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Remedial LAW: 4 Week
Remedial LAW: 4 Week
College of Law
Bar Reviewer
4TH WEEK
REMEDIAL
LAW
A. ACTIONS ................................... 20
A.1 KINDS OF ACTIONS ............................ 20
A.2 CIVIL ACTIONS VERSUS SPECIAL
Table of Contents PROCEEDINGS ...........................................21
A.3 PERSONAL ACTIONS AND REAL
ACTIONS......................................................21
A.4 LOCAL AND TRANSITORY ACTIONS 22
Civil Procedure 1 A.5 ACTIONS IN REM, IN PERSONAM, OR
QUASI IN REM ........................................... 22
I. GENERAL CONCEPTS ....................... 2 A.6 INDEPENDENT CIVIL ACTIONS [SEC. 3,
A. CONCEPT OF REMEDIAL LAW ...... 2 RULE 111] ..................................................... 23
A.1 SOURCE ................................................. 2 B. CAUSE OF ACTION ..................... 23
A.2 APPLICABILITY ..................................... 2 B.1 RIGHT OF ACTION VERSUS CAUSE OF
A.3 PROSPECTIVITY/ RETROACTIVITY ..... 2 ACTION ....................................................... 24
B. SUBSTANTIVE LAW VIS-À-VIS B.2 FAILURE OF THE COMPLAINT TO
REMEDIAL LAW ............................... 2 STATE A CAUSE OF ACTION .................... 24
C. RULE MAKING POWER OF THE B.3 SPLITTING A SINGLE CAUSE OF
SUPREME COURT ............................ 3 ACTION; EFFECTS ..................................... 25
C.1 POWER OF THE SC TO AMEND B.4 JOINDER AND MISJOINDER OF
PROCEDURAL RULES .................................3 CAUSES OF ACTION ................................. 26
C.2 POWER OF SC TO SUSPEND ...............3 C. PARTIES .................................... 26
D. NATURE OF PHILIPPINE COURTS . 4 C.1 REAL PARTY-IN-INTEREST ................ 27
D.1 MEANING OF A COURT........................ 4 C.2. INDISPENSABLE AND NECESSARY
D.2 CLASSIFICATION OF PHIL. COURTS .. 4 PARTIES .....................................................28
D.3 PRINCIPLE OF JUDICIAL HIERARCHY 5 C.3 INDIGENT PARTIES .............................28
D.4 DOCTRINE OF NON-INTERFERENCE 6 C.4 ALTERNATIVE DEFENDANTS ............ 29
II. JURISDICTION ................................. 6 C.5 COMPULSORY AND PERMISSIVE
A. ASPECTS OF JURISDICTION JOINDER OF PARTIES ............................... 29
[BOSTON EQUITY RESOURCES, INC. V. C.6 MISJOINDER AND NON-JOINDER OF
CA, G.R. NO. 173946 (2013)] ............. 6 PARTIES .....................................................30
A.1 JURISDICTION OVER THE SUBJECT C.7 CLASS SUIT ..........................................30
MATTER ....................................................... 6 C.8 SUITS AGAINST ENTITIES WITHOUT
A.2 JURISDICTION OVER THE PARTIES ... 9 JURIDICAL PERSONALITY ......................... 31
A.3 JURISDICTION OVER THE ISSUES ...... 9 C.9 EFFECT OF DEATH OF A PARTY-
A.4 JURISDICTION OVER THE RES OR LITIGANT ..................................................... 31
PROPERTY IN LITIGATION ........................ 10 D. VENUE ...................................... 32
B. JURISDICTION OF COURTS ......... 10 D.1 VENUE VERSUS JURISDICTION ......... 33
B.1 SUPREME COURT ................................ 10 D.2 VENUE OF REAL ACTIONS ................ 33
B.2 COURT OF APPEALS ........................... 11 D.3 VENUE OF PERSONAL ACTIONS ...... 33
B.3 COURT OF TAX APPEALS .................. 12 D.4 VENUE OF ACTIONS AGAINST NON-
B.4 SANDIGANBAYAN [P.D. 1606, AS RESIDENTS ................................................ 33
AMENDED BY R.A. 7975 AND R.A. 10660] D.5 WHEN THE RULES ON VENUE DO
..................................................................... 13 NOT APPLY ................................................ 34
B.5 REGIONAL TRIAL COURTS ................ 14 D.6 EFFECTS OF STIPULATION ON VENUE
B.6 FAMILY COURTS [RA 8369] ............... 17 ..................................................................... 34
B.7 METROPOLITAN TRIAL COURTS/ E. PLEADINGS ............................... 34
MUNICIPAL TRIAL COURTS ...................... 17 E.1 KINDS OF PLEADINGS ........................ 34
B.8 SHARI’A COURTS ................................ 18 E.2 PLEADINGS ALLOWED IN SPECIAL
C. JURISDICTION OVER SMALL RULES........................................................ 40
CLAIMS .......................................... 18 E.3 PARTS OF A PLEADING ...................... 41
D. CASES COVERED BY RULES ON E.4 ALLEGATIONS IN A PLEADING .........44
SUMMARY PROCEDURE .................. 19 SPECIFIC DENIALS ....................................45
E. CASES COVERED BY BARANGAY E.5 EFFECT OF FAILURE TO PLEAD ........46
CONCILIATION ................................ 19 E.6 DEFAULT .............................................46
F. TOTALITY RULE ......................... 20 E.7 FILING AND SERVICE OF PLEADINGS
III. COMMENCEMENT OF ACTIONS TO .....................................................................49
TRIAL ............................................... 20
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VI. LETTERS TESTAMENTARY AND OF VII. CLAIMS AGAINST THE ESTATE ... 225
ADMINISTRATION ............................ 218 ESTATE BURDENED WITH LIEN OF
A. WHEN AND TO WHOM LETTERS OF CREDITORS ............................................. 225
ADMINISTRATION ARE GRANTED .. 218 PURPOSE OF PRESENTATION OF CLAIMS
WHO ARE INCOMPETENT TO SERVE AS AGAINST ESTATE ................................... 225
EXECUTOR OR ADMINISTRATOR.......... 218 A. TIME WITHIN WHICH CLAIMS
B. ORDER OF PREFERENCE .......... 219 SHALL BE FILED; EXCEPTIONS ..... 225
30-DAY PERIOD MAY BE WAIVED ......... 219 ALTERNATIVE REMEDIES OF A
C. OPPOSITION TO ISSUANCE OF MORTGAGE CREDITOR UPON DEATH OF
LETTERS TESTAMENTARY; DEBTOR ................................................... 227
SIMULTANEOUS FILING OF PETITION B. CLAIM OF EXECUTOR OR
FOR ADMINISTRATION ................. 219 ADMINISTRATOR AGAINST AN
D. POWERS AND DUTIES OF ESTATE ........................................ 227
EXECUTORS AND ADMINISTRATORS; C. PAYMENT OF DEBTS ................ 228
RESTRICTIONS ON THE POWERS . 220 PAYMENT OF CONTINGENT CLAIM ..... 228
D.1. GENERAL POWERS AND DUTIES POSSESSION BY HEIRS, DEVISEES OR
OF EXECUTORS AND LEGATEES BEFORE DEBTS AND
ADMINISTRATORS ........................ 221 EXPENSES ARE PAID ............................. 228
HAVE ACCESS TO PARTNERSHIP BOOKS LIABILITY OF HEIRS AND DISTRIBUTEES
AND PROPERTY AT ALL TIMES .............. 221 .................................................................. 229
KEEP BUILDINGS IN TENANTABLE REQUISITES ............................................ 230
REPAIR...................................................... 221 VIII. ACTIONS BY AND AGAINST
RIGHT TO POSSESSION AND EXECUTORS AND ADMINISTRATORS 231
MANAGEMENT OF THE REAL AND A. ACTIONS BY AND AGAINST
PERSONAL PROPERTIES ....................... 221 EXECUTORS ................................. 231
D.2. RESTRICTIONS ON POWERS OF B. RECOVERY OF PROPERTY
EXECUTORS AND ADMINISTRATORS CONCELEAD, EMBEZZLED OR
.................................................... 221 FRADULENTLY CONVEYED ............ 231
EXECUTOR OR ADMINISTRATOR WHEN RECOVERY BY CREDITOR OF
CHARGEABLE WITH ALL ESTATE AND PROPERTY FRAUDULENTLY
INCOME .................................................... 221 CONVEYED MAY BE DONE ............ 232
PROHIBITED FROM PROFITING BY C. SALES, MORTGAGES, AND OTHER
INCREASE OR LOSING BY DECREASE IN ENCUMBRANCES ......................... 232
VALUE ...................................................... 222 FLOWCHART: SETTLEMENT OF ESTATE
ACCOUNTABLE FOR INCOME FROM OF DECEASED PERSONS .......................234
REALTY USED BY HIM ............................ 222 IX. DISTRIBUTION AND PARTITION .. 236
ACCOUNTABLE IF HE NEGLECTS OR BEFORE THERE COULD BE A
DELAYS TO RAISE OR PAY MONEY ...... 222 DISTRIBUTION OF ESTATE, THE
ONLY NECESSARY EXPENSES SHALL BE FOLLOWING STAGES MUST BE
ALLOWED ................................................ 222 FOLLOWED: .............................................236
EXECUTOR OR ADMINISTRATOR TO A. LIQUIDATION .......................... 236
MAKE INVENTORY AND RENDER B. PROJECT OF PARTITION .......... 236
ACCOUNT ................................................ 222 C. REMEDY OF AN HEIR ENTITLED TO
ACCOUNTING MANDATORY ................. 223 RESIDUE BUT NOT GIVEN HIS SHARE
EXAMINATION ON OATH BY COURT ... 223 .................................................... 237
E. APPOINTMENT OF SPECIAL D. INSTANCES WHEN PROBATE
ADMINISTRATOR .......................... 223 COURT MAY ISSUE WRIT OF
POWERS AND DUTIES OF SPECIAL EXECUTION .................................. 237
ADMINISTRATOR.................................... 224 X. ESCHEAT ..................................... 237
WHEN SPECIAL ADMINISTRATOR CEASES A. WHEN TO FILE .......................... 237
DUTIES ..................................................... 224 B. REQUISITES FOR FILING OF
F. REVOCATION, DEATH, PETITION ...................................... 237
RESIGNATION AND REMOVAL OF C. REMEDY OF RESPONDENT
EXECUTORS AND ADMINISTRATORS AGAINST PETITION; PERIOD FOR
................................................... 224 FILING A CLAIM. .......................... 238
EFFECT OF REMOVAL, DEATH, OR XI. TRUSTEES ................................. 239
RESIGNATION ......................................... 225
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C.3. EXCEPTIONS [SEC. 3, RULE 130] ... 379 F.4. REASON FOR EXCLUSION OF
D. RULES ON ELECTRONIC EVIDENCE HEARSAY EVIDENCE ............................. 402
[AM NO. 01-7-01-SC] .................... 380 F.5. EXCEPTIONS TO THE HEARSAY RULE
D.1. APPLICABILITY ................................. 380 .................................................................. 402
D.2. ADMISSIBILITY OF ELECTRONIC G. OPINION RULE ....................... 406
DOCUMENTS .......................................... 380 G.1. OPINION OF EXPERT WITNESS [SEC.
D.4. METHOD OF PROOF ....................... 381 49, RULE 130] .......................................... 406
E. PAROL EVIDENCE RULE ........... 382 G.2. OPINION OF ORDINARY WITNESS
E.1. APPLICABILITY ................................. 383 [SEC. 50, RULE 130] ................................ 407
E.2. INTRODUCTION AND PRESENTATION H. CHARACTER EVIDENCE .......... 408
OF PAROL EVIDENCE............................. 383 H.1. CRIMINAL CASES ............................ 408
E.3. COLLATERAL AGREEMENTS ......... 383 H.2. CIVIL CASES .................................... 408
F. AUTHENTICATION AND PROOF OF I. RULE ON EXAMINATION OF A
DOCUMENTS ............................... 384 CHILD WITNESS [AM NO. 004-07-SC]
F.1. PUBLIC AND PRIVATE DOCUMENTS ................................................... 408
.................................................................. 384 I.1. APPLICABILITY OF THE RULE.......... 409
F.7. ATTACKING RECORDS .................... 386 I.2. MEANING OF “CHILD WITNESS” [SEC.
F.8. PROOF OF NOTARIAL DOCUMENTS 4(A)] ......................................................... 409
.................................................................. 386 CHILD WITNESSES MAY TESTIFY IN A
F.9. HOW TO EXPLAIN ALTERATIONS IN A NARRATIVE FORM AND LEADING
DOCUMENT [SEC. 31, RULE 132]............ 386 QUESTIONS MAY BE ALLOWED BY THE
V. TESTIMONIAL EVIDENCE .............. 387 TRIAL COURT IN ALL STAGES OF THE
A. QUALIFICATIONS OF A WITNESS EXAMINATION IF THE SAME WILL
.................................................... 387 FURTHER THE INTEREST OF JUSTICE.
B. COMPETENCY VERSUS [PEOPLE V. SANTOS, G.R. NO. 172322
CREDIBILITY ................................ 388 (2006)] ........................................... 409
C. DISQUALIFICATIONS OF I.3. COMPETENCY OF CHILD WITNESS 409
WITNESSES ................................. 388 I.4. EXAMINATION OF A CHILD WITNESS
C.1. BY REASON OF MENTAL CAPACITY .................................................................. 409
OR IMMATURITY ..................................... 389 I.5. HEARSAY EXCEPTION IN CHILD
C.2. BY REASON OF MARRIAGE ........... 389 ABUSE CASES [SEC. 28] ......................... 410
C.3. BY REASON OF DEATH OR INSANITY I.6. SEXUAL ABUSE SHIELD RULE ........ 410
OF ADVERSE PARTY (ALSO KNOWN AS VI. OFFER AND OBJECTION ............... 411
“DEAD MAN’S STATUTE” OR A. OFFER OF EVIDENCE ................. 411
“SURVIVORSHIP RULE”) ........................ 390 B.WHEN TO MAKE AN OFFER [SEC. 35,
C.4. BY REASON OF PRIVILEGED RULE 132] ..................................... 412
COMMUNICATIONS ................................ 390 C. OBJECTION [SEC. 36, RULE 132] 412
D. EXAMINATION OF A WITNESS .. 394 C.1. CONCEPT .......................................... 412
D.1. RIGHTS AND OBLIGATIONS OF A C.2. MANNER ........................................... 412
WITNESS [SEC. 3, RULE 132] .................. 394 C.3. PURPOSES OF OBJECTION [RIANO]
D.2. ORDER OF EXAMINATION OF AN ................................................................... 413
INDIVIDUAL WITNESS ............................ 394 C.4. CLASSIFICATION OF OBJECTIONS 413
D.3. LEADING AND MISLEADING C.5. WHEN TO OBJECT ........................... 413
QUESTIONS [SEC. 10, RULE 132] ........... 395 D. RULING ON THE OBJECTION [SEC.
D.4. IMPEACHING A WITNESS .............. 395 38, RULE 132] ............................... 413
D.5. JUDICIAL AFFIDAVIT RULE [AM 12-8- E. STRIKING OUT AN ANSWER [SEC.
8-SC] ........................................................ 396 39, RULE 132] ............................... 414
E. ADMISSIONS AND CONFESSIONS F. TENDER OF EXCLUDED EVIDENCE
.................................................... 397 [SEC. 40, RULE 132] ...................... 414
E.1. EXTRAJUDICIAL ADMISSIONS ........ 397
E.2. RES INTER ALIOS ACTA RULE ....... 398
E.3. OTHER FORMS OF ADMISSIONS ..400
F. HEARSAY RULE ........................ 401
F.1. GENERAL RULE ON HEARSAY ........ 401
F.2. MEANING OF HEARSAY .................. 401
F.3. DOCTRINE OF INDEPENDENTLY
RELEVANT STATEMENTS ....................... 401
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The same section sets forth the limitations to Litigation is not a game of technicalities, but
the power: every case must be prosecuted in accordance
(1) The rules shall provide a simplified and with the prescribed rules of procedure to
inexpensive procedure for speedy ensure an orderly and speedy administration
disposition of cases; of justice. Only for the most persuasive of
(2) The rules shall be uniform for courts of the reasons can such rules be relaxed to relieve a
same grade; and litigant of an injustice not commensurate
(3) The rules shall not diminish, increase or with the degree of his thoughtlessness in not
modify substantive rights. complying with the procedure prescribed.
[Novateknika v. PNB, G.R. No. 194104 (2013)]
The 1987 Constitution, however, took away
the power of Congress to repeal, alter or Where strong considerations of substantive
supplement rules concerning pleading, justice are manifest in the petition, the strict
practice and procedure. The power to application of the rules of procedure may be
promulgate rules is no longer shared relaxed, in the exercise of its equity
by the Court with Congress, more so jurisdiction. A rigid application of the rules of
with the executive. [Echegaray v. Secretary of procedure will not be entertained if it will
Justice, G.R. No. 132601 (1999)] obstruct rather than serve the broader
interests of justice in the light of the
C.1 POWER OF THE SC TO AMEND prevailing circumstances in the case under
PROCEDURAL RULES consideration. [CMTC Int’l Marketing Corp. v.
The SC has the sole prerogative to amend, Bhagis Int’l Trading Corp., G.R. No. 170488
repeal, or even establish new rules for a more (2012)]
simplified and inexpensive process, and the
speedy disposition of cases. [Neypes v. CA, Parties praying for the liberal interpretation
G.R. No. 141524 (2005)] of the rules must be able to hurdle that heavy
burden of proving that they deserve an
The constitutional faculty of the Court to exceptional treatment. It was never the
promulgate rules necessarily carries with it Court’s intent “to forge a bastion for erring
the power to overturn judicial precedents on litigants to violate the rules with impunity.”
points of remedial law through the [Prieto v. Alpadi Development Corp., G.R. No.
amendment of the Rules of Court. [Pinga v. 191025 (2013)]
Heirs of Santiago, G.R. No. 170354 (2006)]
Concomitant to a procedure adopting a
C.2 POWER OF SC TO SUSPEND liberal application of the rules should be an
The Rules of Court shall be liberally effort on the part of the party invoking
construed in order to promote their objective liberality to explain his failure to abide by the
of securing a just, speedy and inexpensive rules. [Duremdes v. Duremdes, G.R. No.
disposition of every action and proceeding. 138256 (2003)]
[Sec. 6, Rule 1]
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What constitutes good and sufficient cause D.2 CLASSIFICATION OF PHIL. COURTS
that would merit suspension of the rules is
discretionary upon the courts. [CIR v. Mirant i. Courts of original and appellate
Pagbilao Corp., G.R. No. 159593 (2006)] jurisdiction [Regalado]
Original Appellate
The reasons which would warrant suspension Actions or Have the power to
of the Rules are: proceedings may be review on appeal the
(1) The existence of special and compelling originally decisions or orders of
circumstances; commenced a lower court
(2) The merits of the case;
(3) A cause not entirely attributable to the Appellate jurisdiction refers to a process
fault or negligence of the party favored by which is but a continuation of the original suit,
the suspension; not a commencement of a new action.
(4) A lack of any showing that the reviw [Morales v. CA, G.R. No. 126623 (1997)]
sought is merely frivolous or dilatory; and
(5) The rights of the other party will not be ii. Courts of general and special
unjustly prejudiced thereby. [Sarmiento v. jurisdiction [Regalado]
Zaratan, G.R. No. 167471 (2007)] General Special
Competent to decide
D. NATURE OF PHILIPPINE COURTS their own jurisdiction No power to decide
and to take their own jurisdiction
D.1 MEANING OF A COURT cognizance of all and can only try
kinds of cases, unless cases permitted by
Court – an organ of government belonging otherwise provided statute
to the judicial department, the function of by the law or Rules
which is the application of the laws to
controversies brought before it as well as the iii. Constitutional and statutory courts
public administration of justice. Constitutional Statutory
Owe creation and
It is also the place where justice is
existence to the
administered. [Riano citing Black’s Law
Constitution and
Dictionary, Am. Jur. and C. J. S.] Created, organized
cannot be legislated
and with jurisdiction
As Distinguished from a Judge: A court out of existence or
exclusively
is an organ of government with a personality deprived by law of the
determined by law
separate and distinct from the judge who sits jurisdiction and
on it. [People v. Carlos, G.R. No. L-239 (1947)] powers unqualifiedly
vested in them
Court Judge
Tribunal officially iv. Courts of law and equity
Officer of such Law Equity
assembled under
tribunal
authority of law Settle cases
Comparable to a A physical or natural according to the
corporation person Settle cases principles of equity,
according to law referring to principles
Jurisdiction does not attach to the of justice, fairness
judge but to the court. The continuity of and fair play
a court and the efficacy of its proceedings are
not affected by the death, resignation, or
cessation from the service of the judge
presiding over it. [ABC Davao Auto Supply v.
CA, G.R. No. 113296 (1998)]
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Philippine courts are basically courts of law, D.3 PRINCIPLE OF JUDICIAL HIERARCHY
not courts of equity. Equity, which has been
aptly described as a “justice outside legality,” Doctrine of hierarchy of courts: Where
is applied only in the absence of, and never courts have concurrent jurisdiction over a
against, statutory law. Aequetas nunquam subject matter, a case must be filed before
contravenit legis. [GF Equity, Inc. v. Valenzona, the lowest court possible having the
G.R. No. 156841 (2005)] appropriate jurisdiction, except if one can
advance a special reason which would allow
Equity is available only in the absence of law
direct recourse to a higher court.
and not as its replacement. [PTA of ST.
Matthew Christian Academy v. Metropolitan
The principle of hierarchy of courts requires
Bank and Trust Co., G.R. No. (2010)]
that recourses should be made to the lower
NOTE. In Carceller v. CA [G.R. No. 124791 courts before they are made to the higher
(1999)], the Supreme Court stated courts. [Republic v. Caguioa, G.R. No. 174385
immediately preceding the dispositive portion (2013)]
that: “Courts of law, being also courts of
equity, may not countenance such grossly Parties must observe the hierarchy of courts
unfair results without doing violence to its before they can seek relief directly from the
solemn obligation to administer fair and SC – the rationale is two-fold:
equal justice for all.” (1) It would be an imposition upon the limited
time of the Court; and
v. Superior and Inferior Courts
(2) It would inevitably result in a delay, in the
[Regalado]
adjudication of cases, which are remanded
Superior Inferior
or referred to the lower court as the proper
Are lower in rank, in
forum, or a trier of facts. [People v
Have the power of relation to another
Azarraga, G.R. No. 187117 (2011)]
review or supervision court and subject to
over another and review and
A disregard of the doctrine of hierarchy of
lower court supervision by the
courts warrants, as a rule, the outright
latter
dismissal of a petition. [De Castro v. Carlos,
G.R. No. 194994 (2013)]
vi. Courts of record and not of record
Of record Not of record
The SC may disregard the doctrine if
Proceedings are
warranted by the nature and importance of
enrolled and are
the issues raised in the interest of speedy
bound to keep a
justice and to avoid future litigations.
written record of all
trials and
Direct resort to the SC has been allowed in
proceedings handled Not required to keep
the following cases:
by them [Regalado] a written record or
(1) Where there are special and important
transcript of
reasons clearly stated in the petition;
There is a strong proceedings held
(2) When dictated by public welfare and the
presumption as to therein
advancement of public policy;
the veracity of its
(3) When demanded by the broader interest
records that cannot
of justice;
be collaterally
(4) When the challenged orders were patent
attacked except in
nullities;
cases of fraud
(5) When analogous exceptional and
compelling circumstances called for and
All Philippine courts, including inferior courts,
justified the immediate and direct
are now courts of record. [Riano]
handling by the Court. [Republic v.
Caguioa, G.R. No. 174385 (2013)]
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petition shall only be cognizable the CA, via Rule 43 of the Rules of Court. This
by the CA and must be filed there. constitutes an exception to the general rule
(b) Petitions for writ of kalikasan that appeals on pure questions of law are
brought to the SC. [Santos v. Committee on
(2) With RTC in cases affecting ambassadors, Claims Settlement, G.R. No. 158071 (2009)]
public ministers and consuls.
The SC may resolve factual issues in certain
exceptional circumstances:
(3) With CA and RTC
(a) Petitions for certiorari, prohibition and (1) The conclusion is grounded on
mandamus against lower courts and speculations, surmises or conjectures
bodies; (2) The inference is manifestly mistaken,
(b) Petitions for quo warranto; absurd or impossible;
(c) Petitions for writs of habeas corpus. (3) There is grave abuse of discretion;
(4) The judgment is based on a
(4) With CA, RTC and Sandiganbayan misapprehension of facts;
(a) Petitions for writ of amparo and habeas (5) The findings of fact are conflicting;
data. (6) There is no citation of specific evidence on
which the factual findings are based;
Appellate Jurisdiction (7) The finding of absence of facts is
By way of petition for review on certiorari contradicted by the presence of evidence
(appeal by certiorari under Rule 45) against: on record;
(1) CA (8) The findings of the CA are contrary to
(2) Sandiganbayan those of the trial court;
(3) RTC on pure questions of law (9) The CA manifestly overlooked certain
(4) CTA in its decisions rendered en banc relevant and undisputed facts that, if
(5) MetC, MTC, MCTC in the exercise of their properly considered, would justify a
delegated jurisdiction, where the decision, different conclusion;
had it been rendered by RTC, would be (10) The findings of the CA are beyond the
appealable directly to the SC [Sec. 34, BP issues of the case;
129, as amended] (11) Such findings are contrary to the
admissions of both parties.
