Lectures of Atty Villasis Final

LECTURE OF ATTY.
KIT VILLASIS IN REMEDIAL LAW
Rules to Remove
Rule 134 perpetuation of testimony. No longer included in the Rules of
Evidence. Rule 134 already incorporated in Rules 23 and 24 on Deposition
pending action and deposition pending appeal
Rule 43 - by virtue of the expanded jurisdiction. Appeals from quasi- judicial
agencies should no longer be brought to CTA but to the CA.
Rue 133- Spec Procedure on Adoption have been transferred to the Family
Code
OVERVIEW ON REMEDIAL LAW:

Substantive law- it creates, defines and regulates the rights and obligations.
Remedial Law- procedural law. Remedial and Substantive law are not the
same. They are promulgated under a law.
Art 8, Sec 5 par 5 of the 1987 provides for the authority of the Supreme Court
to promulgate the Rules of Court. Under 1973 Constitution, the promulgation
of the Rules is a share power between Congress and the Supreme Court to
promulgate the rules of court and to enact law.
Art 8 of the 1987 Constitution, it is still a shared power between Congress and
SC.
Leo Echegaray vs. Exec. Sec of Justice- a bill was pending before Congress
for the abolition of the death penalty. Hence, the lawyer of Echegaray sought
for the issuance of a temporary restraining order by reason of the pendency of
this bill. This was question the legality of TRO by the Sol. Gen on the ground
that the decision was already final and executory hence, the SC has already
lost jurisdiction. The SC said that a person who not been convicted by final
and executor judgment still possess collateral rights and this right can be
invoke before the courts because the powers of the exec. legislative and
judiciary in saving the life of the accused does not exclude each other
because there is no higher right than the right to life. What does this
mean? It means that the SC still has jurisdiction to issue a TRO. In the case,
the SC expanded the concept of jurisdiction. Before when we speak of
jurisdiction it means the power to try, to hear and decide the case but because
of the Echegaray case, thus, now when we speak of jurisdiction it is not only
the power to try, to hear, to decide the case but also includes the power
to execute the judgment, until the final disposition thereof or until the
full and complete service of sentence by the accused. In the same case, the
SC, took the opportunity and said that when we speak of the power to
promulgate rules it is no longer a shared power between Congress and SC.
It is only the SC who can promulgate the Rules of Court. This was
reiterated in GSIS vs. Heirs of Fernando Caballero, which states the power
to promulgate rules concerning pleadings and practice now belongs solely to
the SC.
NEYPES VS. CA ON THE MOTION FOR RECONSIDERATION:
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LECTURE OF ATTY. KIT VILLASIS IN REMEDIAL LAW
If an adverse judgment is received, under Rule 37 a motion for reconsideration,

motion for New Trial can be filed within a period to file an appeal which is 15
days from receipt of judgment. However, under the old rule, if a MR is filed on
the 8th day, a motion for appeal can be filed but only for the remaining period
provided it is not less than 5 days. Under the Neypes vs. CA, the CA laid down
the fresh period rule which means that a fresh period of 15 days from
receipt of the denial of MR, MNT to appeal.
ESCAPE DOCTRINES – these are the doctrines or principles that can be used
during the bar exams.
 Sec 6 Rule 5– Liberal construction principle- akin to Art 19 of the Civil

Code.
People vs. Mapa- a one day delay in filing an appeal may be allowed
applying the liberality principle
 SC has the power to suspend, relax the application of the rules of court.
Republic vs. Jennifer Cagandahan – Entry of the gender of the Birth
Certificate from female to male. The SC in the case state that if
correction of entries in the birth certificate is to be made, the Local
Civil Registrar Office, Sol Gen and Prosecutors Office should be
impleaded. In the given case, lawyer of Kagandahan forgot to implead
the Local Civil Registry office. He only furnished the office a copy of the
petition but did not implead said office SC said that this shouldn’t be the
case because the Prosecutor’s Office is a indispensable party but the SC
applying this principle, suspended the application of the rules. SC said
that the act of the counsel of Kagandahan in furnishing a copy to
the Local Civil Registrar is already considered a substantial
compliance to the requirement of the rule.
 This also applies to the requirement of the submission of a certificate of
forum shopping. The SC applying the same principle, suspended the
application of the rules. In another case, what did the SC said, after pre
trial, no evidence can be admitted unless it has been pre-marked,
presented, identified, offered and admitted. So if the evidence has not
pre-marked, this cannot be presented anymore. In one case, the SC
decided to suspend the application of the circular because it has the
power to suspend the rules. Why did the SC allowed the filing of the 3rd
motion for Reconsideration such as in the case of the League of Cityhood
case? Because there is a new set of members in the SC.
 Take note of Philippine courts are courts of law and equity. – This means
that we apply equity in the absence of the law but not as a
replacement to the law. If there is a jurisprudence that is applicable, it
should be applied but if there is no particular law or doctrinal
pronouncement that can be used, what should be done, we apply equity.
Just a year ago, Justice del Castillo, borrowed the jurisprudence of a
foreign jurisdiction regarding the corporate will because there is no
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applicable law within the Philippine jurisdiction. Under Art 8 of the Civil
Code, no court, no judge can decline to render a judgment by reason of
absence, obscurity or insufficiency of the law. So whether we like it or
not, the judge has to rule whether there is an applicable law or
jurisprudence.
 In a contract of sale of a property where the title is spurious, and a case
in court for the annulment of the sale and move that a deposit be made
by defendant so that in case the latter cannot pay, the plaintiff has
recourse. The court applying equity in the case, granted the motion of
plaintiff and order defendant to make a deposit.
The principle of judicial hierarchy-presupposes that if we talk about the
filing of certiorari, prohibition and mandamus, under Rule 65, it is the
original and concurrent jurisdiction of RTC, CA and SC. In other words,
the RTC, CA and SC can handle it. But applying this principle, if it is a
decision of MTC, we file certiorari with RTC, if it’s the RTC, we go to CA.
 Exceptions:
1. Question of law. Miaki vs. Patag ;
2. Cases or matters which involve transcendental interest to the public –
a decision of the RTC can be directly elevated to the SC.
 Doctrine of Judicial Stability or Doctrine of Non Judicial Interference –
no court of equal grade can interfere against the order of another court of
the same level or coordinate jurisdiction. An RTC cannot issue an
injunction against an RTC of different branch. An RTC cannot issue a
TRO against SEC or CA against CTA.
 As a general rule, remedial laws are prospective in character. Can we
apply the provisions of Rules of Court retroactively. Yes, although
remedial laws applies prospectively, it can be applied retroactively to all
cases which are undetermined at the time of its passage.
Ex. Fresh period rule- Neypes rule
 DOCTRINE OF IMMUTABILITY OF JUDGMENT – which means that
once a decision has already become final and executory it can no longer
be altered, modified or changed, except clerical errors and nun pro tunc
judgments.
People vs. Valeroso- 2010 case. Valeroso was convicted of illegal
possession of firearm, he was sentenced. He wrote to the SC by way of
appeal, and ask the SC to review the case, circumstantial. The Office of
Sol Gen filed a manifestation that there is a need to revisit the case of
Valeroso because there seems to be a violation of his constitutional right
on illegal search and seizure. Although the case has already attained
finality, the SC treated the letter as a 2nd MR. By reason of this the
case of Valeroso was reviewed and later on acquitted him. Based on the
surrounding facts of the case, there was a warrant of arrest, police
entered and saw Valeroso took him and paraffin his hand. They
conducted a search and one of the policeman found a gun inside the
closet. He was charge of illegal possession of firearm. SC found that there
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was a violation of the search and seizure. The policemen invoke the plain
view doctrine and even if the gun was not found in plain view, they
maintained that the gun was found incidental to a lawful arrest. SC
disagreed and reversed the decision, acquitting him even though
Valeroso was already serving sentence.
 PRINCIPLE OF RESIDUAL JURISDICTION OF THE COURT- Sec 19,
Rule 17 – a decision of the MTC is immediately executory except if the
defendant has filed a notice of appeal, posted supersedeas bond,
deposited, pay accrued rental, and docket fees. A notice of appeal should
not be filed with the appellate court but with the court a quo otherwise
the decision will become final and executory.
 Under Rule 40, as long as the MTC has not transmitted the entire
records of the case to the RTC, it can issue judgment, allowing execution
pending appeal.
Remedy: Certiorai with RTC so it can stop the proceedings for a period of
10 days after that the judge will go on with the proceedings unless a
petition for TRO has been filed. Failure of the judge to stay the
proceedings will hold him liable administratively.
 Accion interdictal (Ejectment) is filed with MTC. Forcible entry and
Unlawful detainer under Rule 70 not RPC. In case of unlawful detainer, it
should be filed one year from last demand. Accion Publiciana is filed
with MTC because it is a real action. Jurisdiction is determined by
looking at the assessed value of the property via the tax declaration. So
the rule is, in Metro Manila, P51,000 and above RTC, P50,000 and below
MTC. Outside Metro Manila, P21,000 and above RTC, P20,000 and below
MTC.
 How will you know if it’s a real action or personal action? Rule 4 defined
real action as action the subject matter is property, it involves title
ownership, possession, foreclosure partition or any interest. It is
filed in the place where the property is located. On the other hand,
personal action defined as all other actions which are personal action. So
for accion publiciana, it is not correct to say that it should be filed with
the RTC and for accion interdictal, it should be filed with MTC. To
determine where to file the case of accion publiciana, look at the
assessed value.
 CRESPO DOCTRINE – Mario Crespo (Mark Jiminez) vs. Judge –SC
stated that there is a criminal case filed before the Prosecutor’s Office. If
there is a decision from the Prosecutor’s Office – determine probable
cause and will file a case before the court. The resolution of the
Prosecutor can be subject of MR and if it is denied, it can be subject of
Petition for Review with the DOJ. The Secretary DOJ reversed it and
directed the Prosecution to file a motion to withdraw or dismiss the case.
But the court refused to dismiss the case since it has acquired
jurisdiction over the case. SC said that once the case has been filed
and court has taken cognizance of the case and it assumes
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jurisdiction until the final disposition of the case and so it is not

bound by the decision of the Public Prosecutor that it has not found
probable cause. When can the court grant the Motion to Withdraw?
There should be an evidence that has been overlooked by the Secretary of
Justice. In the absence thereof, the motion to withdraw should not be
granted.
 Rule Making Power of the SC
Limitations:
1. Simplified and inexpensive procedure to all action and proceedings
2. Uniform for all courts of equal grade
3. Not diminish, increase or modify substantive rights
Where do you apply the Rules of Court?
1. Land registration cases
2. Insolvency
3. Labor cases
When can the provisions of the Rules of Court be applied?
Yes, by analogy or in a suppletory character or whenever practicable and
convenient
DISCUSSION ON THE FLOWCHART OF CIVIL PROCEDURE:

Every action is based on a cause of action. You cannot go to court without a
cause of action. In order words if we talk about cause of action there are three
things must be taken into account. First, there must be a right, secondly, there
must be an obligation to respect that right and third there must be a violation
of a right. But violation of a right is not enough, that violation should have
resulted to damage or injury. It is not enough that a person has a cause of
action, he must also have a right to action which means that cause of action
has already ripen and there is nothing that prohibits that person from filing the
complaint in court.
Ex. In case the case of collection of sum of money. There is a need under the
New Civil Code to send a demand letter first before you can file case. In other
words there is no delay unless there is a prior demand. So if A lent P5,000 to B
the agreement was B will pay A on Dec 12, 2011. B was not able to pay the
obligation. Does A have a cause of action? What is the right of A? The right to
be paid the P5,000. What is the obligation of B? To respect the right of A to be
paid. Was there a violation of A’s right? Yes, the obligation arise when B did
not pay. So therefore, if we look at the elements of a cause of action, you have a
cause of action because that obligation resulted to damage on the part of A.
However, the New Civil Code tells us that before you can resort to court, there
must be a demand already in order for that obligation to be due and
demandable. This a fact that will affect your cause of action because even
though you have a cause of action if you have not sent a demand, you can go
to court but nonetheless your case will be dismissed because of failure to state
a cause of action.
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Another thing I want to tell you about cause of action is when you speak of a
suit between members of a family, the rule under the Family Codes states that
you must have exerted effort towards an amicable settlement. The same is true
with regard to exhausting administrative remedies first before you go to court.
The same is true with respect to the application of the rule on prescription. You
have a cause of action but because you slet on your rights, what will happen is
you cannot go to court because your cause of action has already expired. The
same is true if there is a case of litis pendencia in which case there may be
case of splitting a cause of action, therefore you can no longer file a case in
court. The same is true if there is res judicata, you cannot go to court because
you are already barred by prior judgment. These factors tell us that although
you have a cause of action, you cannot go to court anymore because you have
no right of action. Now let us assume that you have a cause of action, a right of
action, can you go to court? Yes, you can now file a complaint in court. But is
there a situation where you go to court even though you don’t have a cause of
action? Yes, there are these 3 exceptions;
1. Rule 62- Interpleader
2. Rule 63 –Declaratory Relief
3. Sec 10 Rule 3
As I told you last time, in the case of declaratory relief, there are two parts.
Remember that you go to court even if you don’t have a cause of action. You go
to court because you want the court to interpret the provisions of a contract, to
declare the legality, constitutionality of a treaty, particular ordinance, law. So
therefore even if there is no violation of law, no violation of contract, you went
to court for declaratory relief, for the court to interpret the provisions of the
contract in order for you to comply with your obligation. So even if there was
no violation of a right, you go to court even if there is no cause of action. Lets
say during the pendency of the declaratory relief there is already a violation of
the law, or ordinance or provisions of the contract. What would be the effect of
that? That declaratory relief will be converted into an ordinary civil action.
If we talk about Interpleader under Rule 62, for instance in a situation where I
am the lessee of the property and A is the lessor of the property. For the last 10
months I have been paying to him the monthly rentals until on the 11th month,
B told me that from now on I will pay the monthly rental to him and on the 12th
month C also comes in to the picture saying to forget about A and B and ask
for the payment of the monthly rental. So I am now in quandary. I want to
comply with my obligation. I want respect the right of the lessor to be paid the
monthly rental but I do not know who to pay the monthly rental. So I go to
court by way of a petition for interpleader so that A, B and C can interplead
among themselves and for the court to declare who among them has the right
to receive the monthly rental. In this particular case, do I have a cause of
action against A, B and C to interplead among themselves? No, there is no
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violation of a right but nonetheless I am allowed to file case even in the absence
of a cause of action.
The third exception is very impt because it is a bar area is a situation of an

unwilling plaintiff. There is an indispensable party, perhaps a co-owner of a
particular property, so these co-owners who are indispensable party should be
joined in order to protect their interest in the property. However, this co-owner
don’t want to participate. So we have a situation of an unwilling plaintiff
because he does not want to join the plaintiff but he is supposed to be a co-
plaintiff. So what are we going to do if you are the plaintiff in that particular
case, I am going to sue the co-owner as an unwilling plaintiff. In that
particular case, you don’t have a cause of action against the unwilling co-
plaintiff. You only sue him not because you have a cause of action against him,
or because he has violated your right but because you want him to be
impleaded in the action, because if you do not implead him there is an absence
of an indispensable party. And under the rules, where there is absence of
indispensable party, the entire proceeding shall be considered as null and void.
Let us assume that we have a cause of action, is there a need for us to file the
complaint to the barangay? Ex. A and B are residents of the same barangay,
residents of adjoining barangay of the same city or municipality or adjoining
cities or municipalities and the parties have agreed to submit themselves to
barangay conciliation. Our local govt code particularly the law on katarungan
pambarangay requires that the parties to undergo barangay conciliation during
which the barangay chairman will try to bring the dispute to amicable
settlement. In case no amicable settlement is reached, this will call for the
composition of a pangkat who will conduct conciliation to encourage the
parties to obtain settlement. If there is a settlement, the parties will execute a
compromise agreement. That comprise agreement is a subject of an execution
and at the same time it can also be as subject of repudiation. If there is no
repudiation, this compromise agreement will be executed within a period of 6
months from the date of the compromise agreement. But if there is a specific
date stated in the compromise agreement for A to pay the obligation of Dec
2012 he must comply with that date. If after 6 months you have to go to court
in order for you to execute the compromise agreement. Which court will you
go? MTC, What if the amount involved falls under the jurisdiction of the RTC?
Let say the amount involved is Php500,000.00? The case should still be
brought before the MTC because you are not filing a separate action but you
are only going to the MTC for the execution of the compromise agreement. Take
not that what is being required by the law on barangay katarungan is that the
parties should be residents of the same barangay. Take note of the case of
Angel Boleleng vs. Judge Vera of Baguio where the court ruled that the postal
address is not a residential address because a person can have two or more
postal address but cannot have more than one residential address. The same is
true in one case, where the SC stated that here comes A, the brother of B, who
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is apparently out of the Philippines so he authorized A to file a complaint

against C. C and A are actually neighbors in the same barangay. So in order
for A to be able to file a case against C, he asked for a special power of attorney
from B and so B gave him the SPA precisely for the purpose of filing a case for
and in behalf of B. So armed with the SPA, A went to court to file the case for
the collection of sum of money. A and C are neighbors and residents of the
same barangay. So C filed a motion to dismiss? What is your ground for failure
to comply with the requirement of barangay conciliation? Before the ground is
failure to state a cause of action, but NOW the newest ground under Sec 1 of
Rule 16, it is failure to comply with condition precedent. Take note that the
requirement of barangay conciliation is only a procedural requirement and
not a jurisdictional requirement. It can be waived if the parties agree not to
undergo barangay conciliation because it is only a procedural requirement.
Take note further that only individuals can be parties to barangay
conciliation. A corporation or juridical person such as an estate cannot be
a party to a barangay conciliation. A lawyer cannot represent a party in
barangay conciliation. If no settlement is reached, the parties shall secure a
certificate to file action. If there is no certificate to file an action, the case can
be dismissed for failure to comply with condition precedent. Therefore, in order
that to show to satisfaction of the court, you must be able to show a certificate
to file an action. Thus, this will be attached in the complaint. After doing so,
you can now file a complaint in court. But the question is who is going to be
the parties? Who should be the plaintiff and defendant. But a defendant can
be a plaintiff in a counter-claim. So a plaintiff maybe a defendant and the latter
can be a plaintiff. Now, assuming you now know the parties to a suit, where is
the venue of the action? Should it be filed in the place where the property is
located or the place of the residence of the plaintiff or defendant? To be able for
us to answer the question of venue in the bar exam, you have to know the
distinction between a personal action and a real action. If it is real action, you
have to file the case in the place where the property is located. An ejectment
suit is a real action because it involves property and possession of a real
property. A collection of sum of money on the other hand is a personal action
because the Rules of Court tell us that any other actions are considered a
personal action. So it is easier to determine what is a personal action as
compared to a real action. Whether it is a real action we have to determine
whether the subject matter of the case is a real property and if the answer is
yes, you have to ask whether it involves, title, ownership, possession,
foreclosure, partition, ejectment. If the answer is yes, any interest in the
property is a real action. And if it is a real action, you have to file the case in
the place where the property is located. Now, we already know the venue, that
we need to file the case in Quezon City because the property is located in
Quezon City. The next question we need to ask is which court has jurisdiction
over the case. Is it RTC or MTC. We need to know the rule on jurisdiction.
Should we file it in MTC or RTC or CA or SC?
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Take note, whether you read Rules 1 to 183 of the Rules of Court, you cannot
find the rule on jurisdiction because jurisdiction is conferred by law, by the
constitution, by RA 7671 by BP 129. Precisely, only the law gives us the
jurisdiction. How do we know that ejectment suit is under the jurisdiction of
MTC? Because it says so. How do we know that a complaint for murder should
be filed with RTC? Because the law says so. How do we know that an action not
capable of pecuniary estimation should be filed with RTC? Because the law
says so. How do we know that collection of sum of money involving the amount
of Php 401,000.00 and above within Metro Manila should be filed with RTC?
Because the law says so. And jurisdiction cannot be subject of an agreement of
the parties. It cannot be waived or stipulated by the parties because only the
law confers jurisdiction.
So we now know venue, the parties to a suit already, and which court has
jurisdiction over the complaint? Can we now file the case? We still have to
know the law on provisional remedies. Before filing a complaint, you have to
know that this the recourse of our provisional remedies. It presupposes that
there is a main action , and you are asking for a writ of attachment under Rule
57. You are asking for a writ of attachment inorder to secure a favorable
judgment granted to you by the court. For instance, A who is seeking for a
collection of sum of money of P5M against B. He knows that B is a gambler, a
womanizer. So if the case will run for 5 years, B will no longer have money to
pay his obligation. If you do not study the law on provisional remedies, you
can also file the complaint immediately, but if you know provisional remedies
and there is an intention to defraud creditors, you can file for a writ of
attachment so that the property of B can be placed under custodia legis and
this property will be given to A in the event B is not able to pay his obligation.
The same is true if you ask for prohibitory or mandatory injunction. If you talk
about prohibitory injunction, we talk about a TRO, but the TRO is only
possible if your prayer is for the issuance of a writ of prohibitory
injunction. There is no TRO in mandatory injunction. This is the
importance of the rule on injunction. The same is true when we talk about Rule
16 when we file for a writ of replevin, it presupposes that there is a main
action for recovery of a personal property. With the issuance of a writ of
replevin, you can now re-possess a particular personal property.
For instance A borrowed money from BPI for the purchase of a Toyota Fortuner
at Toyota Commonwealth. So if A was able to secure a loan so BPI pays Toyota
Commonwealth, A becomes a mortgagor and the Fortuner is now subject of the
chattel mortgage and an acceleration contract which means that if the contract
is for 5 years and A fails to pay, the amortization from the 21st month to 60th
month is due and demandable. So if A fails to pay his obligation, BPI will send
a demand letter and it will file for recovery of personal property and seek for
the issuance of a writ of replevin. Once it has secured a writ of replevin, this
will be executed by the Sheriff and go to the house of A and armed with the
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writ will recover possession of the Fortuner and give the same to BPI. The same
is true when we speak of support pendente lite under Rule 61. Like in the case
of rape and the victim becomes pregnant, the accused shall be required to
give support pendente lite even though he has not be convicted yet, even
though you deny being present during the commission of the rape.
So now, after knowing these, can we now file the complaint? Yes, provided
that you have paid the required docket fees. And when we talk about docket
fees when have to go back to the mother of all doctrines, which is the
Manchester Doctrine wherein the general rule is that NO DOCKET FEES -NO
JURISDICTION. But why did the SC say in a particular case ruled that the
court cannot acquire jurisdiction over the case unless there is a full and
complete payment of docket fees. Because the court discovered that there were
actually acts or attempt to defraud the court when the plaintiff did not include
the amount of damages in the relief portion but nonetheless alleges the same in
the body of the complaint. But as you know in another case the court relaxed
the doctrine on the payment of docket fees applying the Liberal Construction
Rule under Rule 6 Sec 1. So the docket fees can still be paid within the
prescriptive period of the action or if you can pay it will form part of a lien on
the judgment. This was the ruling in Balacad vs. CA, and the Home
Guarantee Corp vs. Arco Builders Inc. (March 10, 2011) where the case
explained on the payment of docket fees. So when the plaintiff files the case in
court and paid the docket fees, the court acquires jurisdiction over the person
of the plaintiff. So take note, the moment plaintiff files the complaint in
court and immediately pays the dockets, the court acquires jurisdiction
over his person. I am emphasizing this because it reminded me of the first
question in the 1981 bar exams. The question was, there was a plaintiff who
was in Japan he authorized his lawyer to file a case for accounting and
damages and so the lawyer filed the case in court and upon filing of the case B
filed a motion to dismiss. There was an SPA but of course during that time
there was no requirement for a certification against forum shopping so an SPA
would suffice. The defendant argued that in lieu of the accounting, the court
has not acquired jurisdiction over the plaintiff. The SC said that the moment
plaintiff has filed the case and immediately upon payment of the required
docket fees, the court acquires jurisdiction over the person of the plaintiff.
Because it is absurd to argue that you have filed the case but court has not
acquired jurisdiction over your person. Now the case has been raffled, the first
thing that the Branch Clerk of Court would do is to prepare the summons in
order to acquire jurisdiction over the defendant, unless of course there is
voluntary appearance on the part of the defendant.
If you look at the provision of Sec 20 Rule 14, after the filing of the complaint
and payment of the legal fees, the court will now prepare the summons, it
presupposes then that there was a payment of docket fees. This summon will
be served by the sheriff and will thereafter grant the court jurisdiction over the
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defendant. Ex. Let us say, Bong is the defendant in the case filed by Dean
Espejo for a sum of money case. So I called Bong and informed him of the case
and that the summons will be served. Bong says before he received the
summons he already filed a motion for time because he is leaving for Cebu.
What is the effect of the motion for time? The effect is that the court is
deemed to have acquired jurisdiction over Bong. So instead of a motion for
time, a motion to dismiss should be filed and allege that it is only a
conditional appearance precisely to question the jurisdiction of the court
over your person. If you do not do that the MTD will be considered as
submission to the jurisdiction of the court. In other words, it has to be alleged
that such motion is only conditional appearance precisely because I want to
inform the court that there was a defective summons and so therefore the court
has not acquired jurisdiction over my person. Now what if you added grounds
other than lack of jurisdiction over the defendant? Does this mean that you
have embraced or voluntary appeared and submitted to the jurisdiction of the
court? No, because of the express provision that even if you add OTHER
GROUNDS OTHER THAN LACK OF JURISDICTION OVER THE PERSON OF
THE DEFENDANT if precisely you went before the court by way of special
appearance to question the jurisdiction over your person.
So lets say the summon could not be served because the defendant or his
whereabouts is unknown. Under Sec 14 Rule 16, you can do two things, you
can archive the case, or move for the service of summons by way of
publication. As a rule, summons by publication is not allowed. In personam
action, summons by publication will violate due process. If you cannot serve
summons by service in person, invoke the provisions Sec 10 Rule 14. But can
you invoke summons by publication by way of exception. Under Sec 14 of Rule
14, this means that the whereabouts of the defendant is unknown. Rule 16 of
Rule 14 means that the person of the defendant is outside of the Phils. Ex. I
went to MGM to watch the fight of Pacquiao, so therefore I am temporarily out
of the Phils and after the fight I will go back to the Phils. This means that this
situation calls for a service of summons by publication. But of course you can
first invoke substituted service of summons. When we talk about the
whereabouts of the defendant is unknown. If after 6 months you cannot still
find him, you can now file a motion with court for leave to serve a summons by
publication.
If the summon is served to the defendant. What are his remedies? If you were
the defendant, the first thing you would do upon receiving the summons, as a
rule he should file an answer within 15 days. So for instance I am the
defendant and Bong is the sheriff. So he serves the summons to me so
automatically the court acquires jurisdiction over me. The plaintiff sues me for
the amount of P5M. I am willing to pay but I need time so I ask my lawyer to
buy me some time. The first thing that the lawyer will do is to file a motion for
time, which means you file a motion for extension to file an answer. But be
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sure that when you file a motion for time, it should be done within the
reglamentary period to file an answer and not after the lapse of the 15 day
period to file an answer because if you do that there is no period to extend
anymore. The lawyer said, let us not file for a motion for time, but a motion to
dismiss to question the jurisdiction of the court or invoke the provisions of
Rule 12 on Bill of Particulars to clarify his ambiguous his allegations contained
in his complaint, or rectify his ambiguous allegations so that defendant can
prepare for his answer.
On the other hand, the plaintiff upon filing the complaint may decide not to
push through with the complaint so under Sec 1 Rule 17 he files a notice of
dismissal before the filing of answer and he can file for dismissal until the 2nd
time. So when the plaintiff files a notice of dismissal, the court is not given the
opportunity or discretion to grant or deny the dismissal because when the
plaintiff files a notice of dismissal that notice is a matter of right on the part of
the plaintiff provided there is no responsive pleading. Therefore the court
cannot deny it but can simply confirm the decision of plaintiff to dismiss the
case. After the dismissal, the plaintiff changes his mind and wants to pursue
the case against the defendant, so this can the court allow him to file for a
dismissal? Yes, because it is still a matter of right as long as the defendant has
not filed his answer. But after plaintiff has filed his notice of dismissal, he
decided again to file his complaint in court and this time the court refused to
accept his notice his dismissal and said that if you do that you file a motion to
dismiss? Is the court correct? Yes, because after the 2nd notice of dismissal, the
2nd dismissal operates as an adjudication on the merits and so therefore you
have to apply the two notice rule. So after the 2nd dismissal you have to file a
motion to dismiss even if there is no responsive pleading yet because it is no
longer a matter of right but a discretionary on the part of the court. But after
the filing of a responsive pleading, you can no longer file a notice of dismissal
but a motion to dismiss under Rule 16. Also instead of filing a motion to
dismiss, you can probably file a motion to withdraw, or you can amend or
supplement the complaint under Rule 10 but remember that amendment of the
pleading is a matter of right before a responsive pleading has been filed. If there
is a responsive pleading or answer you can no longer amend your complaint as
a matter of right. You have to file a motion for leave of court even though there
is an answer. Take note that amendment of a complaint as a matter of right
can only be done once. Otherwise, even if there no responsive pleading yet,
the second amendment is merely discretionary therefore you have to file a
motion for leave of court to file to amend your pleading. If you want to add
matters related to your allegations in the complaint you file for a supplemental
pleading.
The defendant will file an answer, so what will the plaintiff do, he can file for a
motion to declare defendant in default under Sec 3 Rule 9 because under the
Rules if you don’t file a responsive pleading within the reglamentary period you
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can be declared in default. But the court cannot motu propio declare in default
the defendant for failure to file his responsive pleading within 15 days. The
Rules of Court require the plaintiff should file a motion which should be set in
hearing. As a matter of fact, the plaintiff should show the proof of service to the
defendant. If the defendant has been declared defendant in default, what is his
remedy? Rule 9 Sec 3, he can file for a motion to lift or set aside the order of
default and invoke the grounds of FAME. Also he has to attach an AFFIDAVIT
OF MERIT which means he has to allege that he has meritorious defenses.
Otherwise, without this affidavit of merit what is the effect? This is a
jurisdictional requirement, will render the motion pro forma. Because he has to
show the court that he has meritorious defenses in order for him to continue
with the proceeding. A defendant although he loses his standing in court is
entitled to notices. So you file a motion to set aside order of default.
If you have been declared in default, you should not immediately file an order
to lift or set aside order of default because when you file that particular motion,
there is a need to file an affidavit of merit. Without this affidavit of merit, the
motion will be deemed pro forma. If the motion is pro forma it is useless piece
of paper with no force and effect. And the court is not given power or authority
to take cognizance of pro forma motions. A pro forma motion is a motion which
violates the provisions of the Rules of Court. So if you file a motion to set aside
the order of default there should be an affidavit of merit. But if you file for a
motion for reconsideration, there is no need for an affidavit of merit. So if you
have been declared in default, do not immediately file for a motion to lift the
order in default but instead FILE AN MOTION FOR RECONSIDERATION ON
THE ORDER DECLARING YOU IN DEFAULT. Because when you file an MR
you have a 15 days to do so and you have 2 days to pre-empt the order of
default from becoming final. So when you file for a motion for reconsideration
you are giving the court the opportunity to rectify its order. If not granted, then
you can file for a motion to lift or set aside the order declaring you in default.
If you will file an answer, you have to specifically deny the material allegations
contained in the complaint otherwise it will be deemed as admitted. Sec 7 Rule
8 which refers to actionable document. If a complaint attaches an actionable
document and alleges important portions of that actionable document, the
defendant has the obligation not only to specifically deny the material
allegations but he must also deny it under oath otherwise he is deemed to
have admitted the genuiness and due execution of this actionable
document .
What are the kinds of defenses? Affirmative defense- presupposes that you
hypothetically admit the allegation but you are presenting these affirmative
defenses in order that you will not be held liable. You can invoke this
affirmative defense in your answer and file a motion to set this for hearing. It
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can require that a complaint can be amended and likewise the answer can be
amended.
Take note of the kinds of pleadings. Take note that if you’re going to answer
and there is a compulsory counter-claim, you have to allege your compulsory
otherwise it will be considered waived and barred. A compulsory counterclaim
which has logical connection in the complaint filed against you by the plaintiff.
When you talk about compulsory counterclaim it actually arose from the
complaint filed by the plaintiff. Example of counterclaim: Because of the
complaint filed against me I was constrained to secure the services of a
counsel. Or because of the complaint filed against me I have suffering from
mental anguish and sleepless nights and therefore Im asking for moral
damages. Take note of another counter-claim, which is a Permissive
Counterclaim- a permissive counterclaim is actually a separate and
independent action. But nonetheless a permissive counterclaim is included in
the answer. If you allege a permissive counterclaim in your answer, if it is an
initiatory pleading, you are going to attach a certificate a non-forum
shopping on your answer. Likewise, since a permissive counterclaim is a
separate and independent action, the plaintiff has the obligation to file an
answer. A permissive counter-claim is supposed to be a complaint by the
defendant against the plaintiff. Since it is a separate and independent action,
the defendant is expected to follow the rules on forum shopping and
verification under the rules of court. The defendant now becomes the
plaintiff and the latter the defendant. The plaintiff this time has the obligation
to file an answer on the permissive counter-claim of the defendant. If the
plaintiff fails to file an answer on the permissive counter-claim, the plaintiff
may be declared in default. Likewise, since the permissive counter claim is a
separate and independent action, the defendant should PAY DOCKET FEES
for the court to acquire jurisdiction over the permissive counterclaim.
Why am I emphasizing on this permissive counter-claim.. because it is always

