy of 1977;
Cases Act; R.A. No. 8048, Coconut
(7) P.D. No. 1433, Plant Quarantine Law of
Preservation Act; R.A. No. 8435,
1978;
Agriculture and Fisheries Modernization
(8) P.D. No. 1586, Establishing an
Act of 1997; R.A. No. 9522, The Philippine
Environmental Impact Statement System
Archipelagic Baselines Law; R.A. No. 9593,
Including Other Environmental
Renewable Energy Act of 2008; R.A. No.
Management Related Measures and for
9637, Philippine Biofuels Act; and other
Other Purposes;
existing laws that relate to the
(9) R.A. No. 3571, Prohibition Against the
conservation, development, preservation,
Cutting, Destroying or Injuring of Planted
protection and utilization of the
or Growing Trees, Flowering Plants and
environment and natural resources. [Rule 1,
Shrubs or Plants of Scenic Value along
Sec. 3]
Public Roads, in Plazas, Parks, School
Premises or in any Other Public Ground;
(10) R.A. No. 4850, Laguna Lake Development
Authority Act;
(11) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
(12) R.A. No. 7076, People’s Small-Scale
Mining Act;
(13) R.A. No. 7586, National Integrated
Protected Areas System Act including all
laws, decrees, orders, proclamations and
issuances establishing protected areas;
(14) R.A. No. 7611, Strategic Environmental
Plan for Palawan Act;
(15) R.A. No. 7942, Philippine Mining Act;
(16) R.A. No. 8371, Indigenous Peoples Rights
Act;
(17) R.A. No. 8550, Philippine Fisheries Code;
PAGE 384
Civil Procedure PROCEDURE

Filing of verified Complaint accompanied by
WHO MAY FILE 1) documents, affidavits, and/or objects to
Any real party in interest, including the prove cause of action and
government and juridical entities authorized by 2) certification against forum shopping
law, may file a civil action involving the 
enforcement or violation of any environmental Referral/Assignment by raffle to branch of
law. [Rule 2, Sec.4] court

Citizen Suit – Any Filipino citizen in Issuance of Temporary Environmental
representation of others, including minors or Protection Order (TEPO), when proper,
generations yet unborn, may file an action to effective for 72 hours from receipt and, during
enforce rights or obligations under the same period, conduct of a summary
environmental laws. Upon the filing of a citizen hearing for the extension of the effectivity of
suit, the court shall issue an order which shall the TEPO
contain a brief description of the cause of action 
and the reliefs prayed for, requiring all Service of Summons
interested parties to manifest their interest to 
intervene in the case within fifteen (15) days Filing of verified Answer within 15 days from
from notice thereof. The plaintiff may publish receipt of summons
the order once in a newspaper of a general

circulation in the Philippines or furnish all
Issuance of Notice of Pre-trial within 2 days
affected barangays copies of said order.
from filing of Answer
 Citizen suits filed under R.A. No. 8749 [Clean
Air Act] and R.A. No. 9003 [Ecological Solid 
Waste Management Act] shall be governed by Submission of Pre-Trial briefs 3 days before
their respective provisions. [Rule 2, Sec. 5] pre-trial

Referral to Mediation, Mediation and
PROHIBITION AGAINST Mediation Report
TEMPORARY RESTRAINING 
ORDER AND PRELIMINARY Preliminary Conference
INJUNCTION 
 Except the Supreme Court, no court can issue Pre-trial Conference/s
a TRO or writ of preliminary injunction against 
lawful actions of government agencies that Pre-trial Order
enforce environmental laws or prevent 
violations thereof. [Rule 2, Sec. 1]) Continuous Trial
 Where the issuance of a TEPO is premised on 
the violation of an environmental law or a Judgment and Execution
threatened damage or injury to
theenvironment by any person, even the
government and its agencies,the prohibition
against the issuance of a TRO or preliminary
injunctionis premised on the presumption of
regularity on the government andits agencies
in enforcing environmental laws and
protecting theenvironment. [Annotation to the
Rules of Procedure for Environmental Cases,
Supreme Court Sub-Committee]
PAGE 385
TEMPORARY ENVIRONMENTAL PRE-TRIAL CONFERENCE;