Only pure questions of law are involved when [Josefa v. Zhandong, G.R. No. 150903 (2003)]
no evidentiary matters are to be evaluated by
the SC. If the only issue is whether or not the B.2 COURT OF APPEALS
conclusions of the trial court are in
consonance with law and jurisprudence, then Exclusive Original Jurisdiction
the issue is a pure question of law. [Urbano v. (1) Actions for annulment of judgments of
Chavez, G.R. No. 87977 (1990)] the RTC [see: Sec. 9(2), BP 129; Sec. 1,
Rule 47]
This appellate jurisdiction applies:
(1) In cases involving the constitutionality or Concurrent Original Jurisdiction
validity of a law or treaty, international or (1) With SC
executive agreement, law, presidential (a) Petitions for certiorari, prohibition, and
decree, proclamation, order, instruction, mandamus against:
ordinance or regulation, legality of a tax, (i) Regional Trial Courts;
impost, assessment, toll or penalty, (ii) Civil Service Commission;
jurisdiction of a lower court; and (iii) Central Board of Assessment
(2) All cases in which the jurisdiction of any Appeals;
court is in issue; (iv) NLRC and other Quasi-Judicial
(3) All cases in which an error or question of Agencies
law is involved NOTE: That, although there is
Note that the SC has held that appeals from concurrent jurisdiction as the
quasi-judicial agencies – even only on a 1987 Constitution grants this to
question of law alone – may be brought to the SC, SC A.M. No. 07-7-12
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(2) Over all criminal cases arising from B.4 SANDIGANBAYAN [P.D. 1606, AS
violation of the NIRC and the TCC and AMENDED BY R.A. 7975 AND R.A. 10660]
other laws, part of laws, or special laws
administered by the BIR or the BOC where Original Jurisdiction:
the principal amount of taxes and fees, (1) Violations of RA 3019, or the Anti-Graft
exclusive of charges and penalties claimed and Corrupt Practices Act
is less than P1M or where there is no (2) Violations of RA 1379, or the Anti-Ill-
specified amount claimed (the offenses or Gotten Wealth Act
penalties shall be tried by the regular (3) Sequestration cases, under Executive
courts and the jurisdiction of the CTA shall Order Nos. 1, 2, 14, and 14-A
be appellate); (4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
Exclusive Appellate Jurisdiction accused are occupying the following
(1) In criminal offenses positions in the government, whether in
(a) Over appeals from the judgment, permanent, acting or interim capacity, at
resolutions or orders of the RTC in tax the time of the commission of the offense:
cases originally decided by them, in (a) Officials of the executive branch
their respective territorial jurisdiction, occupying the positions of regional
and director and higher, otherwise
(b) Over petitions for review of the classified as Grade 27 and higher, of
judgments, resolutions or orders of the the Compensation and Position
RTC in the exercise of their appellate Classification Act of 1989 (RA 6758),
jurisdiction over tax cases originally specifically including:
decided by the MeTCs, MTCs, and (i) Provincial governors, vice-
MCTCs in their respective jurisdiction. governors, members of the
(2) In tax collection cases sangguniang panlalawigan, and
(a) Over appeals from the judgments, provincial treasurers, assessors,
resolutions or orders of the RTC in tax engineers, and other provincial
collection cases originally decided by department heads
them in their respective territorial (ii) City mayors, vice-mayors,
jurisdiction; and members of the sangguniang
(b) Over petitions for review of the panlungsod, city treasurers,
judgments, resolutions or orders of the assessors, engineers, and other
RTC in the exercise of their appellate city department heads
jurisdiction over tax collection cases (iii) Officials of the diplomatic service
originally decided by the MeTCs, MTCs occupying the position of consul
and MCTCs in their respective and higher
jurisdiction. (iv) Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
(v) Officers of the Philippine National
Police while occupying the
position of provincial director and
those holding the rank of senior
superintendent and higher
(vi) City and provincial prosecutors
and their assistants, and officials
and prosecutors in the Office of
the Ombudsman and special
prosecutor;
(vii) Presidents, directors or trustees,
or managers of government-
owned or controlled corporations,
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the exclusive original jurisdiction of the fall due or in cases where the
Juvenile and Domestic Relations Court corporation, partnership of association
and of the Court of Agrarian Reform [Sec. has no sufficient assets to cover its
19(7), BP 129] liabilities, but is under the
management of a Rehabilitation
See Jurisdiction of Family Courts, infra. Receiver or Management Committee.
In areas where there are no Family Courts, (7) Petitions for Declaratory Relief [Sec. 1,
the cases within their jurisdiction shall be Rule 63]
adjudicated by the RTC [Sec. 17, RA 8369]
Concurrent Original Jurisdiction
(5) All cases not within the exclusive (1) With SC in cases affecting ambassadors,
jurisdiction of any court, tribunal, person, public ministers and consuls.
or body exercising judicial or quasi-judicial (2) With SC and CA
functions (General Original (a) Petitions for certiorari, prohibition and
Jurisdiction) [Sec. 19(6), BP 129] mandamus against lower courts and
bodies;
(6) Jurisdiction to Hear and Decide Intra- (b) Petitions for quo warranto;
Corporate Controversies [Sec. 52, (c) Petitions for writs of habeas corpus.
Securities and Regulations Code] (3) With SC, CA and Sandiganbayan
(a) Cases involving devises or schemes (a) Petitions for writ of amparo and habeas
employed by or any acts, of the board data.
of directors, business associates, its (4) With Insurance Commissioner for claims
officers or partnership, amounting to not exceeding P100,000
fraud and misrepresentation which
may be detrimental to the interest of Appellate Jurisdiction over cases decided
the public and/or of the stockholders, by lower courts in their respective territorial
partners, members of associations or jurisdictions, except those made in the
organizations registered with the SEC exercise of delegated jurisdiction, which are
(b) Controversies arising out of intra- appealable in the same manner as decisions
corporate or partnership relations, of the RTC [Sec. 34, BP 129, as amended].
between and among stockholders,
members or associates; between any or Special Jurisdiction - SC may designate
all of them and the corporation, certain branches of RTC to try exclusively
partnership or association of which criminal cases, juvenile and domestic
they are stockholders, members or relations cases, agrarian cases, urban land
associates, respectively; and between reform cases not falling within the jurisdiction
such corporation , partnership or of any quasi-judicial body and other special
association and the state insofar as it cases in the interest of justice.
concerns their individual franchise or
right to exist as such entity
(c) Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporations, partnerships or
associations
(d) Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases where the corporation,
partnership of association possesses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
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MTCs, MeTCs and MCTCs shall have (3) Motion for new trial, or for reconsideration
jurisdiction over actions for payment of of a judgment, or for reopening of trial;
money where the value of the claim does not (4) Petition for relief from judgment;
exceed P200,000 exclusive of interest and (5) Motion for extension of time to file
costs [Sec. 2, AM 08-8-7-SC, February 1, pleadings, affidavits, or any other paper;
2016]. (6) Memoranda;
(7) Petition for certiorari, mandamus, or
Applicability [Sec. 2, AM 08-8-7-SC, prohibition against any interlocutory order
February 1, 2016]: all actions which are issued by the court;
purely civil in nature, where the claim or relief (8) Motion to declare the defendant in
prayed for by the plaintiff is solely for default;
payment or reimbursement of sum of money. (9) Dilatory motions for postponement;
(10) Reply;
The claim or demand may be: (11) Third-party complaints; and
(1) For money owed under a contract of lease, (12) Interventions.
loan, services, sale, or mortgage
(2) For liquidated damages arising from E. CASES COVERED BY BARANGAY
contracts; CONCILIATION
(3) The enforcement of a barangay amicable The Lupon of each barangay shall have the
settlement or an arbitration award authority to bring together the parties
involving a money claim covered by this actually residing in the same municipality or
Rule pursuant to Sec. 417 of the LGC. city for amicable settlement of all disputes.
CRIMINAL ACTION
One by which the State prosecutes a person
for an act or omission punishable by law [Sec.
3(b), Rule 1]
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ACTION IN REM
One which seeks to determine the state or
condition of a thing.
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There is no sanction against non-joinder of The term may either refer to the claiming
separate causes of action since a plaintiff party, counter-claimant, cross-claimant, or
needs only a single cause of action to third-party plaintiff. [Sec. 1, Rule 3]
maintain an action [Regalado].
DEFENDANT
Requisites [Sec. 5, Rule 2] One claiming an interest in the controversy or
(1) The party joining the causes of action shall the subject thereof adverse to the plaintiff.
comply with the rules on joinder of parties;
(2) The joinder shall not include special civil Term may refer to the original defending
actions or actions governed by special party, the defendant in a counterclaim, the
rules; cross-defendant, or the third (fourth, etc.)-
(3) Where causes of action are between the party defendant. [Sec. 1, Rule 3] It also
same parties but pertain to different includes an unwilling co-plaintiff, or one
venues or jurisdictions, the joinder may be who should be joined as plaintiff but refuses
allowed in the RTC provided one of the to give his consent thereto. [Sec. 10, Rule 3]
causes of action are within that court’s
jurisdiction and venue lies therein; W ho may be Parties [Sec. 1, Rule 3]
(4) Where the claims in all the causes of (1) Natural persons;
action are principally for recovery of (2) Juridical persons [Art. 44, Civil Code];
money, the aggregate amount claimed (a) The State and its political subdivisions;
shall be the test of jurisdiction (“totality (b) Other corporations, institutions and
rule”) entities for public interest or public
purpose, created by law; and
MISJOINDER OF CAUSES OF ACTION (c) Corporations, partnerships, and
Misjoinder is not a ground for dismissal of an associations for private interest or
action [Sec. 6, Rule 2] purpose to which the law grants a
judicial personality, separate and
An erroneously joined cause of action may, on distinct from that of each shareholder,
motion of a party or on the initiative of the partner, or member.
court, be severed and proceeded with (3) Entities authorized by law. [Riano]
separately. [Sec. 6, Rule 2]
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(2) A question of law or fact common to all becomes apparent, a motion to strike the
the plaintiffs or defendants names of the parties must be made.
(3) Such joinder is not otherwise proscribed
by the rules on jurisdiction and venue Objections to misjoinder cannot be raised for
the first time on appeal [Lapanday
NOTE: Compare to Joinder of Causes of Agricultural & Development Corporation v.
Action where it is enough if the causes of Estita, G.R. No. 162109 (2005)]
action arise out of the same contract, as there
is no need for a common question of fact or C.7 CLASS SUIT
law.
Requisites [Sec. 12, Rule 3]
C.6 MISJOINDER AND NON-JOINDER OF (1) Subject matter of the controversy is
PARTIES one of common or general interest to many
persons;
MISJOINDER (2) The persons are so numerous that it is
When one is made a party to the action impracticable to join them all as parties,
although he should not be impleaded. and to bring them all before the court;
(3) Parties actually before the court are
NON-JOINDER sufficiently numerous and representative
When one is not joined when he is supposed of the class as to fully protect the interests
to be joined but is not impleaded in the action. of all concerned;
[Riano] (4) The representative sues or defends for the
benefit of all.
Neither misjoinder nor non-joinder of parties
is a ground for dismissal of an action. [Sec. 11, In a class suit, any party in interest shall have
Rule 3] the right to intervene to protect his individual
interest. [Sec. 12, Rule 3]
Non-joinder of an indispensable party
is not a ground for outright dismissal of the If a class suit is improperly brought, the
action. If the plaintiff refused to implead an action is subject to dismissal regardless of
indispensable party despite order of the court, the cause of action. [Sec. 1(d), Rule 16]
that court m ay dism iss the com plaint
for the plaintiff’s failure to comply with the However, no class suit may be dismissed
order. [Pamplona Plantation v. Tinghil, G.R. upon the instance of the plaintiff or
No. 159121 (2005)]. compromised, without the approval of the
court. [Sec. 2, Rule 17]
If the court finds the reason for the non-
joinder of a necessary party A taxpayer's suit or a stockholder's derivative
unmeritorious, it may order the inclusion of suit is in the nature of a class suit, although
such necessary party, if jurisdiction over his subject to the other requisites of the
person may be obtained. Failure to comply corresponding governing law especially on
with such order without justifiable cause is the issue of locus standi. [Regalado]
deemed a waiver of the claim against
such party. [Sec. 9, pars. 1-2, Rule 3] A derivative suit is action brought by
minority shareholders in the name of the
Parties may be dropped or added by order of corporation to redress wrongs committed
the court on motion of any party or on its own against it, for which the directors refuse to
initiative at any stage of the action and on sue. It is a remedy designed by equity and has
such terms as are just. [Sec. 11, Rule 3] been the principal defense of the minority
shareholders against abuses by the majority.
Objections to defects in parties
Objections should be made at the earliest In a derivative action, the real party in interest
opportunity. At the moment such defect is the corporation itself, not the shareholders
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Effect On Dismissal
There shall be substitution in the manner A motu propio dismissal based on improper
provided under Sec. 16, Rule 3, and the action venue is patently incorrect. [Sec. 1, Rule 9;
will continue until the entry of final judgment. Dolot v. Paje, G.R. No. 199199 (2013)]
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a Unless and until the defendant objects to the
claim against the decedent’s estate without venue in a motion to dismiss, the venue
need of proving the claim. cannot truly be said to have been improperly
laid because the venue, although technically
INCOMPETENCY OR INCAPACITY OF A wrong, may be acceptable to the parties for
PARTY DURING THE PENDENCY OF THE whose convenience the rules of venue had
ACTION been laid. [Dacuycoy v. IAC, G.R. No. 74854
The Court, upon motion with notice, may (1991)]
allow the action to be continued by or against
the incapacitated person, assisted by his However, the court may effect a motu propio
legal guardian or guardian ad litem. [Sec. 18, dismissal for improper venue, inter alia, in
Rule 3] actions covered by the Rules on Summary
Procedure [Sec. 4], Rule of Procedure for
Small Claims cases [Sec. 9], and in ejectment
cases [Sec. 5, Rule 70].
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subject matter of the opposing party’s claim, In all these cases, the rules expressly provide
matures or is acquired by a party after serving that the dismissal shall be without
his pleading, i.e. the Answer, it is merely prejudice to the right of the
permissive. [Sec. 9, Rule 11] defendant to pursue his counterclaim
in the sam e or in a separate action.
Determ ining whether Com pulsory or
Permissive How Raised
(Also known as “logical relationship (1) By including it in the Answer
test”) A compulsory counterclaim or a cross-
claim that a defending party has at the
A positive answer on all four the following tim e he files his answer shall be
tests would indicate that the counterclaim is contained therein. [Sec. 8, Rule 11]
compulsory: (2) By filing after the Answer
(1) Are the issues of fact and law raised by the (a) A counterclaim may be set up, by leave
claim and counterclaim largely the same? of court, by am endm ent before
(2) Would res judicata bar a subsequent suit judgm ent, when:
on defendant’s claims, absent the (i) it is not set up due to oversight,
compulsory counterclaim rule? inadvertence, or excusable
(3) Will substantially the same evidence neglect, or
support or refute plaintiff’s claim as well (ii) when justice requires [Sec. 10,
as the counterclaim? Rule 11]
(4) Is there any logical relation between the (b) A counterclaim, which either matured
claim and counterclaim? [GSIS v. Heirs of or was acquired by a party after serving
Caballero, G.R. No. 158090 (2010)] his pleading, with permission of the
court, may be set up in a supplemental
There is a logical relationship where pleading before judgment. [Sec. 9,
conducting separate trials of the respective Rule 11]
claims would entail substantial duplication of
effort and time and involves many of the CROSS-CLAIM
same factual and legal issues. [Meliton v. CA, Any claim by one party against a co-party
G.R. No. 101883 (1992)] arising out of the transaction or occurrence
that is the subject matter either of the
Effect on Counterclaim when original action or of a counterclaim therein.
Complaint is dismissed Such cross-claim may include a claim that
The case may be dismissed, with a the party against whom it is asserted is or
counterclaim set up under any of the may be liable to the cross-claimant for all or
following circumstances: part of a claim asserted in the action against
(1) Dismissal under Sec. 6, Rule 16 – where the cross-claimant. [Sec. 8, Rule 6]
the defendant does not file motion to
dismiss but raises the ground as an A cross-claim is generally compulsory. A
affirmative defense cross-claim not set up shall be barred. [Sec. 2,
(2) Dismissal under Sec. 2, Rule 17 – where Rule 9]
the plaintiff files a motion to dismiss the
case, after the defendant had filed a Exceptions (“perm issive cross-
responsive pleading claim s”) are when:
(3) Dismissal under Sec. 3, Rule 17 – where (1) The claim is outside the court’s
the complaint is dismissed due to the fault jurisdiction;
of the plaintiff (2) The court cannot acquire jurisdiction over
3rd parties whose presence is necessary
for the adjudication of said cross-claim.
(3) The Cross-claim matured or was acquired
after service of Answer
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(c) That the intervention must not unduly Effect of Failure to Reply
delay or prejudice the adjudication of GENERAL RULE: Filing a reply is merely
the rights of the original parties; and optional. New facts that were alleged in the
(d) That the intervenor’s rights may not be answer are deemed controverted should a
fully protected in a separate party fail to reply thereto.
proceeding.
EXCEPTION: When a Reply is necessary
How to Intervene (a) To set up affirmative defenses on the
(1) With leave of court, the court shall counterclaim [Rosario v. Martinez (1952)]
consider the 2 factors (b) Where the answer alleges the defense of
(2) Motion to intervene may be filed at any usury in which case a reply under oath
time before judgment is rendered by trial should be made; otherwise, the allegation
court of usurious interest shall be deemed
(3) Copy of the pleadings-in-intervention admitted [Rule 8, Sec. 8; Sun Bros. v.
shall be attached to the motion and Caluntad (1966)]
served on the original parties (c) Where the defense in the answer is based
on an actionable document, a reply under
Time to Intervene [Sec. 2, Rule 19] oath must be made; otherwise, the
genuineness and due execution of the
GENERAL RULE: The motion to intervene document shall be deemed admitted. [Sec.
must be filed at any time before the rendition 11, Rule 8; Toribio v. Bidin (1985)]
of judgment by the trial court
COUNTER-COUNTERCLAIM
EXCEPTIONS: A claim asserted against an original counter-
(1) With respect to indispensable parties, claimant.
intervention may be allowed even on
appeal [Falcasantos v. Falcasantos (1952)] COUNTER-CROSS-CLAIM
(2) When the intervenor is the Republic [Lim v. A claim filed against an original cross-
Pacquing (1995)] claimant.
(3) Intervention may be allowed after
judgment where necessary to protect E.2 PLEADINGS ALLOWED IN SPECIAL
some interest which cannot otherwise be RULES
protected, and for the purpose of
preserving the intervenor’s right to appeal REVISED RULES ON SUMMARY
[Pinlac v. CA (2003)] PROCEDURE
The only pleadings allowed to be filed are:
Rem edies for Denial of Motion for (1) Complaints
Intervention (2) Compulsory counterclaims pleaded in the
(1) The movant may file a motion for Answer
reconsideration since the denial of a (3) Cross-claims pleaded in the Answer; and
motion for intervention is an interlocutory (4) Answers thereto [Sec. 3[A], II]
order.
(2) Alleging grave abuse of discretion,
movant can also file a certiorari case.
REPLY
The plaintiff’s response to the defendant's
answer, the function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Sec. 10, Rule 6]
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(3) Should specify relief sought, but it may Verification is required in the
add a general prayer for such further or following instances:
other relief as may be deemed just or (1) Pleadings filed in the inferior courts in
equitable; also called the “prayer” cases covered by the Rules on Summary
(4) Every pleading shall be dated. [Sec. 2, Procedure [Sec. 3, B]
Rule 7] (2) Petition for relief from judgment or order
[Sec. 3, Rule 38]
SIGNATURE AND ADDRESS (3) Petition for review from RTC to the CA
Every pleading must be signed by the party [Sec. 1, Rule 42]
or counsel representing him. The (4) Petition for review from quasi-judicial
address must be stated and such address agencies to the CA [Sec. 5, Rule 43]
must not be a post office box. [Sec. 3, Rule 7] (5) Appeal by certiorari from the CTA to the
SC [Sec. 12, RA 9282 amending Sec. 19,
An unsigned pleading produces no legal RA 1125]
effect. However, the court may allow such (6) Appeal by certiorari from CA to the SC
deficiency to be remedied if it appears that: [Sec. 1, Rule 45]
(1) It was due to mere inadvertence; and (7) Petition for annulment of judgments or
(2) It was not intended for delay [Sec. 3, Rule final orders and resolutions [Sec. 1, Rule
7] 47]
(8) Complaint for injunction [Sec. 4, Rule 58]
Effect of Signature of Counsel (9) Application for appointment of receiver
This constitutes a certificate by him that: [Sec. 1, Rule 59]
(1) He has read the pleading (10) Application for support pendente lite
(2) That to the best of his knowledge, [Sec. 1, Rule 69]
information, and belief there is good (11) Petition for certiorari against
ground to support it; and judgments, final orders, or resolutions of
(3) That it is not interposed for delay [Sec. 3, constitutional commissions [Sec. 2, Rule
Rule 7] 64]
(12) Petition for certiorari [Sec. 1, Rule 65]
VERIFICATION (13) Petition for prohibition [Sec. 2, Rule
A pleading need not be under oath, verified 65]
or accompanied by affidavit, unless otherwise (14) Petition for mandamus [Sec. 3, Rule
provided by law or rules. [Sec. 4, Rule 7] 65]
(15) Petition for quo warranto [Sec. 1, Rule
66]
(16) Complaint for expropriation [Sec. 1,
Rule 67]
(17) Complaint for forcible entry or
unlawful detainer [Sec. 4, Rule 70]
(18) Petition for indirect contempt [Sec. 4,
Rule 71]
(19) Petition for appointment of a general
guardian [Sec. 2, Rule 93]
(20) Petition for leave to sell or encumber
property of the ward by a guardian [Sec. 1,
Rule 95]
(21) Petition for declaration of
competency of a ward [Sec. 1, Rule 97]
(22) Petition for habeas corpus [Sec. 3,
Rule 102]
(23) Petition for change of name [Sec. 2,
Rule 103]
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(24) Petition for voluntary judicial (3) Relief sought [Huibonhoa v. Concepcion,
dissolution of a corporation [Sec. 1, Rule G.R. No. 153785 (2005)]
104]
(25) Petition for cancellation or correction Certificate of Non-Forum Shopping
of entries in the civil registry [Sec. 1, Rule (CNFS)
108] A sworn statement in which the plaintiff or
principal party certifies in a complaint or
How verified [Sec. 4, Rule 7] initiatory pleading:
By an affidavit declaring that: (1) That he has not commenced any action or
(1) That the affiant has read the pleading; filed any claim involving the same issues
and in any court or tribunal, and to the best of
(2) That the allegations therein are true and his knowledge, no such other action is
correct of his personal knowledge or pending;
based on authentic documents. (2) That if there is such other pending action
or claim, a complete statement of the
W ho Executes Verification present status thereof; and
Verification is deemed substantially complied (3) That if he should learn that the same or a
with when one who has ample knowledge to similar action has been filed or is pending,
swear to the truth of the allegations in the he shall report such fact within 5 days to
complaint or petition signs the verification, the court receiving his initiatory pleading.
and when matters alleged in the petition [Sec. 5, Rule 7]
have been made in good faith or are true and
correct. [Altres v. Empleo, G.R. No. 180986 CNFS is not required in a compulsory
(2008)] counterclaim, as this is not an initiatory
pleading. [UST Hospital v. Surla, G.R. No.
Effect of noncompliant or defective 129718 (1998)] However, a certification is
verification needed in permissive counterclaims [Korea
Noncompliance therewith or a defect therein Exchange Bank v. Gonzales, G.R. No. 142286-
does not necessarily render the pleading 87 (2005)]
fatally defective. The court may order its
submission or correction or act on the W ho Executes the CNFS
pleading if the attending circumstances are It is the plaintiff or principal party who
such that strict compliance with the Rule may executes the certification under oath. [Sec.
be dispensed with in order that the ends of 5, Rule 7]
justice may be served thereby. [Altres v.
Empleo, G.R. No. 180986 (2008)] Rationale: The plaintiff, not the counsel, is
in the best position to know whether he or it
FORUM SHOPPING has actually filed or caused the filing of a
The repeated availment of several judicial petition. Certification signed by counsel
remedies in different courts, simultaneously without proper authorization is defective, and
or successively, all substantially founded on a valid cause for dismissal. [Anderson v. Ho,
the same transactions and the same essential G.R. No. 172590 (2013)]
facts and circumstances, and all raising
substantially the same issues, either pending If, for justifiable reasons, the party-pleader is
in or already resolved adversely by some unable to sign, he must execute a Special
other court. [Asia United Bank v. Goodland Power of Attorney designating his counsel of
Company, Inc., G.R. No. 191388 (2011)] record to sign on his behalf. [Vda. de Formoso
v. PNB, G.R. No. 154704 (2011)]
Test to determine existence of Forum
Shopping Verification/CNFS for Corporation
Whether in the 2 or more cases pending, The certification must be executed by an
there is identity of: officer, or member of the board of directors,
(1) Parties or by one who is duly authorized by a board
(2) Rights or causes of action resolution; otherwise, the complaint will have
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NOTE: Denial by disavowal of knowledge NOTE: These exceptions also empower the
must be availed of with sincerity and in good courts to motu proprio dismiss an action
faith – certainly neither for the purpose of where such grounds appear from the
confusing the adverse party as to what pleadings or the evidence on record [Sec. 1,
allegations of the complaint are really put in Rule 9].
issue nor for the purpose of delay. [Barnes v.
Reyes, G.R. No. L-9531 (1958)] FAILURE TO PLEAD COMPULSORY
COUNTERCLAIMS AND CROSS-CLAIMS
Effect of Failure to m ake Specific GENERAL RULE: A compulsory
Denials counterclaim, or a cross-claim, not set up
shall be barred. [Sec. 2, Rule 9]
GENERAL RULE: Allegations not
specifically denied are deemed admitted [Sec. EXCEPTION: If due to oversight,
11, Rule 8] inadvertence, excusable neglect, etc. the
compulsory counterclaim or a cross-claim,
EXCEPT: with leave of court, may be set up by
(1) Allegations as to the amount of amendment before judgment. [Sec. 10, Rule
unliquidated damages; 11]
(2) Allegations immaterial to the cause of
action E.6 DEFAULT
(3) Allegations of merely evidentiary or Failure of the defendant to answer within the
immaterial facts may be expunged from proper period. [Sec. 3, Rule 9]
the pleading or may be stricken out on
motion. [Sec. 12, Rule 8] Dual stages of default
(4) Conclusions of law. (1) Declaration of Order of Default –
when defendant fails to answer within the
Specific Denial requires an oath in the time specified in the rules, the court shall,
following cases: upon motion of the plaintiff and proof of
(1) Denial of the genuineness and due such failure, declare defendant in default
execution of an actionable document; [Sec. (2) Rendition of Judgment by Default –
8, Rule 8] and thereafter, on the basis of the allegation of
(2) Denial of allegations of usury. [Sec. 11, the complaint or after receiving plaintiff’s
Rule 8] evidence, the court shall render judgment
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granting him such relief as the complaint (a) Proceed to render judgment granting
and the facts proven may warrant the claimant such relief as his pleading
may warrant; or
Judgm ent by (b) Require the claimant to submit
Order of default
default evidence, which need not be received
Issued by the court by the court personally but may be
Rendered by the
on plaintiff’s motion, received by the clerk of court
court following a
for failure of the A declaration of default is not tantamount
default order or after
defendant to to an admission of the truth or validity of
it received ex parte
seasonably file his the plaintiff’s claims. [Monarch Insurance v.
plaintiff’s evidence
responsive pleading CA, G.R. No. 92735 (2000)]
Interlocutory – (3) A defending party declared in default
Final – Appealable retains the right to appeal from the
unappealable
judgment by default. However, the
W hen Declaration of Default is Proper grounds that may be raised in such an
There is only one instance when a party appeal are restricted to any of the
defendant can properly be declared in default following:
and that is when he fails to file his answer (a) The failure of the plaintiff to prove the
within the reglementary period [Rule 11], or material allegations of the complaint;
within such extended time as he is allowed by (b) The decision is contrary to law; and
the court. [Sec. 11, Rule 11] (c) The amount of judgment is excessive or
different in kind from that prayed for.