compulsory claim.. and it is ripe for bar question.
When you talk about counter-claim, a third party complaint- is not a party to a
complaint. A third party defendant is impleaded, is sued in order for
defendant to ask for contribution, indemnification, subrogation. So if A
borrowed money from B. But in truth it was not A who used the money, it was
C, but C is not a party to the complaint so what will B do, he will implead C as
third party defendant. Or B and C borrowed money from A, but in truth it was
only C who used the money, so B can file for a cross claim against C.
PARTY IN INTERVENTION- Ex. A and B are quarreling over the ownership of

a parcel of land. A claims ownership over the land, B also claims ownership
over the land. C enters the picture and files a complaint in intervention
because in truth C is the owner of the land.
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Specific denial- as a rule it allegations should be specifically denied

otherwise they are deemed admitted. Exception Rule 9 Sec 1, except lack of
jurisdiction, res judicata, etc.
General denials are tantamount to admissions. Now lets say defendant has
filed an answer, what should the plaintiff do? He can file for a motion for
judgment on the pleading under Rule 34. If the answer fails to tender an
issue, or there is an admission, the plaintiff can file for judgment based on the
pleadings of the parties. Or he can file for a summary judgment such as when
the defendant states in the answer that he admits the obligation except as to
the amount of damages. In which case there is no genuine issue so therefore
plaintiff can file for summary judgment.
A MOTION TO EXPUNGE ANSWER- if there was an answer but it was filed

beyond the reglamentary period of 15 days, the plaintiff can file motion to
expunge the answer, or you can file an answer to a counter claim, if it is a
permissive counter-claim, there is a need to file an answer otherwise, you can
be declared in default.
MODES OF DISCOVERY- can be availed by both plaintiff and defendant. What

are Defendant’s remedies to various motions? If the plaintiff can amend his
complaint, defendant can also amend or file his supplemental answer. He can
also avail of the different modes of discovery.
PRE-TRIAL – Assuming plaintiff filed a reply even though he is already aware

that said reply dispensable because even if he did not file the reply all the
matters alleged in the answer are already deemed controverted or denied by the
plaintiff. He files a motion ex parte to set the case for pretrial. Who’s duty is it
to set the case for pretrial? It is the duty of the plaintiff after the last
pleading is filed. If the plaintiff does not file the same, what would be the
effect. SC says that even if there is no motion to set the case for pre trial,
the clerk court can still prepare a notice of the pre-trial proper wherein
the parties can submit their pre-trial brief. If plaintiff does not file a motion
to set case for pretrial, there is a jurisprudence that defendant can file for
motion to dismiss under Sec 3 Rule 17, failure to prosecute a case for
unreasonable length of time on the part of the plaintiff for failure to file a
motion to set the case for pre-trial. If the case is dismissed on the ground of
failure to prosecution, this is an adjudication on the merits and this is
therefore a valid judgment and the remedy is to appeal the same.
It is mandatory for the parties to prepare a pre-trial brief. If plaintiff fails

to file a pre-trial brief, it has the effect as the failure of the plaintiff to
appear during pre-trial. If the plaintiff fails to appear during pre-trial the
case will be dismissed. On the other hand, if defendant is absent during
pre-trial, the plaintiff will be allowed to present its evidence ex parte.
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Under the old rules, if plaintiff does not file a pre-trial brief he is considered as
non-suited. If it is defendant who fails to file a pre-trial brief he is declared in
default. The present rule is if it is the plaintiff, his failure to file a pre-trial brief
or did not appear during pre-trial, the case will be dismissed. If it is the
defendant who failed to file a pre-trial brief or did not appear during pre-trial,
plaintiff will be allowed to present evidence ex parte.
If plaintiff failed to file a pre-trial brief but was present during pre-trial,
the case will still be dismissed because even though the plaintiff was
present during pre-trial if he did not file pre-trial brief, it is as if he did
not appear during pre-trial. The same is true in the case of the defendant.
Assuming that the plaintiff has filed his pre-trial brief, the first thing that will
happen is to set the case for pre-trial conference wherein the judge will ask the
parties to settle the case. The judge will likewise ask the defendant if he is
willing to settle the case and if the defendant answers that he is willing to do so
but that he has no money yet, because of the mandatory character of the
judicial dispute resolution, the judge will refer the parties to mediation
proceeding within 30 days in order for the parties to explore the
possibility of settlement. If the case is settled during the mediation, the
parties are required to prepare a compromise agreement which should be
submitted to the court for approval and this will become a judgment based on
compromise. If no settlement is reached, the mediation conference is
terminated and the case will be referred back to the court for the
continuation of the pre-trial which means there is a pre-trial proper
wherein the parties will enter into stipulation of facts, marking of
exhibits, if there is a voluminous record to be marked, the parties can ask
the court that they mark their exhibits before the branch clerk of court.
In other words the judge can allow the pre-marking of exhibits. Take note that
the marking of exhibits during pre-trial is important because there is a
provision in the rules of court that no evidence can be appreciated by the
judge in resolving a particular case unless that evidence has been 1)
marked 2) presented 3) identified by the witness 4) offered and 5)
admitted by the court. The court will be considered to have abused its
discretion if he have appreciated or considered a piece of evidence which have
not been formally offered or admitted by the court. All of these stages have to
be complied with before the court can consider the evidence.
At the end of pre-trial the court will issue a pre-trial order where it will state
the admissions of the parties, stipulations entered into by the parties, marked
exhibits during the pre-marking of exhibits, name of witness and number of
hours that they require for their testimony. Objection can made on during pre-
trial if the document presented if the same has not been included in the pre-
marking of exhibits.
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TRIAL: take note of the order of trial, as a rule it is the duty of the plaintiff
to present evidence ahead of the defendant in civil cases. Likewise it is the
duty of the prosecution to present evidence ahead of the defense in
criminal case. Is there a situation wherein it is the defendant who presented
evidence ahead of the plaintiff in civil cases or the defense in criminal case?
Yes, although as a rule in civil cases, it is the plaintiff who shall present
evidence first following the rule that he who alleges must prove, however be
reminded of the rule in Sec 6 of Rule 16 which states that a party is invoking
affirmative defenses in the answer. Where can affirmative defenses be alleged?
1) Motion to Dismiss – it is an omnibus motion because it attacks a
pleading and if this omnibus motion rule, this means that all grounds
available at the time of the filing of the motion can be alleged already
otherwise it is deemed to have been waived. The grounds are 1)improper
venue 2) statute of frauds 3) litis pendentia If there are other grounds but
the party forget to raise the same, he is deemed to have waive the same
and he can no longer invoke it in the answer. If a motion to dismiss is
filed, the party is bound by the omnibus motion rule, hence if he forgets
to include it in the motion, he can no longer invoke it in the answer. But
an answer is a responsive pleading not a motion, necessarily it is not bound by
the omnibus motion rule, hence even if the party forgot to include a ground in
his answer, he can still file a motion to dismiss.
If a party receives a summon, he is required to file an answer within a period of

15 days. Failure to do so, the party will be declared in default. A party is
discouraged from filing a motion to dismiss and instead include the
grounds in his answer by way of affirmative defenses. If no motion to
dismiss is filed and instead filed an answer where affirmative defenses were
alleged, under Rule 16, the party can file a motion to set the case for hearing
on the affirmative defenses. If that court grants that motion to set the case
hearing on the affirmative defenses, the effect is the defendant is able to
present evidence ahead the plaintiff in the affirmative defenses. In
criminal cases, if the accused during arraignment enters a plea of guilty,
or invokes self-defense, the accused will be allowed to present evidence
ahead of the prosecution.
ORDER OF EXAMINATION OF WITNESS: First, the witness shall be

presented for direct examination, the purpose of which is to prove the
allegation contained in the complaint. After direct examination, the witness
will undergo cross examination by the opposing counsel, the purpose of
which is to test the credibility of the witness, to dispute the fact. After the
cross examination, the counsel for the plaintiff is given the opportunity to
conduct his re-direct examination, the purpose of which is to give the
witness the chance to explain his answer during the cross examination.
After that, the opposing counsel will conduct his re-cross examination. After
the presentation of the evidence in chief, the plaintiff is required to file a formal
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offer of evidence. Plaintiff will formally offer his exhibits after he has offered his
evidence in chief. What is evidence in chief? It is the entire body of
evidence which includes, object, documentary and testimonial evidence.
When are object evidence offered? It is offered after presentation of evidence in
chief. Testimony of witness is offered at the time the witness is called to testify.
After the formal offer of exhibits by the plaintiff, the defendant are given the
opportunity to oppose the exhibits being presented by the plaintiff. Thereafter
the court issues an order admitting or denying the exhibits offered and
thereafter, plaintiff rests his case.
After the plaintiff has rested his case, the defendant has two remedies either 1)
he presents his own evidence his chief or 2) he files a demurrer to
evidence such as when plaintiff submits insufficient evidence. A demurrer
in evidence in civil case can backfire on the part of the plaintiff. If a demurrer
in evidence is granted, the case is dismissed. If denied, the defendant is
allowed to present his evidence in chief. If the demurrer to evidence is
granted and the court grants it, the case will be dismissed, hence, plaintiff
can file an appeal and if on appeal the case is reversed by the appellate
court, the defendant is deemed to have waived his right to present his
evidence in chief. In criminal cases, demurrer to evidence is stricter
compared to civil cases. In criminal case, there is a requirement for leave of
court, which is not required in civil cases. If no leave of court is granted, if the
demurrer to evidence is denied, the party is deemed to have waived his right to
present his evidence. Also, in criminal cases, there is a period to file a
motion for leave of court of 5 days which is mandatory and non-
extendible and 10 days period to file a demurrer to evidence. There are no
periods in civil cases. Demurrer to evidence in civil cases, the effect is
dismissal, in criminal cases, double jeopardy sets in, in the same manner
where there is violation on the rule of speedy trial.
In the presentation of evidence by defendant, the same procedure will apply, he

presents his own evidence in chief, and thereafter he files his formal offer of
exhibits which can be objected to by the plaintiff and thereafter the court
issues an order either admitting or denying the exhibits offered by the
defendant, after which defendant can rest his case. Note that after defendant
has rested his case, plaintiff is not allowed to file a demurrer to evidence,
because demurrer to evidence is filed by the defendant after the plaintiff has
rested his case.
If there is a 3rd, 4th and 5th party complaint, the defendant will also present his
evidence. After the defendant has presented his evidence, the 3rd, 4th and 5th
party defendant will also present their evidence. The same rules with the
presentation of evidence in chief by the plaintiff and defendant. After the 3rd,
4th 5th defendant rest his case, there is rebuttal evidence by plaintiff but this is
optional. The defendant will be given the opportunity to submit sur-rebuttal
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evidence pursuant to the due process of law. The court will later direct the
parties to file their memorandum. This memorandum is a summary of the
entire causes of action on the part of the plaintiff to establish his case or
summary of defenses as the case maybe. This memorandum is a guide to the
court in rendering a judgment. However, a memorandum is not an
indispensable pleading. A reply to the memorandum can also be filed.
After the filing of the memorandum, the case is submitted for resolution and
the court will now issue of a judgment which must conform to the
requirements of 1987 Constitution which means it must be in writing, and will
state distinctly the facts and law which is the basis of the judgment. A
judgment can only be valid if the court which issued the judgment has
acquired jurisdiction over the subject matter, issues and parties. A judgment
rendered by the court which has not acquired jurisdiction over the subject
matter of the case, issues or parties is a void judgment and it will not bind the
parties because of an error of jurisdiction.
On the other hand, if the court has acquired jurisdiction but renders only an
erroneous judgment, the judgment is still valid. No matter how erroneous or
incorrect the position taken by the judgment if the court has jurisdiction that
erroneous judgment is a valid judgment if there is no appeal taken. An
erroneous judgment can be subject to an appeal but an error of jurisdiction is
not subject of appeal but a certiorari alleging grave abuse of discretion amount
to lack of jurisdiction. Jurisdiction over subject matter is conferred by law and
can be determined by the allegations contained in the complaint. the
allegations of the defendant in his answer has nothing to do with the
determination of the jurisdiction. Jurisdiction over the subject matter is
conferred by law but it can raised even for the first time on appeal. Lack of
jurisdiction over subject matter is not waived even if not included in the motion
to dismiss. This is an exception to the omnibus motion rule because it can be
raised for the first time on appeal. Except when a party is bound by the
DOCTRINE OF EQUITABLE ESTOPPEL as in the case of Tijam vs.
Depomano, which tells us the although jurisdiction is conferred by law, a
party is bound by the doctrine of equitable estoppels to question the
jurisdiction of the court. He cannot raise the issue of jurisdiction only
after an adverse judgment was rendered against him. Jurisdiction over the
person of the plaintiff is acquired immediately upon the filing of the complaint
and payment of the docket fees. On the other hand jurisdiction over the
person of the defendant is acquired by 1) voluntary appearance 2) service
of summons either personal summons or tendering of summon in cases
defendant refuse to accept it; or summons by substituted service.
Substituted service of summons is done if defendant cannot be served
personally within a reasonable time or there is impossibility of prompt service.
This is done by serving the summons to a person of sufficient age and
discretion who resides at the defendant’s place of residence or at the office by
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the serving the summons on the person incharge of the office who must be of
sufficient age and discretion. In the case of Gentle Supreme Phils Inc. vs.
Ricardo Consulta, if the substituted service of summons is applied, SC
clarified that the person who receives the summons for and in behalf of the
defendant need not be specifically authorized by the defendant to receive
the summons. In other words it is enough that he appears to be in charge
of the office. Exception to the substituted service of summon as decided in the
case of Remelita Robinson vs. Celita Miralles (2006) wherein the summons
is served on a security guard of the subdivision where the defendant resides.
As a general rule, Sec 7 Rule 14 specifically provides that substituted service
of summons is served on the person of sufficient age and discretion
residing in the place where the defendant resides. In the give case, if the
impossibility of service of summon was caused by the defendant himself,
the service of summons to the security guard is valid as a matter of
exception.
JURISDICTION OVER THE ISSUES: is determined by the issues raised by

the parties in the pleadings.(complaint, answer, reply and pre-trial order) If
there is evidence presented which is not related to the issue of the case,
that evidence is immaterial. Immateriality of evidence refers to the pleading.
Jurisdiction over the res, refer to the party in the case.
If there is already a judgment, can you execute the judgment? Not yet, avail of
the post judgment remedies. If before finality of the judgment, the party can
either file for a motion for reconsideration, Motion for New Trial or Appeal (42
or 45). If it is a MOTION FOR RECONSIDERATION, take note of the grounds
which are (1) damage is excessive 2) evidence is insufficient 3) decision
is against established law or jurisprudence. If the grounds for motion for
reconsideration is not among those grounds, the MR is pro forma
therefore it will toll the running of the period of appeal. The MR is covered
by the omnibus motion rule which means if the grounds are not alleged, it is
deemed waived. An MR should comply with the requirements of a motion
which are (1) it should be in writing (2) set for hearing(3) comply with the
3 day and 10 day notice rule. Non-compliance will render the motion pro-
forma and therefore the judgment will become final and executory.
Motion for New Trial invoke Rule 37; it should be filed within a period to file an
appeal. If the MNT is denied, don’t talk about the balance of period. If the
MR/MNT is denied, under the NEYPES DOCTRINE, the party has a fresh
period of 15 days to file an appeal. Before 2005, if the MR is denied, the
party has only the remaining period unless than 5 days to file an appeal. But
under the Neypes rule, the party has a fresh period of 15 days within which to
file an appeal. In the case of Sumiran vs, Damaso, the SC stated that the
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Neypes ruling is given retroactive effect and applied even to actions

pending as in 2005.
The 15 day period to file an MR is mandatory. If an MR is filed after the

lapse of the 15 day period, that MR is pro-forma. No motion for extension of
time can be filed for the filing of an MR, applying the Jabaluyas doctrine
(Jabaluya vs. CA)
The fresh period rule applies to Rules 40, 41, 42, 43 and 45. If an appeal if
filed for the decision of the MTC to the RTC, you invoke Rule 40. If it’s the
decision of RTC (original) appeal to CA apply Rule 41. If it involves the appellate
jurisdiction of the RTC over the decision of MTC, file a petition for review under
Rule 42 with the CA. If appeal a decision of a quasi judicial agencies, invoke
Rule 42. Remove CTA in Rule 42. If it’s a decision of MTC, and is elevated to
RTC, a notice of appeal should be filed within a period of 15 days with the
court that rendered the decision.
In case of Forcible Entry/ Unlawful Detainer, the decision of the MTC can be a
subject of a Motion for execution pending appeal. It can be executed only if
there is no supersedeas bond, or no appeal, or no payment of accrued rentals
on the part of the defendant. If a notice of appeal is filed with the MTC and
before the records of the case has not been elevated yet, the MTC can
issue an order to protect the rights of the parties, applying the DOCTRINE
OF RESIDUAL JURISDICTION of the court, including the granting of
Motion for Execution Pending appeal. But if the records has already been
elevated by the MTC to the RTC do not apply the residual jurisdiction of
the court. However, a motion for execution pending appeal can still be
executed not by MTC but by the RTC.
After the exhaustion of the MR, MNT or after the finality of the decision after
the lapse of the 15 days, avail of Rule 38, on Petition for Relief alleging FAME
which should be filed within 60 days after the petitioner learns of the
judgment, final order or other proceeding to be set aside and not more than 6
months after such judgment or final order was entered. It should be filed with
the same which issued the judgment.
ANNULMENT OF JUDGMENT : grounds (1) lack of jurisdiction and (2) extrinsic

fraud) . When the ground is extrinsic fraud, the party has 4 yrs to file the
petition but if is lack of jurisdiction, the party can file it anytime.
If the two remedies have been exhausted, the party may file for a petition for
certiorari, invoking judicial power.The framers of the Constitution has
expanded the definition of judicial review and it now covers the power of the
court to determine whether there is grave abuse of jurisdiction amount to lack
or excess of jurisdiction to any branch or the agency of the govt. A petition for
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certiorari requires the prior filing of a Motion for Reconsideration. It is a