PROTECTION ORDER (TEPO) CONSENT DECREE
 The judge shall put the parties and their
GROUND FOR ISSUANCE counsels under oath, and they shall remain
If it appears from the complaint that— under oath in all pre-trial conferences.
(1) the matter is of extreme urgency and  The judge shall exert best efforts to persuade
(2) the applicant will suffer grave injustice and the parties to arrive at a settlement of the
irreparable injury [Rule 2, Sec. 8] dispute. The judge may issue a consent
decree approving the agreement between the
PERIOD OF EFFECTIVITY parties in accordance with law, morals, public
Seventy-two (72) hours from date of the receipt order and public policy to protect the right of
of the TEPO by the party or person the people to a balanced and healthful
enjoined[Rule 2, Sec. 8] ecology.
 Evidence not presented during the pre-trial,
DUTY OF COURT except newly-discovered evidence, shall be
deemed waived. [Rule 3, Sec.5]
 The court where the case is assigned, shall
periodically monitor the existence of acts that
Consent decree - refers to a judicially-approved
are the subject matter of the TEPO even if
settlement between concerned parties based on
issued by the executive judge, and may lift the
public interest and public policy to protect and
same at any time as circumstances may
preserve the environment. [Rule 1, Sec. 4[b]]
warrant. [Rule 2, Sec. 8]
 The judge shall report any action taken on a
TEPO, EPO, TRO or a preliminary injunction, PROHIBITED PLEADINGS AND
including its modification and dissolution, to MOTIONS
the Supreme Court, through the Office of the The following pleadings or motions shall not be
Court Administrator, within ten (10) days from allowed:
the action taken. [Rule 2, Sec. 11] (1) Motion to dismiss the complaint;
GROUND TO DISSOLVE TEPO (3) Motion for extension of time to file pleadings,
A TEPO may be dissolved if it appears after except to file answer, the extension not to
hearing that its issuance or continuance would exceed fifteen (15) days;
cause irreparable damage to the party or person (4) Motion to declare the defendant in default;
enjoined while the applicant may be fully (5) Reply and rejoinder; and
compensated for such damages as he may (6) Third party complaint. [Rule 2, Sec. 2]
suffer and subject to the posting of a sufficient
bond by the party or person enjoined. [Rule 2, PERIOD TO TRY AND DECIDE
Sec. 9]  The court shall have a period of one (1) year
from the filing of the complaint to try and
DECLARATION OF DEFAULT MOTU decide the case. Before the expiration of the
PROPRIO one-year period, the court may petition the
Should the defendant fail to answer the Supreme Court for the extension of the period
complaint within the period provided, the court for justifiable cause.
shall declare defendant in default and upon  The court shall prioritize the adjudication of
motion of the plaintiff, shall receive evidence ex environmental cases. [Rule 4, Sec. 5]
parte and render judgment based thereon and
the reliefs prayed for. [Rule 2, Sec. 15]
PAGE 386
JUDGMENT AND EXECUTION; Continuing mandamus - is a writ issued by a