Requisites before a Declaration of [Otero v. Tan, G.R. No. 200134 (2012)]
Default
(1) The court must have validly acquired Relief from an Order of Default [Lina v.
jurisdiction over the person of the CA, G.R. No. L-63397]
defendant either by service of summons or (1) After notice of the Order and before
voluntary appearance Judgment – file a motion under oath
(2) The defendant failed to file his answer to set aside the Order; must show:
within the time allowed therefor (a) Failure to file Answer was due to fraud,
(3) There must be a m otion by the accident, mistake, excusable
plaintiff to declare the defendant in negligence; and
default with notice to the latter (b) That he has a meritorious defense (i.e.
(4) There must be notice to the defendant by through an affidavit of merit)
serving upon him a copy of such motion (2) After rendition of Judgment, before
(5) There must be proof of such failure to judgm ent becom es final and
answer executory – may file:
(6) There must be a hearing to declare (a) a motion for new trial under Rule
defendant in default 37; or
(b) appeal from the judgment for being
Effect of Order of Default contrary to the evidence or law
(1) The party declared in default cannot take (3) After Judgment becomes final and
part in the trial. However, he may still executory – may file a petition for
participate as a witness [Cavili v. Florendo, relief under Rule 38 (within 60 days from
G.R. No. 73039 (1987)] and is entitled to notice of the judgment, but within 6
notices of subsequent proceedings. [Sec. 3, months from entry thereof) or
Rule 9] annulm ent of judgm ent under Rule 47
In all, the defendant should receive the
following notices: These remedies presuppose that there was a
(a) Motion to declare him in default; valid order of default but the defendant may
(b) Order declaring him in default; also file a petition for certiorari when he is
(c) Subsequent proceedings; improperly declared in default. [Riano]
(d) Service of final orders and judgments.
(2) The court may either:
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MODES OF SERVICE
Personal Service [Sec. 6, Rule 13] Service of Judgm ents, Final Orders, or
(1) Delivering personally a copy to the party, Resolutions
who is not represented by a counsel, or to Service is done either:
his counsel; or (1) Personally
(2) Leaving a copy in counsel’s office with his (2) By registered mail
clerk or with a person having charge (3) By publication, if:
thereof; or (a) A party is summoned by publication;
(3) Leaving the copy between 8am and 6pm and
at the party’s or counsel’s residence, if (b) Such party failed to appear in the
known, with a person of sufficient age and action
discretion then residing thereon – if not
person is found in his office, or if his office NOTE: There is NO substituted service of
is unknown, or if he has no office judgments and final orders.
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In the case of filing by registered mail, when Duties of sender when service is effected by
the paper does not appear in the record, the registered mail:
affidavit of the person who did the mailing (1) The registry return card shall be filed
must contain: immediately upon its receipt by the
(1) A full statement of the date and place of sender; or
depositing the mail in the post office (2) The unclaimed letter together with the
(2) The fact that the paper was in a sealed certified or sworn copy of the notice given
envelope addressed to the court by the postmaster to the addressee shall
(3) The fact that postage was fully paid likewise be filed immediately. [Sec. 13,
(4) The fact that there were instructions to the Rule 13]
postmaster to return the mail to the
sender after 10 days if undelivered Service to the lawyer binds the party. But
service to the party does not bind the lawyer,
COMPLETENESS AND PROOF OF SERVICE unless ordered by the court in the following
Com pleteness of circumstances:
Proof of service
service [Sec. 10, (1) When it is doubtful who the attorney for
[Sec. 13, Rule 13]
Rule 13] such party is; or
Personal service (2) When the lawyer cannot be located; or
(1) Written admission (3) When the party is directed to do
of the party served; something personally, as when he is
or ordered to show cause. [Retoni, Jr. v. CA,
(2) Official return of G.R. No. 96776 (1993)]
the server; or
Upon actual Notice to the lawyer who appears to have
(3) Affidavit of the
delivery been unconscionably irresponsible cannot be
party serving, with
a full statement of considered as notice to his client, as it would
the then be easy for the lawyer to prejudice the
date/place/manne interests of his client by just alleging that he
r of service. just forgot every process of the court affecting
Service by ordinary m ail his clients, because he was so busy. [Bayog v.
Affidavit of person Natino, G.R. No. 118691 (1996)]
10 days after
mailing of facts
mailing, unless E.8 AMENDMENT AND SUPPLEMENTAL
showing compliance
otherwise provided PLEADINGS
with Sec. 7 of Rule 13.
by the court
Service by registered m ail How to Am end Pleadings [Sec. 1, Rule 10]
Whichever is earlier (1) Adding an allegation of a party;
of: (2) Adding the name of a party;
(1) Affidavit of person (3) Striking out an allegation of a party;
(1) Actual receipt
mailing showing (4) Striking out the name of a party;
by the
compliance as (5) Correcting a mistake in the name of a
addressee; or
above; and party; and
(2) 5 days after
(2) Registry receipt (6) Correcting a mistaken or inadequate
addressee
issued by the post allegation or description in any other
received
office respect
postmaster's
notice
A new copy of the entire pleading,
Substituted Service incorporating the amendments, which shall
At the time of delivery of the copy to the clerk be indicated by appropriate marks, shall be
of court together with proof of failure of both filed. [Sec. 7, Rule 10]
personal service and service by mail
Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the
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most expeditious and inexpensive manner. If the court has no jurisdiction in the
[Sec. 1, Rule 10] subject matter of the case, the
amendment of the complaint cannot be
As a general policy, liberality in allowing allowed so as to confer jurisdiction on the
amendments is greatest in the early stages of court over the property. [PNB v. Florendo,
a law suit, decreases as it progresses and G.R. No. L-62082 (1992)]
changes at times to a strictness amounting to (3) If amendment is for curing a premature or
a prohibition. This is further restricted by the inexistent cause of action.
condition that the amendment should not The cause of action must exist at the time
prejudice the adverse party or place him at a the action was begun, and the plaintiff will
disadvantage. [Barfel Development v. CA, G.R. not be allowed by an amendment to
No. 98177 (1993)] introduce a cause of action which had no
existence when the action was
AMENDMENTS AS A MATTER OF RIGHT commenced. [Surigao Mine Exploration v.
A party may amend his pleading once as a Harris et al, G.R. No. L-45543 (1939)]
matter of right, at any time before a (4) If amendment is for purposes of delay.
responsive pleading is served, thus:
(1) Amendment of complaint is before an FORMAL AMENDMENTS
answer is served. Instances:
(2) Amendment of answer is before a reply is (1) Mere defect in the designation of the
filed, or before the period for filing a reply parties;
expires, and (2) Other clearly clerical or typographical
(3) Amendment of reply any time within 10 errors
days after it is served
The formal amendment must not cause
A motion to dismiss is not a responsive prejudice to the adverse party.
pleading and does not preclude the exercise
of the plaintiff’s right to amend his complaint. How form al am endm ents are effected
[Remington Industrial Sales v. CA, G.R. No. (1) May be summarily corrected by the court
133657 (2002)] at any stage of the action
(2) A party may, by motion, call for the formal
AMENDMENTS BY LEAVE OF COURT amendment
Leave of court is necessary in the following
instances: AMENDMENTS TO CONFORM TO OR
(1) Further amendments after the party has AUTHORIZE PRSENTATION OF EVIDENCE
already amended his pleading as a matter [Sec. 5, Rule 10]
of right; and This is an instance wherein the court acquires
(2) When a responsive pleading has already jurisdiction over the issues even if the same
been served. are not alleged in the original pleadings,
where the trial of said issues is with the
Requisites express or implied consent of the parties.
(1) A motion for leave of court to amend
pleading is filed W hat Sec. 5 contem plates
Amended pleading should be attached to (1) Allows a complaint which failed to state a
the motion [Sec. 9, Rule 15] cause of action to be cured either by:
(2) Notice is given to the adverse party (a) Evidence presented without objection
(3) Parties are given opportunity to be heard or
(b) In the event of an objection sustained
W hen amendment may not be allowed by the court, by an amendment of the
(1) If the cause of action, defense or theory of complaint with leave of court
the case is changed. (2) Also allows admission of evidence on a
(2) If amendment is intended to confer defense not raised in a motion or answer:
jurisdiction to the court. (a) if no objection is made thereto; or
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Upon Minors and Incom petents [Sec. Upon Public Corporations [Sec. 13]
10] Service is effected:
Service upon minors is effected upon: (1) Upon the Republic of the Philippines – to
(1) The minor defendant; and the Solicitor General;
(2) His legal guardian, or any of his parents (2) Upon provinces, cities, municipalities, and
like public corporations – through the
Service upon incompetents is effected upon: executive head, or on such officers as law
(1) The defendant personally; and or the court may direct.
(2) His legal guardian
F.4 RETURN AND PROOF OF SERVICE
In either case, if there be no legal guardian,
the plaintiff shall apply for the appointment RETURN [Sec. 4, Rule 14]
of a guardian ad litem, whom he shall also
serve upon. When service has been completed, the server
shall:
Upon Dom estic Private Juridical (1) Serve a copy of the return to the plaintiff’s
Entity [Sec. 11] counsel, personally or by registered mail,
Service is effected upon: within 5 days from service of summons;
(1) The president, and
(2) Managing partner, (2) The server shall return the summons,
(3) General manager, accompanied by proof of service, to the
(4) Corporate secretary, clerk who issued it.
(5) Treasurer, or
(6) In- house counsel It is required to be given to the plaintiff’s
counsel in order to enable him:
Upon a Foreign Private Juridical (1) To move for a default order should the
Entity [Sec. 12] defendant fail to answer on time, or
Service is effected: (2) In case of non-service, so that alias
(1) When the defendant is transacting summons may be sought
business in the Philippines:
(a) Upon the resident agent; or In either of the 2 cases, server must serve a
(b) Upon the government agent copy of the return on plaintiff’s counsel within
designated by law; or 5 days from completion or failure of service
(c) Any officer or agent of the corporation.
Note that service in the cases of (b) and (c) ALIAS SUMMONS [Sec. 5, Rule 14]
require that there is no resident agent Upon plaintiff’s demand, the clerk may issue
(2) When the defendant is not registered in an alias summons if either:
the Philippines, or has no agent, with (1) Summons is returned without being
leave of court: served on any/all of the defendants.
(a) By personal service coursed through (2) Summons was lost.
the appropriate foreign court, with the
assistance of the DFA; The server shall also serve a copy of the
(b) By publication in a newspaper of return on the plaintiff's counsel within 5 days
general circulation in the country therefrom, stating the reasons for the failure
where the defendant may be found; of service
and by serving a copy of the summons
and court order by registered mail at
the defendant’s last known address;
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(2) Ex Parte Motions – one which does not Exceptions to the rule on Notice of
require such ruling, and upon which the Hearing:
court may act without prejudicing the (1) Ex parte motions;
rights of the other party (2) Urgent motions;
(3) Motion of Course - one for a relief or (3) Motions agreed upon by the parties to be
remedy, to which the movant is entitled as heard on shorter notice, or jointly
a matter of right; factual allegations submitted by the parties;
contained therein do not require (4) Motions for summary judgment which
verification or investigation must be served at least 10 days before its
(4) Special Motions – one involving hearing.
discretion of the court and requiring
investigation on the facts alleged Proof of Service [Sec. 6, Rule 15]
(5) Pro Forma Motions – one which fails to A written motion set for hearing will not be
indicate the time and place of the hearing acted upon by the court if there is no proof of
service thereof.
G.3 NOTICE OF HEARING AND HEARING
OF MOTIONS Exceptions:
Litigated written motions shall be set for (1) If the motion is one which the court can
hearing by the movant or applicant. [Sec. 4, hear ex parte.
Rule 15] (2) If the court is satisfied that the rights of
the adverse parties are not affected by the
GENERAL RULE: Motions shall be motion.
scheduled for hearing on Motion Day (3) If the party is in default; such a party is not
(1) On Friday afternoons; or entitled to notice.
(2) Afternoon of the next working day, if
Friday is a non-working day. [Sec. 7, Rule G.4. OMNIBUS MOTION RULE
15] A motion attacking a pleading, order,
judgment, or proceeding must include all
EXCEPTION: Motions which require objections then available. All objections not
immediate action included in the motion are deemed waived.
[Sec. 8, Rule 15]
NOTICE OF HEARING
Notice shall be addressed to all parties, and Purpose: To require the movant to raise all
shall specify the time and date of the hearing available exceptions for relief during a single
which shall not be later than 10 days from the opportunity so that multiple and piece-meal
filing of the motion. [Sec. 5, Rule 15] objections may be avoided
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The motion should point out: A Bill of Particulars becomes part of the
(1) The defects complained of; pleading for which it was intended. [Sec. 6,
(2) The paragraph wherein they are Rule 12]
contained;
(3) The details desired. [Sec. 1, Rule 12] Effect of Non-Compliance [Sec. 4, Rule
12]
The only question to be resolved in such (1) In case of non-compliance or insufficient
motion is whether the allegations in the compliance with the order for Bill of
complaint are averred with sufficient Particulars, the court may:
definiteness or particularity to enable the (a) Order the striking out of the pleading
movant to properly prepare his responsive (or portion thereof) to which the order
pleading and to prepare for trial. [Tantuico, Jr. is directed; or
v. Republic, G.R. No. 89114 (1991)] (b) Make such order as it may deem just.
(2) If the plaintiff fails to obey, his complaint
What cannot be done in a Bill of Particulars: may be dismissed with prejudice unless
(1) To supply material allegations necessary otherwise ordered by the court. [Sec. 4,
to the validity of a pleading Rule 12; Sec. 3, Rule 17]
(2) To change a cause of action or defense (3) If defendant fails to obey, his answer will
stated in the pleading be stricken off and his counterclaim
(3) To state a cause of action or defense other dismissed, and he will be declared in
than the one stated default upon motion of the plaintiff. [Sec.
(4) To set forth the pleader’s theory of his 3, Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17]
cause of action or a rule of evidence on
which he intends to reply H.4 EFFECT ON THE PERIOD TO FILE
(5) To furnish evidentiary information [Virata v. RESPONSIVE PLEADING
Sandiganbayan, G.R. No. 103527 (1993)] Provided that the Motion for Bill of
Particulars is sufficient in form and substance,
it stays the period for the movant to file
his responsive pleading.
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The movant may file his responsive pleading: (2) The court has allowed the filing of a
(1) Within the period he was entitled at the motion to dismiss where the evidence that
time the motion was filed; or would constitute a ground for dismissal
(2) Within 5 days was discovered during trial
whichever is higher.
GENERAL RULE: A court may not dismiss
Such period shall be reckoned from: a case motu propio, unless a motion to that
(1) Service of the Bill of Particulars or more effect is filed by a party.
definite pleading; or
(2) Notice of denial of his Motion for Bill of EXCEPTIONS:
Particulars. (1) Upon the grounds stated in Sec. 1, Rule 9;
(2) Due to fault of the plaintiff, under Sec. 3,
J. MOTION TO DISMISS Rule 17;
A remedy of the defendant, which attacks the (3) Pursuant to Sec. 4, Revised Rule on
entire pleading and seeks its dismissal based Summary Procedure.
on:
(1) Grounds which are patent on the face of J.1. GROUNDS
the complaint; (1) Lack of jurisdiction over the defendant’s
(2) Defenses available to the defendant at the person
time of the filing of the complaint (2) Lack of jurisdiction over the subject matter
of the claim
The Motion hypothetically admits the truth of (3) Improper venue
the factual allegations stated in the (4) Plaintiff’s lack of legal capacity to sue
complaint. (5) Litis pendentia
(6) Res judicata
It is not a responsive pleading. It is not a (7) Prescription
pleading at all. (8) Failure to state a cause of action
(9) Extinguished claim
It is subject to the omnibus motion rule since (10) Unenforceable claim under the
it is a motion that attacks a pleading. Hence, Statute of Frauds
it must raise all objections available at the (11) Non-compliance with a condition
time of the filing thereof. precedent for filing claim
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jurisdiction over the person of the defendant (2) When he does not have the character
shall not be deemed voluntary appearance on which he claims, which is a matter of
his part. evidence (e.g. when he is not really a duly
appointed administrator of an estate).
LACK OF JURISDICTION OVER THE [Recreation and Amusement Association of
SUBJECT MATTER the Philippines v. City of Manila, G.R. No. L-
If the complaint shows lack of jurisdiction 7922 (1957)]
over subject matter on its face, the court may
dismiss the case outright even without a Lack of legal capacity to sue refers to
motion to dismiss. [Sec. 1, Rule 9] plaintiff’s disability; while lack of legal
personality to sue refers to the fact that the
A motion to dismiss on this ground may also plaintiff is not a real party in interest, in which
be raised case the ground for dismissal would be that
(1) Before answer; the complaint states no cause of action.
(2) After answer is filed;
(3) After hearing had commenced; The issue of plaintiff’s lack of legal capacity to
(4) At any stage of the proceeding, even for sue cannot be raised for the first time on
the first time on appeal and even if no appeal where the defendant dealt with the
such defense is raised in the answer. former as a party in the proceedings below
[Univ. of Pangasinan Faculty Union v. Univ. of
NOTE: The rule refers to the subject matter Pangasinan, G.R. No. 64821-23 (1993)]
of each particular claim and not only to that
of the suit. Hence. other initiatory pleadings LITIS PENDENTIA
included.
Requisites
Where a party invokes the jurisdiction of a (1) Identity of parties, or at least such as
court to obtain affirmative relief and fails, he representing the same interest in both
cannot thereafter repudiate such jurisdiction. actions;
While the issue of jurisdiction may be raised (2) Identity of rights asserted and relief
at any time, he is estopped as it is prayed for, the relief being founded on the
tantamount to speculating on the fortunes of same facts; and
litigation [Crisostomo, et al. v. CA, G.R. No. (3) Identity of the two cases such that
27166 (1970)] judgment in one would amount to res
judicata on the action under consideration
[Film Development Council of the
IMPROPER VENUE
Philippines v. SM Prime Holdings, Inc.
Unless and until the defendant objects to the
(2013)]
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
It is not required to allege that there be a
improperly laid. [Diaz v. Adiong, G.R. No.
prior pending case. It is sufficient to allege
106847 (1993)]
and prove the pendency of another case, even
if same had been brought later.
Where a motion to dismiss for improper
venue is erroneously denied, the remedy is
It is not required that the later case be
prohibition [Enriquez v. Macadaeg, G.R. No.
dismissed in favor of the earlier case. To
L-2422]
determine which case should be abated,
apply:
PLAINTIFF HAS NO LEGAL CAPACITY TO (1) The More Appropriate Action Test;
SUE (2) The Interest of Justice Test, taking into
The plaintiff lacks legal capacity to sue: account:
(1) When he does not possess the necessary (a) Nature of the controversy;
qualification to appear at the trial (e.g. (b) Comparative accessibility of the court
when he plaintiff is not in the full exercise to the parties;
of his civil rights); (c) Other similar factors.
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Where the complaint does not state that it is J.3. BAR BY DISMISSAL
one of the excepted cases, or it does not
allege prior availment of conciliation process, GENERAL RULE: The action/claim may be
or it does not have a certification that no re-filed.
conciliation or settlement had been reached
under PD1508, case should be dismissed on EXCEPTION: The action cannot be re-filed
motion [Morata v. Go, et al., G.R. No. L-62339 (although subject to appeal) if it was
(1983)] dismissed on any of the following grounds:
(1) Res judicata;
Where the defendant had participated in the (2) Prescription;
trial court without any invocation of PD 1508, (3) Extinguishment of the claim/demand;
and the judgment therein had become final (4) Unenforceability under the Statute of
and executory, but said defendant thereafter Frauds. [Sec. 1(f), (h), (i), Rule 16]
sought the annulment of the decision for
alleged lack of jurisdiction, the same was J.4. REMEDIES OF PLAINTIFF WHEN THE
denied under the doctrine of estoppel and COMPLAINT IS DISMISSED
laches [Royales, et al., v. IAC, G.R. No. L- If the motion is granted, the complaint is
65072 (1984)] dismissed. Such dismissal is final, and not
interlocutory.
J.2. RESOLUTION OF MOTION
A motion to dismiss is a litigated motion The plaintiff has several options:
and should be heard. During the hearing, (1) Where dismissal for certain grounds are
parties shall submit: not tantamount to adjudication on the
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merits (e.g. improper venue), the plaintiff prosecution of the counterclaim in the same
may refile the complaint. or separate action.
(2) Where it is for a ground which bars re-
filing, the plaintiff may appeal from the J.7. DISTINGUISHED FROM DEMURRER TO
order of dismissal; EVIDENCE [RULE 33]
(3) Where the dismissal was tainted with A motion to dismiss under this Rule differs
grave abuse of discretion, the plaintiff may from a motion to dismiss under Rule 33 on
also avail of a petition for certiorari. demurrer to evidence:
[Riano] Motion to Dismiss Demurrer to Evidence
Grounded on Based on
J.5. REMEDIES OF DEFENDANT WHEN THE preliminary insufficiency of
MOTION IS DENIED objections evidence
If the motion is denied, the denial is May be filed by any
interlocutory. May be filed only by
defending party
the defendant
against whom a
GENERAL RULE: The filing of an answer against the complaint
claim is asserted in
and going through the usual trial process, of the plaintiff
the action
and later, the filing of a tim ely appeal Should be filed
from the adverse judgment are the proper within the time for May be filed for the
remedies against a denial of a motion to but prior to the filing dismissal of the case
dismiss. of the answer of the only after the plaintiff
defending party to has completed the
If the motion is denied, the movant shall the pleading presentation of his
file his answer: asserting the claim evidence
(1) Within the balance of the period against him
prescribed under Rule 11 to which he was If denied, defendant
entitled at the time of serving his motion; must file an answer, If denied, defendant
or or else he may be may present evidence
(2) Within 5 days declared in default
whichever is higher. [Rule 16, Sec. 4] If granted, plaintiff
If granted, plaintiff
appeals and the order
If the pleading is ordered to be amended, the may appeal or if
of dismissal is
movant shall file his answer within the period subsequent case is
reversed, defendant
prescribed by Rule 11, counted from service of not barred, he may
loses his right to
amended pleading, unless a longer period is re-file the case
present evidence
prescribed by the court.
K. DISMISSAL OF ACTIONS
EXCEPTION The denial may be assailed by
certiorari, prohibition or mandamus, if there is
K.1. DISMISSAL UPON NOTICE BY
a showing that the denial was tainted by with
PLAINTIFF
grave abuse of discretion amounting to
Dismissal by plaintiff as a matter of right
lack of jurisdiction.
Dismissal is effected by mere notice of
J.6. WHEN GROUNDS PLEADED AS
dismissal, which is a matter of right, before
AFFIRMATIVE DEFENSES
service of:
If no motion to dismiss had been filed, any of
(1) The answer; or
the grounds for dismissal may be pleaded as
affirmative defenses and a preliminary (2) A motion for summary judgment
hearing may be had at court’s discretion. [Sec.
The dismissal as a matter of right ceases
6, Rule 16]
when an answer or a motion for summary
judgment is served on the plaintiff, not
A defendant with a counterclaim should
when the answer or the motion is filed
plead these grounds as affirmative defenses
with the court.
as dismissal of the complaint under this
section shall be without prejudice to the
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mistake, or excusable negligence. The filing (5) Should the action proceed to trial, the
of pre-trial brief is mandatory, and is not explicit definition and limit of the issues to
excused simply because the defendant was be tried.
not represented by counsel. [Saguid v. CA,
G.R. No. 150611 (2003)] Effect of Pre-Trial Order
The contents of the order shall control the
No evidence shall be allowed to be presented subsequent course of the action, unless:
and offered during the trial in support of a (1) Modified before trial to prevent manifest
party’s evidence-in-chief other than those injustice [Sec. 7, Rule 18]
identified and pre-marked during the pre- (2) Issues impliedly included therein or may
trial, except if allowed by the court for good be inferable therefrom by necessary
cause shown. [AM No. 03-1-09-SC] implication [Philippine Export and Foreign
Loan Guarantee Corp. v. Amalgamated
L.5. PROCEEDINGS DURING AND AFTER Management and Development Corp., G.R.
PRE-TRIAL No. 177729 (2011)]
(3) Amendment to conform to evidence [Sec.
Record of Pre-Trial 5, Rule 10]
The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the L.6. DISTINCTION BETWEEN PRE-TRIAL IN
court shall issue the pre-trial order. [Sec. 7, CIVIL CASE AND IN CRIMINAL CASE
Rule 18] Criminal Case [Rule
Civil Case [Rule 18]
118]
ONE DAY EXAMINATION OF WITNESS RULE Set when the plaintiff Ordered by the court
The court shall ask the parties to agree on moves ex parte to set and no motion is
specific dates for continuous trial, adhere to the case for pre-trial required from either
the case flow chart determined by the court, [Sec. 1] party [Sec. 1]
and use the time frame for each stage in Ordered by the court
setting the trial dates. after arraignment,
Made after the last and within 30 days
Adherence to the One Day Examination of pleading has been from the date the
Witness Rule shall be required where the served and filed [Sec. court acquired
witness shall be fully examined in one day 1] jurisdiction over the
only, subject to the court’s discretion during person of the
the trial on whether or not to extend the accused [Sec. 1]
examination for justifiable reasons. [AM No. Possibility of
03-1-09-SC] Possibility of an
amicable settlement
amicable settlement
of criminal liability
MOST IMPORTANT WITNESS RULE as an important
not among its
The court shall determine the most important objective [Sec. 2(a)]
purposes [Sec. 1]
witnesses, limit the number of such witnesses The sanctions for Sanctions are
and require the parties and/or counsels to non-appearance are imposed upon the
submit to the branch clerk of court the names, imposed upon the counsel for the
addresses and contact numbers of the plaintiff and the accused or the
witnesses to be summoned by subpoena. The defendant [Sec. 4] prosecutor [Sec. 3]
court may also refer the case to trial by A pre-trial brief is
commissioner under Rule 32. [AM No. 03-1- specifically required A pre-trial brief is not
09-SC] to be submitted [Sec. specifically required.