condition sine qua non. A petition for certiorari cannot be a substitute for a
lost appeal. There must be no plain, speedy or adequate remedy available
at law.
The filing of a petition for certiorari will not stop the proceeding of the
court a quo. The presiding judge may stay the hearing of the case for only 10
days, unless a TRO or writ of injunction has been issued against the
respondent judge from further proceeding with the case.
After the filing of petition, the judgment can now be executed. It is not the SC
that will execute the judgment but the court of origin. The granting of a
writ of execution does not mean immediate execution. The prevailing
party must file a motion for issuance of the writ of execution. The
motion for issuance of a writ of execution is litigious motion and
therefore will be set for hearing and the other party will be given the
opportunity to oppose as part of due process. The writ of execution must
conform to the judgment. The writ of execution will only copy the dispositive
portion of the decision. The writ of execution is directed to the sheriff and not
to the parties such that the party will not comply with the terms of the
execution they cannot be held in contempt. Take note however that if the writ
of execution, the sheriff should give a notice to vacate the premises if the
defendant does not vacate, the sheriff can now enter the premises to execute
the writ. Upon execution of the writ, the sheriff will now issue a sheriff’s
return.
CIVIL PROCEDURE PROPER:
Substantive law- what are our rights? Substantive law it creates defines and
regulates the rights and obligations. The basis of remedial law
Remedial Law it refers to the enforcement of our rights and obligations. It
refers to matter on how to enforce substantive law.
Rule Making Power of the SC: not in violation of the separation of power as the
Constitution specifically grants the power to the SC to promulgate its own
rules.
Under the 1973 and 1935 Constitution, the power to promulgate the Rules of
Court is a shared power between Congress and the Supreme Court. During this
time, a particular provision of the rules of court can be modified or amended by
Congress. It therefore caused confusion. Thus in the case of Leo Echegaray vs.
CA and GSIS vs Heirs of Caballero, the Supreme Court has the opportunity to
clarify that the power to promulgate rules is no longer a shared power between
Congress and the Supreme Court but rather SOLELY belongs to the SC.
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Pursuant to this sole power to promulgate the rules, the SC also has the power
to relax or suspend its rules. This power to relax or suspend the rules can only
be done in exceptionally meritorious cases.
LIBERAL CONSTRUCTION OF THE RULES: in order to promote their

objective of ensuring the just, speedy and inexpensive disposition of every
action and proceeding.
Philippine courts are courts of law and equity. Which means that we do not
apply equity when there is a law or jurisprudence applicable. In other words we
only apply equity not as a matter of replacement of the law but only in
the absence of a law. Under Art of the Civil Code, no judge will render a
judgment by reason of absence, obscurity or insufficiency of the law. Even if
there is no law or jurisprudence applicable, equity will be applied.
Remedial Law are prospective in character which means procedural laws

are applicable prospectively. Can it be applied retroactively? Yes, in instances
when the cases are pending at the issuance of the rule by the Supreme Court.
Sumiran vs. Damaso case: application of the fresh period rule is applicable
retroactively. (already discussed above)
JUDICIAL POWER: includes the duty of the judicial courts to settle actual case
or controversy involving rights which are demandable and enforceable. After
the 1987 Constitution, this power has been expanded the concept of
judicial review, include the power of the court to determine whether
there is grave abuse of discretion amounting to lack or excess of
jurisdiction in any branch or instrumentality of the govt (explained above)
We refer to the principle of the filing of petition for certiorari, the principle of
checks and balances and principle of separation of powers.
Application of the Rules of Court: What the exceptions in the application of the
rules of court? The Rules of Court shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings and other
cases not herein provided for except by analogy or in a suppletory character
and whenever practicable and convenient.
When can you apply the rules of court in suppletory? When there is an
insufficiency in the applicable rule. (GSIS vs. Dinnah Villaviza)
Rules of court do not apply in administrative bodies and quasi judicial bodies
such as in the case of PAL Vs. PALEA, where the Supreme Court said the rigid
application of the rules do not apply in administrative and quasi-judicial
bodies.
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JURISDICTION: involves the power to try, hear and decide a case. In the case
of Leo Echegaray case, the definition of jurisdiction has been expanded, which
now includes not only the power to try, hear and decide the case but also the
power to execute its judgment until the final disposition of the case and
full service of sentence in criminal cases. In this case, the Supreme court
declared that a person who has been convicted by final and executory
judgment still possess collateral rights and these rights can invoke in the
court of justice for the reason that the power of the legislative, judiciary
and executive in saving the life of the accused do not exclude each other
because there is no higher right than the right to life. So that even if the
decision has become final and executory, the court can still issue a TRO.
In one case, a guy was accused of rape, later on the guy and the rape victim fell
in love that even while serving his sentence, the two of them continued on
seeing each other and eventually got married. The accused in the said case
filed a motion to be released from incarceration following his marriage to the
rape victim. This was questioned by the court, alleging that the case has
become final and executory and in fact the accused was already serving his
sentence and therefore the court has no jurisdiction anymore. Applying the
principle laid down in Leo Echegaray, the accused claimed that jurisdiction
does not cover only the power of the court to try, hear and decide the
case but also the power to execute its judgment until the final disposition
of the case and FULL service of sentence. And since the accused has not
fully served his sentence, the SC released the accused because his liability has
been extinguished by reason of his marriage to the rape victim.
DISTINCTION OF JURISDICTION AND VENUE:

Jurisdiction is the power of the court to try, hear and decide a case until
the final disposition and full service of sentence. Venue is simple the
geographical where the action is to be instituted. If we talk about
jurisdiction, it cannot be waived because it is conferred by law. On the other
hand venue can be waived because has been formed for the convenience of the
parties.
Venue can be stipulated. Under Rule 4, there is a provision on the stipulation

of venue. Exception: if there is a law that provides otherwise or there is a
stipulation on venue. For the stipulations on venue to be valid, it must reduced
in writing, made before filing of the case, and the stipulation is mandatory or
exclusive in character.
On the other hand, jurisdiction cannot be stipulated because is conferred by

law. Venue is procedural in character while jurisdiction is substantive in
character. But take not that it is only the jurisdiction over the subject
matter that is substantive in character because it is conferred only by law.
Jurisdiction over the issues, parties and the res are all procedural in character.
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The court cannot motu propio dismiss the case on the ground of improper
venue. But the court can motu propio dismiss the case on the ground of lack of
jurisdiction. Exception: the court can nonetheless dismiss the case on the
ground of improper venue if the case falls under summary procedure
because the court can dismiss the case on any ground available including
improper venue.
Jurisdiction refers to the relationship of the courts and the subject

matter of the case. On the hand, venue refers to the relationship of the
parties. One important matter is the distinction between error of jurisdiction
and error of venue. An error of jurisdiction affects the validity of the
proceedings but an error of venue does not affect the validity of the
proceedings. In error of jurisdiction, if the court has no jurisdiction over
the subject matter of the case, no matter how right or correct the
decision is, that decision is void ab initio but if there is only an error of
venue, it does not affect the validity of the proceedings because the court
has jurisdiction thus no matter how improper the judgment as long as the
court that issued the judgment has jurisdiction and the question on venue
has been waived, the decision and proceeding is valid.
ERROR OF JUDGMENT AND ERROR OF JURISDICTION: If there is only

error of judgment, it is still valid, if it is error of jurisdiction, the judgment is
null and void. If there is error of judgment, and if there is no motion for
reconsideration, no appeal and it has become final and executory then it
becomes valid but if it’s an error of jurisdiction, no matter how the correct the
judgment is, or how correct the appreciation of the evidence, that judgment is
null and void. An error of jurisdiction is correctible by a petition for certiorari
alleging grave abuse of discretion, but an error of judgment is not correctible by
certiorari but by an appeal, motion for reconsideration or motion for new trial.
RELEVANT DOCTRINES REGARDING JURISDICTION

PRINCIPLE OF JUDICIAL HIERARCHY: Ex. Petition for Certiorari or
Mandamus- Under Rule 65, a petition certiorari, mandamus and prohibition,
original jurisdiction with RTC, CA and SC. A decision of an MTC can be a
subject of a certiorari filed with the RTC. A decision of the RTC can be subject
of certiorari filed with the CA and the decision of the CA can be a subject of
certiorari under Rule 65 filed with the SC. In other words, the principle of
judicial hierarchy should be complied. This principle presupposes to
preserve the principle of hierarchy of courts thus if it is the decision of
the MTC it cannot be brought to the CA or SC. EXCEPTIONS: 1. Creba vs.
Regulatory Commission: the principle of hierarchy of courts can be
disregarded for exceptional and compelling reasons. 2) Miaque vs. Patag
the SC stated, the petition for certiorari can be brought directly to the SC in
cases of pure question of law; and 3) if the issue involve of transcendental or
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public interest, the principle of hierarchy of courts can be disregarded and be

brought directly to the SC.
DOCTRINE OF PRIMARY JURISDICTION: it precludes the courts from

resolving a controversy over which jurisdiction has initially been lodged
with an administrative body of special competence. Thus, in agrarian
reform cases, jurisdiction is vested with DARAB, thus parties should not go to
court.
DOCTRINE OF JUDICIAL STABILITY OR DOCTRINE OF NON- JUDICIAL

INTERFERENCE: No court of equal grade can interfere or enjoin the orders
issued by another court of the same level. An RTC cannot enjoin the order
issued by another RTC. The SEC cannot issued an order reversing the order of
RTC. The CA cannot intervene with the decision of the CTA. The latter has the
same level of the CA. EXCEPTION: Santos vs. Baylon; Decision rendered by
NLRC in favor of the employees. Pursuant to the finality of the decision
rendered by the NLRC, the property of another person not a party to the action
was levied by the sheriff to satisfy the judgment in favor of the employee and
this was scheduled by auction. The person in the case objected filed a third
party claim( terceria) alleging that the property cannot be levied because it is
under his name. Rule 39, requires filing affidavit with the sheriff and state your
ownership and the sheriff has no choice but to release the property unless the
person who levied on the property post a bond. In this case, the sheriff did not
comply with Rule 39, the third person went to RTC to file an action to recover a
property seek for the issuance of a TRO. The RTC granted the petition and
issued a TRO. SC said that the doctrine of judicial stability should be applied.
But the SC as a matter of exception, it will sustain the ruling of the RTC
because the third person is not a party to the case because it would at the
height of injustice, if the property of the person who is not a party to the
case will be levied upon in an auction.
KINDS OF JURISDICTION:
A judgment rendered by the court is valid only if it has jurisdiction over the
party, issues, subject matter and over the res.
JURISDICTION OVER THE PLAINTIFF: From the filing of the complaint and
payment of the required docket fees. (refer to discussion above)
Summons: how is it served? By handling it personally to the defendant or
tendering the same to the defendant. The defendant should be asked to sign
and the sheriff will prepare the sheriff’s return. (see discussion above) . If for
instance the house is subject of a lease contract with another person residing
in that house where the summon is to be served. That summon is not valid
because the house is no longer the residence of the defendant but a
subject of a lease contract.
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JURISDICTION OVER ISSUES: is determined by the issues raised in the

pleadings filed. If an evidence is raised which is not contained in the pleading,
is it valid? No, it is immaterial. Even though it is not among the issues to be
resolved or raised in the pleading, the court can still rule on the same. If for
instance, plaintiff failed to allege in the pleading, if during trial plaintiff tried to
alleged it and the defendant did not object, the court can consider it by Rule 10
Sec 5 known as amendment to conform with evidence presented. If there was
no objection on the part of defendant, the court can consider the evidence and
even admitted by the court even though no amendment to conform with the
evidence has been made, because it has not been objected upon by the
defendant. In effect, there will be an implied amendment of the complaint.
RULES ON EVIDENCE:
No evidence can be appreciated or considered by the trial judge in resolving a
case unless such evidence has been marked during the pre-marking, presented
during the trial, identified or authenticated by a witness, formally offered as
exhibit, and admitted by the court.
JURISDICTION OVER THE RES: it is jurisdiction over the property and is

relevant in in-rem and quasi in-rem cases. Basis: Sec 15 Rule 14. Extra-
territorial service of summons. Jurisdiction over the defendant is not
needed, only jurisdiction over the res. How is it acquired? Jessie Lucas vs.
Jesus Lucas (June 6 2011); Jurisdiction is acquired by 1) seizure of the
property under legal process 2) as a result of an institution of a legal
proceeding in which the power of the court is recognized and deemed effective.
JURISDICTION OVER THE SUBJECT MATTER: conferred by law and

determined by the allegation in the complaint. (refer to above discussion)
Cannot be subject of stipulation and cannot be waived. Parties cannot agree
among themselves that jurisdiction be in Manila although venue can be
waived. Ex. Phil Int’ Corp vs. CA In a contract of sale for delivery of goods,
there is a stipulation that in the event of litigation all cases shall be instituted
in the RTC of Singapore. Subsequently, a case was filed in the RTC here, the
Singapore Corp argued that on the basis of the stipulation in the contract, the
action should be brought in the RTC of Singapore. SC speaking through
Justice Sandoval-Gutierrez, said that jurisdiction over the subject matter is
conferred by law. It cannot be a subject of agreement. The stipulation that
the case should be filed in the RTC of Singapore is invalid. But can a
stipulation be made that in case of litigation, the case can be filed only in
the RTC of a specific place? Yes, if it is a stipulation on venue. Two kinds
of stipulation of venue: 1) permissive stipulation 2) mandatory stipulation
on venue. What is the effect? This means that the venue should only be the
place agreed in the contract because it is mandatory and exclusive. However, if
it is permissive, the effect is the venue stipulated in the contract should be
added on the venue stated in Rule 4. If it is a personal action, look at the
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residence of the parties. In a case of breach of contract, if there is a stipulation

on the venue, file it in the place of the plaintiff or place of the defendant at the
option of the plaintiff and include the venue stipulated as possible option for
venue.
It cannot be conferred by waiver, acquiescence, agreement by the parties. Let

us say in the case between neighbors where one encroaches on the property of
the party. But they live in a remote place in Mindanao but a few minutes away
from the RTC and 5 hours away from the MTC. They entered into an notarized
agreement that in case of litigation, they will file the case only in RTC. Is it
valid? NO, simply because jurisdiction is conferred by law, it cannot be a
subject of waiver or agreement by the parties? What if for the last 30 years it
has been the habit of the RTC to take cognizance of ejectment suit without
objection from anyone. Will this fact validate the proceedings? NO, jurisdiction
cannot be acquired by the habitual exercise of the court of jurisdiction. No
matter how correct the decision of the RTC or appreciation of the evidence
presented by the parties of the judge of RTC, that decision is invalid because of
the absence of jurisdiction by the RTC.
When do you object as to jurisdiction over the subject matter?: First, file a
motion to dismiss under Rule 16; If a motion to dismiss is filed, the party is
bound by the Omnibus Motion Rule, thus, all grounds at the time of the filing
of the motion should be included in the motion otherwise it will be deemed
waived.(Rule 9 Sec 1) Exceptions to the Omnibus Motion Rule: 1) Lack of
jurisdiction over subject matter 2) litis pendencia 3) res judicata 4) prescription
Example: collection of sum of money for 500k filed with RTC? What are the
grounds for motion to dismiss? 1.) improper venue 2) lack of jurisdiction 3)
statute of frauds 4) litis pendencia When the motion to dismiss was filed only
statute of fraud and litis pendencia was alleged. Lack of jurisdiction and
improper venue was not alleged therefore they are deemed waived. If a motion
to dismiss is filed can an answer still be file? When can improper venue be
invoked? Two ways: File an answer with affirmative defenses under Sec 6 Rule
16. If a motion to dismiss has not been filed, these grounds can be alleged in
the answer. But since a motion to dismiss was filed the Omnibus Motion Rule
applies because a motion to Dismiss is an Omnibus Motion which attacks the
pleading, it attacks the complaint by having it dismissed. As such, all grounds
should be included in the Motion to dismiss whatever ground that was not
included in the Motion to Dismiss is deemed waived. Thus, in the Answer, only
the ground of lack of jurisdiction over the subject matter can be alleged in the
Answer.
In the MTD the ground of lack ground of jurisdiction was not alleged and in
the Answer, it was not likewise alleged this can still be raised for the first time
on appeal. Why? Because precisely the court has no jurisdiction over the
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subject matter and as such cannot take cognizance over the case even though
there is already a ruling in the lower court. But this is subject to the ruling in
the mother of all cases Tijam vs. Sibonghanoy where the SC laid down the
DOCTRINE OF EQUITABLE ESTOPPEL to question the jurisdiction of the
court. But this doctrine of Equitable Estoppel is not a general rule. It does
not mean that when the case has reached CA or SC, that this doctrine can be
invoked. If the party has embraced the jurisdiction of the court, by
participating in the proceeding, filed your pleading and subsequent lost in
the case such as in the case of Tijam where the case has been pending for
14 yrs, the losing party can no longer question the jurisdiction of the
court because the decision was adverse to his interest. But if the ground
is improper venue and is not alleged in the MTD and also in the Answer it is
deemed waived.
Soliven vs. CA: Collection of Sum of money for 1M inclusive of damages. He

lost in the case and went to CA questioning the jurisdiction of the Court. The
doctrine of Equitable Estoppel was again invoked by the CA.
Jurisdiction over the subject matter is conferred by law but determined by the
allegation in the complaint.
Jurisdiction for sum of money
MM – 400K and below – MTC
401k and above - RTC
Outside MM- 300k and below- MTC
301k and above- RTC
Rules on Summary Procedure

MM – 200k
Outside MM – 100k
Small Claims – not exceeding 100 k
Real Property
MM – 20k to 50k RTC assessed value
Below 20k MTC
Basis: Assessed value not the FMV or Zonal Value
Ex. Collection of sum of money for 1M against Dean Espejo before RTC . Dean
Espejo filed an answer admitting the allegation but claims that what he owed
the plaintiff is only 300k and contested the jurisdiction of the court in his
Affirmative Defense. The court dismissed the case. Was the court correct? No.
The court will hypothetically admit the allegations in the complaint, take
cognizance of the case and rule on the matter. Will the court grant the 1M? No
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the court will only give 300k to the plaintiff even if its not within its
jurisdiction.
EXCEPTION: that the allegation in the answer of the defendant maybe made
the basis of jurisdiction of the court. Yes, Morin vs. Saldivar July 23, 2008 in
cases involving tenancy relationship which is under the jurisdiction of DARAB,
the court can dismiss the case for lack of jurisdiction but not motu propio. The
court has the duty to hear the case, and there must be proof on such
allegation.
DOCKET FEES: Manchester Ruling: The principle is no docket fees no

jurisdiction. Payment of full amount of docket fees is mandatory and
jurisdictional.(see discussion above) Later in the Ayala Corp case invoke the
Manchester ruling but in Sun Insurance Corp vs. Judge Asuncion, applied
the liberal construction principle and relaxed the rule on payment of the
docket fees. The court can take cognizance of the case even though there
was no complete payment of the docket fees as long as it is paid within
the prescriptive period of the action.
What is the effect of insufficiency in the payment of docket fees? In the case of
Nathaniel vs. Shalim, the court acquired jurisdiction because it was not
the fault of the plaintiff but rather it was due to the error on the part of
the clerk of court in computing the required docket fee, however, the
court will require the plaintiff to pay the balance of the docket fees within
the prescriptive period of the action.
How is the jurisdictional amount determined? By determining the principal

amount of the obligation. This means that the damages, interest, attorney
fees, litigation expenses and cost of suit will be excluded in the
computation of the docket fees.
Exampled 300k promissory note, 60k attorneys fees, 20k litigation expenses,
damages 100k. Collection of sum of money in MM= MTC has jurisdiction.
When can damages be included? : Irene Sante vs. Claravall Feb 22, 2010:
the exclusion of the term of damages of whatever kind in determining the
jurisdiction amount applies to cases where damages are merely incidental
to or consequence of the main action.
Ex. Specific performance and damages- exclude the damages in the
determining jurisdictional amount
But if the main action is damages, include it in determining the

jurisdictional amount and apply the TOTALITY RULE.
If there is joinder of causes of action: A vs B
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Promissory note:100k, unpaid obligation 100k; house 100k; hospitalization

150k = compute all and apply the totality rule. Joinder of causes of action
against one
B C D E vs. A or A or BCDE = multiple parties

Unpaid obligation, 100, renovation 100, hospitalization 100k = each of these
can be filed separately because there is no common question of law or fact.
Therefore this cannot be join the cause of action
But if it’s a one on one situation, the rules on proper joinder of parties do not
APPLY.
Can a party join causes of action against several defendant

In order for a joinder of causes of action to be done, there must be compliance
with proper joinder of parties. Sec 6 Rule 3: Grounds: 1) it must arise out of
the same transaction or series of transactions whether jointly or severally or in
the alternative.
Note: if there is only a one on one situation, even if the cause of action did not
arise from the same transaction or series of transaction it is OK. BUT if there
are 2 or more parties involve A vs. BCDE- follow the rules on joinder of
parties which means, it must have common question of law or fact, it
must arise from the same transaction or series of transaction.
If it is a real action how is the jurisdictional amount determined? If more than

one year from receipt of demand to vacate, in unlawful detainer case, the
action to be filed is accional publiciana before MTC (old rule RTC) based
on the assessed value pursuant to the expanded jurisdiction of the MTC RA
7671 If it is in MM 51k and above RTC , 50k and below MTC; outside MM, 21k
and above RTC, 20k and below MTC. Even though it is ACCION PUBLICIANA
LOOK AT THE ASSESSED VALUE OF THE PROPERTY.
Actions incapable of pecuniary estimation is filed with RTC. What if the action
is a specific performance for the execution of deed of sale. Obligation is 1M with
partial payment of 500k and the balance payable on Dec 2011. Mr. A died
leaving A-1 a daughter. Can an action be filed against A-1 for purposes of
executing a Deed of Sale? Yes. Where should the case be filed? As a rule,
undisputably, an action incapable of pecuniary estimation falls under the
jurisdiction of RTC. An action for specific performance is an action indeed
incapable of pecuniary estimation and so therefore it should be filed with RTC.
However, if the primordial consideration of filing of action for specific
performance is to compel the defendant to deliver ownership to the other
party over a particular real property that action is no longer an action
incapable of pecuniary estimation but it should be considered as a real
action.
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When can you say that an action is a real action. An action is a real action if 1)
the subject property involved is a real property 2) the subject matter involved is
title, possession, ownership, foreclosure, partition, interest over the real
property. If it is a real action, look at the assessed value (based on tax
declaration) of the property to determine which court has jurisdiction over the
case. Thus, even if the action is for specific performance it is already
considered a real action if the purpose is to ask the defendant to give
ownership to the other party over the property. In Gochan vs Gochan,
Emergency Pawnshop Inc. vs. CA, Home Guaranty vs. Arco Builders, even
though that even though the case is for specific performance incapable of
pecuniary estimation if the purpose is to actually to compel the person to
deliver ownership to the party that action is no longer an action incapable
of pecuniary estimation but is an real action in which case jurisdiction
DEPENDS ON THE ASSESSED VALUE OF THE PROPERTY.
The same is true if the action is for rescission of contract or annulment of sale,
if the purpose there is to reconvey or deliver back the property to the plaintiff .
In annulment of sale or rescission of contract these are actions incapable of
pecuniary estimation but since it involves delivery of ownership, it is now a real
action.
Situation: Plaintiff filed a case for 1M before MTC, defendant move for the
dismissal of the case which was granted by MTC and ordered for the
forwarding of the record of the case to the RTC. Is the action of MTC correct?
NO. While the MTC correctly dismissed the case on the ground that it has
no jurisdiction over the subject matter of the case, take note that if there
is an MTD filed by the defendant, the court can only 1) dismiss the
complaint 2) deny the motion to dismiss 3) order the amendment of the
pleading. The court has no power to grant the MTD and order the records
of the case be forwarded to the RTC It would be a grave abuse of discretion.
MTC has jurisdiction over ejectment case. But can it resolve issues of
ownership? Yes but the resolution of the MTC in ejectment as to the issue of
ownership is only provisional in character which means res judicata is not
applicable. The issue of ownership is resolve only for purposes of determining
the issue of possession but the decision of the MTC as to the issue of
ownership cannot be used in another court or case because the decision on the
issue of ownership is only incidental or provisional.
2008 bar question: Plaintiff filed an action before MTC pasay for recovery of
physical possession of property. The value of which is P40k, damages P500k.
Defendant filed MTD claiming that MTC has no jurisdiction over the case on
the basis of the claim is P540k which is beyond the jurisdiction of MTC. The
court granted the MTD. Is it correct? No. the MTC has jurisdiction over the
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action because the amount involved is P40k Metro Manila. The claim for
damages is only incidental to the main action.
2010 bar question: Collection of sum of money; Admiralty case; the case was
filed with MTC, Defendant filed MTD stating that jurisdiction over maritime
claim cases falls within the jurisdiction of RTC. MTD was granted. Is the ruling
of the court correct? NO. MTC has jurisdiction over Admiralty and Maritime
cases.
Delegated jurisdiction of MTC: land registration case if the amount involved