court in an environmental case directing any
RELIEFS IN A CITIZEN SUIT agency or instrumentality of the government or
RELIEFS IN A CITIZEN SUIT officer thereof to perform an act or series of acts
If warranted, the court may grant to the plaintiff decreed by final judgment which shall remain
proper reliefs which shall include— effective until judgment is fully satisfied [Rule 1,
(1) the protection, preservation or rehabilitation Sec. 4[c]]
of the environment AND  The court may, by itself or through the
(2) the payment of attorney’s fees, costs of suit appropriate government agency, monitor the
and other litigation expenses execution of the judgment and require the
party concerned to submit written reports on
The court may also require the violator a quarterly basis or sooner as may be
(1) to submit a program of rehabilitation or necessary, detailing the progress of the
restoration of the environment, the costs of execution and satisfaction of the judgment.
which shall be borne by the violator OR The other party may, at its option, submit its
(2) to contribute to a special trust fund for that comments or observations on the execution of
purpose subject to the control of the court the judgment. [Rule 5, Sec.3]
[Rule 5, Sec. 1]
STRATEGIC LAWSUIT AGAINST
NO DAMAGES CAN BE AWARDED IN PUBLIC PARTICIPATION
A CITIZEN SUIT
This measure is in line with the policy that a (SLAPP)
citizen suit is filed in the public interest, and in  SLAPP refers to a legal action filed to harass,
effect, it is the environment which is vindicated vex, exert undue pressure or stifle any legal
in the action. The only recourse of a party or recourse that any person, institution or the
person who wishes to recover damages for government has taken or may take in the
injury suffered is to file a separate action under enforcement of environmental laws,
Sec. 4, Rule 2. [Annotation to the Rules of protection of the environment or assertion of
Procedure for Environmental Cases, Supreme environmental rights. [Rule 6, Sec. 1]
Court Sub-Committee]  The SLAPP provisions apply not only to suits
that have been filed in the form of a
JUDGMENT NOT STAYED BY APPEAL countersuit, but also to suits that are about to
Any judgment directing the performance of acts be filed with the intention of discouraging the
for the protection, preservation or rehabilitation aggrieved person from bringing a valid
of the environment shall be executory pending environmental complaint before the court.
appeal unless restrained by the appellate court.  Illustrations:
[Rule 5, Sec. 2] (1) X files a complaint in an environmental
case against A (violator of environmental
laws) and the A retaliates by filing a
PERMANENT ENVIRONMENTAL complaint for damages against X;
PROTECTION ORDER; WRIT OF (2) X is a witness in a pending environmental
CONTINUING MANDAMUS case against A and A retaliates by filing a
In the judgment, the court may— complaint for damages or libel against X;
(1) convert the TEPO to a permanent EPO OR or
(2) issue a writ of continuing mandamus (3) X is an environmental advocate who rallies
directing the performance of acts which shall for the protection of environmental rights
be effective until the judgment is fully and a complaint for damages is filed
satisfied [Rule 5, Sec. 3] against him by A.(Annotation to the Rules
of Procedure for Environmental Cases,
Supreme Court Sub-Committee)
PAGE 387
SLAPP AS A DEFENSE Acts Covered by the Writ

 If the suit is a SLAPP, such may be raised as Unlawful act or omission of a public official or
an affirmative defense in the Answer along employee, or private individual or entity,
with other defenses. involving environmental damage of such
 If SLAPP is interposed as a defense, it is magnitude as to prejudice the life, health or
mandatory for adverse party to file an property of inhabitants in two or more cities or
Opposition [Rule 6, Sec. 2] provinces. [Rule 7, Sec.1]
 The hearing on the defense of a SLAPP shall
Where to File
be summary in nature and shall be resolved
The petition shall be filed with the Supreme
within 30 days after the summary hearing
Court or with any of the stations of the Court of
[Rule 6, Secs. 3 & 4]
Appeals. [Rule 7, Sec.3]
QUANTUM OF EVIDENCE Procedure
 Party asserting that claim is a SLAPP must Filing of verified Petition with Certificate
prove such with substantial evidence. Against Forum Shopping
 If the court finds aSLAPP defense valid, the 
plaintiff is required to prove the following: Issuance of Writ of Kalikasan within 3 days
(1) that the case is not a SLAPP; and from filing of petition
(2) the merits of the case