6]
Contents of Pre-Trial Order
(1) Matters taken up in the conference; Pre-trial under Criminal Cases require stricter
(2) Action taken thereon; procedure:
(3) Amendments allowed on the pleadings; • Civil Case: The arrangements and
(4) Agreements/admissions made by the admissions are not required to be signed
parties as to any matters considered; by both parties and their counsels;
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instead contained in the record of pre- participates to assist in the resolution of issue
trial and pre-trial order [Sec. 7, Rule 18] [Sec. 3(a), RA 9285]
Recently, the proceedings during the
preliminary conference are recorded in Policy: To actively promote party autonomy
the “Minutes of Preliminary Conference” in the resolution of disputes or the freedom of
to be signed by both parties and/or the party to make their own arrangements to
counsel. Note that either the party or his resolve their disputes [Sec. 2, RA 9285]
counsel may sign. [AM No. 03-1-09-SC]
Exception to the Application of RA
• Criminal Case – All agreements or 9285 [Sec. 6]
admissions made during the pre-trial (1) Labor disputes covered by the Labor
conference are reduced in writing and Code;
signed by both the accused and counsel; (2) The civil status of persons;
otherwise, they cannot be used against (3) Validity of a marriage;
the accused. [Sec. 2, Rule 118] (4) Any ground for legal separation;
(5) The jurisdiction of courts;
L.7. ALTERNATIVE DISPUTE RESOLUTION (6) Future legitime;
One the purposes of pre-trial is the (7) Criminal liability; and
consideration of the possibility of amicable (8) Those which by law cannot be
settlement, or of a submission to alternative compromised.
modes of dispute resolution. [Sec. 2(a), Rule
18] Modes of Alternative Dispute
Resolution [Sec. 3, RA 9285]
The pre-trial briefs of parties must include (1) Arbitration -- a voluntary dispute
the parties’ statement of their willingness to resolution process in which one or more
enter into an amicable settlement indicating arbitrators, appointed in accordance with
the desired terms thereof or to submit the the agreement of the parties, or rules
case to any of the alternative modes of promulgated pursuant to this Act, resolve
dispute resolution [Sec. 6, Rule 18; AM No. a dispute by rendering an award
03-1-09-SC] (a) Dom estic Arbitration – an arbitration
that is not international; governed by
At the start of the pre-trial conference, the RA 876 (Arbitration Law) [Sec. 32, RA
judge shall immediately refer the parties 9285]
and/or their counsel if authorized by their (b) International Arbitration – An
clients to the Philippine Mediation Center arbitration is international if:
mediation unit for purposes of mediation if • The parties to an arbitration
available. IF mediation fails, the judge will agreement have, at the time of the
schedule the continuance of the preliminary conclusion of that agreement, their
conference. [AM No. 03-1-09-SC] places of business in different
States; or
The judge should not allow the termination of • One of the following places is
pre-trial siply because of the manifestation of situated outside the State in
the parties that they cannot settle the case. which the parties have their places
He should expose the parties to the of business [Art. 3, Model Law on
advantages of pre-trial [AM No. 03-1-09-SC] International Commercial
Arbitration]
ALTERNATIVE DISPUTE RESOLUTION (2) Mediation – a voluntary process in which
SYSTEM a mediator, selected by the disputing
Any process or procedure used to resolve a parties, facilitates communication and
dispute or controversy, other than by negotiation, and assist the parties in
adjudication of a presiding judge of a court or reaching a voluntary agreement regarding
an officer of a government agency, as defined a dispute; includes conciliation [Sec. 7, RA
in the Act, in which a neutral third party 9285]
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(3) Mini-Trial – a structured dispute the parties to appear at a particular time and
resolution method in which the merits of a date for hearing and allowing him to file a
case are argued before a panel comprising comment or opposition to petition within 15
senior decision makers with or without the days from receipt of notice.
presence of a neutral third person after
which the parties seek a negotiated Hearing shall not be set no later than 5 days
settlement from lapse of period for filing opposition or
(4) Early Neutral Evaluation – a process comment.
wherein parties and their lawyers are
brought together early in a pre-trial phase Sum m ary Hearing - In all cases, as far as
to present summaries of their cases and practicable, the summary hearing shall be
receive a nonbinding assessment by an conducted in one (1) day and only for
experienced, neutral person, with purposes of clarifying facts.
expertise in the subject in the substance of
the dispute Prohibited Submissions [Rule 1.6]
(5) Combinations of alternative dispute (1) Motion to dismiss;
resolution processes: Med-Arb - step (2) Motion for bill of particulars;
dispute resolution process involving both (3) Motion for new trial or for reopening of
mediation and arbitration trial;
(4) Petition for relief from judgment;
Special Rules of Court on ADR [AM No. (5) Motion for extension, except in cases
07-11-08-SC] where an ex-parte temporary order of
The Special ADR Rules shall apply to and protection has been issued;
govern the following cases [Rule 1.1] (6) Rejoinder to reply;
(1) Relief on the issue of Existence, Validity, or (7) Motion to declare a party in default; and
Enforceability of the Arbitration (8) Any other pleading specifically
Agreement; disallowed under any provision of the
(2) Referral ADR Special ADR Rules.
(3) Interim Measures of Protection;
(4) Appointment of Arbitrator; No summons [Rule 1.9]
(5) Challenge to Appointment of Arbitrator; In cases covered by the Special ADR Rules, a
(6) Termination of Mandate of Arbitrator; court acquires authority to act on the petition
(7) Assistance in Taking Evidence; or motion upon proof of jurisdictional facts,
(8) Confirmation, Correction or Vacation of i.e., that the respondent was furnished a copy
Award in Domestic Arbitration; of the petition and the notice of hearing.
(9) Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;
(10) Recognition and Enforcement of a
Foreign Arbitral Award;
(11) Confidentiality/Protective Orders;
and
(12) Deposit and Enforcement of
Mediated Settlement Agreements.
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PRE – TRIAL
NO SETTLEMENT AMICABLE
FAILURE TO APPEAR SETTLEMENT
Agreements made by
parties; Amendments to
If plaintiff is absent If defendant is absent,
pleading; Schedule of
when so required to court may hear evidence
Trial
attend, court may of plaintiff ex parte
dismiss the case
TRIAL
If evidence is insufficient
to prove plaintiff’s cause
of action or defendant’s
counterclaim, court
rules in favor of either
one or dismisses the
case
COURT RENDERS
DECISION
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W hen made: must be such as to allow the (b) That there was no tender of witness
witness reasonable time for preparation and fees and kilometrage.
travel to the place of attendance
O. MODES OF DISCOVERY
N.4. COMPELLING ATTENDANCE OF Discovery – a device employed by a party to
WITNESS obtain information about relevant matters on
The court which issued the subpoena may, the case from the adverse party in the
upon proof of service and failure of witness to preparation for trial [Riano]
attend, issue a warrant for the arrest of the
witness and make him pay the cost of such Purpose: To permit mutual knowledge
warrant and seizure, if the court should before trial of all relevant facts gathered by
determine that his disobedience was willful both parties so that either party may compel
and without just cause [Sec. 8, Rule 21] the other to disgorge facts whatever he has in
his possession [Riano citing C.J.S.]
The refusal to obey a subpoena without
adequate cause shall be deemed contempt of Modes of Discovery
the court issuing it. [Sec. 9, Rule 21] (1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending
EXCEPTION: appeal [Rule 24]
Provisions regarding the compelling of (3) Interrogatories to parties [Rule 25]
attendance [Sec. 8] and contempt [Sec. 9] do (4) Admission by adverse party [Rule 26]
not apply where: (5) Production or inspection of documents or
(1) Witness resides more than 100km from his thing [Rule 27]
residence to the place where he is to (6) Physical and mental examination of
testify by the ordinary course of travel persons [Rule 28]
[“viatory right”]; or
(2) Permission of the court in which the O.1 DEPOSITIONS
detention prisoner’s case is pending was [Rules 23-24]
not obtained Deposition – taking of testimony out of
court of any person, whether party to the
Note: “Viatory right” applies only in civil action or not but at the instance of a party to
cases, not criminal cases. [Genorga v. Quitain, the action [Riano]
AM No. 981-CFI (1977)]
Kinds of Depositions
N.5. QUASHING OF SUBPOENA (1) Depositions pending action [Rule 23] –
Quashing of subpoena is done by the court, called deposition de bene esse
upon motion promptly made at or before the (2) Depositions before action or pending
time specified in the subpoena. [Sec. 4, Rule appeal [Rule 24] – called depositions in
21] perpetuam rei m em oriam
whether before or after service of the answer. and may be impeached like a court
[Sec. 1, Rule 23] witness. [Sec. 3]
(5) The officer before whom the deposition is
Before whom Depositions are taken being taken has no authority to rule
[Secs. 10-11, Rule 23] on objections interposed during the
(1) Within the Philippines: course of the deposition but any
(a) Judge objections shall be noted by him upon the
(b) Notary Public, or deposition. Any evidence that is objected
(c) Any person authorized to administer to shall be taken subject to the objection.
oaths, as stipulated by the parties in [Sec. 17]
writing
(2) Outside the Philippines Effect of Taking Depositions [Sec. 7,
(a) On notice before a secretary of Rule 23]
embassy or legation, consul general, A party shall not be deemed to make a
consul, vice-consul, or consular agent person his own witness for any purpose by
of the Philippines taking his deposition because depositions are
(b) Before such person or officer as may be taken for discovery and not for use as
appointed by commission or under evidence.
letter rogatory or
(c) Any person authorized to administer USES AND SCOPE OF DEPOSITION
oaths as stipulated by parties in writing
General Uses of Deposition:
Disqualification by interest [Sec. 13, (1) Intended as a means to compel disclosure
Rule 23] of facts resting in the knowledge of a party
No deposition shall be taken before the or other person, which are relevant in a
following: suit or proceeding
(1) A relative by affinity or consanguinity (2) Dual functions:
within the 6th degree of any party; (a) A method of discovery
(2) An employee or counsel of any of the (b) A method of presenting testimony in
parties lieu of oral open court testimony
(3) A relative within the same degree or
employee of such counsel; Scope of Exam ination [Sec. 2, Rule 23]
(4) Any person financially interested in the Deponent may be examined as to any matter:
action (1) Not privileged;
(2) Relevant to the subject of the pending
Taking Depositions upon Oral action; and
Examination (3) Under such limitations as the court may
(1) A party desiring to take the deposition order under Secs. 16 and 18.
shall give reasonable notice in
writing to every party stating the time These may relate to:
and place for taking the deposition and (1) Any claim or defense of any other party;
the name and address of each person to (2) The existence, description, nature, custody,
be examined. [Sec. 15] condition, and location of books,
(2) After notice is served, the court may make documents and other tangible things; or
any order for protection of the parties (3) The identity or location of persons having
and the deponent. [Sec. 16] knowledge of relevant facts.
(3) The attendance of the witnesses may be
compelled by the use of subpoena. [Sec. Specific Uses of Depositions [Sec. 4,
1] Rule 23]
(4) The deponent may be examined The use of depositions depends on whether
following the procedures for deponent is a party or not.
witnesses in a trial, and may be asked (1) For contradicting or impeaching the
questions on direct, cross, re-direct or re- testimony of the former deponent, now
cross. He has the same rights as a witness testifying as a witness
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• Only used to contradict, not as proof of (2) The deposition is used to impeach or
specific facts contradict opponent.
• Cannot be used for this person if
deponent does not testify OBJECTIONS TO ADMISSIBILITY
(2) For any purpose, if the deponent was an Objection may be made at the trial or hearing
adverse party to receiving in evidence any deposition or part
• May be used as an admission thereof for any reason which would require
• Cannot, however, be used in the trial of the exclusion of the evidence if the witness
a case against a defendant who was were then present and testifying. [Sec. 6,
not a party to the action when the Rule 23]
deposition was taken
(3) Deposition of a witness or party may be TERMINATION OF TAKING OF DEPOSITION
used for any purpose under the OR LIMITATION OF SCOPE
following circum stances:
(a) Witness-deponent is dead – there must How done
be proof or presumption of death, and (1) A motion or petition for termination or
proof that the deposition was lawfully limit examination is filed by any party or
taken of the deponent
(b) Witness resides more than 100 km (2) Filed in the court where the action is
from the place of trial or hearing, or is pending OR the RTC of the place where
out of the country -- unless absence deposition is being taken
was procured by the proponent of the
deposition W hen done: At any time during the taking
(c) Disability of a witness due to age, of deposition
sickness, infirmity, or imprisonment –
proven by certificate of attending Grounds:
physician That the examination is being conducted:
(d) Inability to procure attendance of (1) In bad faith, or
witness by subpoena (2) In such manner as unreasonably to annoy,
(e) Exceptional circumstances embarrass or oppress the deponent or
party
GENERAL RULE: A deposition is not a
substitute for the actual testimony in open Effect of Errors and Irregularities in
court of a party or witness. If the witness is Depositions [Sec. 29, Rule 23]
available to testify, he should be presented in Error and
Effect
court to testify. If available to testify, a Irregularities
party’s or witness’ deposition is inadmissible Waived
As to notice for
in evidence for being hearsay. [Dasmarinas Unless written objection is
taking
Garments Inc. v. Reyes, G.R. No. 108229 promptly served upon
depositions
(1993)]. party giving notice
Waived
EXCEPTION: Depositions may be used as Objection to Unless made:
evidence under the circumstances in Sec. 4. taking (1) Before taking of
deposition deposition begins or
Effect of Using Deposition [Sec. 8, Rule because of (2) As soon thereafter as
23] disqualification disqualification
of officer becomes known or
GENERAL RULE: If a party offers the before whom it could be discovered
deposition in evidence, then he is deemed to is to be taken with reasonable
have made the deponent his witness. diligence
Objection to Not waived by failure to
EXCEPTIONS: the make them before or
(1) The deposition is that of an opposing party, competency of during the taking of
or a witness or deposition
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(2) Notice and service to each person testimony is proper to avoid a failure or
nam ed in the petition as an expected delay of justice, it may make an order
adverse party, together with a copy of the allowing the deposition to be taken.
petition, stating that the petitioner will
apply to the court, at a time and place O.2. WRITTEN INTERROGATORIES OF
named therein, for the order described in ADVERSE PARTIES [RULE 25]
the petition.
(a) At least 20 days before the date of the Purpose: This mode of discovery is availed of
hearing, the court shall cause notice by the party to the action for the purpose of
thereof to be served on the parties and eliciting material and relevant facts from
prospective deponents in the manner any of the adverse party. [Sec. 1, Rule 25]
provided for service of summons.
(3) Order and Examination: If the court is Scope and Use: Interrogatories have the
satisfied that the perpetuation of the may relate to the same matter as may be
testimony may prevent a failure or delay of inquired into under Depositions Pending
justice, it shall make an order designating Action and may also be used for the same
or describing the persons whose purposes provided. [Sec. 5, Rule 24]
deposition may be taken and specifying
the subject matter of the examination and W ritten Interrogatories v.
whether the depositions shall be taken Interrogatories to Parties
upon oral examination or written Written Interrogatories to
interrogatories. Interrogatories Parties
Taken before a
Use of Deposition No deposition officer.
deposition officer
If a deposition to perpetuate testimony is Questions are
taken under this Rule, or if, although not so prepared
taken, it would be admissible in evidence, it beforehand, and
may be used in any action involving the same The questioning is
submitted to the
subject matter subsequently brought in direct.
deposition officer
accordance with the provisions of sections 4 who will ask the
and 5 of Rule 23. [Sec. 6, Rule 24] deponent
The deposition of any
Procedure for Deposition Pending Interrogatories are
person may be taken,
Appeal: served on parties to
whether he is a party
(1) During the pendency of an appeal, the the action
or not.
court in which the judgment was rendered
may allow the taking of depositions of SERVICE OF INTERROGATORIES TO
witnesses to perpetuate their testimony in PARTIES
the event of further proceedings in the Any party desiring to elicit material and
said court. relevant facts from any adverse party shall
(2) The party who desires to perpetuate the file and serve upon the adverse party
testimony may make a motion in the said written interrogatories to be answered by the
court for leave to take the depositions, party served.
upon the same notice and service thereof
as if the action was pending therein. The Manner of Service
motion shall state: (1) Without leave of court – After answer has
(a) The names and addresses of the been served; and for the first set of
persons to be examined and the interrogatories
substance of the testimony which he (2) With leave of court – before the answer
expects to elicit from each, and has been served; and for subsequent sets
(b) The reason for perpetuating their of interrogatories
testimony.
(3) Order allowing the deposition: If the court NOTE: No party may, without leave of court,
finds that the perpetuation of the serve more than one set of interrogatories to
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admission a sworn statement [Sec. 2, Rule in accordance with the claim of the party
26] obtaining the order;
(2) That the disobedient party be disallowed
Contents from supporting or opposing designated
(1) Denying specifically the matters of which claims or defenses;
an admission is requested, or (3) That pleadings or parts thereof be stricken
(2) Setting forth in detail the reasons why he out; or
cannot truthfully either admit or deny (4) That further proceedings be stayed until
those matters compliance; or that actions or any parts
thereof be dismissed or that judgment be
Period: Such party must file and serve such rendered by default against the
statement: disobedient party; or
(1) Within a period not less than 15 days (5) That the disobedient party be arrested.
designated in the request; or [Sec. 3, Rule 29]
(2) Within such further time as the court may
allow on motion EFFECT OF ADMISSION
Any admission made by a party pursuant to
Objections shall be submitted to the court by such request is for the purpose of the pending
the party requested within the period for and action only [Sec. 3, Rule 26]
prior to filing of his sworn statement.
Compliance with the sworn statement shall It shall not:
be deferred until objections are resolved. [Sec. (1) Constitute an admission by him for any
2, Rule 26] other purpose; nor
(2) Be used against him in any other
CONSEQUENCES FOR FAILURE TO proceeding
ANSWER REQUEST
The proponent may apply to the proper court EFFECT OF FAILURE TO FILE AND SERVE
for an order to compel an answer. [Sec. 1, REQUEST FOR ADMISSION
Rule 29] Applicability: The party fails to file and
serve a request for admission on the adverse
If application is granted, the court: party for facts at issue, which are:
(1) Shall require the refusing party to answer; (1) Material and relevant fact at issue, and
and (2) Are, or ought to be, within the personal
(2) May require the refusing party or counsel knowledge of the adverse party
to pay reasonable expenses for obtaining
the order, the refusal to answer was Effect: The party shall not be permitted to
without substantial justification. present evidence on such facts, unless
allowed by the court for good cause and to
If application is denied and it was filed prevent a failure of justice [Sec. 5, Rule 29]
without substantial justification, the court
may require the refusing party or counsel to O.4. PRODUCTION OR INSPECTION OF
pay reasonable expenses for opposing the DOCUMENTS OR THINGS [RULE 27]
application. Applicable only to a pending action and the
things subject of the motion must be within
Refusal to answer after being directed by the the possession, control, or custody of a party.
court would constitute contem pt of court.
PROCEDURE [Sec. 1, Rule 27]
Refusal to obey would also allow the court to A motion is filed by the party seeking
make such orders regarding the refusal as are production or inspection, showing good
just, such as: cause therefor.
(1) That the matters regarding which
questions were asked be taken as The court may issue an order:
established for the purposes of the action (1) for the party to produce and permit
inspection, copying or photographing, by
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Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. [Sec. 6,
Rule 29]
(1) Where the pleadings tender no issue at all, postponement has no absolute right to
judgm ent on the pleadings may be expect that his motion would be granted.
directed by the court [Rule 34] [Republic v. Sandiganbayan, G.R. No. 123997
(2) Where from the pleadings, affidavits, (1999)]
depositions and other papers, there is
actually no genuine issue, the court may Requisites of Motion to Postpone Trial
render a summary judgment [Rule 35] (1) For absence of evidence [Sec. 3, Rule 30] –
(3) Where the parties have entered into a Motion accompanied by affidavit showing:
com prom ise or an amicable settlement (a) That the materiality or relevancy of the
either during the pre-trial or while the trial evidence; and
is in progress [Rule 18; Art. 2028, Civil (b) That diligent efforts had been exerted
Code] to procure the evidence
(4) Where the complaint has been (2) For illness of party or counsel [Sec. 4, Rule
dismissed with prejudice, or when the 30] – Motion accompanied by affidavit or
dismissal has the effect of an adjudication sworn certification showing:
on the merits [Sec. 5, Rule 16; Sec. 3, Rule (a) The presence of such party or counsel
17; Sec. 5, Rule 7] at the trial is indispensable; and
(5) Where the case falls under the Rules on (b) That the character of his illness is such
Sum m ary Procedure, and as to render his non-attendance
(6) Where the parties agree, in writing, excusable
upon the facts involved in the litigation
and submit the case for judgment on the P.2. AGREED STATEMENT OF FACTS
facts agreed upon, without the The parties may agree, in writing, upon the
introduction of evidence. [Sec. 6, Rule 30] facts involved in the litigation and submit the
[Riano] case for judgment in the facts agreed upon,
without the introduction of evidence
Notice of Trial
Upon entry of a case in the trial calendar, the If the parties agree only on some of the facts
clerk shall notify parties the date of its trial, in issue, trial shall be held as to the disputed
ensuring receipt of the notice at least 5 days facts in such order as the court shall prescribe.
before the trial date. [Sec. 1, Rule 30] [Sec. 6, Rule 30]
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(2) When for special reasons the court directs parties. [Republic v. Heirs of Oribello, G.R. No.
otherwise 199501 (2013)]
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(2) A direction to report only upon particular (3) He shall attach all exhibits, affidavits,
issues, to do or perform particular acts, or depositions, papers, and transcripts, if any,
to receive and report evidence only of testimonial evidence presented before
(3) The date for beginning and closing the him
hearings, and that for the filing of his
report Notice and Hearing on the Report
[Secs. 10-11, Rule 32]
Powers of Commissioner Upon filing of the report of the commissioner:
(1) Exercise power to regulate the proceeding (1) Parties shall be notified by the clerk
before him (2) Parties shall be allowed 10 days within
(2) Do all acts and take all measures which to object to the findings of the
necessary or proper for the efficient report
performance of his duties
(3) Issue subpoena and subpoenas duces NOTE: Objections based upon grounds
tecum which were available to the parties during the
(4) Swear witnesses proceedings before the commissioner shall
(5) Rule upon the admissibility of evidence, not be considered by the court, unless
unless otherwise provided in the order of they were made before the
reference com m issioner
NOTE: Refusal of a witness to obey such Upon expiration of the 10-day period to file
subpoena or to give evidence before him is objections, the report shall be set for hearing.
deemed contempt of the court which After such hearing, the court shall issue an
appointed the commissioner. [Sec. 7, Rule 32] order:
(1) Adopting, modifying, or rejecting the
Proceedings before the Commissioner report, in whole or in part
[Sec. 5, Rule 32] (2) Recommitting it with instructions; or
(1) Upon receipt of the order of reference, the (3) Requiring the parties to present further
commissioner shall set a time and place evidence before the commissioner or the
for the first meeting of parties or their court
counsel
(2) Notices shall be sent to parties or counsel Q. DEMURRER TO EVIDENCE
(3) Hearing is to be held within 10 days after
date of order of reference A species of motion to dismiss that may be
(4) If a party fails to appear, the commissioner
invoked based on insufficiency of evidence [i.e.
may: [Sec. 6] upon the facts and the law the plaintiff has
(a) Proceed ex parte; or
shown no right to relief]. [Sec. 1, Rule 33]
(b) Adjourn the proceedings to a future
date giving notice to the absent party It is invoked after the plaintiff has presented
or his counsel all the evidence available to him
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(a) the claims against each of them could (4) Signed by the judge
have been the subject of separate suits, (5) Filed with the clerk of court.
and
(b) the judgment for or against one of B.2. PARTS OF A JUDGMENT [Riano, Herrera]
them will not necessarily affect the (1) Opinion of the Court
other. • Also called the body, or the ratio
Where a common cause of action exists, a decidendi
several judgment is not proper. • Contains the findings of facts and
(9) Separate Judgm ent – one rendered conclusions of law
disposing of a claim among several others (2) Disposition of the case
presented in a case, after a determination • Also called the dispositive portion, or
of the issues material to a particular claim the fallo
and all counterclaims arising out of the • Part of the judgment that is subject to
transaction or occurrence that is the execution, as constituting the
subject matter of said claim. [Sec. 5, Rule judgment of the court
36] It is the dispositive part of the judgment
Proper when more than one claim for that actually settles and declares the
relief is presented in an action for the rights and obligations of the parties,
determination as to the issues material to finally, definitively, and authoritatively
the claim has been made. [Light Rail Transit Authority v. CA (2004)]
(10) Memorandum Decision – a (3) Signature of the judge
decision of the appellate court which
adopts the findings and conclusions of the B.3. DISTINCTION BETWEEN JUDGMENT
trial court. AND OPINION OF THE COURT
(11) Declaratory Judgm ent – one The judgment or fallo must be distinguished
rendered in a special civil action for from the Opinion.
declaratory relief.
(12) Foreign Judgment. The Opinion is the informal expression of the
views of the court and cannot prevail against
A.3. JUDGMENT WITHOUT TRIAL its final order or decision. While the two may
Trial is not necessary in the following be combined in one instrument, the opinion
instances: forms no part of the judgment. So there is a
(1) Judgment on the Pleadings [Rule 34] distinction between the findings and
(2) Summary Judgment [Rule 35] conclusions of a court and its judgment.
(3) Upon compromise or amicable settlement,
either during pre-trial or during trial [Rule While they may constitute its decision and
18; Art. 2028, Civil Code] amount to a rendition of a judgment they are
(4) Dismissal with prejudice [Sec. 5, Rule 16; not the judgment itself. They amount to
Sec. 3, Rule 17; Sec. 5, last par., Rule 7] nothing more than an order for judgment,
(5) Under the Rules on Summary Procedure which, of course, must be distinguished from
(6) Agreed statement of facts [Sec. 6, Rule the judgment. [Freeman on Judgments, Vol. I,
30] 5th Edition, page 6, quoted in Casilan v.
Salcedo (1969)]
Note: Also enumerated in Part III.P.
(Trial) B.4. CONFLICT BETWEEN DISPOSITION
AND OPINION OF THE COURT
B. CONTENTS OF A JUDGMENT
GENERAL RULE: Where there is a conflict
B.1. FORM OF JUDGMENT [Sec. 1, Rule 36] between the fallo and the body of the decision,
(1) In writing the fallo controls.
(2) Personally and directly prepared by the
judge Basis: The fallo is the final order. The
(3) Stating clearly & distinctly the facts and opinion in the body is merely a statement
the law on which it is based
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A Judgment on the Pleadings cannot be The trial court cannot motu propio decide
rendered by the court motu propio. It can only that summary judgment on an action is in
be done where there is a prior motion to that order. The defending party or claimant, as the
effect by the appropriate party. [Sec. 1, Rule case may be, must invoke the rule by filing a
34; Riano; but see Luzon Development Bank v. motion. The adverse party must then be
Conquilla, G.R. No. 163338 (2005)] notified of the motion and furnished with
supporting documents before hearing is
GROUNDS FOR JUDGMENT ON THE conducted. [Pineda v. Heirs of Eliseo Guevara,
PLEADINGS [Sec. 1, Rule 34] G.R. No. 143188 (2007)]
(1) The answer fails to tender an issue
because of: Proper when it appears to the court that:
(a) General denial of the material (1) There exists no genuine issue as to any
allegations of the complaint; material fact, except as to the amount of
(b) Insufficient denial of the material damages; and
allegations of the complaint; or (2) The party presenting the motion must be
(2) The answer otherwise admits material entitled to judgment as a matter of law
allegations of the adverse party’s pleading
Genuine Issue - an issue of fact which calls
Judgment on the Pleadings is not proper in for the presentation of evidence as
the ff. cases: distinguished from a sham, fictitious,
(1) Declaration of Nullity of Marriage contrived, or false claim. [Philippine Bank of
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Communications v. Go, G.R. No. 175514 summary judgment. Trial should deal only
(2011)] with the facts not yet specified or established.