FMV does not exceed P100k or there is no opposition.
Special jurisdiction of MTC: Habeas Corpus, when all judges in the RTC in the
province are absent, MTC can take cognizance over petition HB. Can MTC take
cognizance over special proceedings. Generally it falls under RTC. Exceptions:
1) HB 2) land registration 3) probate cases where the gross value involved is
400k and below in MM, and if 300k and below outside MM.
What are the matters where appeal may not be taken from? Rule 41 Sec 4
Rule 50: Dismissal of Appeal
As a rule if case is dismissed, the case can be refilled. What are the exceptions
that the re-filing of the case be allowed? Rule 16: 1) lack of jurisdiction 2)
improper venue
Distinguish the difference between failure to state a cause of action and Lack of
cause of action: based on evidence presented by plaintiff, there is insufficiency
REAL PARTY OF INTEREST: in a contract of sale, it is seller and buyer, in

mortgage it is the mortgagor and mortagee
INDISPENSABLE PARTY- that party must be joined otherwise the case cannot
go on.
Necessary party- only if complete relief is to be had
Co-debtor is not a indispensable party but only a necessary party.
CLASS SUIT: that interest must not be specifically identifiable otherwise

there is no class suit. Musi vs. CA:
DEATH OF DEFENDANT: If a case is filed by A against B and during pendency

of the case, B died. What will happen to the case. If defendant dies during
pendency of the case the first thing that will happen is the client-lawyer
relationship will be terminated because it is a contract of agency. In a contract
of agency, the death of one of the parties will dissolve the contract of
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agency. However despite the rule that the counsel can no longer represent the
party, because there is no longer an attorney-client relationship, under Rule 3
Sec 16, where the claim subsist, it shall be the duty of his counsel to inform
the court within 30 days the fact of the death of his client or defendant,
likewise the heirs, or executors be appointed as substitutes of the defendant.
After the lawyer has informed the court, the court will ask whether the action
survives. Annulment, legal separation does not survive. But action for
collection sum of money, ejectment case survives the death of the defendant.
The court will issue order of substitution upon receipt of surviving heirs will
automatic give the court jurisdiction over the substitutes. No need for the
court to issue summons anew because the Rules of Court and
jurisprudence dictates, the order of substitution is sufficient to vest
jurisdiction over the person of substitutes. it should be an order of
substitution and not an order granting substitution. If the plaintiff wins the
case it will go after the estate of the defendant.
RULE ON FOREIGN CORPORATIONS: refers to foreign corporation engaging

in business in the Phils and those that does not engage in business in the
Phils.
If we talk about corporation engaging in business in the Phils they are required
to acquire a license. So when we speak of a foreign corp it can either be those
engaged in business with a license and those which engages in business
without a license.
What is a rule: A foreign corp which engages in business in the Phils w/o a
license, it cannot sue and it can be sued. If it is a foreign corp engaging in
business in the phils with license it can sue and be sued.
A foreign corp which does not engage in business in the Phils is not
required to secure a license. But even though it does not engage in business
in the Phils and has no license, it can nonetheless it can sue under the
following cases 1) isolated cases 2) protection of goodwill 3) application of
estoppel
Santiago Cua vs. Juan Ocampo on DERIVATIVE SUIT: the corporation is

the real party in interest while the stockholders filing suit for the
corporation’s behalf is only a nominal party. In this case, there are 2 suits
filed, hence it violated the rules against multiplicity of suits and even forum
shopping. Only one derivative suit should be filed even if there are two or
more minority stockholders in the corporation because a derivative suit is
a suit by the corporation. In Roger Navarro vs. Judge Escobido the SC
ruled that there is no juridical or legal personality vested upon the sole
proprietorship, nor empower it to file or defend an action in court. In this
case, the adding of title in the case “Juansing Hardware” does not vest
personality on the said business to institute a suit unlike in the case of a corp.
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The proper party in this case, is the owner of the business or the proprietor
itself.
PLEADINGS:
Take note of the signature of the counsel: Who should sign the pleading? It
should be sign by the counsel or the party. But an unsigned pleading
produces no legal effect. But this defect can be remedied if there is merely an
advertence. Remember the significance of the signature of a counsel in a
pleading. It is actually a certification that he has read the pleading and
that to the best of his knowledge and information he has a good ground to
support it and it is not interposed for delay.
ENTITY WITHOUT JURIDICAL PERSONALITY:
ABC Corp has no license, no articles of in corp, by-laws or certificate of

corporation but nevertheless they represent themselves as ABC corp. In the
event that they enter into a contract with another party can they sue under the
name of ABC Corp? No, but they can be sued under the name to which they
are known such as ABC corp. this entity who represents themselves as a corp
even without the necessary license shall be treated as a general partnership.
In which case they will be liable, event to the extent of their personal properties
for their obligations.
A PO box cannot be used. Only a office or residential address.
Only ultimate facts can be alleged, not conclusion of law or evidentiary

matters. Exception: application of Rule 8, Sec 8 and 7 in cases of actionable
document. An actionable document should be alleged, specifically the
substantial portion thereof and attached to the pleading. An actionable
document is a document which is the basis of the claim of the plaintiff or the
basis of the defense of the defendant.
On the part of the plaintiff, the actionable document is the promissory note
while on the defendant it is the receipt showing payment as proof of
extinguishment of an obligation.
In a mortgage contract- the actionable document is the mortgage agreement

itself.
Where is the actionable document alleged? In the complaint and in the answer.
Such if there is an actionable document attached to the complaint, the
defendant is given two obligations, although as a rule material allegation
should be specifically denied only if what is to be denied is an actionable
document, the defendant is given one more obligation, which is to deny it
under oath (whether alleged in the complaint or answer) meaning it must be
verified. Otherwise, the party is deemed to have admitted its genuineness and
35
due execution. But can a party later claim that there is no consideration
because what was admitted only was the genuineness and due execution.
There are two EXCEPTIONS to the rule that if not specifically denied
under oath it is deed admitted: 1)if there is an order of inspection of the
actionable document 2) the party did not comply.
Ex. An action for collection of money and defendant request for the inspection
of the promissory note but plaintiff did not comply with the order of inspection.
Defendant is not obliged to specifically deny under oath the promissory note
because of plaintiff’s failure to comply with the order of inspection. Moreover,
defendant can move for the dismissal of the case alleging, Rule 29, which is
failure to comply with the order of the court.
The requirement of specifically denying under oath likewise apply in

cases of allegation of usury in the complaint otherwise the party is
deemed to have admitted the allegations of usurious interest. Rule 8 Sec
11. Although an actionable document is alleged and attached to the document,
when it comes to allegation of usury, the requirement of specifically denying
under oath applies only if the allegations of usury appear in the complaint.
An actionable document can be alleged and attached in the answer, and if

it is, the plaintiff has the obligation to file a reply and it becomes an
indispensable pleading because if no reply is filed, the plaintiff is deemed to
have admitted the genuineness and due execution of the actionable document.
But what if the case falls under the rules of summary procedure and the
answer alleges actionable document is the plaintiff required to file a reply even
though it is a prohibited pleading? NO. because if the case falls under
Summary Procedure even if there is an allegation of actionable document
in the answer, the plaintiff cannot file a reply because it is a prohibited
pleading. What will happen to the allegations of actionable document? The
rules of summary procedure will deny for the party. But the rule provides that
the party is not allowed to raise evidentiary matters, so the party has to wait
for a trial.
Are the parties required to verify the pleading? How?: A pleading is verified by
an affidavit stating that the party has read the allegations and that the
allegations therein are true and correct to the best of their knowledge and
information. the requirement of verification is not jurisdictional neither is
it mandatory. It is merely a matter of form. That is in the case of Medserve
Inc. vs. CA April 5, 2010- SC stated that verification is merely a formal
requirement and non-compliance therewith does not render the pleading fatally
defective. So when is a pleading required to be verified? Gen Rule: Pleadings
are not required to be verified. Exceptions: If the rules or the law requires to be
verified.
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Pleadings that are required to be verified: 1) all pleadings under the Summary
Procedures are required to be verified so these are complaint, answer,
compulsory counter-claim, cross –claim and answers pleaded thereon. 2)
initiatory pleading 3) mandamus, etc
Who should sign the verification? The signature of any of the principal
petitioner is substantial compliance.
CERTIFICATION AGAINST NON-FORUM SHOPPING: Chua vs. Metrobank
Kinds of Forum Shopping: 1) If there is a case of litis pendencia, there is

forum shopping. Litis pendencia arises by the filing of multiple cases and non
of the case have been resolved by the court. 2) In case of res-judicata- one
cause of action and separate cases involving the same cause of action and the
same prayer and the previous case having been finally resolved and 3) filing
multiple cases based on the same cause of action but with different prayers
such as would result to the splitting of causes of action.
EFFECT: whether a forum shopping as an act was willfully and deliberately

committed, the subsequent case shall be dismissed WITHOUT PREJUDICE on
the ground of either litis pendencia or res-judicata. However, where the act is
willful and deliberate, both or all, if there are more action shall be
DIMSISSED WITH PREJUDICE and the court can motu-propio dismiss it
on the ground that there is forum shopping. No need for hearing or
motion because there can be summary dismissal of the case.
DISMISSAL WITH PREJUDICE: Cannot refile the case. Remedy: Appeal
DISMISSAL WITHOUT PREJUDICE: Can refile the case. Remedy: Petition for
Certiorari
Effect of failure to comply with the rule on certification against non-forum

shopping:
Rule 7 Sec 5 (2): Will result to the dismissal of the case without prejudice.
Situation: A filed a case against B. B filed MTD on the ground of failure to

comply with the rule on cert against non-forum shopping. The court dismissed
the case. What is the remedy of the plaintiff? The remedy is not appeal but
Petition for Certiorari Rule 41 Sec 1(h)
Is the certificate against non-forum shopping mandatory? Yes but not a

jurisdictional requirement.
Who should sign the certificate against non-forum shopping? The party or
principal party if two or more. EXCEPTIONS: application of the liberal
application. The counsel may sign the certificate of non-forum shopping if
he is armed with a authority or board resolution if the party is a
corporation . In Ortiz vs. CA the SC stated that if the counsel can give a
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good reason why he was not able to secure his client’s signature, and his
client is not deprived due process, the counsel can sign the certificate
against non-forum shopping.
When 3 out of 97 plaintiffs signed the certificate of non-forum shopping was

held by the SC as substantial compliance with the requirement that all parties
should sign the certificate where there is commonality of interest as between
the parties to the action.
Can the defect of failure to sign the certificate as Non-forum Shopping be

cured?
Case: A filed a case against B but failed to attach a certificate against non
forum shopping. B filed MTD and the court dismissed the case. A filed a MR
attaching a certificate against non-forum shopping. The court reconsidered and
continued with the proceeding. Is the court correct? NO because the defect
cannot be cured.
Lets say B filed an MTD instead of an answer and before the court can rule on
the motion, plaintiff filed an amendment because under the rules, a party may
amend his complaint before a responsive pleading. The court granted the
amended complaint. Is the court correct? NO, the defect cannot be cured by an
amendment and attaching therein a cert against non-forum shopping?
Can the court motu propio dismiss the case? No, there must be a motion on
the part of the other party. Otherwise there will be a grave abuse of discretion.
COMPULSORY COUNTER-CLAIM – It must be pleaded otherwise it is

barred. But a permissive counter-claim which has no causal relation or did
not arise from the complaint can be a subject of a separate and distinct
complaint and which was incorporated in the answer in order to avoid
multiplicity of suit. In which case, the party is required to pay docket fees. But
in compulsory counter-claim, the party is not required to pay docket-fees. In
permissive counter-claim, since it is supposed to be a separate complaint, the
plaintiff is required to file an answer otherwise, rule 9 Sec 3, the plaintiff will be
declared in default. Moreover, since it is an initiatory pleading which is merely
incorporated in the answer, a certificate against non-forum shopping should be
attached unlike in a compulsory counterclaim.
Roxas vs. CA; Benedicto vs Lacson Case: important: ROXAS DOCTRINE
Situation: A filed a case against B for collection of sum of money but before B
files an answer, plaintiff filed a notice to dismiss pursuant to Sec 1 Rule 17;
After sometime plaintiff re-filed the case against B but plaintiff forgot to state in
the certificate against non-forum shopping that there was a previous case
wherein a MTD was filed. Was there a violation against non-forum shopping?
In Roxas vs. CA and Benedicto vs. Lacson, the SC stated there is no violation
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of the rule on cert against non-forum shopping. The rule states that if a
complaint is dismissed at the instance of the plaintiff under Sec 1 Rule 17
there is no need to state in the certificate against non-forum shopping in
the subsequent case filed the previous dismissal of the case as a matter of
exception to the rule.
Are we allowed to FILE A PLEADING through a private courier? NO in the case

of Benguet Electric Cooperative vs. NLRC. It should be filed personally or
substitute service.
DOCKET FEES: See above discussion:
Effect of payment of docket fees: 1) the action is deemed to have

commenced 2) court acquires jurisdiction over person of the plaintiff 3) it
stop or tolls the running of the prescriptive period to file an action
Can alternative causes of action be alleged or implead alternative defenses?

Under Rule 3, alternative defenses can be impleaded if the plaintiff is not
sure who should be the defendant.
Can alternative cause of action be alleged? Yes, where it cannot be determined

whether a case for culpa aquillana or culpa contractual or breach of contract of
carriage should be filed. (Mallorca case)
After the complaint has been filed and summon were served, the plaintiff can
do two things: 1) amend the complaint or 2) dismiss the complaint
2 NOTICE RULE:
The plaintiff can dismiss the complaint as a matter of right before the
answer is served to the other party. The court has no authority to refuse the
dismissal because as long as there is no responsive pleading (answer) dismissal
on the part of the plaintiff as a matter of right under Rule 17. The plaintiff will
not file a motion but merely a notice to dismiss. The court cannot grant or deny
the same but merely confirm the decision of the plaintiff to dismiss the
case. If the court refuses to dismiss the case, can the plaintiff file a mandamus
to compel the court? Yes, because the court does not exercise discretion but
merely ministerial. But after sometime, A again re-filed the case and paid the
docket fees. B asked A to dismiss the case so A filed a notice to dismiss again.
Can A do that? Yes but later re-filed again for the 3rd time and upon the
request of B he filed for a notice of dismissal but this time the court denied it?
Was the court correct? Yes, the dismissal of the second complaint filed is
considered as an adjudication on the merits. Therefore , the rule on res-
judicata applies.
What if after plaintiff filed a complaint against B, he did not file an answer but
instead a MTD. Can A still file a notice of dismissal? Yes, because a MTD is
not a responsive pleading so much so that even if there is a MTD, plaintiff
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can amend his complaint because it is not a responsive pleading. But after
filing of answer DISMISSAL IS NO LONGER A MATTER OF RIGHT, hence
plaintiff has to file a motion to dismiss under Rule 2, and this time the
court exercises discretion and will evaluate whether to deny or grant the MTD.
If the case has been dismissed by virtue of a MTD, that means after the filing of
a responsive pleading, can plaintiff still refile the case? If the ground is lack of
jurisdiction can the complaint be refilled? Yes, file it with the court that has
jurisdiction. If the ground failure to state a cause of action, can it be refilled?
Yes, re-state the cause of action. If the ground is improper venue, file it in the
proper venue. But if the case is dismissed on the ground of prescription, the
case can no longer be re-filed. The same is true if the case was dismissed by
reason of barred by prior judgment, res-judicata or unenforceability.
If there is a dismissal of the complaint before the filing of an answer and the
answer incorporates a permissive counter-claim or compulsory counter-claim.
Is the dismissal of the complaint carries the dismissal of the permissive-
counter –claim or compulsory –claim. NO. Since july 1, 1997, the dismissal is
limited only to the complaint, the permissive or compulsory counterclaim
is not dismissed. But the defendant has an option. 1) whether to prosecute
his counter-claim in the same action or 2) file a separate claim.
DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF: 1) failure to appear on

the date of presentation of evidence in chief 2) failure to prosecute for
unreasonable length of time 3) failure to comply with the order of the court, or
with the rules. Dismissal under 2 and 3 are considered as adjudication on the
merits and the principle of res-judicata applies and the party cannot refile
the case unless the dismissal specifically states that the dismissal is
without prejudice. Take note of Gomez vs. Alcantara and PNB (2-9-2009)vs.
Estate of Francisco de Guzman 6-10-2010)
AMENDMENT: 1) amendment as a matter of right 2) amendment as matter of

discretion 3) amendment to conform to evidence 4) amendment by implication
5) amendment to confer jurisdiction to the court
After the filing of the complaint and service of summons, the plaintiff can do
two things either amend or dismiss the case. If plaintiff did not opt to dismiss
the complaint and instead wants to amend. Before the service of responsive
pleading (answer) amendment is a matter of right such that the court cannot
do anything and can be compelled by mandamus. But since it’s a matter of
right, plaintiff can absolutely change anything in the complaint including
the cause of action. However, amendment under Rule 10, this cannot be
done twice. Even if there is no answer but only an MTD, amendment can no
longer be a matter of right but already discretionary and therefore it requires
leave of court. If it is a matter of discretion, the court can refuse the
amendment if the purpose is to change the cause of action or alter the theory
of the defense or interpose for delay.
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EXCEPTION: Valenzuela vs. CA 416 Phil 289 (2001) as cited in Henry Ching
Tiu vs Phil Banks of Communication (8-19-2010): SC stated that even if the
amendment substantially alters the cause of action or alter the defense of
the case such amendment will still be allowed where it 1)sought to serve
the higher interest of substantial justice, 2) prevent delay, and 3) secure
the just, speedy and inexpensive disposition of the proceedings.
AMENDMENT TO CONFER JURISDICTION: A filed a case against B for

P300,000 before RTC of QC. B filed MTD for lack of jurisdiction. A filed an
amendment raising the amount to 500k. RTC allowed the amendment. Did the
court acted correctly? No, the court erred in deciding the amendment of the
complaint since it has no jurisdiction in the first place to take cognizance of the
original case applying the SIASCOSO DOCTRINE (Siascoso vs. CA)
EXCEPTION: In the old case of Gumapay vs Maralit and later as cited in the
case of Irene Sante and Reynaldo Sante vs. Claravall. SC states that
amendment should be allowed as a matter of right under Rule 10 Sec 2
since what B filed was MTD and not a responsive pleading (answer).
Therefore, plaintiff can amend the complaint to confer jurisdiction to the
court. The prohibition to the rule that a complaint cannot be amended as
a matter of right to confer jurisdiction applies only where an answer has
already been filed. (NOTE THIS IS VERY IMPT)
AMENDMENT TO CONFORM TO THE EVIDENCE: Issues were raised during

trial but was not alleged in the complaint or pleading. There is an evidence
presented during trial but was presented in order to prove a matter not found
in the complaint. If the matter is not alleged in the complaint or any pleading
thereof, that evidence should not be allowed because it is IMMATERIAL. So if
there was no allegation on the demand letter in the complaint but during trial,
plaintiff presents the demand letter after its presentation plaintiff can
move to amend the complaint to conform to evidence presented under
Rule 5.
What if the complaint was not amended, what will happen? Can the court
consider or appreciate the demand letter presented during trial in resolving the
case. Yes, there will be an amendment by implication because it is as if it
was raised in the pleading already because the court can validly consider
an evidence even it was not included in the pre-trial order if there was no
objection or opposition on the part of the other party.
A filed a complaint against B for sum of money due and demandable on Dec
2012 but the complaint was filed before the obligation became due and
demandable. So B filed MTD for lack of cause of action. But during the
pendency of MTD, A filed an amended complaint believing that it is a matter of
right applying the principle laid down in Sante vs. Claravall. Is A correct? No.
The complaint cannot be amended if in the first place, the cause of action
has not accrued at the time of the filing of the complaint.
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Let us say, during the pendency of the MTD, the judge died so its already
January but the MTD has not been decided. A filed amendment during
pendency of a MTD, SC said No, there is an after acquired cause of action and
the plaintiff cannot be allowed to amend the complaint to allege an after
acquired cause of action precisely because there was no cause of action in the
first place and the plaintiff cannot amend the complaint. Can a supplemental
complaint be filed? No.
If the complaint is amended, what would be the effect of the amendment? It

will supersede the original pleading. What happens to the allegations in the
original complaint? The admissions in the pleadings becomes extra-judicial. In
Torres vs. CA, admissions in the amended pleadings may be considered as
extra-judicial admission. If the original pleading is amended, can a new
summon be served on the defendant? NO. if they have already appeared by
virtue of the summons served on the original complaint, there is no need
to serve a new summon. But if they have not appeared on the original
pleading, there is a need to serve a summon.
SUPPLEMENTAL PLEADINGS: Refers to matters that arose after the filing

of the pleading. If the summons has already been served, what will happen.
What is the obligation of the defendant? He can either 1) ignore the summons
or 2) or respect the summon and file an answer.
If the defendant ignores the summon, he will not file an answer. The summons
tells the party to file an answer within 15 days and failure to do so, he will be
adjudged in default. What is the purpose of summons? For the court to acquire
jurisdiction over the person of the defendant and to afford due process.
Can the court declare the defendant in default motu propio? NO, the court has
to duty to wait for a motion to declare the defendant in default and the
court has the duty to wait for the proof of service of the motion to declare
defendant in default because one of the rights of a party declared in default
he should have received a motion declaring him in default and notices of
the proceedings.
Can he appear and testify in court? No, because he is in default, he has lost his
standing in court. So the court has to wait for the motion to declare the
defendant in default and this motion should be set for hearing because it
should comply with Sec.,4 5 and 6 of Rule 15 of the Rules of Court otherwise
that motion will be considered as pro-forma motion. A pro-forma motion is a
motion that violates the provisions of the Rules. So therefore it should be set
for hearing because it is a litigious motion. After the hearing thereof , the court
can now declare the defendant in default.
42
What is the effect of the declaration of default? The Rules of Court states that
the plaintiff maybe allowed to present evidence ex parte or the court can render
a judgment on the basis of the complaint.
If the defendant is declared in default, what is the remedy of the defendant? A

party declared in default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order of default upon
proper showing that his failure to answer was due to FAME and that he
has a meritorious defense. In such case, the order of default may be set
aside on such terms and conditions.
It is not enough that a party files a motion to set aside order of default. He
has to file an affidavit of merits stating therein that he has meritorious
defense. This affidavit of merit is jurisdictional such that if it is not included in
the motion, said motion shall not be heard by the court. It is not only a motion
to set aside order of default as the only remedy. An MR on the order declaring
the defendant in default can be filed. In Facundo vs CA. if an MR or motion
to set aside order of default is filed, that is considered as voluntary
appearance. What is the extent of the relief granted by the court in case the
defendant has been declared in default? If plaintiff’s claim is 1M and
defendant has been declared in default and plaintiff presented evidence ex
parte, he was able to prove that he is entitled to 1.5M, can the court grant the
amount the 1.5M conformably to the evidence presented exparte? NO, because
if a party has been declared in default the amount granted cannot exceed
the amount claimed or be of different in kind nor award of liquidated
damages if there are no evidence presented. But if there is no declaration of
default and plaintiff was able to prove the amount of 1.5M notwithstanding
that his claim is only 1M in the complaint, can the court award the amount
proved? YES, this is covered by the phrase “just and equitable under the
premises”. But if on the other hand, defendant files an answer, he may admit
the material allegations in the complaint or his answer fails to tender an issue,
plaintiff may invoke judgment on the pleading or if there is no genuine issues,
plaintiff may invoke for summary judgment.
The court need not go to trial anymore because it is already admitted in the
answer or pleadings, hence, judgment can be rendered based on the pleadings.
WAYS OF CUTTING SHORT LITIGATION: 1) Motion to dismiss; 2) Judgment

on the pleadings; 3) Summary Judgment 4) MTD by way of Demurrer to
Evidence
If the answer does not admit the allegations, defendant can file an answer and
allege affirmative defenses. To delay a proceeding or give time to defendant to
meet is obligation, Defendant can file a MTD to question jurisdiction over the
subject matter or person of the defendant or Motion for Time but by doing so,
43
party cannot question the jurisdiction of the court. Defendant can file Bill of
Particulars because they are vague allegations in the complaint so plaintiff will
file an amended complaint to clarify his claim. Note that if the answer is vague,
plaintiff can also file for a Bill of Particulars.
WHAT IS THE EFFECT OF NON-COMPLIANCE WITH AN ORDER FOR A BILL

OF PARTICULARS?
None compliance with the order of the court to file a bill of particulars, the
pleadings or answer may be expunged from the record. If it is expunged, there
is no more answer and defendant can be declared in default.
WHEN MAY A PARTY BE DECLARED IN DEFAULT DESPITE THE FILING OF

AN ANSWER:
1. Rule 29 (c ) An order striking out a pleading or staying of proceedings until

order is obeyed or dismissing the action or proceeding or any part thereof or
rendering a judgment by default against the disobedient party.
2. Rule 29 (5) If a party fails to appear before an officer who is to take his
deposition after being served with proper notice, the court on motion and
notice, strike out all or any part of the pleading of the party or dismiss the
action or proceeding or any part thereof or enter a judgment by default against
the party
3. Rule 12 if Motion for Bill of Particulars was not complied by defendant, will
result to striking out of answer, which may result to declaration of default.
HOW WILL THE COURT ACT ON A MOTION FOR A BILL OF PARTICULARS?

The motion was set on a Friday and called for hearing. On hearing the court
informed the defendant that the court has already ruled on the motion. Did the
court acted correctly in ruling on the motion before the hearing?
Upon filing of the Bill of Particulars the court can do 3 things: 1) deny it
outright 2) grant the motion outright 3) or give the parties the
opportunity to be heard pursuant to the right to due process.
Bill of particular must point out the defects complained of, paragraphs
where the defects are contained and the details desired. THIS IS
MANDATORY. None-compliance with this requirement, the BOP will be a pro-
forma and therefore it will not stop the running of the prescriptive to file an
answer. If it is a pro-forma it will be a mere piece of paper with no force and
effect and therefore, the court cannot act upon the motion.
New CASE: on declaration of default

San Pedro Complex vs. CA: if the party did not file an answer within 15 days
the party will be declared in default. A party who files an answer on the 91st
day, as long as there is no motion to declare defendant in default and as
44
long as there is no declaration in default, the answer will be admitted

provided a motion to admit answer has been filed and state therein the
reason for the delay. THERE MUST BE A HEARING BEFORE A ORDER TO
DECLARE IN DEFAULT CAN BE GRANTED
Grounds for Motion to Dismiss: Do not file an appeal on the denial of

motion to dismiss but file an answer, continue with the proceeding and
appeal from the decision on the case. But if the MTD is granted, it is a final
order but not yet executory because there are still post judgment remedies.
ANSWER:
2 Parts of an Answer: 1) Affirmative Defenses 2) Negative Defenses
Denials:
1) general denials 2)specific denials 3) negative pregnant 4) pregnant with an

admission
NEGATIVE PREGNANT- deny only peripheral aspect of the allegation but

not the main allegation.
Ex. You said A is gay and he goes to Adonis everyday. A answers that he does
not go to Adonis. So he only denies the peripheral aspect and not the main
allegation which says that he is a gay.
AFFIRMATIVE DEFENSES – hypothetically admitting the allegation but

presenting theseaffirmative defenses to avoid liability. Denials should be
specific denial because a general denial amounts to admission. So material
allegations should specifically denied otherwise they are deemed admitted.
KINDS OF PLEADINGS:
1. complaint 2. Counter claim 3. Permissive counter-claim
Can you file a counter-claim against a person who is not yet a party to a case?
SC says yes, so he can be brought into the case.
Can you file a party cross-claim against a co-defendant?