(3) with preponderance of evidence. [Rule 6,
Sec.3] Service of the Writ

RESOLUTION OF THE DEFENSE OF A Filing of a verified Return within a non-
extendible period of ten (10) days after service
SLAPP of the writ
 If action is dismissed, dismissal is with 
prejudice Hearing (Court may call for preliminary
 If defense is rejected, action will proceed and conference)
evidence adduced during the summary

hearing shall be treated as evidence of the
Judgment
parties on the merits of the case [Rule 6, Sec.
4]
PROHIBITED PLEADINGS AND
MOTIONS
Special Civil Actions The following pleadings and motions are
prohibited:
(1) Motion to dismiss;
WRIT OF KALIKASAN (2) Motion for extension of time to file return;
(3) Motion for postponement;
Who May File
(1) natural or juridical person,
(5) Counterclaim or cross-claim;
(2) entity authorized by law,
(6) Third-party complaint;
(3) people’s organization, non-governmental
(7) Reply; and
organization, or any public interest group
(8) Motion to declare respondent in default.
accredited by or registered with any
[Rule 7, Sec. 9]
government agency, on behalf of persons
whose constitutional right to a balanced and
healthful ecology is violated…involving
environmental damage of such magnitude
as to prejudice the life, health or property of
inhabitants in two or more cities or provinces.
PAGE 388
DISCOVERY MEASURES WRIT OF CONTINUING

The following discovery measures are available MANDAMUS
to ALL parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and
WHEN AVAILABLE
(1) An agency or instrumentality of the
things [Rule 7, Sec.12]
government or officer thereof either:
(a) unlawfully neglects the performance of an
 The motion must show that a production
act which the law specifically enjoins as a
order is necessary to establish the magnitude
duty resulting from an office, trust or
of the violation or the threat as to prejudice
station in connection with the
the life, health or property of inhabitants in
enforcement or violation of an
two or more cities or provinces. environmental law rule or regulation or a
right therein OR
OCULAR INSPECTION (b) unlawfully excludes another from the use
Purpose is to order any person in possession or or enjoyment of such right
control of a designated land or other property to (2) there is no other plain, speedy and adequate
permit entry for the purpose of inspecting remedy in the ordinary course of law [Rule 8,
orphotographing the property or any relevant Sec.1]
object or operation thereon.
WHERE TO FILE
PRODUCTION OR INSPECTION OF (1) Regional Trial Court exercising jurisdiction
DOCUMENTS AND THINGS over the territory where the actionable
Purpose is to order any person in possession, neglect or omission occurred
custody or control of any designated (2) Court of Appeals
documents, papers, books, accounts, letters, (3) Supreme Court [Rule 8, Sec. 2]
photographs, objects or tangible things, or
objects in digitized or electronic form, which PROCEDURE
constitute or contain evidence relevant to the File a verified Petition with prayer that
petition or the return, to produce and permit respondent be ordered to do an act or series
their inspection, copying or photographing by or of acts until the judgment is fully satisfied,
on behalf of the movant. and to pay damages + Certification Against
Forum Shopping
APPEAL 
Within fifteen (15) days from the date of notice Issuance of Writ of Continuing Mandamus
of the adverse judgment or denial of motion for and Order to Comment
reconsideration, any party may appeal to the 
Supreme Court under Rule 45 of the Rules of
Filing of Comment within 10 days after
Court. The appeal may raise questions of fact.
receipt of Order
[Rule 7, Sec. 16]

Summary Hearing

Judgment

Return of the Writ
PAGE 389
DISTINCTIONS BETWEEN WRIT OF KALIKASAN AND WRIT OF CONTINUING

MANDAMUS
Kalikasan Continuing Mandamus
Directed
Available against an unlawful against (a) the unlawful neglect in the
act or omission of a public performance of an
official or employee, or private act specifically enjoined by law in
individual or entity, involving connection with the
Subject Matter environmental damage of enforcement/violation of an envt’l rule
such magnitude as to or (b) the unlawfully exclusion of
prejudice the life, health or another from the use or enjoyment of
property of inhabitants in two such right and in both instances, there
or more cities or provinces. is no other plain, speedy and adequate
remedy in the ordinary course of law.
1) natural and juridical

persons, 2) entities authorized
by law, 3) POs, NGOs, PIG, on
behalf of
Person personally aggrieved by the
Who May File persons whose right to a
unlawful act or omission
balanced and healthful
ecology
is violated or threatened to be
violated
May be public or private