Test: Whether or not the pleadings, Duty of the Court [Sec. 4, Rule 35]
affidavits and exhibits in support of the (1) Ascertain which material facts exist
motion are sufficient to overcome the without substantial controversy, and
opposing papers and to justify the finding which are actually and in good faith
that, as a matter of law, that there is no controverted, by:
defense to the action, or the claim is clearly (a) Examining the pleadings and evidence
meritorious. [Estrada v. Consolacion, G.R. No. before it; and
L-40948 (1976)] (b) Interrogating counsel
(2) Make an order, which:
W hen Filed (a) Specifies the facts without substantial
(1) If sought by the claimant – only after the controversy and deemed established,
answer is served; [Sec. 1, Rule 35] including extent of damages
(2) If sought by the defendant – at any time (b) Directs further proceedings as are just
[Sec. 2, Rule 35] (3) Conduct trial on the controverted facts
NOTE: Filing of a motion for summary Effect: A partial summary judgment is not a
judgment does not interrupt the running of final judgment, but merely a pre-trial
the period for filing an answer. Hence, the adjudication that said issues in the case shall
movant must also file a Motion for Extension be deemed established for the trial of the
of Time to File Answer. case. [Guevarra v. CA, G.R. No. L-49017
(1983)]
Procedure [Sec. 3, Rule 35]
(1) Movant files a motion for summary D.2 AFFIDAVITS AND ATTACHMENTS
judgment with supporting affidavits,
depositions or admission Form [Sec. 5, Rule 35]
(2) Service to the adverse party at least 10 (1) Made on personal knowledge
days the hearing (2) Setting forth such facts as would be
(3) Adverse party may serve opposing admissible in evidence
affidavits, depositions or admissions at (3) Showing affirmatively that the affiant is
least 3 days before the hearing competent to testify to the matters stated
(4) Hearing – Court shall determine if a therein.
genuine issue as to any material fact exists, (4) Certified true copies of all papers or parts
and if the movant is entitled to a summary thereof referenced in the affidavit shall be
judgment as a matter of law attached or served with the affidavit.
(5) Court renders summary judgment
Affidavits in bad faith – those presented
NOTE: Damages must still be proven even if under this Rule which appear to the court at
not denied. any time as presented in bad faith or solely
for the purpose of delay
Bases for Sum m ary Judgm ent
(1) Affidavits made on personal knowledge; Effect:
(2) Depositions of the adverse or a 3rd party The court:
[Rule 23] (1) shall order the offending party or counsel
(3) Answers to interrogatories [Rule 25] to pay the other party the amount of
(4) Admissions of the adverse party [Rule 26] reasonable expenses which the filing of
the affidavits caused him to incur; and
D.1 WHEN THE CASE IS NOT FULLY (2) may, after hearing, adjudge the offending
ADJUDICATED party or counsel guilty of contempt [Sec. 6,
Partial Summary Judgment – applies Rule 35]
when for some reason there can be no full
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CONTENTS OF A MOTION FOR NEW TRIAL (3) Amend such judgment or final order
[Sec. 2, Rule 37] accordingly if:
(1) If based on FAME, it shall be supported by (a) The court finds that excessive damages
an affidavit of merits, which: have been awarded or that; or
(a) recites the nature and character of (b) That the judgment or final order is
FAME on which the motion is based contrary to the evidence or law
(b) states the movant’s good and
substantial cause of action or defense; Resolution: The motion shall be resolved
and within 30 days from submission. [Sec. 4, Rule
(c) states the evidence he intends to 37]
present if granted.
(2) If based on newly found evidence, it shall The 30-day period to resolve the motion is
be supported by: held to be mandatory. [Gonzales v. Bantolo
(a) Affidavits of witnesses by whom such (2006)]
evidence is expected or given; or
(b) Duly authenticated documents which GRANT OF MOTION; EFFECT
are proposed to be introduced in
evidence Grant of m otion for reconsideration
The court may amend the judgment or final
CONTENTS OF A MOTION FOR order accordingly. The amended judgment is
RECONSIDERATION [Sec. 2, Rule 37] in the nature of a new judgment, which
(1) Shall point out specifically the findings or supersedes the original judgment.
conclusions of the judgment or final order
which are not supported by evidence or Grant of m otion for new trial
which are contrary to law; and The original judgment shall be vacated, and
(2) Make express reference to testimonial or the action shall stand for trial de novo. The
documentary evidence or provisions of law recorded evidence upon the former trial shall
alleged to be contrary to such findings or be used at the new trial without retaking
conclusions them, if they are material and competent.
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B.4. COMPARISONS
MODES OF APPEAL
Appeals from QJAs to the Petition for Review by
Ordinary Appeal Petition for Review
CA Certiorari
Rule 41 Rule 42 Rule 43 Rule 45
Awards, judgments, final
orders or resolutions of
any QJA in the exercise of Case decided by the RTC
Case decided by RTC Case decided by RTC in
its quasi-judicial function in exercise of original
in exercise of original exercise of appellate
jurisdiction, CA, CTA, and
jurisdiction jurisdiction
EXCEPT: Judgments or Sandiganbayan
final orders issued under
the Labor Code
Notice of
Petition for review with Petition for review with Petition for review on
appeal/Record on
the CA the CA certiorari with the SC
appeal with the CA
File a verified petition
File a verified petition for File verified petition for
for review with CA.
review with CA. review on certiorari with
File notice of appeal Pay docket and lawful
Pay docket and lawful the SC.
or record of appeal fees and P500 as
fees and PHP 500 for Pay docket and lawful
with court of origin deposit for costs with
costs. fees and P500 for costs.
and give a copy to the CA.
Furnish copy to adverse Submit proof of service of
adverse party Furnish RTC and
party and on the a copy to the lower court
adverse party a copy of
court/agency below and adverse party
such
Within 15 days from notice
Within 15 days from of judgment, award, final
notice of judgment or order or resolution, or
Within 15 days from
final order for notice from the date of last Within 15 days from notice
notice of judgment or
of appeal; 30 days publication (if publication of judgment or final order,
final order, or from
from notice of necessary to make it or of denial of MFR or
denial of a MFR or
judgment or final effective), or from denial MFNT
MFNT
order for records on of a MFR or MFNT
appeal
15 day extension allowed
PERIOD OF APPEAL
Period to Appeal Extensions Effect of MR or MNT
MTC to RTC
Fresh period to
By notice of appeal; within 15 days from No provision on extension under the
appeal from denial
notice of judgment or final order Rules (not allowed)
MR or MNT
By record of appeal;
within 30 days from notice of judgment or
final order
RTC to CA
By notice of appeal; Fresh period to
No provision on extension under the
Within 15 days from notice of judgment or appeal from denial
Rules (not allowed)
final order MR or MNT
By record of appeal;
within 30 days from notice of judgment or
final order
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The fresh period rule shall apply to: mandatory and jurisdictional. [Balgami v.
(1) Rule 40 governing appeals from the CA, G.R. No. 131287 (2004)]
Municipal Trial Courts to the Regional
Trial Courts; Effect of Failure to Perfect Appeal
(2) Rule 41 governing appeals from the (1) Defeats a party’s right to appeal.
Regional Trial Courts to the Court of (2) Precludes appellate court from acquiring
Appeals jurisdiction.
(3) Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals;
(4) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(5) Rule 45 governing appeals by certiorari
to the Supreme Court.
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Approval of the Record on Appeal [Sec. 7, The mere filing and pendency of motion for
Rule 41] extension to perfect appeal does not
Upon filing of the record for approval and if suspend the running of the reglementary
no objection is filed by the appellee within 5 period [King v. Corro, G.R. No. L-23617
days from receipt of a copy thereof, the trial (1967)]
court may:
(1) Approve it as presented; or PLEADINGS FILED [See Rule 44,
(2) Direct its amendment by the inclusion of Procedure in the CA]
any omitted matters which are deemed
essential. Appellant’s Brief
• Filed within 45 days from receipt of
Joint Record on Appeal [Sec. 8, Rule 41] notice of clerk that all evidence is
Where both parties are appellants, they attached to record
may file a joint record on appeal. • Follow the Efficient Use of Paper Rule,
one original properly marked and 2
PERIOD TO APPEAL [Sec. 2, Rule 41] copies with annexes
(1) 15 days from notice of judgment or final • Attach proof of service to adverse party
order appealed from
(2) 30 days from notice of judgment or final Grounds for dismissal with respect to
order where a record on appeal is appellant’s brief:
required (1) Failure to file brief on time
(3) 48 hours from notice of judgment or (2) Failure to make specific assignment of
final order appealed from in habeas errors in his brief
corpus cases
Contents:
Reckoning point of reglem entary (1) Subject index
period (2) Assignment of Errors
Period for filing the appeal should be (3) Statement of the Case
counted from the date when the party’s (4) Statement of Facts
counsel received a copy of the judgment or (5) Statement of Issues
final order (6) Arguments
(7) Relief
When a party is represented by a counsel, (8) Copy of judgment or final order appealed
service of process must be made on counsel, from
not on party [Fajardo v. CA, G.R. No. 140356
(2001)] Appellee’s Brief
• Filed within 45 days from receipt of
Effect of Motions for New Trial and
appellant’s brief
Reconsideration
• Manner of filing is similar to that in
Originally, the period to appeal is
appellant’s brief
interrupted by a timely motion for new trial
and reconsideration. However, with the
Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to
perfect an appeal.
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GENERAL RULE: Perfected appeal stays Due Course [Sec. 6, Rule 42]
the challenged judgment or final order If the Court of Appeals finds prima facie that
the lower court has committed an error of
EXCEPTIONS: fact or law that will warrant a reversal or
(1) Civil cases decided under the Rule on modification of the appealed decision, it
Summary Procedure; or may accordingly give due course to the
(2) Unless the CA, law, or Rules provide petition.
otherwise [Sec. 8, Rule 42]
As stated earlier, the Doctrine of Residual
ACTION ON PETITION [Sec. 4, Rule 42] Jurisdiction of the RTC applies as in cases
The CA may: under Rule 41, except that the RTC must
exercise this jurisdiction before the CA gives
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due course to the petition. In contrast, the (11) Department of Agrarian Reform
RTC must exercise residual jurisdiction in under RA 6657
Rule 41 prior to transmittal of the original (12) GSIS
record or the record on appeal. (13) Employees Compensation
Commission
SUBMISSION FOR DECISION [Sec. 9, (14) Agricultural Inventions Board
Rule 42] (15) Insurance Commission
If the petition is given due course (16) Philippine Atomic Energy
(1) Case may be set for oral argument, or Commission
(2) The parties may be required to submit (17) Board of Investment
memoranda within 15 days from notice (18) Construction Industry Arbitration
Commission, and
Case shall be deemed submitted for (19) Voluntary arbitrators authorized by
decision upon filing of last pleading or law
memoranda
W here to Appeal [Sec. 3, Rule 43]
B.10. APPEALS FROM QUSI- Appeal is taken to the CA on questions of
fact, of law, or mixed questions of fact and
JUDICIAL BODIES law.
Scope: Appeals from awards, judgments, Period to Appeal [Sec. 4, Rule 43]
final orders or resolution of or authorized by Period to appeal is 15 days from:
any quasi-judicial agency (QJA) in the (1) Notice of award, judgment, final order,
exercise of its quasi-judicial functions or resolution;
(2) Date of publication, if publication is
A quasi-judicial agency or body is an organ required by law for its effectivity; or
of government other than a court and other (3) Denial of petitioner’s motion for new trial
than a legislature, which affects the rights or reconsideration.
of private parties though either adjudication
or rule-making Extension of Period
The CA may grant an additional 15 days
NOTE: The CTA is no longer a quasi- within which to file the petition for review
judicial agency under RA 9282, as of April 7,
2004. A party adversely affected by a Conditions:
decision or ruling of the CTA en banc may (1) There was a motion filed to this effect
file with the SC a verified petition for review (2) There was payment in full of docket fees
on certiorari under Rule 45. [Sec. 11, RA and other lawful fees as well as deposit
9282 and AM No. 07-7-12-SC] for costs
(3) These two were done within the
QJAs covered by Rule 43: reglementary period
(1) Civil Service Commission
(2) Securities and Exchange Commission
No further extension may be granted except
(3) Office of the President
for the most compelling reason and in no
(4) Land Registration Authority
case to exceed 15 days.
(5) Social Security Commission
(6) Civil Aeronautics Board
NOTE: Similar to the rule in petition for
(7) Bureau of Patents, Trademarks and
review from the RTC to the CA [Rule 42].
Technology Transfer
(8) National Electrification Administration
How Taken [Sec. 5, Rule 43]
(9) Energy Regulatory Board
(1) A verified petition for review is filed with
(10) National Telecommunications the CA following the Efficient Use of
Commission Paper Rule
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(a) Attach proof of service of a copy to (c) Questions raised are too
the adverse party and to the court or unsubstantial to require
agency a quo consideration
(2) Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs Form of Comment [Sec. 9, Rule 43]
(a) Payment is made to the CA clerk (1) Filed within 10 days from notice
(b) Exemption from payment may be following the Efficient Use of Paper Rule
granted by the CA by filing a verified (2) Accompanied by the following:
motion for exemption; if denied, party (a) Clearly legible certified true copies of
must pay within 15 days from notice such material portions of the record
of denial referred to therein
(b) And such other supporting
Contents of Petition [Sec. 6, Rule 43] documents
(1) Statement of full names of parties to the (3) Copy of Comment is served on petitioner
case without impleading court or with proof of such service filed with the
agencies CA
(2) Concise statement of facts and issues
involved and grounds relied upon for Contents of Comment [Sec. 9, Rule 43]
review The comment shall:
(3) Accompanied by: (1) Point out insufficiencies or inaccuracies
(a) Clearly legible duplicate original or a in petitioner’s statement of facts and
certified true copy of award, issues
judgment, final order, or resolution (2) State reasons why petition should be
appealed from denied or dismissed
(b) Certified true copies of such material
portions of record referred to in the Due Course [Sec. 10, Rule 43]
petition and other supporting papers CA may give due course if CA finds prima
(4) Certificate of non-forum shopping facie that court or agency has committed
(5) Statement of specific material dates errors of fact or law that would warrant
showing timeliness of appeal reversal or modification
Effect of Failure to Comply [Sec. 7, If not, then the CA may dismiss the same.
Rule 43]
Failure to comply with the following is Transmittal of Records [Sec. 11, Rule
sufficient ground for the CA to dismiss the 43]
appeal: Within 15 days from notice that petition has
(1) Payment of docket and lawful fees been given due course, the CA may:
(2) Deposit for costs (1) Require court or agency concerned to
(3) Proof of service of petition transmit original or legible certified true
(4) Contents of petition copy of entire record of proceeding under
(5) Documents which should accompany the review
petition (2) Require or permit subsequent correction
or addition to record
Action on the Petition [Sec. 8, Rule 43]
The CA may: Effect of Appeal [Sec. 12, Rule 43]
(1) Require respondent to file Comment
within 10 days from notice GENERAL RULE: Appeal shall not stay
(2) Dismiss the petition if CA finds the same the award, judgment, final order or
to be: resolution sought to be reviewed
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
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the SC. [Dongon v. Rapid Movers and Petitioner and The parties are the
Forwarders, G.R. No. 163431 (2013)] respondent are aggrieved party
original parties to the against the lower
NLRC judgments and final orders or action in the lower court or quasi-judicial
resolutions are now reviewable, in the first court agency
instance, by the Court of Appeals on A filing of a MR is a
certiorari under Rule 65, but those of the Prior filing of MR not condition precedent,
Employees Compensation Commission required subject to certain
should be brought to the Court of Appeals exceptions
through a petition for review under this Rule. Filed with RTC, CA, or
Filed with SC
[Fabian v. Desierto, G.R. No. 129742 (1998)] SC
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CA, Sandiganbayan, CTA en banc, RTC or weigh the probative value of the evidence
such other courts as may be authorized by adduced before the lower courts
law [Frondarina v. Malazarte, G.R. No. 148423
(2006)]
Only questions of law are allowed.
Whether an appeal involves only questions APPEAL FROM RTC TO SC UNDER
of law or both questions of law and fact is RULE 45
best left to the determination of an RTC must have rendered judgment in the
appellate court and not by the court which exercise of its original jurisdiction.
rendered the decision appealed from [PNB v.
Romillo, etc., et al., G.R. No. L-70681 (1985)] If the RTC is in exercise of its appellate
jurisdiction, proper remedy is to appeal to
QUESTIONS OF LAW QUESTIONS OF FACT the CA via Rule 42 even if only questions of
Doubt as to the law are raised.
truth or falsehood
Doubt as to what
of facts, or as to If the other party had already taken an
the law is on
probative value of appeal to the CA to question the RTC
certain facts
the evidence decision, the proper remedy of petitioner is
presented simply ordinary appeal to the CA as well.
If the appellate [First Phil. International Bank v. CA]
court can The determination
determine the issue involves evaluation Grave abuse of discretion is not an
without reviewing or review of allowable ground under Rule 45. [Martires v.
or evaluating the evidence CA, G.R. No. 78036-37 (1990)].
evidence
APPEAL FROM CA
Query involves the
Appeal under Rule 45 is the proper review
calibration of the of decisions of the CA even in special civil
whole evidence actions.
considering mainly
the credibility of Any alleged errors committed by it in the
Can involve
witnesses, exercise of jurisdiction would be errors of
questions of
existence, and judgment which are reviewable by timely
interpretation of
relevancy of specific appeal and not by special civil action of
law with respect to
surrounding certiorari.
certain set of facts
circumstances and
relation to each Rule 45 is clear that decisions, final orders,
other and the whole or resolutions of the CA in any case,
probabilities of the regardless of the nature of the action or
situation proceedings involved, may be appealed to
the SC by filing a petition for review, which
The SC is not a trier of facts, and is not to would but be a continuation of the
review or calibrate the evidence on record. appellate process over the original case.
Moreover, findings of facts of trial court, as
affirmed on appeal by the CA, are
conclusive on the court [Boston Bank of the
Philippines v. Manalo, G.R. No. 158149
(2006)]
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GENERAL RULE: The SC is not a trier of Period of Appeal [Sec. 2, Rule 45]
facts, and is not to review or calibrate the Time for Filing: 15 days from
evidence on record. Moreover, findings of (1) Notice of judgment, final order, or
facts of trial court, as affirmed on appeal by resolution appealed from, or
the CA, are conclusive on the court [Boston (2) Notice of denial of motion for new trial or
Bank of the Philippines v. Manalo, G.R. No. reconsideration filed in due time after
158149 (2006)] notice of judgment
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Contents of Petition [Sec. 4, Rule 45] or with the applicable provisions of the
(1) State full names of the parties SC; or
(a) Appealing party = as Petitioner (2) Court a quo has so far departed from
(b) Adverse party = as Respondent accepted and usual course of judicial
(c) Do not implead lower courts or proceedings, or so far sanctioned such
judges departure by a lower court, as to call for
(2) Indicate material dates showing: an exercise of power of supervision
(a) When notice of judgment or final
order or resolution was received Elevation of Records [Sec. 8, Rule 45]
(b) When a motion for new trial or If the petition is given due course, the
reconsideration, if any, was filed and Supreme Court may require the elevation of
when a denial thereof was received the complete record of the case or specified
(3) Concise statement of: parts thereof within fifteen (15) days from
(a) The matters involved notice
(b) Reasons or arguments relied on
(4) Accompanied by a clearly legible B. 16. DISMISSAL OF APPEALS
duplicate original, or a certified true copy
of the judgment or final order or Dism issal by the CA [Rule 50]
resolution certified by the clerk of court An appeal may be dismissed by the CA, on
and court a quo its own motion, or on that of the appelle on
(5) Certificate of non-forum shopping certain grounds
Grounds for Denial of Petition [Sec. 5, Grounds for Dismissal [Secs. 1-2, Rule
Rule 45] 50]
(1) Failure of petitioner to comply with: (1) Failure of record on appeal to show on
(a) Payment of docket or other lawful its face that appeal was taken within the
fees period fixed by Rules
(b) Deposit for costs (2) Failure to file notice of appeal or record
(c) Proof of Service; and on appeal within prescribed period
(d) Contents of and documents which (3) Failure of appellant to pay docket and
would accompany the petition other lawful fees as provided in Sec. 4,
(2) Appeal is without merit Rule 41
(3) Is prosecuted manifestly for delay (4) Unauthorized alterations, omissions, or
(4) That the questions raised are so additions in approved record on appeal
unsubstantial as to require consideration as provided in Sec. 4, Rule 44
(5) Failure of appellant to serve and file
NOTE: SC may dismiss the petition motu required number of copies of his brief or
proprio memorandum within time provided by
Rules
Review is Discretionary [Sec. 6, Rule (6) Absence of specific assignment of errors
45] in the appellant’s brief, or of page
Appeal to the SC is NOT a matter of right. It references to record as required in Sec.
will be granted only when there are special 13, (a), (c), (d), (f), Rule 44
and important reasons therefor. (7) Failure of appellant to take necessary
steps for correction or completion of
Some indications of the character of record within time limited by the court in
reasons which will be considered: its order
(1) When the court a quo has decided the (8) Failure of appellant to appear at
question of substance, not theretofore preliminary conference under Rule 48 or
determined by the SC, or has decided it comply with orders, circulars, directives
in a way probably not in accord with law of the court without justifiable cause
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(9) Fact that the order or judgment Dism issal by the SC [Rule 56]
appealed from is not appealable The appeal may be dismissed motu
(10) Appeal under Rule 41 from the RTC, proprio or on motion of the respondent on
raising only questions of law; the following grounds:
(11) Appeal by notice of appeal from a (1) Failure to appeal within reglementary
decision rendered by the RTC in its period
appellate jurisdiction; (2) Lack of merit of petition
(12) Appeal erroneously taken to the CA (3) Failure to pay docket and lawful fees and
deposit
Other Grounds (4) Failure to comply with requirements on
(1) By agreement of the parties (i.e. proof of service, contents, and
amicable settlement) documents accompanying petition
(2) Where appealed case has become moot (5) Failure to comply with circular, directive,
or academic or order of SC without justifiable cause
(3) Where appeal is frivolous or dilatory (6) Error in choice of mode of appeal
(7) The case is not appealable to the SC
FLOWCHART: APPEALS
TO THE SUPREME COURT
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FLOWCHART:
POST-JUDGMENT REMEDIES
WITHIN THE LOWER COURT
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Reckoning Points If the court finds that the allegations are not
(1) The 60-day period is reckoned from the true – Petition is dismissed.
time the party acquired knowledge of the
order, judgment or proceeding. Not from If the court finds that allegations are true:
the date he actually read the same [Perez (1) It shall set aside the judgment, final order,
v. Araneta] or other proceeding complained of upon
(2) 6-months period is computed from the such terms as may be just
date of entry of the order or judgment
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D.3. PERIOD TO FILE ACTION [SEC. 3, orders of MTCs before the RTC. [Sec. 10, Rule
RULE 47] 47]
Lack of
Extrinsic Fraud D.5. EFFECT OF JUDGMENT OF
Jurisdiction
Period
4 years from
Before barred by ANNULMENT [SEC. 7, RULE 47]
for laches or
discovery
Filing estoppel Based on Lack of Jurisdiction
(1) The same shall be set aside, and
There must be a manifest showing with considered null and void
petition that it was filed within the 4-yr period. (2) Aggrieved party may refile the action in
the proper court
The rule does not fix the period to annul • This may involve a different court of
judgment based on lack of jurisdiction but competent jurisdiction
recognizes the principle of estoppel as first • Where the reason was lack of
laid down by Tijam v. Sibanghanoy [G.R. No. jurisdiction over the defendant, the
L-21450 (1968)]. action may be re-filed in the same
original court, provided it has proper
Form and Contents of Petition [Sec. 3, jurisdiction and venue
Rule 47]
(1) Verified petition, alleging therein: Based on Extrinsic Fraud
(a) With particularity, the facts and the law (1) The same shall be set aside and
relied upon considered null and void
(b) Petitioner’s good and substantial cause (2) On motion of the prevailing party on
of action or defense justifiable grounds, he may be allowed to
(2) Filed following the Efficient Use of Paper no longer refile the action; instead, the
Rule trial court which rendered the questioned
(3) Certified true copy of the judgment or final judgment shall be ordered to try the case
order or resolution shall be attached to anew
the original copy of the petition
(4) Affidavits of witnesses or documents The prescriptive period for the refiling of the
supporting the cause of action or defense; aforesaid original action shall be deemed
and suspended from the filing of said original
(5) Certificate of non-forum shopping action until the finality of the judgment of
annulment. However, the prescriptive period
D.4. PROCEEDINGS shall not be suspended where the extrinsic
Two stages in the disposition of the petition: fraud is attributable to the plaintiff in the
(1) A preliminary evaluation of the petition for original action. [Sec. 8, Rule 47]
prima facie merit [Sec. 5]
• The rule allows the CA to dismiss the E. COLLATERAL ATTACK OF
petition outright as in special civil
actions
JUDGMENTS
• If prima facie merit is found, petition is
given due course and summons is E. 1. ATTACKING A JUDGMENT
served on respondent
(2) If prima facie merit is found, petition is Direct Attack v. Collateral Attack
given due course and issuance of • Direct attack upon a judgment is an action
summons as in ordinary civil cases is made or proceeding to annul it, this being the
[Sec. 6] main object of the proceeding
• Procedure in ordinary civil cases is • Collateral attack upon a judgment is one
observed made to obtain relief other than the
setting aside of the judgment, the attack
NOTE: Prima facie determination is not on the judgment itself being incidental
available in annulment of judgments or final
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A final judgment may be annulled on the Writ of Execution – a judicial writ issued to
ground of lack of jurisdiction, fraud, or that it an officer authorizing and requiring him to
is contrary to law. [Panlilio v. Garcia, G.R. No. execute the judgment of the court.
L-29038 (1982)]
A. FINALITY FOR PURPOSES OF
APPEAL AND FOR PURPOSES OF
EXECUTION
A judgment is final if it disposes of the action
as distinguished from an interlocutory order
which leaves something to be done with
respect to the merits of the case, and it is
executory if the period to appeal has expired
and no appeal is taken. [Herrera]
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parties' next move (such as filing of a motion enforced and of the entry thereof, with notice
for new trial or reconsideration, or the taking to the adverse party.
of an appeal) and ultimately, to cause the
execution of the judgment once it becomes EXCEPTIONS:
'final and executory.’ Execution may Issue even if judgment not
final in the following cases:
Finality for purposes of execution (1) Support pendente lite
refers to the judgment being “final and (2) Judgments of inferior courts in ejectment
executory” upon the lapse of the appeal cases
period if no appeal is taken, upon which (3) Execution pending appeal
execution shall issue as a matter of right. [Sec. (4) Injunction, accounting, receivership,
1, Rule 39] support [Sec. 4, Rule 39]
(5) Decision of the RTC in appealed civil cases
A judgment becomes “final and executory” by under Summary Procedure, including
operation of law. Finality becomes a fact forcible entry and unlawful detainer
upon the lapse of the reglementary period to (6) Decision of the LA reinstating dismissed
appeal if no appeal is perfected. employee, insofar as reinstatement aspect
is concerned
Final AND Executory
Final Judgments
Judgments B.1. EXECUTION AS A MATTER OF
- They finally dispose RIGHT [SEC. 1, RULE 39]
of, adjudicate, or
- Judgments become A judgment becomes final and executory by
determine the rights
final and executory by operation of law, not by judicial declaration.
of the parties,
operation of law. The prevailing party is entitled as a matter of
HOWEVER, they are
not yet “final and right to a writ of execution, and the issuance
- After the lapse of the thereof is a ministerial duty and compellable
executory” pending
reglementary period by mandamus. [Herrera]
the expiration of the
to appeal, the
reglementary period
prevailing party is Execution as a matter of right is available in
for appeal.
entitled to a writ of two instances:
execution, and (1) No appeal has been perfected or period of
- During that period,
issuance thereof is a
the winning party appeal has expired
ministerial duty of the
cannot demand the (2) Appeal has been perfected and finally
court.
execution of the resolved
judgment yet as a
right. NOTE: Some judgments are not appealable,
e.g. Small Claims judgments, compromise
B. WHEN EXECUTION SHALL judgments, etc
ISSUE How Done
(1) If no appeal is perfected, prevailing party
GENERAL RULE: Execution shall issue as a
applies by motion for a writ of execution
matter of right, on motion, upon a judgment
(2) If an appeal has been perfected and finally
or order that disposes of the action or
resolved –
proceeding upon the expiration of the period
(a) prevailing party files a motion in the
to appeal therefrom if no appeal has been
court of origin, submitting:
duly perfected.