Yes, without a need for leave of court. Ex. A filed a complaint against B and C,
but actually it was C who used the money, B can file a cross claim against C to
bring him in the action.
A and B quarrels over a parcel of land which is actually owned by C, C appears

files an complaint intervention or answer intervention for purposes protecting
his interests over the land. This can be filed provided there is no judgment yet
and with leave of court.
45
REPLY: file if the answer attaches an actionable document. It is the last

pleading to be filed. After the filing of the reply, it is the duty of the plaintiff to
move ex parte the case for pre-trial. Under Rule 18, it is mandatory for the
parties to file a pre-trial brief. Failure to do so, it would be tantamount to non-
appearance during pre-trial. During the pre-trial, the judge will ask the parties
if they want to settle the case. If parties refuse to enter into an amicable
settlement, can the court right away terminates the pre-trial order for the
presentation of evidence by the plaintiff and defendant respectively? NO,
because the pre-trial is not only for purposes of exploration of amicable
settlement, there are stipulation of facts, marking etc. As matter of fact a
counsel if armed with an SPA should include all the acts that can be done
during pre-trial. So for instance, a counsel who possess an SPA but his
authority includes only to sign and represent the party but does not include
the authority to appear for and behalf of the client, his authority is defective
and therefore the client may be deemed to be absent during pre-trial. The SPA
should include all acts that can take place during pre-trial.
After presentation of evidence by the plaintiff, the defendant has two options,
present his evidence in chief or to file demurrer in evidence on the ground of
insufficiency of evidence. (See discussion above).
2 INSTANCES WHEN DOUBLE –JEOPARDY ATTACHES EVEN THOUGH THE

DISMISSAL WAS AT THE INSTANCE OF THE DEFENDANT:
1. Dismissal of the case on the ground of demurrer to evidence-
2. Violation of the speedy trial act of 1998
In civil case, there is no period to file a demurrer to evidence, in criminal case,

the party has to file a motion for leave of court within 5 days and if
granted, to file a demurrer to evidence within 10 days.
Thereafter, the parties will be asked to submit their respective memoranda.

After which the court will render a judgment. The rule is, the judgment will
only be valid if the court that rendered the judgment has jurisdiction over the
subject matter, parties and issues otherwise the judgment is VOID AB INITIO
and will not bind the parties.
The judgment should be in writing and should state distinctly the facts
and the law which is the basis of the judgment. If the court has no
jurisdiction, no matter how correct the decision, the judgment is VOID. But if
the court has jurisdiction, no matter how incorrect or erroneous the decision
is, as long as the court has jurisdiction, that judgment is VALID. An erroneous
judgment can be considered a valid judgment if there was no invocation of the
post judgment remedies and the parties allowed that erroneous judgment
become final and executory. But the remedy is to file an appeal, MNT or MR. If
46
the court however has no jurisdiction, the remedy is to file a petition for
certiorari, prohibition or mandamus.
2 DISMISSAL RULE:
If plaintiff decides to dismiss the complaint prior to the service of the
answer, dismissal is a matter of right, such that the court has no right to
refuse the dismissal precisely because such dismissal of the complaint
before the service of answer is a matter of right. In fact A PETITION FOR
MANDAMUS CAN BE FILED TO COMPEL THE COURT TO ACCEPT THE
DISMISSAL. Since it is a matter of right, the court has no discretion and will
not exercise discretion. It will merely confirm the decision of the plaintiff to
dismiss the complaint. Conformably to the provision of Sec 1 Rule 17, the
dismissal as a matter of right can be done twice. After the second dismissal as
a matter of right before the service of the answer, the effect would be
adjudication on the merits, such that there will already be res judicata. Such
that the 3rd time that the party moves for the dismissal of the complaint even
though there is no service of answer yet the provisions of Sec 2, Rule 17 will
now be invoked. In other words, there is a need to file a motion already because
the party is already bound by the 2 notice rule or the 2 dismissal rule. Filing
of the dismissal after the service of an answer is no longer a matter of
right, but should already be subject to discretion and therefore should be
subject to the filing of a motion. As such it may be granted or denied.
PRESENTATION OF EVIDENCE: Order of presentation: 1) Conduct of direct

examination for the purpose to prove the allegations in the complaint. 2) After
the conduct of direct examination by the plaintiff, the other party will conduct
a cross examination for the purpose of disprove the credibility of the witness
and is limited to the scope of the direct examination. The probative value of the
evidence is not the same as the admissibility of evidence. When we speak of the
probative value of the testimony of the witness we speak of the credibility of the
witness.
After the presentation of the evidence of the plaintiff and the defendant, the
plaintiff may present rebuttal evidence provided it is with the leave of court.
When you refer to rebuttal evidence, a party cannot present new cause of
action nor can you prove your causes of action if you are the plaintiff during
rebuttal stage, because the purpose of rebuttal is only to attack the evidence
presented by the defendant. The same is true if defendant is to present sur-
rebuttal evidence, he cannot present new evidence. After presentation of
evidence by the defendant, he has to file his formal offer exhibits. A party is not
compelled to offer all exhibits presented during trial. If an evidence is
prejudicial, the party is not compelled to offer that evidence especially if
the other party has not adopted that evidence. After the offer, the issue has
to order whether it admits or deny the exhibits. Defendant will not present
sur-rebuttal if plaintiff did not present rebuttal.
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Take note that no evidence shall be appreciated by the court unless it has 1)
marked during pre marking2) presented during trial 3) authenticated by
witnesses 4) offered 5) admitted by the court.
After the order has been issued by the court to admit the exhibits, it will order
the parties to submit their memorandum to aid the judge or court in deciding
the case. Note that the judge may copy in toto the jurisprudence of the parties
in their respective memorandum.
JUDGMENT: MUST BE IN WRITING (refer to above discussion)
What is the distinction between final order and interlocutory order:

INTERLOCUTORY ORDER- there is something to be done. Cannot be appealed.
Certiorari may lie where there is grave abuse of discretion. But if it is a final
order, avail of the post judgment remedies.
When a judgment becomes final and executory it can no longer be changed,

altered or modified except in cases of clerical error and nun pro tunc judgment
provided the rights of the parties are not affected.
When does a judgment become final and executory? After the lapse of the 15
days to file an appeal, MR or MNT or without waiting for the 15 day period, the
party waives the post judgment remedies. If the judgment is already final and
executory, under the DOCTRINE OF FINALITY OF JUDGMENT or DOCTRINE
OF IMMUTABILITY OF JUDGMENT, that judgment can no longer be
changed, altered or modified and the court loses jurisdiction to amend
the same.
Take note of the principle of res judicata, law of the case doctrine.
WHEN IS THERE ENTRY OF JUDGMENT?

Entry of judgment does not mean the entry in the books of judgment but
the date when the judgment becomes final and executory regardless of the
physical act of the clerk of court in entering the dispositive portion
judgment in the books of entry of judgment.
If you are the losing judgment avail of the post judgment remedies under Rule
37 either MR or MNT. When you talk about MR, file it within the period to file
an appeal which means 15 days. If an MR was not filed and it is already the 5th
day, can a party file a Motion for extension to allow him additional period to file
an MR? No. it is prohibited applying the JABULYAS DOCTRINE: Motion for
extension of time can no longer be filed in order to file a MR because after
the lapse of the 15 day period, the Doctrine of Immutability of Judgment
or Doctrine of Finality of Judgment will apply. Which means that if a
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party files a motion for extension of time even though within 15 day
period after the lapse of the 15 day period, you will render that decision,
which is the subject of a Motion for reconsideration final and executory.
The MR is grounded on 3 grounds: 1) damages are excessive 2) evidence is
insufficient 3) decision is contrary to law.
SC has clarified that if a party is not going to invoke any of these grounds the
MR is considered pro-forma, hence it will not stop the running of the period to
file a MR. A pro-forma motion is a useless piece of paper without force and
effect and it does not present any question for the court to resolve. It does not
give authority to the court to take cognizance.
WHEN IS THERE PRO-FORMA MOTION?

A motion is pro-forma if it violates the provisions of the Rules. If it does not
comply with the Rules. Under Rule 15 and galaxy of cases, the provisions of
Secs 4,5,6 of Rule 15 should be followed. Otherwise, the motion will be
considered pro-forma.
Motion for Reconsideration is an Omnibus Motion under Rule 15 which

means all the grounds should be included at the time of filing otherwise
they are deemed waived. EXCEPTIONS: lack of jurisdiction, prescription, res
judicata
A motion for reconsideration must be in writing which requires that it

should follow the 3 day motion rule and the 10 day notice rule. Three
days to hear the motion and 10 days within with to file the MR.
A SECOND MR IS PROHIBITED. The prohibition as to the filing of a

second Motion for Reconsideration applies only to a final order. It does not
apply to an interlocutory order.
If the ground is FAME, do not file MR but instead a MNT. It should be filed
within the same period to file MR. Newly discovered evidence are not forgotten
evidence, but those evidence not discovered and produced during trial. If
a MNT is filed, an affidavit of merit is required. If the MNT is allowed, it will
start a trial de novo, evidence presented will no longer be presented anew.
If the court grants or denies the MNT or MR what are the remedies? If granted,
the old judgment is disregarded. If denied the MR should not be appealed, but
the ORDER which is the subject of the MR. When do you file a MR/MNT: 15
days. If it is filed on the 8th day and it was denied, can an appeal be filed?
Under the old rule, appeal may be file on the remaining or the balance of the
period. If the MR/MNT is filed on the 6 or 7th day it is filed out of time.. But
under the NEYPES doctrine, parties have a fresh period of 15 days within
which to file an MR or MNT.
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In Sumiran case; the Neypes rule is made to apply after Set 2005 cases
but in Duarte vs Duran case: the fresh period can be applied even before
the Set 14, 2005 cases because there is no vested right in procedure and
later cited in Phil Estate Property vs. Judge Villanueva
If an MR/MNT are denied, file an appeal. The relevant provisions are Rule 40,
41, 42 43, and 45. Appeals from MTC to RTC, apply Rule 40. Appeal from MTC
to RTC appeal is via Notice of Appeal to the court which rendered the judgment
and not to the appellate court. To do otherwise will not stop the running of the
period to file an appeal, therefore the judgment will become final and
executory.
When is a appeal deemed to have perfected? Ex. decision rendered by MTC.

Can the decision executed while pending appeal? Yes, two kinds of execution
1) Execution as a matter of right 2 ) Discretionary Execution ( execution
pending appeal) Under Rule 70, it is not enough that a motion for execution is
filed. The defendant upon filing a notice of appeal to the MTC has within a
period to file an appeal has to post a supersedeas bond, deposit accrued
rentals. If defendant files a notice of appeal but did not post supersedeas bond
and accrued rentals deposited, can a motion for execution pending appeal still
be filed? Yes. Under the Residual Jurisdiction of Court, as long as the MTC
is still in possession of the records of the case or has not transmitted the
records of the case to the RTC, the MTC can still render judgment to
preserve the rights of the parties, to execute compromise agreement and
including execution pending appeal. But if the records have already been
transmitted to the RTC the motion for execution pending appeal should be filed
with the RTC. In Chua vs. CA, as long as the motion for execution pending
appeal within the 15 days period within the period to appeal, the MTC can still
grant the motion by virtue of its residual jurisdiction.
From the RTC, appeal should be taken under Rule 42, or the RTC exercising its
appellate jurisdiction. In accion publiciana, the MTC shall exercise jurisdiction
provided it is within its jurisdiction based on its assessed value. If the assessed
value is 51K in MM, the case is appealable to RTC.
Rule 43 appeals on decisions of quasi judicial agencies except decisions of CTA

division which is appealable to CTA en banc and from the CTA en banc
decision is appealable not to CA because it is of equal jurisdiction but to the
SC. NLR decisions are appealable to CA applying the doctrine of judicial
hierarchy. Ombudsman appealable to CA only for administrative cases.
Sandiganbayan decisions appealable to the SC.
Rule 45 refers to decisions rendered by RTC to SC on pure questions of law via

appeal by certiorari or as a continuation of the appellate process. No need to go
to CA or to SC.
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If a decision of RTC and a petition for certiorari was filed to the CA under Rule
65 (original jurisdiction) but was denied, go to SC under Rule 45 within a
period of 15 days since it is a continuation of appellate process.
If the decision is final and executory, invoke Rule 38 or petition for relief 60
days from the time the party learns of the judgment and 6 months from entry
of judgment. These two periods must concur. Basis: FAME, affidavit of
merit is jurisdictional requirement. This can still be availed even if the party
has already filed an appeal, MR, MNT. But the mere filing of the petition for
relief from judgment will not stay the execution of judgment. An injunction
has to be secured to stay the execution of judgment because a petition for
relief presupposes that there is already a final and executory judgment.
The petition for relief should be filed to the court which rendered the
judgment. If the petition for relief is to be filed with the SC, do not use
Rule 38 but Rule 47 and the grounds is not FAME but lack of jurisdiction
(imprescriptible) and extrinsic fraud (within 4 yrs.) A decision of MTC can
be a subject of annulment of judgment before the RTC, RTC to CA and so
on.
ON PETITION FOR CERTIORARI: go back to Constitutional provision Art 8

sec 1 of 1987 Constitutional on judicial power which is the basis for the filing
of a petition for certiorari. Under this Constitutional provision, judicial power
includes the power of the court to settle actual controversies involving rights
are legally demandable and enforceable. This expanded concept of judicial
power now includes the power to determine whether there is grave abuse of
discretion amounting to lack or excess of jurisdiction to any branch or
instrumentality of govt, as a manifestation of an observance to the principle of
checks and balances. Rule 65 tells us that a decision of the Optical Board is
subject to a petition for certiorari on the ground of grave abuse of authority.
When we talk about petition for certiorari this is a concurrent authority of the
RTC, CA and SC. When we talk about interlocutory order it can be a subject of
certiorari to be filed within 60 days from receipt of the adverse judgment or
from the receipt of the denial of a MR. A MR is a condition sine qua non for
the filing of a petition for certiorari. There must be no plain speedy,
adequate remedy available under the ordinary course of law. The filing of a
petition for certiorari cannot be a substitute for a lost appeal. So if there is still
a MR, MNT or appeal available, certiorari cannot be availed of. Except of course
where is there is grave abuse of discretion in which case recourse should be
taken to the SC. The filing of petition for certiorari just like a petition for
review will not toll the period. Before, when a petition for certiorari is filed, the
DOCTRINE OF JUDICIAL COURTESY is applied such that the court with
whom the case is pending will not act on the case and await the decision of CA
or on the petition for certiorari. In 2007, SC issued a circular and states that
the filing of certiorari will not stop the proceeding in the lower court but
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rather the court a quo will be given only a period of 10 days and after 10
days, the court will continue with the proceedings. Otherwise if the judge
will not continue with the proceedings, he will be held administratively
liable. The proceedings will only be stayed if the party has obtained an
injunction, TRO or writ of prohibition otherwise, the proceeding in the court a
quo cannot be stayed. Also, in petition for certiorari, the principle of
hierarchy can be invoked such that if a case is pending in MTC, petition
for certiorari should be filed first with the RTC or from RTC to CA.
Distinction between Rule 45 and Rule 65: Under Rule 45, period to file an
appeal by certiorari is 15 days, Rule 65, period is 60 days. Rule 45 the
issue is pure questions of law, Rule 65, grave abuse of discretion. Rule 45
does not require MR before filing, Rule 65, MR is a condition sine qua non
for the filing of certiorari.
A complaint dismissed under Sec 1 Rule 16 can be re-filed except where the
grounds are 1) prescription 2 obligation has been extinguished, abandoned,
waived 3) res judicata 4) unenforceability.
ON FORUM SHOPPING: see above discussion .
ON WRIT OF EXECUTION: In ejectment case, where the court has directed

the sheriff to implement the notice to vacate and the defendant refuses to
vacate, the court cannot cite the defendants in contempt because the order is
directed on the sheriff, however, if upon the serving of the notice to vacate,
defendants left the premises but later on return and again occupied the
property, this time the court can cite the defendants in indirect contempt.
For instance in the above example, there is a third person who appear and
claim ownership over the property? What is the remedy? File an affidavit of
third party claim or terceria to the sheriff to protect his interest on the
property which is not even the subject of the case. The moment the
sheriff accepts the affidavit of third party claim or terceria, the sheriff
cannot continue with the levy over the property unless the judgment
obligee post a bond relative to the levy of the property. Where is terceria
found? 1) Rule 39 2) Rule 57- property attached and is actually owned by 3rd
person 3) 60 on writ of replevin where there is a 3rd party claimant.
The 3rd party claimant is an exception to the rule on judicial stability because
as a rule no court of equal grade can interfered with the ruling of a court of the
same level. But if there is a 3rd party claim on the party, it would be a height of
injustice if his property which is not even a subject of the case will be made a
subject of a levy.
EVIDENCE:
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Evidence is the mean sanctioned by the rules in ascertaining in a judicial

proceeding the truth respecting a matter of fact. Forget Rule 134 already in
incorporated in Rules 33 and 34.
Do not talk about evidence when not referring to a judicial proceedings.

When referring to administrative bodies or quasi-judicial agencies, the rules of
evidence is not applied strictly. In labor law, the doctrine of compassionate
justice was laid down says that the rigid rules of procedure do not strictly apply
in administrative bodies.
Proof- result of the evidence. There is no evidence where there is no proof.

Evidence can be viewed in three ways: 1) evidence as viewed by complainant 2)
evidence as viewed by the accused 3) evidence as viewed by the court
If the case has been dismissed on the ground of violation of the right to
speedy trial that dismissal for all purposes and intent shall be considered
as double jeopardy. As a general rule, when talking about double jeopardy,
the dismissal of the complaint was not at the instance of the accused.
In order to set the parameters we need the rules of evidence. We have rules in
the conduct of trial.
Are the rules in civil procedure and criminal procedure are the same.
EXCEPTIONS: 1) Quantum of evidence 2) offer of compromise except in quasi
offenses 3) criminal cases presumption of innocence, in civil cases there is no
presumption except presumption juris tantum and presumption ete jure.
DISTINCTION:
Factum probandum- facts to be proven
Factum Probans- means or evidentiary facts that will prove factum probandum
Instances when the rules on evidence do not strictly apply in judicial

proceedings 1) rule on summary procedure in civil case because after the pre-
trial, the parties are asked to submit their position paper, there is no trial
anymore, hence the rules on evidence do not apply 2) summary procedure
when you talk about legal cases(?) on simplified contract affidavit is subject to
cross examination already 3) agrarian cases
REQUISITES OF ADMISSIBILITY:
1. RELEVANCY: relation with the fact to be proven. There must be logical

connection between the evidence and the issues raised in the pleading.
2. COMPETENCY – evidence which is relevant and which is not be
excluded by the law, rules, decisions of SC. If the evidence is relevant and
competent that evidence is already admissible.
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Ex. Pedro is in possession of an armalite rifle. The Bgy. Chairman went to the
police station to report that Pedro is an owner of an armalite rifle and on the
basis of this report the police officers went to the house of Pedro and inquired
whether he possess this armalite rifle to which Pedro admitted. After finding 2
armalite rifle in the possession of Pedro he was brought to the police station
and was asked about the ownership of rifle. Pedro admitted ownership of the
rifles and that he has no license to possess the rifles. When asked by the police
officers to write his admissions in his sworn statements Pedro complied. Pedro
asked if he can have a lawyer but was asked by the police officers to waive his
rights to which he agreed. So he was charged of illegal possession of the
armalite rifles and during trial these rifles were presented in evidence. Is the
armalite rifle a relevant evidence? Does it have logical connection to the case?
Is it competent evidence? Answer: The armalite rifles are relevant evidence
because it has logical connection to the case but it is not a competent evidence
because it is excluded by law there being no warrant for its seizure. Can the
court after trial appreciate these rifles as admissible evidence against the
accused? No, because in order for the evidence to be admissible, it must be
relevant and competent. Is the sworn statement admitting ownership and
possession of the unlicensed firearms relevant evidence? Yes. Is it competent
evidence? No, because he was not assisted by a counsel during the execution of
the sworn statement. Is the waiver admissible in evidence? Is it relevant? Yes.
Is it competent? No because he was not assisted by a counsel during waiver of
his right to counsel. Hence, the evidence presented did not pass the test of
admissibility and therefore a judgment of acquittal is in order because the
quantum of evidence required has not been established by the prosecution
2 KINDS OF JUDGMENT OF ACQUITTAL:
1. Acquittal that tells us that the accused is not the author of the crime
2. Acquittal that the quantum of evidence required was not established by the
prosecution
In the first, if the accused is not the author of the crime there is no basis
for civil liability. This is because under the rules, a civil action is impliedly
instituted in the criminal action except when there is reservation, waiver, or
filed ahead of the criminal action.
If the acquittal is because the quantum of evidence required was not

established by the prosecution, the accused can still be civilly liable
because what was not established by the prosecution was proof beyond
reasonable doubt. Relate to the Vizconde case where the SC did not say that
the accused were not the author of the crime but merely that the proof beyond
reasonable doubt was not established by the prosecution.
Ex. Bar question 2010: Lorenzo in a buy bust operation swallowed the shabu.
He was brought to the PGH and was about to be operated. Is the shabu
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admissible in evidence? The SC initially said that it was inadmissible in

evidence because there was violation of the due process of law when accused
was forced. On the other hand the SC said that it was admissible because the
right against self incrimination covers only testimonial compulsion.
Paraffin Testing is it admissible in evidence? It is competent but not

conclusive because nitrate can be produced without firing a gun. But there is
a possibility that the accused fired the gun. There is also no violation of the
right against self incrimination in paraffin testing because there was no
testimonial compulsion.
DIFFERENTIATE RELEVANCY AND MATERIAL:
RELEVANCY: it has logical connection with the factum probandum and factum
probans.
MATERIALITY: simply look at the four corners of the pleading, (complaint,

answer, reply) if it is not found in the pleading, it is IMMATERIAL. Refers to the
matters raised in the pleading.
Admissibility of evidence does not mean that the evidence is credible.