Respondent Government or its officers
individual or entity
Docket Fees Exempted Exempted
(1) RTC exercising territorial jurisdiction,

Venue SC or CA (2) CA,
(3) SC
Ocular Inspection and

Discovery Measures Production or Inspection None
Order
Damages None Allowed
PAGE 390
 Individuals deputized by the proper

Criminal Procedure government agency who are enforcing
environmental laws shall enjoy the
WHO MAY FILE presumption of regularity under Section 3(m),
(1) Offended party; Rule 131 of the Rules of Court when effecting
(2) Peace officer; arrests for violations of environmental laws.
(3) Public officer charged with the enforcement [Rule 11, Sec.1]
of an environmental law [Rule 9, Sec. 1]
STRATEGIC LAWSUIT AGAINST
INSTITUTION OF CRIMINAL PUBLIC PARTICIPATION
AND CIVIL ACTION (SLAPP)
 When a criminal action is instituted, the civil The manner by which to allege that a criminal
action for the recovery of civil liability arising action is a SLAPP is through a motion to dismiss
from the offense charged, shall be deemed rather than a motion to quash. A motion to
instituted with the criminal action UNLESS dismiss allows the action to be challenged as a
the complainant waives the civil action, SLAPP, while a motion to quash is directed at
reserves the right to institute it separately or the Information. Moreover, granting a motion to
institutes the civil action prior to the criminal dismiss bars the refiling of a SLAPP in
action. accordance with the law of the case. In contrast,
 Unless the civil action has been instituted the grant of a motion to quash does not bar the
prior to the criminal action, the reservation of filing of a subsequent Information. [Annotation
the right to institute separately the civil action to the Rules of Procedure for Environmental
shall be made during arraignment. Cases, Supreme Court Sub-Committee]
 In case civil liability is imposed or damages
are awarded, the filing and other legal fees PROCEDURE IN THE CUSTODY
shall be imposed on said award in accordance
with Rule 141 of the Rules of Court, and the AND DISPOSITION OF SEIZED
fees shall constitute a first lien on the ITEMS
judgment award. The damages awarded in  The applicable rules and regulations of the
cases where there is no private offended party, concerned government agency shall be
less the filing fees, shall accrue to the funds of followed.
the agency charged with the implementation  In the absence of such rules and regulations,
of the environmental law violated. The award the following procedure shall be observed:
shall be used for the restoration and (1) Inventory. The apprehending officer having
rehabilitation of the environment adversely initial custody and control of the seized
affected.[Rule 10, Sec. 1] items, equipment, paraphernalia,
conveyances and instruments shall
ARREST WITHOUT WARRANT, physically inventory and whenever
WHEN VALID practicable, photograph the same in the
(1) When, in his presence, the person to be presence of the person from whom such
arrested has committed, is actually items were seized.
committing or is attempting to commit an
offense; or
(2) When an offense has just been committed,
and he has probable cause to believe based
on personal knowledge of facts or
circumstances that the person to be arrested
has committed it.
PAGE 391
(3) To waive the right of the accused to be