(i) certified true copies of the
judgment/s or final order/s
If the appeal has been duly perfected and
sought to be enforced;
finally resolved, the execution may forthwith
(ii) certified true copies of the entry
be applied for in the court of origin, on
thereof; and
motion of the judgment obligee, submitting
therewith certified true copies of the (iii) with notice to the adverse party.
(b) appellate court may also direct the
judgment/s or final order/s sought to be
court of origin to issue the writ of
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execution, upon motion in the same create a substantial change in the rights
case, when the interest of justice so or relations of the parties therein which
requires. render execution of the final judgment
unjust or impossible [Lim v. Jabalde, G.R.
NOTE: Execution may only issue upon No. L36786 (1989)]
motion with notice of hearing.
B.2. DISCRETIONARY EXECUTION
GENERAL RULE: Issuance of the writ of [SEC. 2, RULE 39]
execution is a matter of right on the part of Discretionary Execution as a
the prevailing party when the judgment or Execution Matter of Right
order becomes executory. The court cannot May issue before the Period to appeal has
refuse execution. lapse of period to already lapsed and no
appeal, and even appeal is perfected, or
EXCEPTIONS: during appeal there is no appeal
The issuance of a writ of execution which Discretionary upon the Ministerial duty of the
issues as a matter of right can be countered court court
in any of the following cases: Upon showing of good Provided there are no
(1) When the judgment has already been reason for execution supervening events
executed by the voluntary compliance
thereof by the parties; Under the Rule on Discretionary Execution
(2) When a judgment has been novated by (also called execution pending appeal), the
the parties; court rendering the judgment, if it still has
(3) When a petition for review is filed and jurisdiction, may exercise discretion and order
preliminary injunction is granted; Also, execution pending appeal.
when execution of the judgment has been
enjoined by a higher court; It is the execution of a judgment or final order
(4) When the judgment sought to be executed before it attains finality. The court which
is conditional or incomplete; rendered the decision can grant an execution
(5) When facts and circumstances transpire pending appeal if it still retains jurisdiction
which would render execution inequitable over the case and is in possession of the
or unjust; records at the time of the filing of the motion;
(6) When execution is sought more than five otherwise, the motion shall be acted upon by
(5) years from its entry without it having the appellate court.
been revived;
(7) When execution is sought against property To be valid, there should be a good reason to
exempt from execution; justify execution pending appeal, stated in
(8) When refusal to execute the judgment has the order which granted it.
become imperative in the higher interest
of justice. [Riano] Mere issuance of a bond to answer for
damages is no longer considered a good
Supervening Event Doctrine reason for execution pending appeal [Planters
A supervening event can be invoked for the Products v. CA, G.R. No. 106052 (1999)]
modification or alteration of a final judgment.
This refers to: “Good reasons”
(1) Facts which transpire after judgment has Compelling circumstances justifying the
become final and executory; immediate execution lest judgment becomes
(2) New circumstances which developed after illusory, or the prevailing party may after the
the judgment has acquired finality; lapse of time become unable to enjoy it
(3) Matters which the parties were not aware [Fareast Bank v. Toh, G.R. No. 144018 (2003)]
of prior to or during the trial as they were
not yet in existence at that time. Examples of Good Reasons:
(4) The supervening facts or circumstances (1) Where the goods subject of the judgment
must either bear a direct effect upon the stand to perish or deteriorate during the
matters already litigated and settled or pendency of the appeal [Yasuda v. CA]
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(2) The award of actual damages is for an (2) it is in possession of either the original
amount fixed and certain [Radio record or the record on appeal.
Communications Inc. v. Lantin]. But not an
award for moral and exemplary damages After the trial court has lost jurisdiction, the
(3) Insolvency of a defeated party [Hacienda motion may be filed in the appellate court.
Navarro v. Labrador] [Bangkok Bank Public Company, Ltd. v. Lee,
(4) The prevailing party is of advanced age G.R. No.159806 (2006)]
and in a precarious state of health and the
obligation in the judgment is non- Stay of Discretionary Execution
transmissible, being for support [De Leon v. Discretionary execution may be stayed upon
Soriano] approval by the proper court of a sufficient
(5) Where defendants were exhausting their supersedeas bond filed by the party against
income and have no other property aside whom it is directed, conditioned upon the
from proceeds of the property subject in performance of the judgment or order
litigation [Lao v. Mencias] allowed to be executed in case it shall be
finally sustained in whole or in part [Sec. 3,
Discretionary Execution is not applicable in Rule 39]
the case of the Court of Appeals:
(1) The Rule on Discretionary Execution Bond may be proceeded against on motion
contemplates a situation where a with notice to surety
judgment or final order rendered in the
exercise of its original jurisdiction and the GENERAL RULE: The filing of a
prevailing party in said decision seeks supersedeas bond is sufficient to stay the
immediate execution during the pendency enforcement of a discretionary execution.
of an appeal.
(2) The CA has no authority to issue EXCEPTION: However, the filing of the
IMMEDIATE EXECUTION PENDING supersedeas bond does not entitle the
APPEAL OF ITS OWN DECISIONS judgment debtor to the suspension of
THEREIN. execution as a matter of right. Where the
(3) Discretionary execution is allowed needs of the prevailing party are urgent, the
pending appeal of judgment or final order Court can order immediate execution despite
of the trial court upon good reasons to be such supersedeas bond. [Regalado]
stated in a special order.
If judgment is reversed totally or
A judgment of the CA cannot be executed partially, or annulled
pending appeal. [Heirs of Justice JBL Reyes v. The trial court may, on motion, issue such
CA, G.R. No. 135180-81 (2000)] orders of restitution or reparation of damages
as equity and justice may warrant under the
Requisites for Discretionary circumstances
Execution:
(1) There must be a motion filed by Remedy against Discretionary
prevailing party with notice to adverse Execution
party The remedy is certiorari by Rule 65. The fact
(2) There must be a hearing of the motion for that the losing party has also appealed from
discretionary execution the judgment does not bar certiorari
(3) There must be good reasons to justify the proceedings as the appeal could not be an
discretionary execution adequate remedy from such premature
(4) These good reasons must be stated in a execution. [Hererra]
special order after due hearing
W hen Filed
The motion for discretionary execution shall
be filed with the trial court while
(1) it has jurisdiction over the case; and
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(3) Garnishment of debts and credits [Sec. 9, purposes of the prospective execution sale
Rule 39] [Llenares v. Vandevella (1966)].
(2) Including bank deposits, financial shall be required to deliver. Otherwise, the
interests, royalties, commissions, choice shall be made by judgment obligee
(3) And other personal property not capable (4) The garnishee shall make a written report
of manual delivery in possession and to the court within 5 days from service of
control of third parties notice of garnishment. The report shall
state whether:
The process of levying shall be called (a) Judgment obligor has sufficient funds
garnishment if the property involved is money, or credits to satisfy judgment, OR
stocks, or other incorporeal property in the (b) Judgment obligor has insufficient funds
hands of third persons. Garnishment or credits to satisfy judgment
merely sets apart such funds but does not (5) Garnish the amount which may be in cash,
constitute the creditor as owner of the or certified bank check issued in the name
garnished property. of judgment obligee
(6) Garnished amount shall be delivered
The Rules of Court themselves do not require directly to judgment obligee within 10
that the garnishee be served with summons working days from service of notice on said
or impleaded in the case in order to make him garnishee requiring such delivery
liable. All that is necessary for the trial court (7) Follow procedure under “Immediate
lawfully to bind the person of the garnishee Payment on Demand” with respect to
or any person who has in his possession delivery
credits belonging to the judgment debtor is (8) Lawful fees shall be paid directly to court
service upon him of the writ of garnishment.
[Perla v. Ramolete, G.R. No. L-60887 (1991)] C.6. EXECUTION OF JUDGMENTS
FOR SPECIFIC ACTS [SEC. 10, RULE
Garnishment is not a violation of RA 1405 on
the secrecy of bank deposits. [Chinabank v.
39]
Ortega, G.R. No. L-34964 (1973)]
For Conveyance of Real of Land or
Personal Property
NOTES: Upon service of the writ of
Judgment directs a party to:
garnishment, the garnishee becomes a
(a) Execute a conveyance of land or personal
“virtual party” or “forced intervenor” to the
property;
case and the trial court thereby acquires
(b) Deliver deeds or other documents; or
jurisdiction to bind the garnishee to comply
(c) Perform any other specific act in
with its orders and processes. [BPI v. Lee, G.R.
connection therewith
No. 190144 (2012)]
If the party fails to comply within the time
UP’s funds, being government funds, are not
specified:
subject to garnishment. Moreover, The
(1) Court may direct the act to be done at the
execution of the monetary judgment against
cost of the disobedient party by some
the UP was within the primary jurisdiction of
other person appointed by the court; or
the COA. [UP v. Dizon, G.R. No. 171182 (2012)]
(2) If the real or personal property directed to
be conveyed is situated in the
Procedure
Philippines, court may by order divest
(1) Levy shall be made by serving notice upon:
the title of any party and vest it in others,
(a) The person owing such debts, or
which shall have the force and effect of
(b) Having in his possession or control
conveyance executed in due form.
such credits to which judgment obligor
is entitled
For Sale of real or personal property
(2) Garnishment to cover only such amount as
An order for execution shall be issued
will satisfy judgment and lawful fees
describing the property to be sold, and
(3) If there are 2 or more garnishees, holding
directing the sheriff or other proper officer to
deposits or credits sufficient to satisfy
sell it, and apply the proceeds in conformity
judgment, judgment obligor shall have
with the judgment. [Secs. 8(b), 10, Rule 39]
the right to indicate the garnishee/s who
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as the judgment obligor may select (e) benefit payments from SSS [RA 1161, as
necessarily used by him in his ordinary amended; Sec. 16]
occupation;
(4) His necessary clothing and articles for EXCEPTION:
ordinary personal use, excluding jewelry; However, no article or species of property
(5) Household furniture and utensils mentioned in this section shall be exempt
necessary for housekeeping, and used for from:
that purpose by the judgment obligor and (1) Execution issued upon a judgment
his family, such as the judgment obligor recovered for its price, or
may select, of a value not exceeding P (2) Upon a judgment of foreclosure of a
100,000.00; mortgage thereon.
(6) Provisions for individual or family use
sufficient for four (4) months; The exemptions must be claim ed,
(7) The professional libraries and equipment otherwise they are deemed waived. It is not
of judges, lawyers, physicians, the duty of the sheriff to set off the exceptions
pharmacists, dentists, engineers, on his own initiative. [Herrera v. Mcmicking,
surveyors, clergymen, teachers, and other G.R. No. L-5329 (1909)]
professionals, not exceeding
P300,000.00 in value; E. PROCEEDINGS WHERE
(8) One fishing boat and accessories not
exceeding the total value of one hundred
PROPERTY CLAIMED BY THIRD
thousand pesos owned by a fisherman and PERSONS
by the lawful use of which he earns his Sec. 16, Rule 39 and other provisions
livelihood; providing a mode for recovering property
alleged to have been wrongfully taken by
(9) So much of the salaries, wages, or sheriff pursuant to a writ of execution or other
earnings of the judgment obligor for his process, refer to a stranger to an action.
personal services within the four (4) [Tillson v. CA, G.R. No. 89870 (1991)]
months preceding the levy as are
necessary for the support of his family; Remedies of Third-Party Claimant
(10) Lettered gravestones; (1) Summary hearing before the court which
(11) Monies, benefits, privileges, or authorized the execution
annuities accruing or in any manner (2) “Terceria” or third-party claim filed with
growing out of any life insurance; the sheriff [Sec. 16, Rule 39]
(12) The right to receive legal support, or (3) Action for damages on the bond posted by
money or property obtained as such the judgment creditor
support, or any pension or gratuity from (4) Independent reivindicatory action
the Government;
(13) Properties specially exempted by law, The aforementioned are cumulative remedies
such as: and may be resorted to by a third-party
(a) property mortgaged to the DBP [Sec. claimant independently of or separately from
26, CA 458]; and without need of availing of the others. [Sy
(b) savings of national prisoners deposited v. Discaya, G.R. No. 86301 (1990)]
with the postal savings bank [Act.
2489]; For a Third-Party Claim to be
(c) benefits from private retirement Sufficient:
systems of companies and (1) Must be filed by a person other than the
establishments with limitations [RA defendant or his agent, at any time before
4917]; sale
(d) laborer’s wages except for debts (2) Must be under oath or supported by
incurred for food, shelter, clothing and affidavit stating the claimant’s title to, or
medical attendance [Art. 1708, Civil right of possession of, the property, and
Code]; grounds therefor
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(3) Must be served upon the officer making acted rightly or wrongly in performance of his
levy and a copy thereof upon the judgment duties. The court does not and cannot pass
creditor upon the question of title.
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the property on execution before the (a) Does not reside and is not found in the
satisfaction of a final judgment. Philippines; or
(b) On whom summons may be served by
A.1. GROUNDS FOR ISSUANCE [SEC. publication.
1, RULE 57] NOTE: The persons on whom summons
There are only specific situations where may be served by publication are:
preliminary attachment may issue. The (a) Residents defendants whose identity or
grounds are EXCLUSIVE: whose whereabouts are unknown [Sec.
(1) Action for recovery of a specified amount 14, Rule 14]
of money or damages, except moral and (b) Resident defendants who are
exemplary, temporarily out of the country [Sec. 16,
(a) On a cause of action arising from law, Rule 14]
contract, quasi-contract, delict, or
quasi-delict A.2 REQUISITES FOR ISSUANCE
(b) Against a party who is: (1) The case must be any of those where
(i) about to depart from the preliminary attachment is proper [Sec. 1,
Philippines Rule 57]
(ii) with intent to defraud his (2) Applicant must file a motion, whether ex
creditors; parte or with notice and hearing
(2) Action for money or property, embezzled (3) Applicant must file an affidavit showing
or fraudulently misapplied or converted to the required facts
his own use by either: (4) Applicant must post a bond executed to
(a) A public officer; adverse party
(b) An officer of a corporation;
(c) An attorney, factor, broker, agent, or A writ of preliminary attachment is too harsh
clerk, in the course of his employment a provisional remedy to be issued based on
as such; or mere abstractions of fraud. Rather, the rules
(d) Any other person in a fiduciary capacity, require that for the writ to issue, there must
or for a willful violation of duty; be a recitation of clear and concrete factual
(3) Action to recover the possession of circumstances manifesting that the debtor
property unjustly or fraudulently taken, practiced fraud upon the creditor at the time
detained or converted, of the execution of their agreement in that
(a) When the property, or any part thereof, said debtor had a preconceived plan or
has been concealed, removed, or intention not to pay the creditor. [Equitable v.
disposed of to prevent its being found Special Steel, G.R. No. 175350 (2012)]
or taken by the applicant or an
authorized person; A.3 ISSUANCE AND CONTENTS OF
NOTE: The rule makes no distinction ORDER OF ATTACHMENT
between real and personal property
[Riano] W hen Applied For
(4) Action against a party who has been guilty A preliminary attachment may be applied for
of a fraud in contracting the debt or (1) At the commencement of the action; or
incurring the obligation upon which the (2) At any time before the entry of judgment.
action is brought, OR in the performance
thereof; W ho may apply
NOTE: The delivery of counterfeit money It may be applied for by the plaintiff or any
or knowingly issuing a bounced check are proper party (including a defendant who filed
considered as grounds under this rule a counterclaim, cross-claim, or a third party
[Riano] complaint).
(5) Action against a party who:
(a) has removed or disposed of his
property, or is about to do so,
(b) with intent to defraud his creditors
(6) Action against a party who:
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(b) All damages which he may sustain by (b) The registrar of deeds must index
reason of attachment attachments in the names of the
applicant, adverse party, or person by
The bond shall only be applied to all whom the property is held or in whose
damages sustained due to the attachment. It name it stands in the records
cannot answer for those that do not arise by (c) If attachment is not claimed on the
reason of the attachment [Riano]. entire area of land, description
sufficiently accurate for identification of
A.4 RULE ON PRIOR OR such shall be included in the
CONTEMPORANEOUS SERVICE OF registration
(2) Personal property capable of manual
SUMMONS delivery
(a) Sheriff Issues a corresponding receipt
GENERAL RULE: A writ of attachment may
therefor
be issued ex parte even before the summons
(b) Sheriff takes it and safely keeps it in his
is served upon the defendant but a writ may
custody
not be implemented until jurisdiction over the
(3) Stocks or Shares, or an Interest therein, of
person is acquired by service of summons.
any corporation or company
Otherwise, the implementation is null and
(a) Leave a copy of the writ and a notice
void. [Riano]
stating that these properties are
attached in pursuance of such writ
Exceptions to Contemporaneous
(b) Leave these documents with the
Service of Sum m ons: [Sec. 5, Rule 57]
president, or managing agent thereof
(1) Summons could not be served personally
(4) Debts, credits, bank deposits, financial
or by substituted service despite diligent
interest, royalties, commissions and other
efforts, or
personal property not capable of manual
(2) Defendant is a resident of the Philippines
delivery
temporarily absent therefrom, or
(a) Leave a copy of the writ and a notice
(3) Defendant is a non-resident, or
that the debts owing, credits, and other
(4) The action is in rem or quasi in rem.
personal property are attached in
pursuance of such writ
A.5. MANNER OF ATTACHING (b) Leave these documents with:
PROPERTY [SEC. 5, RULE 57] (i) The person owing such debts, or
The sheriff enforcing the writ shall attach (ii) Having in his possession or under
only so much of the property in the his control, such credits or other
Philippines of the adverse party not exempt personal property, or
from execution as may be sufficient to satisfy (iii) With his agent
the applicant’s demand, unless (5) The interest of the party against whom
(1) Party against whom writ is issued makes a attachment is issued in property
deposit with the court from which the writ belonging to the estate of decedent,
is issued, or whether as heir, legatee, or devisee
(2) He gives a counter-bond executed to the (a) By service of a copy of the writ, and
applicant notice that said interest is attached
(b) Service is made to:
Attachment of specific kinds of (i) The executor, or administrator,
property [Sec. 7, Rule 57] or
(1) Real property, or growing crops thereon, (ii) Other personal representative of
or any interest therein the decedent
(a) File with the Registry of Deeds: (c) Copy of the writ and notice:
(i) A copy of the order together with (i) Shall be filed with the clerk in
a description of the property; and which said estate is being settled,
(ii) A notice that the property is and
attached (ii) Served upon the heir, legatee, or
devisee concerned
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(3) The applicant must post a bond, unless (c) There is an urgent and paramount
otherwise exempted by the court necessity
(4) As to a writ of preliminary injunction, there PRELIMINARY PRELIMINARY
must be notice and hearing PROHIBITORY MANDATORY
INJUNCTION INJUNCTION
RIGHT IN ESSE Purpose is to prevent
Purpose is to require a
The applicant's right must be clear or a person from the
person to perform a
unmistakable, that is, that the right is actual, performance of a
particular act
clear and positive especially calling for particular act
judicial protection. An injunction will not The act has already
issue to protect a right not in esse and which The act had not yet been performed and
been performed this act has violated
may never arise or to restrain an act which
the rights of another
does not give rise to a cause of action.
Status Quo is
[Marquez v. Sanchez, G.R. No. 141849 (2007)] Status Quo is restored
preserved
IRREPARABLE INJURY W hen preventive injunction does not
Does not have reference to the amount of
lie; exam ples:
damages that may be caused but rather to (1) To restrain collection of taxes [Valley
the difficulty of measuring the damages Trading v. CA (1989)], except where there
inflicted. This includes: are special circumstances that bear the
(1) that degree of wrong of a repeated and existence of irreparable injury. [Churchill &
continuing kind which produce hurt, Tait v. Rafferty (1915)]
inconvenience, or damage that can be (2) To restrain the sale of conjugal properties
estimated only by conjecture, and not by where the claim can be annotated on the
any accurate standard of measurement. title as a lien, such as the husband’s
(2) damage where there is no standard by
obligation to give support. [Saavedra v.
which their amount can be measured with Estrada (1931)]
reasonable accuracy (3) To restrain a mayor proclaimed as duly
(3) a serious charge of, or is destructive to, the elected from assuming his office. [Cereno v.
property it affects, either physically or in Dictado (1988)]
the character in which it has been held (4) To restrain registered owners of the
and enjoined, or when the property has property from selling, disposing and
some peculiar quality or use, so that its
encumbering their property just because
pecuniary value will not fairly recompense the respondents had executed Deeds of
the owner of the loss thereof Assignment in favor of petitioner. [Tayag v.
If full compensation can be obtained, by way Lacson (2004)]
of damages, equity will not apply the remedy (5) Against consummated acts. [PNB v. Adi
of injunction. [Social Security Commission v. (1982); Rivera v. Florendo (1986); Ramos,
Bayona, G.R. No. L-13555 (1962)] Sr. v. CA (1989)]
B.3. KINDS OF INJUNCTION W hen mandatory injunction does not
(1) Preliminary Preventive Injunction – lie; exam ples
Prohibits the performance of a particular (1) To compel cohabitation [Arroyo v. Vasquez
act or acts (1921)]
(2) Preliminary Mandatory Injunction – (2) Cancellation of attachment [Levy
Requires the performance of a particular Hermanos v. Lacson (1940)]
act or acts. This is an extreme remedy (3) Release imported goods pending hearing
which will be granted only on showing before the Commissioner of Customs.
that: [Commissioner of Customs v. Cloribel
(a) The invasion of the right is material (1967)]
and substantial (4) To take property out of the possession or
(b) Right of complainant is clear and control of one party and place it into that
unmistakable of another whose title has not clearly been
established [Pio v. Marcos (1974)]
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have rights through such bidders involving the provisions of Sec. 4, Rule 38, Sec. 4 as to
such contract/project. service of summons and the documents to be
served therewith. [Rule 38, Sec. 5]
This prohibition shall not apply when the
matter is of extreme urgency involving a B.10 GRANT OF FINAL INJUNCTION
constitutional issue, such that unless a If after the trial of the action it appears that
temporary restraining order is issued, grave the applicant is entitled to have the act or
injustice and irreparable injury will arise. The acts complained of permanently enjoined, the
applicant shall file a bond, in an amount to court shall grant a final injunction perpetually
be fixed by the court, which bond shall accrue restraining the party or person enjoined from
in favor of the government if the court should the commission or continuance of the act or
finally decide that the applicant was not acts or confirming the preliminary mandatory
entitled to the relief sought. [Sec. 3, RA 8975] injunction. [Sec. 9, Rule 58]
The executive judge of a multiple-sala court C.1. CASES WHEN RECEIVER MAY
or the presiding judge of a single sala court BE APPOINTED [SEC. 1, RULE 59]
may issue ex parte a TRO effective for only 72 (1) When it appears from the verified
hours from issuance if the matter is of application and other proof that the
extreme urgency and the applicant will suffer applicant has an interest in the property or
grave injustice and irreparable injury. fund which is the subject of the action or
However, he shall immediately comply with proceeding, and that such property or
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o Amount: double the value of the The adverse party is entitled to the return of
property as stated in the affidavit of the the property taken under writ of replevin, if:
applicant (1) He seasonably posts a redelivery bond
o Undertaking: (2) The applicant’s bond is found to be
(a) The delivery thereof to the applicant, if insufficient or defective and is not
such delivery be adjudged, and replaced with a proper bond
(b) The payment of such sum to him as (3) The property is not delivered to the
may be recovered against the adverse plaintiff for any reason
party
D.5. WHEN PROPERTY CLAIMED BY
D.4. SHERIFF’S DUTY IN THIRD PARTY
IMPLEMENTATION Procedure
Duties of the Sheriff [Sec. 4, Rule 60] Third party claiming the property must:
(1) Serve a copy of the order, together with (1) Make an affidavit of his title to the
the copies of the application, the affidavit, property, stating his grounds;
and bond to the adverse party (2) Serve such affidavit upon the sheriff while
(2) Take the property: the latter has possession of the property;
(a) If it be in the possession of the adverse and
party or his agent – Take the property (3) Serve a copy upon the applicant.
into custody
(b) If property is concealed in a building or Effect
enclosure: The sheriff shall not be bound to keep
(i) Demand delivery of the property property under replevin or deliver property to
(ii) If not delivered, cause the the applicant, unless the applicant files a
building or enclosure to be bond approved by the court to indemnify the
broken open and then take the third person, in an amount not less than the
property into possession value stated in the affidavit of the applicant.
(3) After taking possession: No claim for damages for the taking or
(a) Keep the property in a secure place keeping of the property may be enforced
(b) He shall be responsible for delivery to against the bond unless the action is filed
party entitled within 120 days from filing of the bond.
Unlike a preliminary attachment and NOTE: The procedure in Sec. 7, Rule 60 is
preliminary injunction, the rule on prior or similar to that in third-party claims in
contemporaneous jurisdiction is not provided execution [Sec. 16, Rule 39] and in
for in replevin. attachment (Sec. 14, Rule 57].
However, the rule requires that upon such
order, the sheriff must serve a copy on the Difference in Service of Affidavits:
adverse party together with the required o Sec. 14, Rule 57 – affidavit is served
documents. upon the sheriff while he has possession of
A sheriff’s prerogative does not give him the the attached property
liberty to determine who among the parties is o Sec. 7, Rule 60 – affidavit is served
entitled to possession. within 5 days in which sheriff has
When a writ is placed in the hands of a sheriff, possession (in connection with Sec. 6)
it is his duty to proceed with reasonable
celerity and promptness to execute it D.6. JUDGMENT [Sec. 9, Rule 60]
according to its mandate. After trial of the issues, the court shall
determine who has the right of possession to
Disposition of Property by Sheriff and the value of the property and shall render
The sheriff shall retain the property for 5 days. judgment in the alternative for the delivery
Within such period, the adverse party: thereof to the party entitled to the same, or
(1) May object to the sufficiency of the for its value in case delivery cannot be made,
applicant’s bond or surety; or and also for such damages as either party
(2) May file a redelivery bond, if he does not may prove, with costs.
object to the sufficiency of the bond
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VIII. Special Civil Actions The Special Civil Actions (SCA) under
the Rules of Court
(1) SCAs initiated by complaints:
A. IN GENERAL (a) Interpleader
(b) Foreclosure of Real Estate Mortgage
A.1 NATURE (c) Forcible Entry and Unlawful Detainer
Special civil actions are civil actions primarily (d) Partition
governed by special rules, and secondarily by
(e) Expropriation
rules for ordinary civil actions. [SeeSec. 3,
Rule 1] (2) SCAs initiated by petitions:
Since a civil action in general is one by which (a) Declaratory Relief
a party sues another for the enforcement of a (b) Review or Adjudication of
right, or the prevention or redress of a wrong, COMELEC/COA Decisions
a special civil action is generally brought or (c) Certiorari
filed for the same purpose. [Riano]
(d) Prohibition
(e) Mandamus
A.2 ORDINARY CIVIL ACTIONS V.