Credibility- believability of the evidence. Refer to the weight of the evidence or
probative value.
TYPES OF ADMISSIBILITY OF EVIDENCE:

1. MULTIPLE ADMISSIBILITY – a particular evidence is admissible for 2 or
more purpose. Ex. A statement of a person right after he was stabbed by
Juan dela Cruz. If he told the person who brought him to the hospital that it
was Gerry who stabbed him, this is a dying declaration. But if he did not die,
this evidence is admissible as a part of res gestae. Or if he says that he was
stabbed by Gerry because he shot him on the foot. This is also admissible as
declaration against interest.
2. CONDITIONAL ADMISSIBILITY – the admissibility of evidence is not

apparent at the time it was presented or offered. So the party will ask the
court that meantime to allow the evidence subject to the condition that the
party will establish the connection of the evidence with the fact sought to be
proven and subject to the undertaking that if the connection is not established
by the party, such evidence will not be admitted by the court.
Ex. action for recovery of condominium in Bellagio filed by A against B. During
trial A testified that the condominium was bought by C from D C and D are not
parties to the case. So B will object on the ground that it is irrelevant and
immaterial because it is not within the issues alleged. The court is now
presented with the situation where it will stop the hearing and ask the party to
establish whether there is relevance between C buying the property from D or
the court will allow the presentation of the testimony of A that C bought the
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condominium from D in the meantime subject to the establishment of a

connection of the testimony of A on the recovery of the property.
3. CURATIVE ADMISSIBILITY – if there is inadmissible evidence which was

allowed or admitted by the court over the objection of the other party, in order
to cure the injustice to other party, the court will also allow that other party
to explain or rebut the testimony or present inadmissible evidence
likewise.
Is there a vested right in the rules of evidence? Can the rules of evidence be
changed or modified? Yes, pursuant to the power of the Court to promulgate
rules concerning pleadings, parties and as such by virtue of the doctrine of
necessary implications, the court can change, modify or revoke the rules on
evidence.
Can you stipulate on the rules on evidence? Yes as long as it is not contrary to
law, public policy or prejudicial to a right a third person.
KINDS OF EVIDENCE:
1. DIRECT- does not need inference anymore because it directly proves a fact.
2. CIRCUMSTANTIAL- inference is needed from other established facts. Do not
talk about circumstantial evidence when referring to only one circumstance.
Plurality of circumstances.
Ex. Testimony of A having witnessed Mr B killing Mr. C that is already direct

evidence. But if we have a situation where at 5pm a student entered the
classroom at 6:15 a janitor entered the classroom at 6:30pm the janitor came
out of the room running, at 6:45 the janitor reached the gate and was seen
with blood by the guards. This is circumstantial evidence, a combination of all
these circumstances will produce a conviction beyond reasonable doubt.
-Corroborative and Cumulative evidence presupposes that there are additional

evidence.
3. CORROBORATIVE EVIDENCE are additional evidence of a different kind
tending to prove the same point. Ex. Annulment of Deed of Sale. If B denies
signing the deed of sale but A says that B sign the document. A witness who
say he saw B sign the document is a testimony evidence and later on that
evidence was submitted to an expert opinion and came out with opinion. So
these are evidence of different kind which tends to prove the same point.
4.CUMULATIVE EVIDENCE- evidence of the same kind. Ex. Testimonies of two
or more witness seeing Mr B. sign the document.
5. PRIMARY EVIDENCE – refer to the original instrument. Best Evidence Rule
where the subject of the inquiry is the content of the document.
6. SECONDARY EVIDENCE- inferior to the primary evidence.
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7. OBJECT /REAL/OPTIC EVIDENCE addressed to the senses of the court. It

can be viewed, examined by the court.
- can be offered only after the presentation of evidence in chief. The party
offering the documentary evidence has already terminated with the
presentation of evidence in chief. It is offered in writing or orally. Ex.
tombstone offered as object and documentary evidence
If what is being offered is the letters written on the tombstone, it is

documentary, if what is being offered is the stone attached to the womb it is an
object.
Optic evidence- refers to the real thing. Ex. gun in the killing. Bullet slugs
found in the crime scene. It is the best, or highest form of evidence because it
address to the senses of the court. It can be offered either as object or
documentary evidence.
8. DOCUMENTARY EVIDENCE–Any material. It need not be in writing.
- It must be authenticated, show the origin of the evidence. It must have

been offered and admitted by the court. It may refer to any material
containing words, figures or letter offered as proof or evidence.
It may be a contract, letters, books. Take note of the best evidence rule,
secondary rule and parol evidence
a. BEST EVIDENCE RULE/ ORIGINAL DOCUMENT RULE, ORIGINAL WRITING

RULE, CONTENTS OF ORIG DOCUMENT RULE:
-applied only if we refer to documentary evidence. It is not applicable to object

evidence.
2 questions to ask in determine whether BER applies:

a. Is there a document which is involve in the case such as writing, etc
b. What is the subject of inquiry? Is it the content of the document? If yes, BER
applies
BER tells us that if the object of inquiry is the content, no other evidence is
admissible but the original document. Purpose is for the prevention of fraud.
Moran states that if the party is in possession of the original and
withholds it, the presumption is to commit fraud.
9. TESTIMONIAL EVIDENCE
10. POSITIVE EVIDENCE – presupposes that the witness affirms that a fact
did or did not occur. Ex. A says he saw C kill B
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11. NEGATIVE EVIDENCE- presupposes that witness denying having seen the
occurrence of an fact.
QUANTUM OF EVIDENCE:
1. PROOF BEYOND REASONABLE DOUBT – it does not mean absolute
certainty is required but ONLY MORAL CERTAINTY- that degree of proof
which produces conviction in an unprejudiced mind. Proof beyond
reasonable doubt is needed to cover up a disputable presumption that is the
presumption of innocence because the Constitution says that every person is
presumed innocent until the contrary is proven otherwise. That otherwise
refers to proof beyond reasonable doubt.
In criminal cases, the application of equipoise rule which states that the scales
of justice must tilt in favor of the accused. This also applies in civil cases
2. CLEAR AND CONVINCING EVIDENCE- for impeachment proceedings. It is
not civil or criminal in character but sui generis. It is less proof beyond
reasonable doubt but more than preponderance of evidence. It is intermediate.
Cases where SC applied clear and convincing evidence.

a. 215 SCRA 808 Manalo vs.Roldan-Confessor
b. Govt of Hongkong Special Administrative Region vs. Judge Olalia –
granting bail in extradition cases requires clear and convincing evidence
*****
c. China bank case- to rebut a disputable presumption
d. To prove insanity
e. To prove a denial
f. To prove an alibi
g. To prove perjury
h. paternity or filiation ****
i. to prove fraud
j. To prove self defense
k. consent in warrantless search
l. to contradict a notarized document
3. PREPONDERANCE OF EVIDENCE - presupposes that there is a superior or

more convincing evidence presented by the other party. This is required in civil
cases.
How do you determine that the party has established preponderance of
evidence?
Look at the evidence of the parties. Whichever is more convincing or superior.
4. SUBSTANTIAL EVIDENCE – required in administrative bodies or quasi-

judicial agency. This are the amount of evidence that are adequate to support a
conclusion. In Guevarra vs. Commissioner Eala , the love letter of Eala to
Irene Guevarra. In order to disbar the quantum of evidence is
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preponderance of evidence; 529 SCRA 1. In 529 vs. 216 Quantum of

evidence in removing a judge is proof beyond reasonable doubt.
Rules of Evidence of Rules of Court, the rules of evidence shall be construed

liberally in order to promote a just, speedy and inexpensive disposition of
the case. There is no vested right in the rules of evidence.
BURDEN OF PROOF – refers to the obligation of the plaintiff or defendant to

establish their case. Sec 1 Rule 131 – duty of the party to establish his claim or
defense. Therefore when you speak of burden of proof, it is not only duty of
the plaintiff alone.
Ex. In civil case, the plaintiff claims 1M. It is his duty to prove that he is
entitled to the IM. Necessarily it is the duty of the plaintiff to prove his claim for
1M. If defendant says that he has already paid the 1M. Who’s burden of proof
is it to establish his defense that he has already paid the 1m? In Vitarich Corp
vs. CA the SC said that it is the duty of the defendant to prove that he has
already paid the obligation.
In other words, when we talk about burden of proof, whatever is written in the
pleading, that is your burden of proof. But in criminal case its not the same
because the burden of proof is on the prosecution because of the presumption
of innocence.
But is there an instance where the defense has the burden of proof? Yes, when
self defense is invoked. It is now his duty to prove that the elements of self
defense are present.
Burden of evidence on the other hand refers to the exigencies or

developments during trial. Burden of proof is the onus, the obligation of the
party presenting his claim or defense. He who alleges must prove.
PRESUMPTIONS:
Presumption Juris tantum (disputable or rebuttable) and Presumption Et De

Jure (Conclusive)
DISTINCTION FROM INFERENCE:
Inference – when we refer to a given set of facts. But when we talk about
presumption that is mandated by law or provided by the rules. Inference no
legal effect while presumption has legal effects.
When we talk about presumption et de jure, the very basis of presumption

et de jure is the principle of estoppel such that a person who by his act or
declaration or omission led another person to believe that such act, declaration
omission as true and that other person has acted upon such action,
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declaration or omission, he cannot later on deny his act, declaration or

omission. Or a situation a tenant and a landlord.
JUDICIAL NOTICE:
Matter need not be proven: what are the instances wherein a person can win
the case without presenting evidence.
1. JUDICIAL NOTICE- a situation wherein what is known need not be proven.

Mandatory judicial notice this substitutes the presentation of evidence already.
Are you required evidence that Malolos is capital of Bulacan? Or that there are
three branches of the govt. etc. No more. These are matters which the court
can take judicial notice without a motion.
Judicial notice is discretionary in character. It requires a motion or
manifestation in order for the court to take judicial notice either during trial or
after trial but before judgment or on appeal.
What are the judicial notice which are discretionary in character?

a. public knowledge
b. matters capable of unquestionable demonstration
c. those matters which are known to the judges
Knowledge of the judge is not the judicial knowledge required by the court.
Can the court take judicial notice of the municipal ordinances or rules of quasi
judicial bodies or that rape can be committed in public place or of foreign laws.
When we talk about foreign laws, the court cannot take judicial notice of
foreign laws. It must be alleged and must be proven. If it has been alleged but
not proven, the effect is that there is a presumption that the foreign laws are
the same as Philippine laws under the DOCTRINE OF PROCESSUAL
PRESUMPTION.
Are there exceptions: 1) generally accepted principles of international laws

under the 1987 Consti. 2. Spanish Code or Codigo Civil 3)
Can the court take judicial notice that rape can be committed in public place?
In the case of People vs. Tongson and People vs Barcelona (1991 and 1998)
SC state that the RTC may take judicial notice of the fact that rape can be
committed even in a public place. The court take judicial notice that a
man overcome by perversity and beastly passion chooses neither time or
place occasion nor building.
Can the court take judicial notice that the street name of metaphetamine
hydrochloride is shabu? In the case of People vs. Pacasim 22 SCRA 630, the SC
say the court can take judicial notice that the street name of metaphetamine
hydrochloride is shabu considering the chemical composition of shabu.
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Can the court take judicial notice of municipal ordinances. Yes, it is part of
matters capable of unquestionable demonstration.
2. JUDICIAL ADMISSION- another type of evidence which need not be proven.

It may be written or verbal but must be made by the parties to the same case
or proceedings and in the course of the proceeding. If a party admitted a
relevant fact in another case even though between the same parties, it is not
considered as judicial admission but extrajudicial admissions. It may be
contradicted in two ways only (1) it was improper or due to palpable mistake (2)
that no admission was made by the parties.
3. allegations in the complaint which are immaterial to the issue.
4. Facts admitted or not denied in the answer
5. Agreed stipulation of facts between parties
6. Res ipsa loquitor
7. Facts which are within the knowledge of the other party
What is the effect of the admission made by a party in a original pleading

which was later amended. The admission in the original complaint which
was no longer admitted in the amended complaint it becomes an
extrajudicial admission. As such, it has to be offered to the court to consider
as evidence and it has to be proven because there was already an amended.
What is the effect of the admission of the counsel in a case? It binds the client.
But if there is already deprivation of property without due process of law, in
which case, the SC says it will not bind the client.
ESTOPPELS BY SILENCE- implied admission- apply doctrine of estoppels. So

where a party was being accused of stealing something and did not deny it
when he has the opportunity to do so will be considered as an implied
admission.
Rule 25 & 26 If we talk about request for admission, you will have to require
the other party to admit matters in the complaint. Failure to file an answer
/sworn statement will result to admission of the relevant or matters requested
to be admitted. The same true with writer interrogatories, failure to deny will
result to admission by the other party.
Take note of the DOCTRINE OF ADOPTIVE ADMISSION: applied in the case

of J. Ejercito vs. Desierto or ERAP vs. GMA: in the case the SC applied this
doctrine. In these cases, the SC ruled that actually ERAP implied resigned from
office taking into considerations the so called TOTALITY OF
CIRCUMSTANCES the posterior acts of Erap before during and after he left
Malacanang will point to only one conclusion, the fact that he intended to
resign and indeed resigned from office when he left Malacanang. The group of
ERAP refused to accept this theory on the ground that resignation is never
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implied but in fact be express since there is a requirement of acceptance of the

resignation.
The SC considering and recognizing and using the Angara diary about the time
ERAP left Malacanang or downfall of ERAP. In his diary he stated that ERAP
saying “he was tired…” and this statement was stated in the diary which was
later published. The SC applied and considered this to rule that ERAP resigned
from Office. The rules of evidence says that newspaper articles are hearsay.
Jovito Salonga in his book in Evidence said that newspaper article is hearsay
because they are twice removed because first from the person and
published in the newspaper so there is no personal knowledge. But oddly
in the case of ERAP the SC say that the admission made there was considered
an adoptive admission because ERAP did not object. In fact he adopted what
was stated in the Angara diary and therefore an exception to the hearsay rule.
So the SC said in Ejercito vs. Desierto that an ADOPTIVE ADMISSION is a

party’s reaction to a statement or action by another person when it is
reasonable to treat the party’s reaction as an admission of something
stated or implied by the other person. The effect or consequence of the
admission will bind also the party who adopted or espoused the same.
Distinction between Admission and Confession: Confession is

acknowledgment of guilt, admission is broader in character; any relevant
fact that is subject of a confession. SC says that a confession is a specie of an
admission. It forms part of an admission.
3 MAJOR KINDS OF EVIDENCE:
1. Object/Real Optic Evidence

2. Documentary Evidence
3. Testimonial Evidence
SOURCES OF EVIDENCE:
1. Judicial Notice
2. Judicial Admission
3. Presumptions even if disputable if it was not rebutted or present clear and
convincing evidence
4. Implied admission of guilt in criminal cases by mere act of offering
compromise
As a rule, no evidence will be appreciated or considered by the judge in

rendering a decision unless marked during pre-marking, presented during the
trial, authenticated by a competent witness, offered, admitted by the court.
It is very impt to note that when these 3 kinds of evidence is offered, an

documentary/object evidence can be offered only after the presentation of
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evidence has been terminated. It can be offered either in writing or orally. On

the other hand, testimonial evidence is offered before a witness is allowed to
testify. A witness can only testify based on personal knowledge. Testimonial
evidence is offered orally, but it can be offered in writing if there is a
judicial affidavit. If the parties agreed to the submission of a judicial
affidavit which shall form part of the direct examination which will in fact
be in lieu of presentation, you state the purpose of the testimony of the
presentation of the witness in the judicial affidavit. You will simply ask the
witness to identify the affidavit, confirm the veracity of the allegations
contained therein.
If documentary, object and testimonial evidence were denied admission

by the court, invoke the RULE OF TENDER OF EXCLUDED EVIDENCE. It is
a remedy of a party whose evidence has been denied admission by the court.
This can be done by filing a manifestation or orally by moving that the party
will instead proffer the evidence. The purpose is to allow the appellate court
later on to consider it in rendering the evidence. If the witness answers the
questions before you were able to object, move for the striking of the answer.
OBJECT/OPTOPIC EVIDENCE: refers to the real thing. Ex. gun used in

shooting the victim or the bullets. The object is the highest form because it
address to the senses of the court. It caters to the 5 senses of the court. If A
stabbed B, the knife used is the object evidence. If there is a conflict between
object and testimonial evidence, it is the object evidence shall prevail because it
is the highest form.
Requisites for the admissibility of object evidence:
1. marked during pre-marking

2. presented
3. It must be authenticated, to show its origin
4. offered
5. Admitted by the court
CLASSES OF OBJECT EVIDENCE:
1. UNIQUE OBJECT EVIDENCE- there is readily identifiable marks in the

evidence. Ex. 45 cal pistol serial number
2. OBJECTS MADE UNIQUE- is a category of evidence which has no
identifiable marks or unique characteristic but were made unique by the
court. Ex. knife used in stabbing if the person put an identifiable mark on the
knife such as putting his name.
3. NON-UNIQUE OBJECT EVIDENCE- those which cannot be marked
because it is impossible to do so. Such as blood stains, water.
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DEMONSTRATIVE EVIDENCE- is not a real or object evidence because it is

merely a demonstration or presentation of a particular evidence but it falls
under the category of object evidence since it can be examined or viewed by the
court Ex. ocular inspection conducted by the parties subject to the discretion
of the court. If allowed by the court it must be done in the presence of the
parties.
- Can come in the form of a map, diagram because the map represents a
particular place. Demonstrative is not a written evidence but
incorporated in object evidence.
Object evidence may be offered either as a documentary or object evidence. A

written expression stated in the object evidence can be offered as documentary
evidence because it is not limited to a document. It refers to any material as
proof of its contents. SC referred to the book of Fortunato Ulep citing a
tombstone which can be offered both as documentary or object evidence.
if what is offered is the written statement on the tombstone, it is being offered
as documentary evidence. But if the tombstone is attached to the tomb, it is
offered as object evidence.
DOCUMENTARY EVIDENCE:
Under the Rules on Evidence, if we talk about documentary evidence it need
not be in writing. Take note of the rule on relevancy, competency, offer and
admission of this documentary evidence. Take note of 3 impt rules, BER,
SECONDARY EVIDENCE RULE AND PAROLE EVIDENCE.
BEST EVIDENCE RULE/ ORIGINAL DOCUMENT RULE, OR ORIGINAL

WRITING RULE OR CONTENTS OF ORIGINAL DOCUMENT RULE OR
CONTENTS OF ORIGINAL WRITING RULE.
This is applied only if we are talking about documentary evidence. It is not

applicable when we refer to object evidence.
In order to determine whether the BER applies, the first question to ask is
whether there is a document involved. It is not enough that there is a
document involve. If the subject of the inquiry is the contents of the
document BER applies. If the subject of inquiry is the contents of the
document, no evidence is admissible except the original document. The
purpose of the BER is to prevent fraud. Justice Moran says that if the party is
in possession of the original document and withholds it, the presumption is
that the original document is being withheld for fraudulent purpose. Acebedo
Optical vs. NLRC.
Take note of the concept of original document. When is a document original?

The document is original if the contents of which is the subject of the
inquiry. When it is executed on or about the same time, with identical
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contents, it is regarded as original or what is known as duplicate originals.

What if the document or papers is reproduced by carbon sheets, are they
original documetns? Yes People vs. Taya
If the document is original it will prevail over Xerox copy. In NYK Intl Corp vs.
NLRC – SC said that a Xerox copy even if stamped with the words certified
true copy, it is not authenticated original.
Heirs of Lourdes Samantan vs. CA - pleadings filed via fax machine are
not considered original. They are not admissible as evidence as there is no
way of determining whether they are original. Unsigned computer print outs
when they are not authenticated are not reliable. They are self serving
evidence which should be rejected.
Ex. During the trial Mr. A. testified that Mr. B gave him a photocopy of a Deed
of Sale asked him to read it and to sign because it contained onerous
stipulations. During trial he was asked if he was shown a photocopy of the
deed of sale if he can recognized it. Counsel presented to Mr. A a copy of the
document. Defendant objected on the presentation of the photocopy as this will
violate the BER. SC overruled the objection because the subject of testimony of
MR is a photocopy of the Deed of Sale, since the subject of inquiry is the
photocopy, the BER is not the original but the photocopy of the Deed of Sale.
Hence, even a photocopy can be the best evidence because the BER is
dependent on the document of the inquiry.
In another case of buy bust operation the policeman appeared and testified in
court and was asked about the marked money used in the buy bust operation.
So the prosecution showed photocopies of the marked money and the
policeman identified it. What is the nature of the photocopy of marked
money? They are object evidence hence the BER does not apply because BER
applies only to documentary evidence. The marked bills are admissible in
evidence as held in People vs. Tandoy.
Exceptions to BER or instances when substitutionary evidence may be

presented
1. When the original document is lost, destroyed or produced in court

without bad faith on the part of the offeror.
2. When the original is in the custody or under the control of the party
against whom the evidence is offered;
3. When the original document consists of numerous accounts or voluminous
documents and the facts to be proven is only the general result of the
whole. Secondary evidence does not refer to a photocopy. Secondary evidence
rule tells us that if the premises have been laid for the presentation of the
secondary evidence you can present a copy of the original or another document
with a recital of contents of the original or testimony of a witness as to the
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contents of the original document. Therefore secondary evidence does not refer
automatically to a photocopy.
4. When the original document is a public record in the custody of a public
officer or in the public office
SECONDARY EVIDENCE OR SUBSTITUTIONARY EVIDENCE
Do not talk about secondary evidence unless the basis has been laid for its
presentation. When the original document is lost, destroyed or cannot
produced in court without bad faith on the part of the offeror, you have to lay
the basis first by establishing the fact of its existence, the fact of execution of
the original document, the cause of the unavailability before you can be
allowed to present the contents of the original document in a substitutionary
evidence.
Laying of predicate refers to the impeachment of an evidence, laying the basis

refers to secondary evidence.
In Villa Rey Transit vs. Ferrer- SC stated that following should be

established.
1. The opponents possession of the original

2. Reasonable notice to produce the original
3. Satisfactory proof of the existence of the original
3. Failure or refusal of the owner to produce the original
It is not necessary for a party seeking to produce secondary evidence that he

establish that the original is in the actual possession of the adverse party. It is
not required that the adverse party should admit that he has possession of the
original document because the SC in Villa Rey Transit stated that it is enough
that the circumstances indicate that the writing is in adverse party’s
possession or under his control. Neither is the party entitled to the custody of
the instrument should on being notified that it should be produced admit
having it in his possession.
In an action for specific performance filed by A against B, A was asking the

court to compel B to deliver a parcel of land to A considering that there was a
deed of sale executed between A and B. B on the other hand denied that he had
executed a Deed of Sale in favor of A. So the issues was whether or not a parcel
of land was sold by B to A. What is the evidence that A should submit? The
original copy of Deed of Sale. Can A present other document other than the
deed of sale? No because the subject of the inquiry is the Deed of Sale. Can A
present a photocopy of the Deed of Sale? No because the subject of inquiry is
the contents of the Deed of Sale. But when can A present a substitutionary or
secondary evidence? If A has already laid the basis for presenting secondary
evidence. If there are numerous accounts or documents in an action for
collection of sum of money in the amount of P500,000 but in order to establish
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his right over the 500,000 he has to present 150 document to prove the same
or if A borrows money from B, he has to issue checks as evidence of the loan.
Are you required to present the checks? Just prepare 5 page summary of all
the checks issued by A to B or document that will establish A’s obligation to B.
This summary can be submitted to the court in the form of a substitutionary or
secondary evidence, But A must be sure that if B demands the presentation of
the 150 documents or 500 pieces of check he can show it because B is not
bound by the summary presented.
Ex Bar exam 1992: Ajax Corp sued in the RTC for a supposed right of way
against Mr. A. Ajax claims that he has been paying consideration for the right
of way. Ajax corp presented a retired auditor and testified that during the time
he was still working with Ajax corporation he was the one who delivers the
money as part of consideration for the right of way pursuant to a written
contract. Because it was the testimony of the auditor, the counsel inquired
whether he can identify the written contract allowing right of way to Ajax corp.
But what was presented only was a photocopy of the deed or instrument
granting right of way to Ajax corp. After it was identified it was formally offered
as part of his testimony but was object by Mr A so Ajax corp availed of the
tender of excluded evidence. Can Ajax claim that he has sufficiently met the
burden proof to establish the right of way? The photocopy of the agreement
granting right of way cannot be presented right of way. The basis should first
be laid before presenting the document.
DISTINCTION BETWEEN SECONDARY EVIDENCE AND SECOND HAND

EVIDENCE:
SECONDARY EVIDENCE- it refers to evidence that is inferior to the BER or

original document.
SECOND HAND EVIDENCE- refers to evidence proceeding from the mere

repetition of what the witness heard from others. It refers to hearsay
evidence.
But when presentation of secondary evidence is not objected upon by the

other party such failure to object shall be deemed a waiver therefore that
secondary evidence will be considered a primary evidence. The proper
time to object to the presentation of the secondary evidence is from the
time it is offered as evidence because if objection is made immediately, the
other party will look for the original document. But if objection is not made
right away there can a possibility that the accused will be in lactus in memoria.
So if he forgets and offers the evidence, that’s the time to object invoking BER.
This waiver of objection as contemplated in the Heirs of Teodoro dela Cruz vs

CA- refers to the waiver of objection to the admissibility of secondary evidence
after the termination of the evidence in chief at the time of the offer of
documentary evidence
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If we talk about BER- computer printout readily by sight can be considered an

original under the rules on electronic evidence.
ELECTRONIC EVIDENCE RULE: rule applies only to civil actions or

proceedings, as well as quasi judicial and administrative cases. It does not
apply in criminal case Rustico Ang case. Asked in 2010 bar (dying
declaration) As a rule it is applicable, but not in criminal cases. Rule 1 Sec 2 of
AM 01-7-01 SC specifically provides that it applies only in civil actions or
proceedings as well as quasi judicial and administrative case.
It is broader in character compared to rules of evidence. Evidence is a means

sanction by the rules in ascertaining in a judicial proceeding the truth
respecting a matter.
Electronic Evidence –
Electronic data message- is interchangeably used with electronic evidence as

enunciated in Natl Power Cor. vs. Padilla 520 S 412. If we talk about
electronic evidence it includes digitally signed document, a print out which
reflects the electronic data message. In NCC Industrial Sales Corp. vs.
Sanyo Oct 7, 2007 – SC the term electronic document does not include
faxmile transmission. When congress drafted the law it excluded the older
form of methodology.
1. faxmile
2. telegraph
3. Telex
4. Telecopy
In Villadallion Magtolis vs. Salud 496 SCRA 439 – text message have been
classified under ephemeral electronic communication and proven by
testimony of the person who has a party to the same or has knowledge to
the same.
Take note that electronic document may be signed by electronic signature. How
is it authenticated? By presenting evidence that a process was utilized to
establish a digital substitute and verified the same.
Who has the burden of proof?---The person seeking to present an electronic

document has the burden of proving its authenticity.
2003 bar exam: When is electronic document recorded is considered as the

original under the BER. For the application of BER, an electronic document
is considered an original if it is an output or printout readable by sight or
other means shown to reflect the data accurate is considered an original
document which falls under the BER
2003 bar exams: Admissibility of Electronic Document- whenever our rule on

evidence refers to the term writing, document, instrument or in any other
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forms of writing such term will include electronic document. It is admissible if

it:
1. complies with the rules of admissibility with rules of court and similar
laws
2. authenticated in the manner prescribed in the rules.
Authenticity of any private document must be proved by evidence that it
had been digitally signed and other security measures have been applied.
The rules on electronic evidence recognizes business records as exception

to the hearsay rule. Rule 8 Sec 1 provides that electronic document can be
notarized and shall be considered as a public document and proved as a
notarial document.
There is no jurisprudence there yet especially on the requirement for the

appearance of the party before notary public.
Is electronic evidence covered by the rule on privilege communication? Yes the

privilege communication is not lost by the mere transmission of message.
3. TESTIMONIAL EVIDENCE
-Termination of presentation of evidence in chief need not be completed

before the offer of testimonial evidence. Offers the testimony of witness as
evidence. Witness can only testify on matters of personal knowledge. If
testimony of witness is not offered and the other party conducted cross
examination, do not conduct a re-direct and move that the testimony is
expunged from the record.
If the object and testimonial evidence were offered and denied by court, invoke
Sec 40 Rule 122.
It is offered at the time the witness is offered to testify during direct

examination. In other words the testimony of the witness is offered before
questions are asked. Unlike in documentary evidence, this is offered after the
presentation of evidence in chief. If we talk about testimonial evidence, every
person who can perceive and can convey his perception to others can become a
witness. What is important here is personal knowledge and capability of the
witness to perceive. In one case the SC stated that when you talk about
perceiving it refers to the person’s senses. The rules of evidence provides
that a person’s religious, political and interest in the case are not valid
grounds to disqualify a person to become a witness. In a case, the SC said
that close knit relationship is not a ground to disqualify a witness from
testifying. In one case a father was accused of rape. During trial he presented
his wife and son to establish a fact that at the time of the alleged rape was
committed these people were with him in Tagaytay. This was objected to by the
prosecution but the SC said that close relationship is not a ground to
disqualify a person from testifying.
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The same is true in a case for murder where Mr B testified that he saw Mr A
pour the poison in the wine that Mr. A drank. At the time Mr. B was about to
testify the prosecution objected on the ground that he was previously convicted
of perjury. The SC said that previous conviction for perjury is not a ground
to disqualify a person from becoming a witness. Even in one case, loose
moral is not a ground to disqualify a person as a witness and neither is a
prostitute disqualified from becoming a witness.
People vs. Mando- a prejudiced witness is not disqualified from appearing and
testifying in court.
DISTINCTION BETWEEN COMPETENCY AND CREDIBILITY
Competency- witness who possess all the qualifications and none of the
disqualification provided by law or the rules.
Credibility- refers to the believability, trustworthiness and probative value of

the testimony of the witness. Hence, political and religious view are not
disqualification but maybe taken into consideration on the credibility.
Mental condition at the time of production or examination of the person who is

to testify. Incapable of perceiving facts and relate the same- mental maturity of
the witness. Refer to the difficulty in perceiving the facts they are about to
testify.
People vs. Buli- intoxication does not affect the capacity of the witness to
testify, except where there is evidence that shows that the witness’s
intoxication deprives him from testify
People vs. Canolla- mental retardate is not disqualify from becoming

witness as long as his senses can perceive and can convey his perception
in court, he can become a witness.
DISQUALIFICATION TO BECOME A WITNESS:
MARITAL DISQUALIFICATION RULE (MDR)- it is indispensable that the

marriage is subsisting at the time one of the spouse would testify
against one. Any of the spouses cannot testify for or against, except in civil
case, or criminal case by one against the other or by one descendant
against the ascendant.
Common law relationships are excluded from the coverage of the

disqualification.
As long as the marriage is existing and subsisting, the marital

disqualification rule applies. It is immaterial that the matters involve to be
testified are confidential or not.
EXCEPTION:
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1. Child abuse case filed by daughter against step-father – the wife can testify
against the abuse committed.
If the case is between step-son and step father for physical injuries- wife
can testify as this involve a case of descendant against a step-parent. But
if the case involves a civil case filed by a step son against step father, this does
not fall under the exception. When you refer to civil case it refers only to the
spouses.
The exception should be civil cases between spouses.
2. MARITAL PRIVILEGE COMMUNICATION RULE (MPCR)
The prohibition applies during or after the marriage:
Qualification: communication received in confidence. The moment the

spouse gives this information in confidence, they are bound by the rule.
Bar question: Allan and Narita married on Jan 28. Two months later, Narita
admitted that Liza is not her niece but her daughter out of wedlock. After
sometime, Maria wife of Basilio (father of Liza) found out about the daughter
and Maria, wife of Basilio filed a complaint against Basilio for concubinage.
During the trial, one of the witnesses presented was Rita, and this was objected
to Basilio invoking the marital privilege Communication Rule. Can Basilio
invoke the MPCR? SC said No, because they were not married in the first place.
DEAD MAN STATUTE- OR SURVIVOR RULE- if death closes the lips of the
person it also closes the lips of the other person who are going to testify against
the deceased. This does not apply to a mere witness but only to parties to
whom the case is filed
PARENTS or FILIAL DISQUALIFICATION RULE - applies from parents to

great grandparents.
Who are covered:
1. Parents
2. Other direct ascendants- grandparents, great grandparents, and great great
grandparents
3. Children
4. Direct descendants- grandchildren, great grand children and great great
children
People vs. Que-the step daughter included in the filial privilege rule.
EXCLUDED : - they cannot be compelled but they can voluntarily testify.
1. Relatives by Affinity
2. Brothers and Sisters
3. Aunt, Uncles, Nephews and Nieces
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4. Cousins of whatever degree