(2) Return. The apprehending officer shall present at the trial, and upon failure of the
submit to the issuing court the return of accused to appear without justification and
the search warrant within five (5) days from despite due notice, the trial may proceed in
date of seizure or in case of warrantless absentia. [Rule 13, Sec. 2]
arrest, submit within five (5) days from
date of seizure, the inventory report,  If the court grants bail, the court may issue a
compliance report, photographs, hold-departure order in appropriate cases.
representative samples and other [Rule 13, Sec.1]
pertinent documents to the public
prosecutor for appropriate action. ARRAIGNMENT AND PLEA
(3) Sale Upon Motion. Upon motion by any
interested party, the court may direct the
auction sale of seized items, equipment, WHEN
paraphernalia, tools or instruments of the The court shall set the arraignment of the
crime. The court shall, after hearing, fix the accused within fifteen (15) days from the time it
minimum bid price based on the acquires jurisdiction over the accused, with
recommendation of the concerned notice to the public prosecutor and offended
government agency. The sheriff shall party or concerned government agency that it
conduct the auction. The auction sale shall will entertain plea-bargaining on the date of the
be with notice to the accused, the person arraignment. [Rule 15, Sec. 1]
from whom the items were seized, or the
owner thereof and the concerned PLEA-BARGAINING
government agency. The notice of auction  On the scheduled date of arraignment, the
shall be posted in three conspicuous court shall consider plea-bargaining
places in the city or municipality where the arrangements.
items, equipment, paraphernalia, tools or  Where the prosecution and offended party or
instruments of the crime were seized. concerned government agency agree to the
(4) Disposition of Proceeds. The proceeds shall plea offered by the accused, the court shall:
be held in trust and deposited with the (1) Issue an order which contains the plea-
government depository bank for bargaining arrived at;
disposition according to the judgment. (2) Proceed to receive evidence on the civil
[Rule 12, Sec. 2] aspect of the case, if any; and
(3) Render and promulgate judgment of
BAIL conviction, including the civil liability for
damages. [Rule 15, Sec. 2]
WRITTEN UNDERTAKING BY
ACCUSED PRE-TRIAL
(1) To appear before the court that issued the  After the arraignment, the court shall set the
warrant of arrest for arraignment purposes pre-trial conference within thirty (30) days. It
on the date scheduled, and if the accused may refer the case to the branch clerk of
fails to appear without justification on the court, if warranted, for a preliminary
date of arraignment, accused waives the conference to be set at least three (3) days
reading of the information and authorizes prior to the pre-trial. [Rule 16, Sec. 1]
the court to enter a plea of not guilty on  Parties are required to be under oath in pre-
behalf of the accused and to set the case for trial inorder to obviate the use of false or
trial; misleading statements at this stage.
(2) To appear whenever required by the court [Annotation to the Rules of Procedure for
where the case is pending; and Environmental Cases, Supreme Court Sub-
Committee]
PAGE 392
SUBSIDIARY LIABILITIES
In case of conviction of the accused and ENTRIES IN OFFICIAL RECORDS AS
subsidiary liability is allowed by law, the court PRIMA FACIE EVIDENCE
may, by motion of the person entitled to recover Entries in official records made in the
under judgment, enforce such subsidiary performance of his duty by a public officer of the
liability against a person or corporation Philippines, or by a person in performance of a
subsidiary liable under Article 102 and Article 103 duty specially enjoined by law, are prima facie
of the Revised Penal Code. [Rule 18, Sec. 1] evidence of the facts therein stated. [Rule 21,
Sec. 2]
Evidence
PRECAUTIONARY PRINCIPLE
 When human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or
diminish that threat. [Rule 1, Sec. 4[b]]
 When there is a lack of full scientific certainty
in establishing a causal link between human
activity and environmental effect, the court
shall apply the precautionary principle in
resolving the case before it.
 The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt. [Rule 20, Sec.1]
STANDARDS FOR APPLICATION OF

THE PRECAUTIONARY PRINCIPLE
(1) Threats to human life or health;
(2) Inequity to present or future generations;
(3) Prejudice to the environment without legal
consideration of the environmental rights of
those affected. [Rule 20, Sec. 2]
DOCUMENTARY EVIDENCE
PHOTOGRAPHIC, VIDEO AND
SIMILAR EVIDENCE MUST BE
AUTHENTICATED
Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife by-
products or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by—
(1) the person who took the same
(2) some other person present when said
evidence was taken, or
(3) any other person competent to testify on
the accuracy thereof. [Rule 21, Sec.1]
PAGE 393