(f) Quo Warranto
SPECIAL CIVIL ACTIONS
(g) Contempt
A special civil action is governed by the rules
of ordinary civil actions but there are certain
rules that are applicable only to special civil A.3 JURISDICTION AND VENUE
actions. Jurisdiction over special civil actions is
determined by the Constitution [Sec. 5, Art.
ORDINARY CIVIL VIII, for the Supreme Court] and statutes [e.g.
SPECIAL CIVIL ACTION
ACTION BPBlg 129).
Also governed by Venue is a procedural matter and generally
ordinary rules but set by the Rules of Court. Hence, the venue of
Governed by ordinary
subject to specific rules civil actions is determined by the general
rules
prescribed [Sec. 3, Rule rules on venue, unless otherwise subject to
1]
special rules for special civil actions (e.g. quo
Must be based on a
The concept of cause of warranto, seeSec. 7, Rule 66).
cause of action which
action in an ordinary
means that the
action does not always Jurisdiction of inferior courts
defendant has
fit in a special civil action Special civil actions that can be filed in or are
violated plaintiff’s
(e.g. interpleader) within the jurisdiction of the inferior courts
rights
Venue is determined (i.e. MTC, MeTC, MCTC):
by either the (1) Interpleader - Provided that amount
residences of the Venue is generally involved is within its jurisdiction
parties when action is governed by the general
personal or by the rules on venue, except as (2) Ejectment suits – Original and exclusive
location of the otherwise indicated by (3) Contempt
property when the special rules. [Regalado]
action is real. [Secs. 1- Application of hierarchy of courts
2, Rule 4] In the absence of special reasons, the SC will
Some initiated by decline to exercise original jurisdiction in
Initiated by complaint complaint, some by
certiorari, prohibition, and mandamus since it
petition.
Some special civil
is not a trier of facts and, that is a function
actions can only be filed which can be better done by the trial courts.
in the MTC (e.g. forcible The same rule applies for quo warranto
It may be filed initially wherein the SC has concurrent jurisdiction
entry and unlawful
either in the MTC or
detainer) while there are with the RTC. [Regalado, citing Fisher v.
the RTC
some which could not be Yangco Steamship Co. (1915) and Veraguth v.
commenced in the MTC Isabela Sugar Co. (1932)]
(e.g. certiorari)
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(4) SC may also require oral argument or as a duty resulting from an office, trust, or
submission of memoranda [Sec. 9] station. [Sec. 3, Rule 65]
(5) The case is then submitted for decision
[Sec. 9] CERTIORAR PROHIBITIO MANDAMU
I N S
D.2 DISTINCTION IN THE Directed
Directed
APPLICATION OF RULE 65 TO against an
against an
Directed
JUDGMENTS OF THE COMELEC AND entity or
entity or against an
person
COA AND THE APPLICATION OF person
exercising
entity or
RULE 65 TO OTHER TRIBUNALS, exercising person
judicial,
PERSONS, AND OFFICERS judicial or exercising
quasi-
quasi- ministerial
judicial, or
judicial functions
RULE 64 RULE 65 ministerial
functions
Directed to any functions
Directed only to the
tribunal, board, or Entity or
judgments, final
officer exercising person is
orders or resolutions
judicial or quasi- alleged to
of COMELEC and COA Entity or person is alleged to
judicial functions have:
Filed within 30 days Filed within 60 days have acted:
(1)
from notice of the from notice of the (1) Without jurisdiction
Neglected a
judgment judgment (2) In excess of jurisdiction;
ministerial
Fresh period rule does or
duty; or
not apply. Rule 64, Fresh period rule (3) With grave abuse of
(2) Excluded
sec. 3 (supra) is applies discretion amounting to lack
another
applicable. or excess of jurisdiction
from a right
or office
E. CERTIORARI, PROHIBITION,
MANDAMUS PURPOSE:
PURPOSE:
For
PURPOSE To have
E.1 DEFINITIONS AND DISTINCTIONS respondent
To annul or respondent
Certiorari is a writ emanating from a to: (1) do the
nullify a desist from
superior court directed against an inferior act required,
proceeding further
court, tribunal, or officer exercising judicial or and (2) pay
proceeding
quasi-judicial functions, the purpose of which damages
is to correct errors of jurisdiction—i.e. without Covers
or in excess of jurisdiction, or with grave Covers discretionary Covers
abuse of discretion amounting to the same. discretionary and ministerial
[Sec. 1, Rule 65] acts ministerial acts
acts
Prohibition is a writ issued by a superior Negative and
Corrective
court and directed against an inferior court, preventive
remedy: May be
board, officer or other person whether remedy
To correct affirmative,
exercising judicial, quasi-judicial, or To restrain or
usurpation positive, or
ministerial functions for the purpose of prevent the
of negative
preventing or restraining the latter from said
jurisdiction
usurping jurisdiction with which it is not usurpation
legally vested. [Sec. 2, Rule 65]
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GENERAL RULE: Where appeal is or to alter or review the action taken in the
available, certiorari will not lie. [Jose v. proper exercise of the discretion of judgment,
Zulueta, G.R. No. L-16598(1961)] for the writ cannot be used as a writ of error
EXCEPTIONS: or other mode of direct review.
(1) Where the appeal does not constitute a However, in extreme situations generally in
speedy and adequate remedy criminal cases, mandamus lies to compel the
(2) Where orders were also issued either in performance of the fiscal of discretionary
excess or without jurisdiction functions where his actuations are
(3) For certain special considerations, as tantamount to a wilful refusal to perform a
public welfare or public policy required duty. [REGALADO]
(4) Where, in criminal actions, the court
rejects the rebuttal evidence for the Grounds for M andam us:
prosecution as, in case of acquittal, there (1) When any tribunal, corporation, board,
could be no remedy officer or person, UNLAWFULLY
(5) Where the order is a patent nullity NEGLECTS the performance of an act
(6) Where the decision in the certiorari case which the law specifically enjoins as a duty
will avoid future litigations [Villarica resulting from an office, trust, or station.
Pawnshop v. Gernale, G.R. No. (2) When any tribunal, corporation, board,
163344(2009) officer, or person, UNLAWFULLY
EXCLUDES another from the due and
WHEN PETITION FOR PROHIBITION IS enjoyment of a right or office to which the
PROPER other is entitled. [Sec. 3, Rule 65]
Prohibition is a preventive remedy. However, Mandamus is the proper remedy when the
to prevent the respondent from performing respondent unlawfully excludes the petitioner
the act sought to be prevented during the from an office to which the latter is entitled
pendency of the proceedings for the writ, the without usurping, intruding into or unlawfully
petitioner should obtain a restraining order holding the office.
and/or writ of preliminary injuction. On the other hand, if the respondent claims
[REGALADO] any right to the office and usurps, intrudes
The office of prohibition is not to correct into or unlawfully holds it against the
errors of judgment but to prevent or restrain petitioner, quo warranto is the proper remedy
usurpation by inferior tribunals and to [FERIA]
compel them to observe the limitation of their
jurisdictions. [HERRERA] E.4 INJUNCTIVE RELIEF
of the proceedings before a public (5) Where petitioner was deprived of due
respondent, applying Sec. 7, Rule 65. process and there is extreme urgency for
The public respondent shall proceed with the relief
principal case WITHIN 10 DAYS from filing of (6) Where, in a criminal case, relief from an
the petition for certiorari with the higher court, order of arrest is urgent and granting such
absent a TRO or preliminary injunction, or relief by trial court is improbable
upon its expiration. Failure may be a ground (7) Where the proceedings in the lower court
for an administrative charge [AM No. 07-7-12- are a nullity for lack of due process
SC] (8) Where the proceeding was ex parte or in
EXCEPTIONS: which the petitioner had no opportunity to
(1) W hen a writ of preliminary object
injunction or TRO is issued: The (9) Where the issue raised is one purely of law
burden is on petitioner to show that there or where public interest is involved
are meritorious grounds, i.e. there is an (10) Where the subject matter of the
urgent necessity in order to prevent action is perishable [Ombudsman v. Laja,
serious damage; or G.R. No. 169241(2006)]
(2) Judicial courtesy:Even if there is no
injunction issued, lower court should defer E.6 RELIEFS PETITIONER IS
to higher court where there is a strong ENTITLED TO
probability that the issues before the RELIEFS, IN GENERAL
higher court would be rendered “moot and Petitioner may be entitled to:
moribund as a result of the continuation of (1) Injunctive relief – Court may may issue
the proceedings in the” court of origin. orders expediting the proceedings, and it
[Republic v. Sandiganbayan, G.R. No. may also grant a temporary restraining
166859(2006)] order or a writ of preliminary injunction for
the preservation of the rights of the parties
E.5 EXCEPTIONS TO FILING MOTION [Sec. 7, Rule 65]
FOR RECONSIDERATION BEFORE (2) Incidental reliefs as law and justice may
FILING PETITION require [Secs. 1-2, Rule 65]
GENERAL RULE: An MR is an essential (3) Other reliefs prayed for or to which the
precondition for the filing of a petition for petitioner is entitled [Sec. 8, Rule 65]
certiorari, prohibition, or mandamus. It is a
plain, speedy, and adequate remedy. This is PRAYERS
to enable the lower court, in the first instance, (1) In certiorari
to pass upon and correct its mistakes without (a) That the judgment be rendered
the intervention of the higher court annulling or modifying the proceedings
EXCEPTIONS: of such tribunal, board or officer; and
MR may be dispensed with in some cases: (b) Granting such incidental reliefs as law
(1) Where the order is a patent nullity and justice may require [Rule 65, Sec. 1]
(2) Where questions raised in the certiorari (2) In prohibition
proceeding have been duly raised and (a) That the judgment be rendered
passed upon by the lower court, or are the commanding the respondent to desist
same as those raised and passed upon in from further proceedings in the action
the lower court or matter specified; or
(3) Where there is urgent necessity for the (b) Otherwise granting such incidental
resolution of the question and any further reliefs as law and justice may require
delay would prejudice the interests of the [Rule 65, Sec. 2]
Government (3) In mandamus
(4) Where under the circumstances, an MR (a) That the judgment be rendered
would be useless, as where the court had commanding the respondent,
already indicated that it would deny any immediately or at some other time to
motion for reconsideration of its be specified by the court, to do the act
questioned order
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(1) That such respondent is ousted and (d) Taking must be for public use
altogether excluded therefrom; and (e) There must be genuine necessity to take
(2) That petitioner or relator, as the case may the property [Manapat v. CA, G.R. No.
be, recover his costs; and 110478 (2007)]
(3) Court may further determine the There is taking when the expropriator enters
respective rights in and to the public office, private property not only for a momentary
position, or franchise of all parties. [Sec. 9] period but for a more permanent duration for
the purpose of devoting the property to a
F.8. RIGHTS OF A PERSON public use in such a manner as to oust the
ADJUDGED ENTITLED TO PUBLIC owner and deprive him of all the beneficial
enjoyment thereof. [RP v. Sarabia, G.R. No.
OFFICE 157847 (2005)]
Rights of persons adjudged entitled to office
Public use means public usefulness, utility,
[Sec. 10]:
or advantage, or what is productive of the
(1) Execution of the office
general benefit, so that any appropriation of
After taking oath of office and executing
private property by the State under its right of
any official bond required by the law
eminent domain, for purposes of great
(2) Demand from respondent all the books
advantage to the community, is a taking for
and papers appertaining to the office to
public use. [Reyes v. National Housing
which judgment relates.
Authority, G.R. No.147511 (2003)]
Respondent’s neglect or refusal to comply
with the demand is punishable by
contempt G.3. MATTERS TO ALLEGE IN
(3) Bring an action for damages against COMPLAINT FOR EXPROPRIATION
respondent for damages sustained by him Contents of the Complaint
by reason of the usurpation. The complaint shall:
Must be commenced within 1 year after entry (1) State with certainty the right and purpose
of judgment establishing petitioner’s right of expropriation
to the office in question [Sec. 11] because it NOTE: Where the right of the plaintiff to
is not proper that the title to public office expropriate is conferred by law, complaint
should be subjected to continued does not have to state with certainty the
uncertainty, and the people’s interest right of expropriation [Manila Railroad Co.
requires that such right should be v. Mitchel (1923)]
determined as speedily as practicale [Cuyo (2) Describe the real or personal property
v. City Mayor, G.R. No. L-9912(1957)] sought to be expropriated
(3) Join defendants
G. EXPROPRIATION All persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing separate interest of each
G.1. NATURE defendant, as far as practicable
Eminent Domain is the right and authority (4) Make the following averments, if needed:
of the State, as sovereign, to take private (a) If title appears to be in the Republic,
property for public use upon observance of although occupied by private
due process and payment of just individuals
compensation. (b) If title is otherwise obscure or doubtful
so that plaintiff cannot with accuracy or
It is in the nature of a compulsory sale to the certainty specify who the real owners
State. are [Sec. 1, Rule 67]
[Barangay San Roque v. Heirs of Pastor, G.R. Preliminary deposit [Sec. 2, Rule 67]:
No. 138816 (2000)] • Provide damages if court finds
There is no reason for the institution of that the plaintiff has no right to
expropriation proceedings when the owner is expropriate
willing to part with his property. The Purposes • Advance payment for just
commencement of the complaint for compensation, if property is
expropriation is necessary only when the finally expropriated [Visayan
owner does not agree to sell his property, or if Refining Co. v. Camus (1919)]
he is willing to sell but does not agree with If Real Property: Equivalent to
the price offered. [RIANO] the assessed value of the property
for purposes of taxation.
Value
G.4. TWO STAGES IN EVERY ACTION If Personal Property: Value
shall be provisionally ascertained
FOR EXPROPRIATION and fixed by the court.
(First Stage) Propriety of With the authorized government
Expropriation: Where to depositary. (Amount is to be held
Determination of the authority of the plaintiff deposit by such bank subject to the orders
to exercise the power of eminent domain and of the court.)
the propriety of its exercise in the context of General Rule: Money.
the facts involved. This ends with either: Exception: In lieu of money, court
(1) An order of dismissal, or authorizes deposit of a certificate of
(2) An order of expropriation Form of
deposit of a government bank of
Deposit
(Second Stage) Just Com pensation: the Republic, payable on demand
Determination of the just compensation for to the authorized government
the property sought to be taken. [HERRERA] depositary.
NOTE: Multiple appeals are allowed in
expropriation. Aggrieved party may appeal in The deposit shall be in money unless in
each stage separately. lieu thereof the court authorizes the
deposit of a certificate of deposit of a
G.5. WHEN PLAINTIFF CAN government bank of the RP payable on
IMMEDIATELY ENTER INTO demand to the authorized depositary
POSSESSION OF THE REAL [HERRERA]
PROPERTY, IN RELATION TO R.A. After the deposit, court shall order sheriff
NO. 8974 or proper officer to place plaintiff in
Plaintiff shall have the right to take or enter possession of the property. Such officer
upon possession of the real property upon: shall promptly submit a report to the
(1) Filing of complaint or at any time court with service of copies to parties.
thereafter, and after due notice to NOTE: Preliminary deposit is only
defendant necessary if the plaintiff desires entry on
(2) Making preliminary deposit [Sec. 2, Rule the land upon its institution of the action.
67]
Otherwise, he could always wait until the
order of expropriation is issued before it
enters upon the land.
Once the preliminary deposit has been
made, the expropriator is entitled to a
writ of possession as a matter of right,
and the issuance of said writ becomes
ministerial on the part of the trial court.
[Biglang-Awa v. Bacalla, G.R. No.
139927(2000)]
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Republic Act No. 8974 (2000): upon the filing of the filing of the complaint,
An Act to Facilitate the Acquisition of and after due notice to the defendant, the
Right-of-Way, Site or Location for implementing agency shall immediately pay
National Government Infrastructure the owner of the property the amount
equivalent to the sum of:
Projects and for Other Purposes
(1) 100 percent of the value of the property
Sec. 2, Rule
RA 8974 based on the current relevant zonal
67
Only when valuation of the BIR; and
national (2) The value of the improvements and/or
Expropriation government structures as determined under Sec. 7 of
in general, expropriates R.A. 8974, supra [Sec. 4, RA 8974]
Scope for both real real property for
and personal national G.7. DEFENSES AND OBJECTIONS
properties government [Sec. 3, Rule 67]
infrastructure No Objection to or
projects With Objection to or
Defense against
Government is Defense against Taking
Taking
required to What to file and serve
Government
make
For writ of is required to Notice of appearance Answer to the
immediate
possession make and manifestation complaint
payment to
to issue preliminary
owner upon Period to file
deposit
filing of Time stated in the summons
complaint Contents
Equal to the (1) Specifically
market value of designating/identi
the property as (1) Manifestation to fying the property
stated in the tax the effect that he in which he claims
declaration or has no objection to have an interest
Equal to
current relevant or defense; in;
assessed
Amount of zonal value of (2) Specifically (2) Nature and extent
value of real
payment or BIR, whichever designating/ident of the interest;
property for
deposit is higher, and ifying the and
purposes of
value of property in which (3) ALL his objections
taxation
improvements he claims to be and defenses to
and/or interested the complaint or
structures using any allegation
replacement therein
cost method
Prohibited
Counterclaim, cross-
Applicable Special Laws: claim, third party
(1) R.A. No. 8974 specifically governs complaint in any
expropriation for national government pleading
infrastructure projects
(2) Sec. 19, Local Gov’t Code governs the Amended answers
exercise of the power of eminent domain A defendant waives all defenses and
by LGUs through an enabling ordinance objections not so alleged, but the court, in the
interest of justice, may permit amendments
G.6. NEW SYSTEM OF IMMEDIATE to the answer not to be made later than ten
PAYMENT OF INITIAL JUST (10) days from filing thereof.
COMPENSATION
For the acquisition of right-of-way, site or Just compensation may be proven with or
location for any national government without objections/defense, and whether or
infrastructure project through expropriation, not defendant appeared/answered: In any
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case, in the determination of just such terms as the court deems just and
compensation, defendant may present equitable; and
evidence as to the amount of compensation (2) Order forecloses any further objections to
to be paid. the right to expropriate, including the
public purpose of the same. [Robern
Effect of failure to file answer Development Corporation v. Quitain, G.R.
Failure to file answer does not produce all No. 135042 (1999)]
consequences of default as in ordinary civil Multiple appeals are permitted in
actions: expropriation. An appeal may be taken from
(1) There is default as to the first stage of the order authorizing expropriation and,
expropriation, supra; but thereafter, another appeal on the judgment
(2) Said judgment is without prejudice to the on the just compensation to be paid. Thus,
second stage, i.e. defendant still has the the reglementary period to appeal shall be 30
right to present evidence on the just days and a record on appeal shall be required
compensation and to share in the for each of the permissible appeals
distribution of the award. [Robern [REGALADO]
Development Corporation v. Quitain, G.R.
No. 135042 (1999)] G.9. ASCERTAINMENT OF JUST
COMPENSATION [Sec. 5, Rule 67]
G.8. ORDER OF EXPROPRIATON Upon rendition of the Order of Expropriation,
[Sec. 4, Rule 67] the court issues an Order of Appointment.
ORDER OF EXPROPRIATION
It is the order declaring that the plaintiff has ORDER OF APPOINTMENT
lawful right to take the property. (1) Court appoints not more than 3
commissioners to ascertain and report to
W hen Issued the court the just compensation for the
It is issued when: property
(1) Objections or defenses against the right of (2) Contents: Order shall
plaintiff to expropriate are overruled; or (a) Designate the time and place of the
(2) No party appears to defend the case first session of hearing to be held by
commissioner
Contents of the Order (b) Specify the time within which their
(1) That the plaintiff has a lawful right to take report shall be submitted to court
the property sought to be expropriated: (3) Procedures:
(2) For the public use or purpose described in (a) Copies of the Order shall be served on
the complaint; and the parties
(3) Upon payment of just compensation (4) Objections to appointment:
(a) To be determined as of the date of (a) Filed with the court within 10 days from
taking, or service
(b) The filing of the complaint, whichever (b) Objections shall be served to all
came first. commissioners
(c) Resolved within 30 days after all
REMEDY OF DEFENDANT commissioners shall have received
Order of condemnation is final, not copies
interlocutory. Hence, it is appealable.
JUST COMPENSATION
NOTE: Appeal shall not prevent court a quo The full and fair equivalent of the property
from determining just compensation. taken from its owner by the expropriator. Just
compensation means not only (1) the correct
EFFECTS OF THE ORDER determination of the amount to be paid but
(1) Plaintiff not permitted to dismiss or also the (2) payment of the land within a
discontinue the proceeding, except on reasonable time from its taking. [Land Bank
of the Phils. v. Obias, G.R. No. 184406 (2012)]
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defendant (as to his right to just have the right to recover possession of their
compensation) property. [Yujuico v. Atienza, G.R. No.
164282(2005)]
The appointment of commissioners to
ascertain just compensation for the property G.12. EFFECT OF RECORDING OF
sought to be taken is a mandatory JUDGMENT
requirement in expropriation cases. [RIANO] Contents of the Judgment
(1) Statement of the particular property or
The trial with the aid of the commissioners is interest therein expropriated, with
a substantial right that may not be done adequate description; and
away with capriciously or for no reason at all. (2) Nature of the public use or purpose for
The absence of such trial or hearing which it is expropriated. [Sec. 13]
constitutes a violation of the right to due
process [NPC v de la Cruz, G.R. No. W hen title to property vests:
156093(2007)] (1) If personal property, upon payment of just
compensation [Sec. 10]
G.11. RIGHTS OF PLAINTIFF UPON (2) If real property, upon (i) payment of just
JUDGMENT AND PAYMENT [Sec. 10, compensation and (ii) registration of
Rule 67] property (by recording of the judgment in
RIGHTS the registry of deeds where the property is
Either: situated.) [Sec. 13]
(1) Right to retain: Applies when plaintiff
immediately entered upon the property H. FORECLOSURE OF REAL
after making the required deposit (and ESTATE MORTGAGE
therefore already has possession of the
property), supra. H.1. NATURE
(2) Right to enter and appropriate:
Foreclosure of Mortgage is a proceeding
Applies when plaintiff does not take
by which the mortgagee or his successors or
immediate possession of the property.
one who has by law succeeded to the rights
Appropriation must be for the public use
and liabilities of the mortgagee undertakes to
or purpose defined in the judgment.
dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the
Conditions for exercise:
mortgagors or those who have succeeded to
(1) Upon payment by plaintiff to defendant of
the rights and liabilities of the mortgagor.
compensation fixed by judgment, with
legal interest from taking; or
The cause of action in a foreclosure suit is
(2) After tender to defendant of the said
generally the non-payment of the mortgage
amount and payment of the costs.
loan, but it may be on other grounds which
N.B. If defendant or counsel absent
under the contract warrant the foreclosure,
themselves from the court or decline the
such as the violation of the other conditions
amount tendered, the amount shall be
therein.
deposited in court and shall have the
effect of actual payment.
Foreclosure may be made:
(1) Judicially: governed by Rule 68
EFFECT OF NON-PAYMENT OF JUST (2) Extrajudicially: proper only when so
COMPENSATION provided in contracts in accordance with
Non-payment of just compensation does not Act No. 3135; governed by AM No. 99-10-
entitle the private landowner to recover 05.
possession of the expropriated lots. However,
in cases where the government failed to pay
just compensation within 5 years from the
finality of judgment in the expropriation
proceedings, the owners concerned shall
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If the order of foreclosure sale does not push authorized agent, or any other person
through, there is a need for re-publication entitled to it. [Sec. 4, Rule 68]
and reposting of the notice thereof
[Metrobank v. Nikko Resources Int’l Corp., G.R. H.6. DEFICIENCY JUDGMENT;
No. 178479 (2009)] INSTANCES WHEN COURT CANNOT
RENDER DEFICIENCY JUDGMENT
ORDER OF CONFIRMATION
When confirmed by an order of the court, also [Sec. 6, Rule 68]
upon motion, it shall operate to divest the Deficiency Judgm ent is judgment
rights in the property of all the parties to the rendered by the court holding defendant
action and to vest their rights in the liable for any unpaid balance due to the
purchaser, subject to such rights of mortgagee if the proceeds from the
redemption as may be allowed by law. [Sec. foreclosure sale do not satisfy the entire debt.
3] [Sec. 6]
Confirmation of the sale of mortgaged real A motion for deficiency judgment may be
property vests title in the purchaser including made only after the sale and after it becomes
the equity of redemption. It retroacts to the known that a deficiency exists. [Governor of
date of the sale. It cuts off all the rights or the Philippine Islands v. Torralba Vda. de
interests of the mortgagor and of the Santos, G.R. No. 41573(1935)]
mortgagee. [Lonzame v. Amores, G.R. No. L- NOTE: If the debtor dies, the deficiency may
53620 (1985)]. be filed as a claim against his estate. [Sec. 7,
The motion for the confirmation of the sale Rule 86]
requires a hearing to grant an opportunity to A deficiency judgment is an action in
the mortgagor to show cause why the sale personam while a judgment of foreclosure is
should not be confirmed [Tiglao v. Botones, an action quasi in rem.
G.R. No. L-3619(1951)] (e.g. by proof of
irregularities therein, gross inadequacy of the How Done:
price, lack of notice vitiates the confirmation (1) Judgment creditor files motion for
of the sale). [REGALADO] deficiency judgment.
(2) Court shall then render judgment against
defendant for any such balance for which
WRIT OF POSSESSION
he may personally be liable to plaintiff.
Upon the finality of the order of confirmation
(3) Execution may then issue immediately if
or upon the expiration of the period of
balance is all due at the time of rendition
redemption when allowed by law, the
of judgment.
purchaser at the auction sale or last
If not, plaintiff shall be entitled to
redemptioner, if any, shall be entitled to the
execution at such time as the balance
possession of the property.
remaining becomes due. [Sec. 6]
EXCEPTION: Third party is actually holding
the same adversely to the judgment obligor.
W hen deficiency judgment cannot be
rendered:
H.5. DISPOSITION OF PROCEEDS OF (1) Under the Recto Law [Art. 1484, par. 3,
SALE Civil Code].