5. Collateral Relatives.
CLIENT AND LAWYER RULE
Attorney’s secretary, stenographer and clerk fall within the contemplation of

the prohibition. Consent of client and lawyer is needed. This applies even
there is no formal engagement yet as long as there is already a
consultation, or communication preparatory to the engagement of the
services. This also applies to paralegal, associate etc. This applies both to
civil and criminal cases.
PHYSICIAN AND PATIENT RULE:
1. person authorized to practice medicine, surgery and obstetrics are the

only the ones covered. This contemplates a civil case only.
PRIEST AND PENITENT RULE= priest cannot testify on the confession. Applies
only between the priest and penitent, the testimony of the sacristan who
overheard the confession and later testifies on it is hearsay but can be
considered as admissible as INDEPENDENT RELEVANT STATEMENT- as to
the tenor or the fact that such statement was uttered.
Rule 132- take note in relation to impeachment case.
Take Note:
Rights of the witness, obligations of the witness, unwilling and hostile witness,
impeachment of a witness.
DISTINCTION BETWEEN LEADING AND MISLEADING QUESTIONS.

Misleading question are not allowed under any circumstances. Leading
questions are allowed.
RULES ON HEARSAY:
A person can only testify based on personal knowledge. It presupposes the

use of 5 senses. If not based on personal knowledge, it is hearsay and therefore
inadmissible.
In court witness heard on what the outside person said, he can testify on the
what the outside person has said.
EXCEPTION: INDEPENDENT RELEVANT STATEMENT- the testimony will be

considered as part of the narration of facts of the petitioner.
DOCTRINE OF ADOPTIVE ADMISSION- a third party’s admission is part of

the party’s testimony embracing it.
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Gma vs. Erap; Erap vs. Disieirto – refer to above discussion
Hearsay vs. Opinion- As a rule, opinion is not admissible except opinion of

expert witness.
Handwriting of a person- can be testified by an ordinary person.
EXCEPTIONS TO HEARSAY RULE: because of necessity and convenience.
1. DYING DECLARATION- the fact is declaration and consciousness of an

impending death. The declarant must have died otherwise it will be considered
as parts of res gestae. No particular form for dying declaration. No need for
signature, thumbmark provided that the statement refers to the assailant.
Declaration should concern the surrounding circumstances of his death.
Case: Robbery in Trinoma committed by A, B and C who were eventually

arrested. During the arrest A was shot. Thinking that he will die, A divulged his
companions. SC stated that the statement of Mr A is not a dying declaration
because it does not refer to the surrounding circumstances of Mr. A.
2. DECLARATION AGAINST INTEREST- Under ordinary circumstances, man

wants to talk good things about him. Hence, the moment a person utters
something against his interest, this is considered as declaration against
interest.
3. PART OF RES GESTAE -all these are hearsay, but are considered as
exception because of its trustworthiness,
2 Parts:
1. SPONTANEOUS STATEMENT- it was mentioned during a startling

occurrence or immediately thereafter. No opportunity to fabricate the
statement.
2. VERBAL ACTS: the res gestae is the equivocal act. It must be accompanied
by a statement. Romy vs. Hugis – a judge inside a favorite restaurant with B.
B handed an envelope with money. In order to consider it as exception to the
hearsay rule it must accompanied by a statement.
4. TESTIMONY IN A FORMER PROCEEDING. Exception to hearsay and right

of confrontation. The testimony given in former proceeding and the
witness must be have been crossed examined by the other party. In a case
for collection of sum of money, the plaintiff failed to appear during pre-trial and
was dismissed but was refiled since the dismissal was without prejudice. Since
the witness has already testified in the previous proceeding, such testimony
may be used in the present proceeding.
5. OPINION RULE- In order that a witness be considered as expert witness,

it must be shown to the satisfaction of the court that the witness
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presented possess special knowledge, skill, in which case is testifying as

an expert witness. In other words, the witness must first be qualified
before he can be presented as an expert witness. The court is not bound
by testimony of the expert witness. SC said at most it is only advisory and
not conclusive. If the other presents an expert witness, the remedy is present
another expert witness.
Do not conduct a cross-examination without studying the expertise of the

witness.
6. OFFER OF COMPROMISE unlike in civil cases is implied admission guilt.
If you want to enter into a compromise, let a relative negotiate the compromise
so its easy for the accuse to disown it later.
“TENDER OF EXCLUDED EVIDENCE”
Remedy in case offer of object and testimonial evidence are denied. Purpose: to
allow the appellate court in deciding on the case.
Judicial notice is considered as an evidence. Cannot be proven but

appreciated by the court. Judicial Admission- Presumptions are source of
evidence even if disputable. If it was not rebutted it is considered as conclusive.
Offering of compromise in criminal case is evidence.
No evidence is appreciated by presiding judge unless it was marked during

pre-marking, presented during trial and authenticated by competent
witness, offered and court ruled to admit the evidence. It is very impt to
note when these 3 major kinds of evidence is offered by a party.
A was killed by B. The prosecution presented the bullet during trial to the
police officer. The fiscal terminated the testimony and rested the case. Judge
rendered the decision acquitting the accused. He did not mention exhibits A
and B or the bullets. Private complainant filed admin case against judge in
failing to consider the bullets slugs in the deciding on the case. Was the
contention of the private complaint correct?
Judge should not be held administrative liable. Exhibits A and B were merely
marked as exhibit and not offered as evidence. Ergo, it should not be
considered in rendering the decision.
CHAIN OF CUSTODY OF DRUGS:
Classic case: Alabang Boys
Chain of Custody Rule refers to RA 9165 Sec 21
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There should be no unbroken chain of custody from the time of seizure of

the dangerous drugs up to the time the police came into possession of the
drugs up to the time it was brought to the forensic laboratory, up to the
time it was presented in court and up to the time the court rendered its
decision. It must be shown that there is no occasion that other person
outside the chain was able to get hold of the drugs as evidence.
Take note that the drugs must be destroyed. The rule on the chain of
custody is for the purpose of preserving the integrity of the physical
evidence and prevent the production of evidence that is not authentic.
People vs. Sitco May 14, 2010 – SC there must be unbroken chain of custody
from the accused to the police to the forensic chemist and finally to the court.
People vs. De Guzman - 2011 case - the existence of the dangerous drugs is
condition sine qua non for conviction.
In prosecutions of illegal drugs the drugs taken or seized in the

possession of the accused are considered the corpus delicate thus, it is
impt that the dangerous drugs should be established to be the same drugs
taken from the person of the accused and presented before during trial.
Rule: No buy bust operation may be conducted without a valid search warrant.
RA 9160 and its IRR – require that there must be a physical inventory,
photograph of the seized drugs and marking of the seized drugs.
Where are the inventory, photography and markings done: at the place where it
was taken or seized if possible otherwise in the nearest police station. Non-
compliance with this requirement of the chain of custody rule will cast doubt
on the admissibility of the drugs. (De guzman case)A conviction may still be
had as a matter of exception, if it can proven that the integrity and
evidentiary value of the seized items were preserved.
Non-compliance with the procedure may still result to conviction BUT ONLY
AS A MATTER OR EXCEPTION. Under the IRR of RA 9160, if it can be
shown that there is justifiable reason and that it can be established that
the integrity and evidentiary value of the dangerous drugs have been
preserved, then conviction can still be attained.
Domingo Ulet vs. People (June 1, 2011) If the drugs are already in sealed
plastic sachets, the police officer involved immediately place identifying
marks on the cover. If the drugs are not in a sealed container, the officer
is to place them in a plastic container, seal the container, and put his
marking on the cover. In this way there is assurance that the drugs would
reach the crime laboratory analyst in the same condition it was seized from the
accused.
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Accused was acquitted because none of the officers during the seizure marked
the drugs taken. Although these police officers enjoy the presumption of
regularity in the performance of their duty, this presumption is inferior to the
presumption of innocence of the accused.
Requisites during the seizing of the drugs as required by RA 9165
1. Inventory, marking and photography of the items seized should be done in

the presence of the accused or his representative
2. There must be present the lawyer or representative of the accused
3. Representative from the media,
4. There must be representative from DOJ
5. There must be an elected public official
People vs. Mags Mantawi (June 8, 2011) – there must be (1) testimony about
every link in the chain, from the moment the item was picked up to the
time it is offered into evidence; and (2) witnesses should describe the
precautions taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in the chain to
have possession of the item.
DNA EVIDENCE:
The rule on DNA evidence was passed on 2001. It constitutes the totality of the
DNA profile of the person. If you talk about DNA evidence every person has a
unique DNA except identical twins as decided by the SC in Vallejo vs. People
If there an issue on paternity and filiation, where an illegitimate child who filed
for illegitimate filiation, DNA is conducted. Or in crime of rape, DNA is
conducted to check whether the biological samples left in the crime scene the
totality of which is the DNA evidence is matched to the DNA evidence taken
from the accused. If it will match that may result to a conviction.
DNA evidence is applied in civil, criminal and special proceedings precisely

because on the contrary, if we talk about the rules on the probate evidence we
do not apply it in criminal cases. In the case of Rustico Ang decided by Justice
Abad it was very clear that it applies only in civil cases and cases pending
before quasi-administrative bodies. But in DNA evidence, the rules of evidence
apply in civil, criminal and special proceedings. Take note that the Rules of
Court and Rules of Evidence are suppletory in character when we talk about
evidence.
Case; Mr A committed Rape with Murder. In the crime scene he left his Tshirt,
strand of hair and fingernail. A was charged in court and during the pendency
the case, police officers took a strand of his hair, cut his nail and conducted
DNA testing. After the conduct of the DNA testing, the result thereof were about
to be presented by the forensic expert, but the accused objected invoking his
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right against self-incrimination. In People vs. Yatba – the compulsory DNA

testing does not infringe the constitutional right of self incrimination.
When we talk about self incrimination we refer to testimonial compulsion. The
cutting of nails and strand of hair is merely a mechanical act not compulsory
testimony.
Who may apply?
1. Any person who has legal interest in the litigation

2. the court motu propio
The rule allowing motu propio order of the court conducting of DNA was
modified in Jessie Lucas vs. Jesus Lucas (June 6, 2011). The SC clearly
stated that during the hearing of the motion for the conduct of DNA testing, the
petitioner must present prima facie evidence of paternity. The conduct of
DNA testing is discretionary for the court. The court may not allow the
conduct of DNA testing if there is already a preponderance of evidence on
the part of the plaintiff.
If the court grants the motion for the conduct of DNA testing, this order is not
appealable. It is immediately executory. Remedy: file for certiorari under Rule
65 and also TRO because certiorari is not enough. Even if the accused has
already been convicted and has become final and executory, the accused
can still avail of the post conviction DNA testing. It is available to the
prosecution and to the person convicted by final and executory judgment.
Requisites:
1. The biological sample exists

2. Such sample is relevant to the case
3. The testing would probably result in the reversal of the judgment on
conviction .
If there is a post DNA testing and the result is favorable to the accused, what is
the remedy of the accused? The accused convicted by final and executory
judgment can file and avail of the issuance of writ of habeas corpus to be
filed in the court of origin which court will conduct a hearing and upon
finding merit in the petition will reverse, modify its ruling.
In the case of Leo Echegaray- SC stated that when we talk about the concept of
jurisdiction, it is not only the power to hear and decide the case but also the
execution of the judgment and complete service of sentence. Since the court
has not completed the service of sentence, the court a quo still has jurisdiction
to try habeas corpus case.
Probative value of DNA testing: Vallejo standards –bar 3x Vallejo vs. People of
the Philippines; People vs. Vallejo –involves the rape/slay of a 9 yr. old.
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Vallejo standard: Guidelines in assessing the probative value of DNA samples:

Memorize
1. How the samples were collected

2. How these samples were handled
3. The possibility of contamination of these samples
4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedures were followed in
conducted the test
6. Qualification of the analyst who conducted the test
***** DNA results in the case of Hubert Webb, Antonio Lejano, Joey Filart,
Mr. Rodriguez, Fernandez, PO3 Abiog; Lejano et al. vs. People Dec 10,
2010
Webb asked for the acquittal on the basis of the loss of the semen specimen.
He argued by invoking the Brady vs. Maryland, Youngblood vs. Arizona-
The accused is entitled to outright dismissal. The SC court in Webb case
denied because the Brady case was overtaken by the Youngblood case. In the
latter case, due process does not require the State to preserve the semen
specimen although it may be useful to the accused unless the latter can
show bad faith on the part of the prosecution or the police.
When Webb et al raised the issue of DNA there was no rules at the time of the
conduct of the DNA testing. But the SC observed that after the petition, Webb
et al, although they had 2 opportunity to go to CA and SC, did not invoke DNA
testing, although they included it in their appeal with CA, it was raised in the
assignment of errors of the trial court in the rendering of judgment. None of the
accused filed a motion for the conduct of DNA testing. This even when the SC
has already passed the rules on DNA testing.
The SC did not say that Webb et al are not the authors of the crime but it
merely said that the quantum of proof was not met by the prosecution.
Acquittal – This says that the accused did not commit the crime. Hence the
accused is not liable civilly.
Acquittal of failure to meet the quantum of evidence- Accused is still civilly

liable.
PAROL EVIDENCE/ CONTENTS OF WRITTEN AGREEMENT RULE/ TERMS

OF WRITTEN AGREEMENT RULE
When the terms of agreement has been reduced into writing it is considered as
containing all the terms agreed upon and there can be no evidence as between
the parties and their successors in interest other than the contents of the
written agreement. It includes a last will and testament.
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Evidence outside of the writing or intrinsic, evidence aliunde. – should not be

allowed.
INTEGRATION RULE – or parol evidence – the purpose is to give stability to

the written agreement and remove the temptation and possibility of
committing perjury.
Don’t talk about parol evidence if you refer to verbal agreement because
parole evidence refers to written agreement. Inciong vs. CA- the parol
evidence does not require that the written agreement is a public document. It
may be a private or public document.
Litjugas vs. CA- when one of the party to an agreement is not a party or privy
to a written agreement, parol evidence does not apply.
Parol Evidence applies to the parties to the contract and even to their
successors in interest.
Bar question: A entered into a contract of sale of delivery of sugar cane with B.
He received the amount of 500,000. A did not deliver the sugar cane when Dec
1, 2011 arrived B filed for breach of contract or specific performance. A said
that they agreed that the sugar cane should come from his plantation. How do
you object? Object on the ground of parole evidence. Once the agreement is
reduced into writing you cannot introduce evidence aliunde to modify the terms
of agreement.
EXCEPTION: PUT IN ISSUE in the pleading
1. The fact that there is an intrinsic ambiguity, mistake or imperfection in the

written agreement, failure of the contract to express the true intent of the
parties, validity of the written agreement, existence of other terms agreed upon
by the parties or successors in terms after the execution of the contract.
How do you put it in issue? If plaintiff cite it in the complaint. If defendant,

allege or aver it in the answer and that is the time to allege evidence aliunde.
Ex. A sues B for collection of a loan of 500 thousand. If this is covered by a

promissory note but in order to put in issue in the answer, specifically deny
that you borrowed the money. But since a promissory note is an actionable
document, it must be denied under oath otherwise it is deemed admitted.
There is an issue if you specifically deny any of the material allegation in the
complaint otherwise there will be admission of its genuineness and execution.
Invoke Rule 34 and file judgment on the pleading and state that the answer
fails to tender an issue…
EXCEPTION TO PAROL EVIDENCE:
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1. INTRINSIC AMBIGUITY – if the ambiguity is latent vis a vis patent

ambiguity. Can be cured by parol evidence because the ambiguity is not
apparent on the face of the agreement. The remedy is to ask the court to
interpret the ambiguity.
Ex. The contract says Mr. Espejo sells to Prof. Alcantara his horse. It turned
out that Mr. Espejo has 500 horses. It is not clear which of the horse should
be sold to Alcantara. There is an intrinsic ambiguity because Mr. Espejo has
500 horse and it cannot be determine which horse is being sold.
Another example is a Will which states, “ I hereby divide my land in Tagaytay to

Mr. Juan dela Cruz my nephew. During trial, a guy appeared and introduced
himself as Mr De la Cruz and that his father is Mr Y who is Mr X brother so he
is a nephew of Mr X. The next day, another Juan de la Cruz appeared and
introduced himself as the nephew his father C being the brother of Mr X. The
next day, another Mr. Juan de la Cruz appeared saying he is also the nephew
of Mr. X his father D also being a brother of Mr. X. Here there is intrinsic
ambiguity which can be cured by the party by presenting evidence aliunde to
cure the defect. If there is only one Juan de la Cruz there would be no problem
but since there are 3 Juan dela Cruz, intrinsic evidence is needed to determine
which Juan dela Cruz should inherit the property.
A party may be allowed to present other evidence if the ambiguity is not

apparent on the face of the agreement.
2. EXTRINSIC AMBIGUITY OR PATENT AMBIGUITY- refer to situation where

the ambiguity is patent, grave, serious on the face of the contract. By simply
reading the contract, the ambiguity can be seen.
If we are talking about extrinsic ambiguity or patent ambiguity, you refer

to a situation where the ambiguity is apparent, serious, grave on the face
of the contract. By reading stipulations in the contract you can immediately
see the ambiguity. For instance a will which states “ I hereby devise my land
located in Baguio City particularly described as follows to…..” If this presented
for probate and several persons appears claiming to be the one referred to in
the will, this is a extrinsic ambiguity where parole evidence cannot be
presented. The defect cannot be cured. If the court will allow any of the persons
to claim the property stated in the will, in effect the court will create a contract
and add a stipulation in a will which X in the first place never intended. So if
its extrinsic ambiguity or patent ambiguity it is not an exception to a parole
evidence. In other words parol evidence or evidence aliunde cannot be
introduced in this case.
3. INTERMEDIATE AMBIGUITY- a word in an agreement is capable of two or

more meanings and all these interpretation are correct. Parol evidence can be
introduced to correct the interpretation of the contract.
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BER – invoked by any parties; applies to all forms of writing ; should be invoke
at the time it is offered
Parol- refers to only the parties; refers only to contractual writing and includes
will; invoked when the witness is about to testify which tends to modify or alter
the terms of written agreement. Ex. A contract of sale involving a condo unit in
Belagio with A and B. In the contract it is stated therein that A is selling his
condo unit of 100sq meters in favor of B in the amount of US$50M. The
agreement for payment was Dec 1, 2010. B did not pay so A filed a complaint
to collect from B. In the case of collection, “I am collecting the amount of
US$50M but B in his answer states that his obligation is HK$50M not US$.
This is a case of an intermediate ambiguity wherein the words in the contract
to sell is capable of two or more meanings but all of these interpretations are
correct. In this case, parole evidence is allowed to interpret the deal. SC says
Yes. Take note that in intrinsic ambiguity, the agreement itself is capable of
two or more interpretations but in intermediate ambiguity it is only the words
that are capable of two or more interpretations and these interpretations are all
correct.
Distinction between Best Evidence Rule (BER) and Parole Evidence Rule(PER).
– BER it establishes a preference on the original document over the secondary
evidence. But in PER, it presupposes that original document is available. BER
can be invoked by any litigant or any party but in PER, it refers only to the
parties in the case or their successors in interest. BER applies to all forms of
writing but in PER applies only to contractual writing including will. BER is
best invoked at the time the document is offered. But in PER is invoked at the
time when the witness is about to testify which tends to modify the contents of
the written agreement.
CRIMINAL PROCEDURE:
Notice of appeal filed not in the court which rendered the decision but in the
CA. what is the effect of the notice of appeal after the accused is convicted? The
conviction becomes final and executory after the lapse of 15 days. Notice of
appeal should be filed with the court which convicted the accused.
It goes without saying the importance of the Criminal Procedure. Rules 110-
127 covers the rules of criminal procedure.
Criminal procedure starts with the commission of a felony, offense,

infraction. It is not enough that the accused or person has committed an
offense the accused must have been arrested. Otherwise, the case will be
archived.
Rules on Arrest: Gen. Rule : pursuant to Art 3, Sec 2 of 1987 Constitution,

take note of the right against unreasonable search and seizure. The basis for
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the issuance of warrant of arrest. It can either be arrest by virtue of a warrant

or arrest w/o a warrant of arrest- which is more controversial.
Gen Rule: only arrest a person if armed with a warrant. No arrest can be made
except when a police officer is armed with a warrant of arrest.
Sec 5 Rule 113: exception/instances of valid warrantless arrest:
1. In flagrante delicto arrest- that a crime has been committed, it is being

committed or has just been committed in the presence of the arresting officer.
2. a crime has just been committed and the person arresting has personal
knowledge that the person to be arrested has committed the offense- this is a
case of hot pursuit
3. arrest of a fugitive or escapee from justice- any person can arrest him.
The only rule that can be invoked whether to convict or not to convict the
accused. Formula: Rules in Crim Procedure: if there is a valid arrest on the
basis of the warrant; the evidence obtained is also legal. If the arrest is illegal,
the evidence obtained during the illegal arrest is inadmissible as being a
product of fruit of a poisonous tree.
Paragraph a or c : citizen’s arrest. NOTE that a private citizen can make only a
warrantless arrest as contemplated in Sec 5 Rule 113. If it’s by virtue of a
warrant arrest, private citizen can not make the arrest.
Unlike a search warrant, a warrant of arrest cannot be issued unless there

is already a case filed in court. The first thing a court will do upon receipt of
information is to prepare a warrant of arrest. By serving this warrant the court
acquires jurisdiction over the accused. This is true if the accused was not
arrested in flagrante delicto.
In a case of estafa committed on Sept 2010 against Mr A. One year after, it

was discovered that Mr. A was already residing somewhere else. Complainant
contacted the police officer to conduct an arrest at his new address. Police
officer arrested the person at the new given address. Is the arrest legal? No.
Police officer should obtain a new warrant of arrest for this purpose. A
complaint should first be filed before a warrant may be issued.
No preliminary investigation where the offense committed is penalized by

imprisonment of less than 4 yrs 1 month and 1 day.
Residents of the same barangay or adjoining barangay or adjoining cities or

municipalities should comply with the barangay conciliation procedure. If
there is no successful conciliation effort, the barangay will issue a
CERTIFICATE TO FILE ACTION- indispensable before filing a case in court.
Search warrant- can be obtained from court even if there is no case yet.
Then conduct a buy bust operation or go to the house of the suspect to
implement the search warrant. Take note that there must be a particular
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description of the place to be searched. The police officer who will implement
the search warrant cannot exercise discretion. The moment the police officer
implementing the search exercise discretion, the search is illegal and all
evidence obtained are inadmissible as being fruits of a poisonous tree.
WARRANTLESS ARREST- REQUEST FOR AN INQUEST.
Offense 4 yrs 2 months 1 day, Rule 112 of the Rules of Court in connection
with Rule110 requires the conduct of a preliminary investigation. A complaint
affidavit has to be filed with the prosecutors office, swear under oath and the
case will be raffled to a investigating prosecutor. Docket fees required in cases
of Estafa, BP 22 . Docket fees in criminal case are lower than in civil case. In
civil case the docket fee is 1M – 10,000 (estimate)
Do not call the person charge as accused during preliminary investigation but
RESPONDENT.
Investigating prosecutor assigned has the duty to determine whether or not

there is probable cause. The probable cause to be determined by prosecutor
is different from that determined by the judge. The probable cause
determined by the Prosecutor is whether or not there is a basis for the
filing of an information, whereas the probable cause to be determined by
the judge is only for purposes of issuance of a warrant of arrest.
In the case of Webb vs De Leon, if you refer to probable cause during

preliminary investigation, it presupposes that more likely than not, the offense
was committed by respondent and so he will be liable. We do not require proof
beyond reasonable doubt or absolute certainty. What we need only is an
inference that more likely or not the respondent has committed the offense.
If there is a basis for the filing of a case in court, the investigating prosecutor
will prepare a resolution and subsequently an information to be filed in court.
Note that no information will be filed in court without the approval or
imprimatur of the City Prosecutor.
File a motion for reconsideration if aggrieved by the resolution of the