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TABLE OF CONTENTS

JUDGMENT ON THE PLEADINGS ........... 89

Provisional Remedies ..................135

PRELIMINARY INJUNCTION ................. 139 Summary Settlement of Estates 194

CLAIM OF EXECUTOR OR INTER-COUNTRY ADOPTION ............... 227

Writ of Habeas Data .................... 240

Preliminary Investigation.............. 271

RESOLUTION OF THE INVESTIGATING RIGHT TO BE PRESENT AND DEFEND IN

NON-APPEARANCE DURING PRE-TRIAL NATURE OF SEARCH WARRANT ...........319

Judgment ..................................... 307

New Trial or Consideration ........... 311

Appeal ........................................... 313

Search and Seizure ...................... 319

QUALIFICATIONS OF A WITNESS ......... 354

Judicial Notice and

Object (Real) Evidence ............... 343

Documentary Evidence ...............347

Testimonial Evidence ................. 354

Evidence ....................................... 393

Civil Procedure............................. 385

Special Civil Actions .................... 388

Criminal Procedure ...................... 391

General Principles Prospectivity/ Retroactivity

COURT AS DISTINGUISHED FROM A COURTS OF GENERAL AND SPECIAL

COURTS OF RECORD AND NOT OF DOCTRINE OF NON-INTERFERENCE

The principle is an established policy Exception: The doctrine of judicial stability

All courts exercise judicial power. Only the

REQUISITES FOR A VALID JURISDICTION OVER THE

How conferred and determined: DOCTRINE OF PRIMARY

(6) Once attached to a court, it cannot be As a consequence, jurisdiction is not affected

An issue is a disputed point or question to JURISDICTION OF THE

Generally, jurisdiction over the issues is JURISDICTION OF THE MTCs IN

(b) Probate Proceeding (testate and (iii)From the corresponding tax

(3) Inclusion and exclusion of voters JURISDICTION OVER SMALL

JURISDICTION OF THE Note: The exclusion of the term “damages

TOTALITY RULE (2) Ordinary or Special – both are governed

Action Special Proceeding found, at the election of the plaintiff. [Rule

RIGHT OF ACTION vs. CAUSE OF TEST OF THE SUFFICIENCY OF A

Ratio: To avoid a multiplicity of suits and to There is no sanction against non-joinder of

 Entities authorized by law may also be PARTIES TO A CIVIL ACTION

The non-inclusion of a necessary party does Effect of Absence of Indispensable Parties:

Joinder of INDISPENSABLE PARTIES are

Effect: If a class suit is improperly brought, the action

Requisites: [Rule 3, Sec. 12] Class Suit Derivative Suit

SUITS AGAINST ENTITES WITHOUT Counsel’s duty:

ACTION ON CONTRACTUAL MONEY VENUE VERSUS JURISDICTION

VENUE OF PERSONAL ACTIONS WHEN THE RULES ON VENUE DO

Change of Venue - The SC has the power to (6) Complaint-in-intervention

ANSWER [Rule 6, Sec. 4] Insufficient denial or denial amounting to

Kinds of Counterclaims (b) When a pleader fails to set up a

(b) Must have independent jurisdictional Improper Cross-Claims

(3) WON the 3rd-party defendant may assert

Not an Independent Action - Intervention is How to Intervene

Test to Determine WON there is forum Requirement of a Corporation executing the

(6) Judgments of domestic/foreign courts, Judgment - In pleading a judgment or

A general averment of the performance or Actionable Document - The written instrument

SPECIFIC DENIALS [Rule 8, Sec. 10] EFFECT OF FAILURE TO PLEAD

FAILURE TO PLEAD COMPULSORY

Order of default Judgment by default (4) Defendant is still entitled to notices of

Partial Default - When the complaint states a

If the defense is personal to the one who

Extent of Relief to be Awarded

(b) On the other hand, in a judgment