Investigating Prosecutor but this does not prevent the filing of an
information in the court. Can TRO be issued against the prosecutor?
General Rule:No amount of TRO or injunction or writ of prohibition will
stop the public prosecutor from filing the information because the public
prosecution is imbued with public interest. It is not private complainant
but the state.
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Except in cases of Lino Brocka vs. Juan Ponce Enrile; or Teodor Borlongan
vs. Pena; People vs.Jojo Grey (July 26, 2010)
It is an established doctrine that injunction will not lie to enjoin a

criminal prosecution because public interest requires that criminal acts
be immediately investigated and prosecuted for the protection of society.
However, it is also true that various decisions of this Court have laid
down EXCEPTIONS to this rule, among which are:
a. To afford adequate protection to the constitutional

rights of the accused (Hernandez v. Albano, et al., L-19272,
January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions (Dimayuga, et
al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra;
Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub-
judice (De Leon v. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of
authority (Planas v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law,
ordinance or regulation (Young v. Rafferty, 33 Phil. 556;
Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v.
People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense
(Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where there is a case of persecution rather than
prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March
25, 1960);
i. Where the charges are manifestly false and motivated
by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited
in Rañoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf.
Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577); x x x
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been denied
(Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA
438)[; and]
[k.] Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of petitioners
(Rodriguez v. Castelo, L-6374, August 1, 1953).
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If it is no longer a case of prosecution but of persecution, can TRO be

requested? Yes. If there is a prejudicial question which is subjudice or double
jeopardy, will TRO lie? Yes
Can mandamus be filed to compel the court to resolve a case? Yes, to compel
the prosecutor to resolve the case. But cannot compel the prosecutor to
decide it one way or the other because it is a discretionary in character.
If the Motion for Reconsideration is denied, a Petition for Review may be filed
before DOJ to reverse the resolution. Meantime, the information, affidavits
during preliminary investigation are elevated to the court.
In Lacson vs. Sec of DOJ – before a judge can issue a warrant of arrest, a
motion for judicial determination of probable cause may be filed. The
judge will conduct a hearing to determine the existence of probable cause for
the purposes of issuance of warrant of arrest. If the court denies or resolves the
motion for judicial determination of probable cause and said that there is a
basis for the issuance of warrant of arrest. The police officers can now
implement the warrant.
If warrant of arrest is issued and the accused has been arrested. What should
the accused do? He will have to post bail.
Forms:
1. Surety
2. Cash
3. Recognizance of the respectable member of the community but not the
lawyer
4. Property Bond
Note that the court cannot compel cash bond alone because the general rule is
that bail is a matter of right.
EFFECT OF POSTING OF BAIL BY THE ACCUSED
Sec 26, Rule 114: - TAKE NOTE OF THIS FOR BAR PURPOSES:
1. Not a bar from challenging the validity of arrest or
2. Legality of warrant issued thereafter or
3. From assailing the regularity of preliminary investigation or
4. Question the absence of a preliminary investigation of the charge against
him
PROVIDED that the accused raised these grounds before entering a plea
because after a plea has been entered, the accused is deemed to have
waived his right.
After posting bail, a preliminary investigation will be done within 5 days. If after
posting the bail, the Sec of DOJ issued a resolution reversing the resolution of
the Investigating Prosecution, in the absence of a probable cause DOJ will
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direct the trial prosecution to withdraw the information. In a case, Mario

Crespo vs. Judge Mogol, the judge did not grant the motion to withdraw the
information on the ground that it is not bound by the ruling of Secretary of
Justice. The SC in deciding said that the court is not bound by the Sec of
DOJ, it assumes jurisdiction until final disposition of the case. The SC
reminded the Sec of DOJ not to entertain petition for review when the case has
been filed.
Effect of Petition for Review with Sec of DOJ? -Arraignment is suspended for
60 days from receipt of the petition for review by DOJ. In filing a petition for
review, recall the instances for suspension of arraignment.
SUSPENSION OF ARRAIGNMENT
1. Accused is suffering from unsound mind
2. Existence of Prejudicial question – Dreamwork Construction vs. Janiolla;
Do not talk of prejudicial question if the case involve is a civil and the other is a
criminal case
3. Double jeopardy : People vs. Jason Ivler
What is being punished is the criminal negligence which results to 2 offense.
People vs. Buan- In order to invoke double jeopardy:
1. The court must be a competent court or has jurisdiction over the case
2. There is a valid complaint or information
3. There must be prior jeopardy
4. The accused must have been arraigned
5. The accused was convicted and dismissal of the case was not at the
instance of the accused. The accused cannot move for the dismissal of the case
and invoke double jeopardy. However there are 2 situations wherein double
jeopardy attaches even though the dismissal is at the instance of the accused
a. dismissal on the ground of Motion to Dismiss by Demurrer to evidence
b. invocation of the speedy trial Act of 1998. (People vs. Florabell)
FLORABELL DOCTRINE: SC stated that if dismissal resulted from accused
invocation of speedy trial that dismissal will already involve double
jeopardy.
Rule 110- (grounds for valid complaint or information)
1. Name of the accused

2. Designation of the Offense
3. Act or omission
4. Date and time of commission of the offense
5. Place of the commission of offense.
6. Name of offended party
All of these must appear in the information otherwise it is defective.

One information equals one offense. There cannot be two offenses in one
information otherwise, it will run the risk of quashing the information for
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duplicity of offense. Duplicitous offense presupposes that there is onlyone

information.
Complaint or information should be filed in the place the offense was

committed or where any ingredient of the offense was committed. In continuing
offense, it can be filed in any of the place where the vehicle passed as in the
case of carnapping.
Falsification is not a continuing offense. For instance, in the case of use of

falsified document- file in the place where the use of falsified document
committed.
Rule 110 clearly states that aggravating and qualifying circumstances shall be
alleged otherwise, the rights of the accused to be informed of the nature of the
accusation against him will be violated.
If on the other hand the accused was arrested in flagrante delicto, which
means that there is no warrant of arrest, he should be brought before a
prosecutor for inquest proceedings. The inquest proceedings will determine
whether there was a validity of the arrest since this was done under a
warrantless arrest. Arresting officers are bound by the Art 125 of RPC (delay in
the delivery of arrested persons before a judicial authority), which means they
have to comply with the 12,18, & 36 hour rule. Under Sec 6 of Rule 112, the
arrested person is required to sign a waiver of the provisions of Art 125 RPC. If
he signs it he will continue to stay in prison and will remain in the custody of
the law.
The first hearing that the court will set is the arraignment in which case he will
be asked to enter a plea. The SC has already categorically stated that the plea
must come directly from the mouth of the accused. The lawyer of the
accused cannot enter the plea for him. Whether he pleas guilty or not it
should come from him. If during the arraignment the accused pleas not guilty
but invokes self defense, there will be a inverted trial, meaning the accused will
establish that indeed there was self defense. In which case, the accused will be
the first to present evidence to prove self defense. Before arraignment, the
accused can move for the quashal of the information. Take note however that
in quashal this refers only to information. Rule 126 of Rules of Court-
motion to quash a search warrant or suppress evidence. The quashal of the
search warrant will render the evidence gathered as fruit of the poisonous
tree. But in Rule 117, this refers to motion to quash the information. This
refers to a situation where the facts charged do not constitute an offense. This
is a situation wherein one or two elements of the crime where not alleged in the
complaint or information, necessarily the case can be dismissed.
After arraignment, there is pre-trial. The rule is unlike in civil cases, in

criminal case there is no need for filing for pre-trial briefs. If the counsel and
parties do not appear during pre-trial they will held administratively liable but
87
there is no dismissal of the case and presentation of evidence ex parte. But

take note, that all agreements entered into by the parties must be reduced into
writing and subscribed by the parties. During pre-trial the case will be referred
to mediation for a period of 30 days for the purpose of exploring the possibility
of amicable settlement of the civil aspect only and for the pre-marking of
exhibits because as a rule, no evidence shall be offered unless it has been pre-
marked. After the marking of exhibits the court will issue a pre-trial order.
After the mediation, the case will be referred back to the court for the
continuation of the trial. During the trial, it is the duty of the prosecution to
establish the quantum of evidence required. It cannot rely on the weakness of
the defense. It is also the duty of the prosecution to present evidence ahead
except where the defense invokes self defense. Accused has to be present
during arraignment, promulgation of sentence and if the court requires his
presence. During trial, Rule 115 of the Rules of Court on the rights of the
accused has to be observed. Take note of the Right to Speedy Trial. Dismissal
pursuant to violation of the right to speedy trial will result to double jeopardy.
Grounds for Provisional Dismissal- if the case has been pending for 2 or 3
years already, and the prosecution has not presented a witness for the 2nd or
3rd time the accused may move for the provisional dismissal of the case. Take
note of the DOCTRINE OF TIME BAR RULE laid down in the case Lacson vs.
Executive Secretary. If those periods have already lapsed and the
prosecution has not filed a motion for the revival of the case that dismissal for
all purposes shall become permanent.
“Sec. 8. Provisional Dismissal. – A case shall not be provisionally dismissed

except with the express consent of the accused and with notice to the offended
party.
“The provisional dismissal of offenses punishable by imprisonment not

exceeding six (6) years or a fine of any amount, or both shall become
permanent one (1) year after issuance of the order without the case having
been revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become
permanent two years after issuance of the order without the case having
been revived.”
After presentation of evidence by the prosecution, the accused has two

remedies, either to present evidence or move for a demurrer to evidence. Take
note however that in criminal cases, demurrer to evidence is stricter compared
to demurrer to evidence in civil cases, since it requires leave of court. Under
the Rules of Criminal Procedure, after the prosecution has rested its case, the
accused has a mandatory period of 5 days within which to file a motion for
leave to file a demurrer to evidence. The motion for leave of court is
indispensable because if no motion for leave and automatically filed a
demurrer to evidence and was denied by court, the accused is deemed to
88
have waived his right to present his evidence. So if after filing a motion for
leave of court within 5 days, the accused has 10 days to file his demurrer to
evidence and the other party has also 10 days to file his opposition on the
demurrer to evidence. Thereafter if the court resolves to deny the demurrer to
evidence, the accused if he has filed a leave of court, can present his evidence.
If the case has been dismissed by reason of the granting of the demurrer to
evidence, double jeopardy will set in. Unlike in civil case, after the prosecution
has rested its case, without any period to consider, the defendant without leave
of court can file a demurrer to evidence. If the court denies the demurrer,
defendant can present his evidence. If on the other hand the court grants the
demurrer, the case will be dismissed. But if on appeal, the appellate court
reverses the dismissal of the case, the defendant is deemed to have waived his
right to present his evidence. Radiowealth Corp vs. CA. If the appellate
court reverses the dismissal, the CA has to render a judgment. It will not
remand the case to the lower court to continue with the proceeding. In
criminal cases, the ground for demurrer is insufficiency of evidence. If the
accused wish to present its evidence, it will follow the normal order in the
presentation of evidence.
Thereafter, the parties will submit their respective memorandum and the case
will be submitted for resolution. The court on the basis of the memorandum
and evidence presented will render its decision. The judge who renders the
decision shall sign it and thereafter promulgate the decision. In civil case there
is no promulgation of judgment only in criminal case. Promulgation of
judgment is done by reading the decision in the presence of the accused. It is
only in light offenses where the accused may not be present during the
promulgation of judgment. If the accused is not present during
promulgation of judgment he is deemed to have waived his right to avail
of post judgment remedies such as MR, MNT, Appeals.
Where there are several accused and only one of them was present during
promulgation of judgment, only the accused present during the
promulgation can avail of the post judgment remedies.
If there is a judgment, under Art 100 of RPC every person criminally liable
should be civilly liable. If the accused is acquitted, accused may still be civilly
liable. If the accused is convicted, he can file for MR for the civil aspect. But if
he has been acquitted, private complainant cannot file an MR as it will result to
double jeopardy except as to accused’s civil liability.
If the accused has been acquitted because proof beyond reasonable doubt was
not established by the prosecution, accused may still be held civilly liable. But
if the accused is acquitted because he is not liable for the crime or he did not
commit the crime, he is not civilly liable.
The rule 101 of the Rules of Court states that criminal action is filed the civil
liability is deemed instituted except where there is reservation, waiver of
89
liability, and the civil action is filed ahead. If you refer to the civil liability
which is deemed instituted, this refers to civil liability ex delicto or those
arising from the crime. Can you file for civil liability from other sources? Yes.
If there is a merger of civil liability and criminality, this refers to civil liability ex
delicto, hence other civil liability can continue separately from the criminal
case. If there is a judgment of conviction or acquittal, because the prosecution
failed to establish the quantum of evidence the prosecution can file an appeal
with respect to the civil aspect. However, in People vs. Hernandez the SC
ruled that since it is an appeal, it throws open the entire case including the
criminal aspect, therefore the appellate court can convict an accused on
appeal.
In People vs. Efren Mateo wherein in case of death penalty, the petition for
review shall be filed with the CA anymore. Since the death penalty is
suspended, automatic review no long applies.
If the CA affirms the conviction can the SC issue a TRO? Yes. Leo Echagaray
vs SOJ case (refer to discussion above on expanded jurisdiction of the court)
Take note that in a rape case, the extinguishment of the criminal liability of the
accused by reason of his marriage to the victim and his subsequent release
from imprisonment by virtue of a petition for habeas corpus( see above
discussion on expanded jurisdiction of the court in Leo Echagaray case) does
not apply to his co-accused because the contract of marriages is only between
the convicted and his victim only
SPECIAL PROCEEDINGS
Estate Proceeding
The law on estate proceeding is simple, the person died with properties which
has to be distributed in accordance with his will or in the absence of a will,
through intestacy after payment of obligation. If a Filipino dies abroad with a
will and was probated there, it has to be reported here in the Phils. If he has no
will, the law of succession will be followed.
The modes of discovery under Civil Procedure also applies in special

proceedings because Rule 72 states that in the absence of special laws, the
laws under civil procedure as far as it is practicable shall also apply in special
proceedings.
Ex. Pnoy died without a will his heirs prepared the extrajudicial settlement less
expenses. Few laters, a person appeared claim to be the legitimate child of
Pnoy and move to annul the extrajudicial settlement of estate. The heirs
objected on the ground that the extrajudicial settlement was published and
therefore it is notice to the whole world including the claimant. SC said that
publication of extrajudicial settlement is never intended to deprive heirs
90
of their lawful participation in the estate of the deceased. It is not binding

to heirs who have no knowledge or who did not take part.
Take note of the venue of the judicial settlement of estate and jurisdiction limit.
If a person dies and the heirs wants to settle the estate it may be done
judicially or extrajudicially. If there is only one heir, he may execute an affidavit
adjudicating the property to himself. If the value of the estate is only 10
thousand there is no need for the settlement of estate. If there is a will, the
wishes of the decedent should be respected, hence probate of the will is
mandatory. Therefore, the heirs cannot forego with the probate of the will and
instead copy its content in their extrajudicial settlement.
Testacy prevails over intestacy. If there is settlement of estate and later on a

will was found during the settlement of estate, it will be suspended and the
probate of the will shall be given due course. If the will has been allowed,
probated that is conclusive as to the due execution and genuineness of the will.
If a will was allowed and no appeal was taken and it was later found out that it
was not genuine, can a case of forgery be file against the person who forged the
signature of the testator? No. The allowance of a will from which no appeal is
taken is conclusive as to its due execution.
- A lost will may be allowed provided the requisites provided for in Sec 6 Rule
76 are complied with.
LETTERS OF ADMINISTRATION
Letters of administration covers only properties or estate left in the Philippines.

Similarly, in the appointment of administrator, the order of preference as held
in Christina Aguinaldo Suntay vs. Isabel Conjuangco Suntay June 10,
2010, the SC said that it can order of preference of an administrator does
not rule out co-administrators. There can be two or more administrators.
ISSUANCE OF LETTERS OF ADMINISTRATION: TWO GROUNDs TO CONTEST

Sec 4 Rule 76
1. Incompetency
2. Contestants own right to the administration
In San Luis vs CA 514 SCRA 294, the woman has the legal personality to file
for the issuance of a letters of administration because she an interested person
under the contemplation of Sec 2, Rule 79. Being a co-owner of the
properties acquired with the man she therefore has right as co-owner over
the properties. So she falls under the contemplation of an interested
person even if they lived together without the marriage.
91
If there was an order denying the probate of the will, the decision can be
overturned by filing an annulment of judgment or petition for relief of
judgment as the case may be.
Take note of the rule on the death of a party in a case. No need to serve
summons to the substitute. Take of Rule 91 on escheat proceeding. The action
to recover an escheated property should be filed in 5 years.
ON GUARDIANSHIP: In the case Hernandez vs. Santos, the SC allowed the

granting of guardianship to a person who is of unsound mind, weak minds, etc.
ON HABEAS CORPUS: This contemplates 2 situation; first, deprivation of

person’s liberty either through legal confinement or detention or withholding
the custody of the person from someone entitled to such custody. Correlate this
with the post conviction DNA. ( discussion sufra)
Can Sandiganbayan grant petition of habeas corpus? The Sandiganbayan can

take cognizance of petitions for issuance of habeas corpus only in aid of
its appellate jurisdiction but not as an original jurisdiction.
Who can file the petition for habeas corpus? Can a live-in partner file for
habeas corpus? Yes Sec 3 Rule 102 states that it may filed by some person in
his stead.
WRIT OF AMPARO/WRIT OF HABEAS DATA- were promulgated in order to

address the situation of enforced disappearance and extra-legal killings. Take
note of Sec 1 of Writ of Amparo and Writ of Habeas Data
Writ of Amparo is available only to any person whose right to life, liberty or
security is violated or threatened to be violated by an unlawful act by public
official/employee or private individual.
Writ of Habeas Data- remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened to be violated by any public
official/employee engaged in gathering, collecting and storing of data or
information regarding the person, family, home and correspondence of
the aggrieved party.
It is not enough that there was violation to right to privacy in life or liberty or
security. The public official/employee must be engaged in the gathering,
collecting and storing of data or information regarding the person, family,
home and correspondence of the aggrieved person. This remedy is not
available where the subject matter involve is
uncertain grounds as held in Cruz vs. CA.
92
RULE 103 AND 108: PETITION OF CHANGE NAME AND PETITION FOR
CORRECTION OF ENTRIES
Typographical errors which are not substantial in character allows the petition
to be filed in Local Registrar.
If correction refers to the changing of status from legitimate to

illegitimate or citizenship from Chinese to Filipino this is substantial in
character and is adversarial in nature hence, should therefore be rectified
only through a petition filed in the courts. The change of status will affect
the successional rights of the person, hence, the case should be filed in courts.
Can a correction or change of gender be filed under Rule 103. Recall the case of
Jennifer Cagandahan Considering the unique nature of the case, the SC took
cognizance of the case invoking Sec 6 Rule 1. ( refer to discussion on the
requirement of notice to the local registrar and SolGen; liberal construction of
the rules supra.)
The SC granted the petition and took judicial notice of the provisions of the
New Civil Code that no judge shall decline to render judgment by reason of
absence, obscurity or insufficiency of law. So even if there is no applicable
law yet or SC pronouncement or ruling, because the Philippine courts is a
court of law and equity, in the absence of a law, equity shall apply.
The SC stated that “Where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual,
like respondent, having reached the age of majority, with good reason
thinks of his/her sex. Respondent here has simply let nature take its course
and has not taken unnatural steps to arrest or interfere with what he was born
with. And accordingly, he has already ordered his life to that of a male.
Respondent could have undergone treatment and taken steps, like taking
lifelong medication] to force his body into the categorical mold of a female but
he did not. He chose not to do so. Nature has instead taken its due course in
respondent's development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as one's sexuality and
lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the
Court force respondent to undergo treatment and to take medication in
order to fit the mold of a female, as society commonly currently knows
this gender of the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to the pursuit
93
of happiness and of health. Thus, to him should belong the primordial

choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent
is an "incompetent" and in the absence of evidence to show that
classifying respondent as a male will harm other members of society who
are equally entitled to protection under the law, the Court affirms as valid
and justified the respondent's position and his personal judgment of being
a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and
(2) how an individual deals with what nature has handed out. In other words,
we respect respondent's congenital condition and his mature decision to be a
male. Life is already difficult for the ordinary person. We cannot but respect
how respondent deals with his unordinary state and thus help make his life
easier, considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the consequences that
will follow. The trial court's grant of respondent's change of name from
Jennifer to Jeff implies a change of a feminine name to a masculine
name. Considering the consequence that respondent's change of name
merely recognizes his preferred gender, we find merit in respondent's
change of name. Such a change will conform with the change of the entry
in his birth certificate from female to male.”
94

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LECTURE OF ATTY.

KIT VILLASIS IN REMEDIAL LAW

OVERVIEW ON REMEDIAL LAW:

NEYPES VS. CA ON THE MOTION FOR RECONSIDERATION:

If an adverse judgment is received, under Rule 37 a motion for reconsideration,

 Sec 6 Rule 5– Liberal construction principle- akin to Art 19 of the Civil

jurisdiction until the final disposition of the case and so it is not

DISCUSSION ON THE FLOWCHART OF CIVIL PROCEDURE:

The third exception is very impt because it is a bar area is a situation of an

is apparently out of the Philippines so he authorized A to file a complaint

Why am I emphasizing on this permissive counter-claim.. because it is always

PARTY IN INTERVENTION- Ex. A and B are quarreling over the ownership of

Specific denial- as a rule it allegations should be specifically denied

A MOTION TO EXPUNGE ANSWER- if there was an answer but it was filed

MODES OF DISCOVERY- can be availed by both plaintiff and defendant. What

PRE-TRIAL – Assuming plaintiff filed a reply even though he is already aware

It is mandatory for the parties to prepare a pre-trial brief. If plaintiff fails

If a party receives a summon, he is required to file an answer within a period of

ORDER OF EXAMINATION OF WITNESS: First, the witness shall be

In the presentation of evidence by defendant, the same procedure will apply, he

JURISDICTION OVER THE ISSUES: is determined by the issues raised by

Neypes ruling is given retroactive effect and applied even to actions

The 15 day period to file an MR is mandatory. If an MR is filed after the

ANNULMENT OF JUDGMENT : grounds (1) lack of jurisdiction and (2) extrinsic

certiorari requires the prior filing of a Motion for Reconsideration. It is a

CIVIL PROCEDURE PROPER:

LIBERAL CONSTRUCTION OF THE RULES: in order to promote their

Remedial Law are prospective in character which means procedural laws

DISTINCTION OF JURISDICTION AND VENUE:

Venue can be stipulated. Under Rule 4, there is a provision on the stipulation

On the other hand, jurisdiction cannot be stipulated because is conferred by

Jurisdiction refers to the relationship of the courts and the subject

ERROR OF JUDGMENT AND ERROR OF JURISDICTION: If there is only

RELEVANT DOCTRINES REGARDING JURISDICTION

public interest, the principle of hierarchy of courts can be disregarded and be

DOCTRINE OF PRIMARY JURISDICTION: it precludes the courts from

DOCTRINE OF JUDICIAL STABILITY OR DOCTRINE OF NON- JUDICIAL

JURISDICTION OVER ISSUES: is determined by the issues raised in the

JURISDICTION OVER THE RES: it is jurisdiction over the property and is

JURISDICTION OVER THE SUBJECT MATTER: conferred by law and

residence of the parties. In a case of breach of contract, if there is a stipulation

It cannot be conferred by waiver, acquiescence, agreement by the parties. Let

Soliven vs. CA: Collection of Sum of money for 1M inclusive of damages. He

Rules on Summary Procedure

Small Claims – not exceeding 100 k

Basis: Assessed value not the FMV or Zonal Value

DOCKET FEES: Manchester Ruling: The principle is no docket fees no

How is the jurisdictional amount determined? By determining the principal

But if the main action is damages, include it in determining the

If there is joinder of causes of action: A vs B

Promissory note:100k, unpaid obligation 100k; house 100k; hospitalization

B C D E vs. A or A or BCDE = multiple parties

Can a party join causes of action against several defendant

If it is a real action how is the jurisdictional amount determined? If more than

Delegated jurisdiction of MTC: land registration case if the amount involved

REAL PARTY OF INTEREST: in a contract of sale, it is seller and buyer, in

Co-debtor is not a indispensable party but only a necessary party.

CLASS SUIT: that interest must not be specifically identifiable otherwise

DEATH OF DEFENDANT: If a case is filed by A against B and during pendency

RULE ON FOREIGN CORPORATIONS: refers to foreign corporation engaging

Santiago Cua vs. Juan Ocampo on DERIVATIVE SUIT: the corporation is

ENTITY WITHOUT JURIDICAL PERSONALITY:

ABC Corp has no license, no articles of in corp, by-laws or certificate of