(1) Amount realized from the foreclosure sale, (2) When mortgagor is a non-resident and is
less costs of the sale, shall be paid to the not found in the Philippines. (Rationale:
person foreclosing. The proceeding would be procedurally
(2) When there is a balance or residue after infeasible as a deficiency judgment is in
paying the mortgage debt, the same shall personam, and under this situation,
be paid to junior encumbrancers in the jurisdiction over the obligor cannot be had.
order of priority as ascertained by the [RIANO])
court. (3) When mortgagor dies, mortgagee may file
(3) If there are no junior encumbrancers, the his claim with the probate court. [Sec. 7,
residue goes to the mortgagor or his Rule 86]
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sale itself, provided it be before the order of (3) When partition is prohibited by law (e.g.
the confirmation of sale. [Rosales v. Alfonso ACP, party wall); [Art. 494, Civil Code]
(1999)] (4) When the property is not subject to a
physical division and to do so would
I. PARTITION render it unserviceable for the use for
which is it intended; [Art. 495, Civil Code]
or
I.1. NATURE (5) When the condition imposed upon
Partition is the process of dividing and
voluntary heirs before they can demand
assigning the property owned in common
partition has not yet been fulfilled. [Art.
among the various co-owners thereof in
1084, Civil Code]
proportion to their respective interests in said
property.
I.4. WHO MAY FILE COMPLAINT;
Partition may be: WHO SHOULD BE MADE
(1) Judicial – Procedure is Rule 69 DEFENDANTS [Sec. 1, Rule 69]
(2) Extrajudicial – No court intervention W ho May File
require A person having the right to compel partition
The partition of property may be made of real estate, or of personal property, or both
voluntarily (by agreement) or compulsorily real and personal property [Sec. 1, Sec. 13]
under the Rules. Even if the parties had
resorted to judicial partition, they may still Venue and Jurisdiction
make an amicable partition of the property. An action for partition should be filed in the
[Sec. 12] RTC of the province where the property or
An action for partition and accounting under part thereof is situated.
Rule 69 is in the nature of an action quasi in An action for partition is not a conveyance of
rem. Such an action is essentially for the property. [Heirs of Urieta, Sr. v. Heirs of Urieta
purpose of affecting the defendant’s interest (2011)] Because the controversy in partition is
in a specific property and not to render a whether or not the plaintiff has a right to
judgment against him. partition, the issue is incapable of pecuniary
estimation. [RIANO]
I.2. WHEN CAN PARTITION BE
MADE Parties
GENERAL RULE: It can be made anytime. (1) The plaintiff is the person who is supposed
The right to demand partition is to be a co-owner of the property. [RIANO]
imprescriptible. (2) Defendants are (i) all the co-owners, who
are indispensable parties, and (ii) all other
Rationale: Prescription does not run persons having an interest in the property
against a co-owner. No co-owner shall be [Id., citingMORAN]
obliged to remain in the co-ownership.
EXCEPTION: If a co-owner asserts adverse I.5. MATTERS TO ALLEGE IN THE
title to the property, in which case, period of COMPLAINT FOR PARTITION
prescription runs from such time of assertion Contents of the Complaint:
of adverse title. [De Castro v. Echarri, G.R. No. (1) Nature and extent of his title
5609 (1911)] (2) Adequate description of the real estate
sought to be partitioned
I.3. WHEN PARTITION CANNOT BE (3) Joining of Defendants – All other persons
MADE: interested in the property [Sec. 1]
(1) When there is a stipulation against it, not (4) Demand for accounting of the rents,
exceeding 10 years; [Art. 494, Civil Code] profits, and other income from the
(2) When partition is prohibited by the donor property to which he may be entitled to as
or testator for a period not exceeding 20 his share. [Sec. 8] Since these cannot be
years; [Arts. 494, 1083, Civil Code] demanded in another action (because they
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are part of the cause of action for The parties may make the partition
partition), they are barred if not set up. proper them selves, by agreem ent:
[RIANO] (1) After the issuance of the order of partition,
the parties will be asked if they agree to
I.6. TWO STAGES IN EVERY ACTION make partition of the property among
FOR PARTITION themselves.
(2) If they agree, proper instruments of
FIRST STAGE: DETERMINATION OF THE
conveyance will be executed to effect the
PROPRIETY OF PARTITION partition.
This involves a determination of whether the
(3) After the execution of instruments of
subject property is owned in common and
conveyance, the court shall confirm the
whether all the co-owners are made parties
partition through a final order.
in the case. [See Lacbayan v. Samoy, G.R. No.
(4) The final order of partition and the
165427(2011)]
instruments of conveyance shall be
The order may also require an accounting of
registered with the Registry of Deeds
rents and profits recovered by the defendant.
where the property is situated. [Sec. 2,
This order of partition is appealable. [Miranda
Rule 69]
v. Court of Appeals, G.R. No. L-33007(1976)]
If not appealed, then the parties may
partition the common property in the way I.8. PARTITION BY
they want. If they cannot agree, then the case COMMISSIONERS; APPOINTMENT
goes into the second stage. However, the OF COMMISSIONERS;
order of accounting may in the meantime be COMMISSIONER’S REPORT; COURT
executed. [De Mesa v. CA, G.R. ACTION UPON COMMISSIONER’S
No.109387(1994)]
REPORT
W hen proper
SECOND STAGE: ACTUAL If parties fail to agree on the manner of
PARTITIONING OF THE SUBJECT partition, commissioners are appointed to
PROPERTY make partition.
This is also a complete proceeding and the
order or decision is appealable. How Done
The court appoints not more than 3
When there was a prior partition, the fact that competent and disinterested commissioners
the share of each co-heir has not been to make the partition. [Sec. 3]
technically described and the title over the
whole lot remains uncancelled does not OATH OF THE COMMISSIONERS
negate such partition. Before entering into their duties,
There can be no partition again because commissioners must first make an oath that
there is no more common property. [Noceda v. they will faithfully perform their duties as
CA, G.R. No. 119730 (1999)] commissioners. Such oath is to be filed in
The action for partition is subject to multiple court. [Sec. 4]
appeals and would require a record on
appeal [Roman Catholic Archbishop of Manila
DUTIES OF THE COMMISSIONERS
v. CA, G.R. No. 77425 (1991)]
(1) They shall view and examine real estate,
after due notice to parties to attend at
I.7. ORDER OF PARTITION AND such view and examination;
PARTITION BY AGREEMENT (2) They shall hear the parties as to their
ORDER OF PARTITION preference in the portion to be set apart to
The court issues an order of partition AFTER them;
the trial and the court finds that the plaintiff (3) They shall also determine the comparative
has a right to partition. The court orders the value thereof; and
partition of the property. (4) They shall set apart the same to the
parties in lots or parcels as will be most
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advantageous and equitable considering (a) Upon expiration of the 10 day period for
the improvements, situation, and quality filing objections; or
of the parts thereof. (b) Even before expiration but after the
The provision authorizes the commissioners interested parties have filed their
merely to make or effect the partition. It does objections or their statement of
not grant them the authority to adjudicate on agreement therewith
questions of title or ownership. [RIANO] (2) The court may:
(a) Accept the report and render judgment
ASSIGNMENT OF REAL ESTATE TO ONE in accordance therewith; or
PARTY (b) Recommit the same to commissioners
GENERAL RULE: If the commissioners for further report of facts, for cause
should determine that the real estate cannot shown; or
be divided without prejudice to the interests (c) Set aside the report and appoint new
of the parties, the court may order that the commissioners; or
property be assigned to one of the parties (d) Accept the report in part and reject in
willing to take the same provided he pays to part; and
the other parties such amounts as the (e) Make such order and render such
commissioners deem equitable. judgment as shall effectuate a fair and
EXCEPTION: If one of the parties asks that just partition of the real estate, or of its
the property be sold instead of being so value, if assigned or sold
assigned, then the court shall order the
commissioners to sell the real estate at public I.9. JUDGMENT AND ITS EFFECTS
sale under such conditions and within such [Sec. 11, Rule 69]
time as the court may determine [Sec. 5]
Contents of Judgment Effects of Judgment
Requisites of Assignm ent: If actual partition is properly made
(1) Assignment is in favor of one of the parties, Judgment shall state
not to 3rd persons definitely, by metes
Judgment shall vest
(2) Payment to the other parties in each party to the
and bounds and
(3) Amount to be paid is based on the action in severalty the
adequate description,
amounts which the commissioners deem portion of the real
the particular portion
equitable estate assigned to
of the real estate
(4) Other interested parties do not ask the him.
assigned to each party.
court that the property be sold instead. If the whole property Is assigned to one of the
parties after payment
COMMISSIONER’S REPORT Judgment shall vest
Judgment shall state
Commissioners shall make a full accurate in the party making
the fact of such
report to the court on: the payment the
payment and of the
(1) All proceedings as to the partition, or whole of the real
assignment of the real
(2) The assignment of real estate to one of estate free from any
estate to the party
the parties, or interest on the part of
making the payment.
(3) The sale of the same. the other parties.
If property is sold and sale is confirmed by the
Upon filing of Com m issioner’s Report: court
(1) Clerk shall serve copies on all interested
parties with notice that they are allowed to Judgment shall state
file objections Judgment shall vest
the name of the
(2) Parties may file objections within 10 days the real estate in the
purchaser or
upon receipt of notice purchaser(s), making
purchasers and a
the payment(s) free
definite description of
from the claims of
HEARING ON THE REPORT [Sec. 7] the parcels of real
any parties to the
(1) When Conducted: estate sold to each
action.
purchaser
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(a) Date of last demand to vacate in case W hat must be alleged in the
of non-payment of rent or non- com plaints:
compliance with conditions of the Forcible Entry Unlawful Detainer
lease; or (1) That plaintiff was (1) That defendant is
(b) Date of notice to quit, in case of tacit in prior physical unlawfully
renewal of lease; or possession of the withholding
(c) Date of revocation of the permit in case property in possession from
of occupancy on mere tolerance or litigation until he plaintiff because
under temporary permit. was deprived his right to possess
thereof by had expired
Against whom may the action be defendant (2) That landlord has
maintained: Person or persons unlawfully (2) That the made a demand
dispossession upon tenant to
withholding or depriving of possession, or any
was through comply with the
person/s claiming under them [Sec. 1].
FISTS. [NOTE: terms of the
Action may be maintained only against one in
First two contract and to
possession at the commencement of the requirements are return the
action. jurisdictional possession of the
Tenant with right of [de facto] possession [Abad v. Farrales, property, and that
may bring action against another tenant. G.R. No. 178635 the tenant failed to
Vendor may bring action for ejectment (2011)] satisfy the demand
against vendee upon failure to pay (3) That the within 15 or 5 days,
installments. complaint was in case of buildings
Action may lie against the very owner of the filed within 1 year (3) That the complaint
property. from is filed within 1 year
Action may be maintained against dispossession. from last demand.
government officials or agents acting in [Romullo v.
behalf of the government, even if government Samahang
is not made a party to the action. [REGALADO] Magkakapitbahay,
G.R. No. 180687
J.6. PLEADINGS ALLOWED (2010)]
ONLY allowed pleadings:
(1) Complaint Mere failure to pay rent does not ipso facto
(2) Compulsory Counterclaim pleaded in the make unlawful the tenant’s possession. It is
answer the demand to vacate and refusal to vacate
(3) Cross-claim pleaded in the answer which makes unlawful the withholding of
(4) Respective answers. [Sec. 4, Rule 70] possession [Canaynay v. Sarmiento, G.R. No.
L-1246(1947)]
NOTE: Pleadings must be VERIFIED. [Sec. 4,
Rule 70] J.7. ACTION ON COMPLAINT
MOTU PROPRIO DISMISSAL
From the examination of allegations in the
complaint, the court may dismiss the case
outright on any grounds mentioned in Rule 16.
[Sec. 5]
ISSUANCE OF SUMMONS
If there is no ground for dismissal, court
issues summons. [Sec. 5]
ANSWER BY DEFENDANT
Defendant shall file his answer within 10 days
from service of summons. [Sec. 6]
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decide the motion within 30 days from filing. (a) Hence, if prior possession may be
[Sec. 30] ascertained in some other way, the
Preliminary mandatory injunction shall be inferior court cannot intrude into the
available: issue of ownership.
(1) At the start of the action; [Sec. 15] (5) Where the question of who has prior
(2) On appeal to the RTC upon motion of possession hinges on the issue of who is
plaintiff within 10 days from perfection of the real owner:
appeal. [Sec. 20] (a) The inferior court may resolve issue of
NOTE: The injunction on appeal is to restore ownership, but such pronouncement is
to plaintiff in possession: merely provisional.
(1) If the court is satisfied that the (b) It does not bar or prejudice an action
defendant’s appeal is frivolous or dilatory; between the same parties involving
or title. [Refugia v. CA, G.R. No.
(2) That the appeal of plaintiff is prima facie 118284(1996)]
meritorious. [Sec. 20] Judgment for ejectment cannot be enforced
MTC can also issue a preliminary mandatory against a co-owner who was not made a
injuction in an unlawful detainer case. [Day v. party to the action. [Cruzcosa v. Concepcion,
RTC of Zamboanga, G.R. No. 71119 (1990)] G.R. No. L-11146 (1957)]
appeal that may be taken therefrom. [Sec. 21, administration of justice. [Siy v. NLRC, G.R.
Rule 70] No. 158971(2012)]
The power to declare a person in contempt of
J.12. SUMMARY PROCEDURE, court and in dealing with him accordingly is
PROHIBITED PLEADINGS an inherent power of the court. It is used as a
GENERAL RULE: All actions for forcible means to protect and preserve the dignity of
entry and unlawful detainer shall be the court, the solemnity of the proceedings,
governed by the summary procedure of Rule and administration of justice. [Montenegro v.
70, irrespective of the amount of damages or Montenegro, G.R. No. 156829 (2004)]
unpaid rentals sought to be recovered. [Sec. Contempt proceedings have a dual function:
3] (a) vindication of public interest by
EXCEPTIONS: punishment of contemptuous conduct; and
(1) In cases covered by the agricultural (b) coercion to compel the contemnor to do
tenancy laws; or what the law requires him to uphold the
(2) When the law otherwise expressly power of the Court, and also to secure the
provides. [Sec. 3] rights of the parties to a suit awarded by the
Court. [Regalado v. Go, G.R. No. 167988
PROHIBITED PLEADINGS [Sec. 13] (2007)]
(1) Petition for relief from judgment;
(2) Petition for certiorari, mandamus, or
K.2. KINDS OF CONTEMPT;
prohibition against any interlocutory PURPOSE AND NATURE OF EACH
order issued by the court; According to Nature
(1) Criminal contempt: Conduct directed
(3) Reply;
against the authority and dignity of the
(4) Third-party complaints; court or a judge acting judicially.
(2) Civil contempt: Failure to do something
PROHIBITED MOTIONS {Sec. 13} ordered to be done by a court or by a judge
(1) Motion to dismiss; only to exceptions: for the benefit of the opposing party.
(a) Lack of jurisdiction over subject matter; [Lorenzo Shipping v. Distribution
or Management, G.R. No. 155849 (2011)]
(b) Failure to comply with conciliation,
when such is required; Criminal Contempt Civil Contempt
(2) Motion for bill of particulars; Punitive in nature Remedial in nature
(3) Motion for new trial, reconsideration of a Purpose is to provide a
judgment, or reopening of trial; remedy for an injured
Purpose is to preserve
(4) Motion for extension of time to file suitor and to coerce
the court’s authority
pleadings, affidavits, or other paper; compliance with an
and to punish for
(5) Memoranda; order; for the
disobedience of its
(6) Motion to declare defendant in default; preservation of the
orders
rights of private
(7) Dilatory motions for postponement;
persons
(8) Interventions. Intent is necessary Intent is not necessary
Instituted by the
K. CONTEMPT aggrieved party, or his
State is the real successor, or someone
K.1. NATURE prosecutor who has a pecuniary
interest in the right to
Contempt of court is disobedience to the
be protected
court by acting in opposition to its authority, Proof required is more
justice, and dignity. It signifies not only a Proof required is proof
than mere
willful disregard or disobedience to the beyond reasonable
preponderance of
court’s orders but also conduct tending to doubt
evidence
bring the authority of the court and If accused is If judgment is for
administration of law into disrepute, or, in acquitted, there can respondent, there can
some manner, to impede the due be no appeal be an appeal
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JURISDICTION VENUE
Omnibus Election Code SC
• Special Commercial Courts, for • The Sandiganbayan has exclusive
quo warranto against duly original jurisdiction on quo warranto
licensed associations. (CORP. arising or that may arise in cases filed
CODE rules apply, not the RULES under EO 1,2,14, 14-A but this must be
OF COURT.) in aid of its appellate jurisdiction and
not exclusive of the SC.
Apply Rule 4, i.e. where the real property
involved, or a portion thereof, is situated
EXPROPRIATION RTC
In cases of personal property, where the
plaintiff or defendant resides
JUDICIAL Apply Rule 4, i.e. where the real property
RTC
FORECLOSURE involved, or a portion thereof, is situated
PARTITION RTC Apply Rule 4
FORCIBLE ENTRY
Apply Rule 4, i.e. where the real property
AND UNALWFUL MTC
involved, or a portion thereof, is situated
DETAINER
• If committed against RTC or a court
of equivalent or higher rank, or
against an officer appointed by it: File
with such court
• If committed against a first-level
court: File with the RTC of the place
CONTEMPT MTC, RTC, CA, SC
in which lower court is sitting
• If act was committed against persons
or entities exercising quasi-judicial
functions: File with the RTC of the
place wherein contempt was
committed
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FLOWCHART:
SUMMARY PROCEDURE
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(4) Petition for relief from judgment; At the hearing, the judge shall first exert
(5) Motion for extension of time to file efforts to bring the parties to an amicable
pleadings, affidavits, or any other paper; settlement of their dispute. [Sec. 23]
(6) Memoranda; If the attem pt at an am icable
(7) Petition for certiorari, mandamus, or settlement fails, the hearing shall so
prohibition against any interlocutory proceed in an informal and expeditious
order issued by the court; manner and shall be terminated within the
(8) Motion to declare the defendant in same day. [Sec. 23]
default; Any settlement or resolution of the dispute
(9) Dilatory motions for postponement; shall be:
(10) Reply and Rejoinder; (1) Reduced into writing;
(11) Third-party complaints; and (2) Signed by the parties; and,
(12) Interventions. (3) Submitted to the court for approval.
FAILURE TO APPEAR
(1) If plaintiff fails to appear – it shall be
a cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
(2) If defendant fails to appear – same
effect as failure to file Response.
(3) If both plaintiff and defendant fail to
appear – dismissal with prejudice of
both the Statement of Claim and the
Counterclaim. [Sec. 20]
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D. EFFICIENT USE OF PAPER All members of the Court shall share the
extra copies of annexes in the interest of
RULE [AM No. 11-9-4-SC] economy of paper.
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B. JURISDICTION
A. EXTRAJUDICIAL SETTLEMENT OF
ESTATES
The person named executor shall present Due execution of the will m eans:
the will to the court having jurisdiction, (1) That the will was executed strictly in
unless the will has reached it in any manner, accordance with the formalities required
and signify acceptance/refusal of the by law;
trust within 20 days after he knows of the (2) That the testator was of sound and
death of the testator, or within 20 days after disposing mind when the will was
he knows that he is named executor. [Sec. 3, executed;
Rule 75] (3) That there was no vitiation of consent
through duress, fear or threats;
Penalty for neglect without excuse (4) That it was not procured by undue and
satisfactory to the court: Fine not improper pressure or influence on part of
exceeding P2,000 [Sec. 4, Rule 75] beneficiary or other person for his benefit;
(5) That the testator’s signature is genuine
(not procured through fraud, and that the
testator intended that what he executed (3) Probable value and character of the
was his last will and testament) [Festin] property of the estate
(4) Name of the person for whom letters are
A. WHO MAY PETITION FOR prayed
(5) If the will has not been delivered to the
PROBATE; PERSONS ENTITLED TO court, the name of the person having
NOTICE custody of it. [Sec. 2, Rule 76]
and signature of the testator who will attested in the manner required by law. [Sec.
explicitly declare that the will and 11, Rule 76]
signature are in the handwriting of the
testator. (2) Holographic W ill – at least 3
(a) Expert Testimony – may be witnesses who know the
resorted to in the absence of such handwriting of the testator explicitly
competent witness, and if the court declare that the will and the signature are
deems it necessary. in the handwriting of the testator.
(a) Expert testimony may be
If the testator himself petitions for resorted to in the absence of such
probate of holographic will and it is witnesses.
not contested: The fact that he affirms
that the holographic will and the signature If the testator himself petitions for
are in his own handwriting shall be sufficient probate of holographic will and it is
evidence of genuineness and due execution contested: Contestant has the burden of
thereof. [Sec. 12, Rule 76] disproving genuineness. Testator may
present additional proof to rebut contestant’s
It is not mandatory that witnesses be evidence. [Sec. 12, Rule 76]
presented first before expert testimony may
be resorted to unlike in notarial wills wherein Lost will
attesting witnesses must first be presented.
[Azaola v. Singson, G.R. No. L-14003 (1960)] (1) Notarial W ills – even if lost may be
proved
Contested will Facts to be proved in order that
Anyone appearing to contest the will must lost or destroyed will m ay be
state in writing his grounds for opposing the allowed:
allowance and serve a copy to petitioner and (i) Due execution and validity of the
other interested parties. [Sec. 10, Rule 76] will; and
(ii) Existence at the time of testator’s
(1) Notarial W ill – All subscribing death or that it has been
witness and the notary if present in the fraudulently or accidentally
Philippines and not insane must be destroyed during testator’s lifetime
presented. [Sec. 11, Rule 76] without his knowledge; and
(a) If dead, insane or absent – said (iii) Provisions of the will (clearly and
fact must be satisfactorily shown in distinctly proved by at least two
court. credible witnesses)
(b) If present in the Philippines but
outside the province – deposition If lost will is proved, its provisions must be
may be taken. distinctly stated and certified by the judge,
under seal of court, and the certificate must
Can testimony of the subscribing be filed and recorded as other wills are filed
witnesses be dispensed with in a and recorded. [Sec. 6, Rule 76]
contested will?
YES. If all or som e of the subscribing (2) Holographic W ills
witness General Rule: If a holographic will has
i) testify against the due execution of the will; been lost or destroyed and no other copy
or ii) do not remember having attested to it; is available, the will cannot be probated
or because the best and only evidence is the
iii) are otherwise of doubtful credibility handwriting of the testator in said will.
Exception: A photostatic copy or xerox of
Court may allow the will if it is satisfied from the holographic will may be allowed
testimony of other witnesses and evidence because comparison can be made with the
presented that the will was executed and standard writings of the testator. [Rodelas
v. Aranza, G.R. No. L-58509 (1982)]
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The list is exclusive. [Sps Ajero v. CA, G.R. Effect of Probate of W ill
No. 106720 (1994)] Decree of probate is conclusive as to its due
execution, subject to the right of appeal.
(Thus, no suit for forgery of a will which has
D. REPROBATE been duly probated with the order becoming
final).
Wills proved and allowed in a foreign country,
according to the laws of such country, may be If a decision admitting a will to probate
allowed, filed, and recorded by the proper becomes final, there can no longer be any
Court of First Instance in the Philippines (now challenge to its due execution and
RTC). [Sec. 1, Rule 77] authenticity. Thus, a criminal action will not
lie against an alleged forger of a will which
Requisites for Allowance had been duly admitted to probate by a court
(1) Duly authenticated Copy of the will; of competent jurisdiction. [Mercado v. Santos,
(2) Duly authenticated Order or decree of the G.R. No. 45629 (1938)]
allowance in foreign country;
Order allowing or disallowing a will may be
A petition for allowance in the Philippines the subject of an appeal. [Sec. 1, Rule 109]
may be filed by executor or other person
interested. The Court having jurisdiction shall
fix a time and place for the hearing and cause
notice thereof to be given as in case of an
original will presented for allowance. [Sec. 2,
Rule 77]
Who may administer the estate of a deceased Married woman may serve as executor or
person? administrator and a marriage of a single
(1) Executor woman shall not affect her authority so to
(2) Administrator serve under a previous appointment. [Sec. 3,
Rule 78]
Executor Administrator WHO ARE INCOMPETENT TO SERVE AS
Appointed when: EXECUTOR OR ADMINISTRATOR
1. Testator did not (1) Minor;
Person named appoint an executor (2) Non-resident
expressly by deceased 2. The appointment (3) One who, in the opinion of the court, is
person in his will to was refused unfit to exercise the duties of the trust by
administer, settle, 3. The executor is reason of
and liquidate estate, incompetent to serve (a) Drunkenness
and subsequently 4. The will was (b) Improvidence
appointed by court disallowed (c) Want of understanding
5. No will (intestate (d) Want of integrity; or
succession) (e) Conviction of an offense involving
moral turpitude. [Sec. 1, Rule 78]
Has duty to present
(4) Executor of an executor cannot, as such,
the will to court within
administer estate of the first testator [Sec.
20 days after (1) he
2, Rule 78]
learns of the death of
testator or (2) after he
The list above is not exclusive.
knew he was
appointed as executor No such duty
In this jurisdiction, one is considered to be
(if he obtained such
unsuitable for appointment as administrator
knowledge after
when he has adverse interest of some kind
death of testator),
or hostility to those immediately interested in
unless will has
the estate. [Lim v. Diaz-Millarez, G.R. No. L-
reached the court in
17633 (1966)] The administrator should be
any manner
indifferent between the estate and claimants
The testator may of the property, except to preserve it for due
provide that he may administration, and should be removed when
serve without a bond Required to file bond his interests conflicts with such right and duty.
but the court shall unless exempted by [Medina v. CA, G.R. No. L-34760 (1973)]
direct him to post a law
bond conditioned only The regular adm inistrator is charged with
to pay debts. the task of accomplishing and terminating
Compensation the administration of the estate with the
First part of Rule 85 utmost reasonable dispatch, with a view to an
provided in the will
Sec 7 applies early distribution of the net estate among the
controls, unless
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heirs and persons entitled thereto. [Medina v. and most influential motive to administer the
CA, G.R. No. L-34760 (1973)] estate correctly. [Gonzalez v. Aguinaldo, et al.,
G.R. No. 74769 (1990)]
WHEN ARE LETTERS TESTAMENTARY OR
OF ADMINISTRATION GRANTED Mere failure to apply for letters of
administration does not remove preference. [1
Letters testam entary – it is an authority ALR 1247]
issued to an executor named in the will to
administer the estate. It is issued once the General Rule: The court cannot set aside
will has been proved and allowed and if the order of preference
executor named is competent, accepts the
trust and gives bond. [Sec. 4, Rule 78] Exception:
If the person enjoying such preferential rights
Letters adm inistration – authority issued is
by court to a competent person to administer (1) Unsuitable
the estate if: (2) Incompetent
(1) No executor is named in will (3) Unwilling
(2) Executor or executors named are (4) Neglect to apply for letters 30 days after
incompetent, refuse the trust, or fail to the death of the decedent
give bond or
(3) Person dies intestate. [Sec. 6, Rule 78] Court may reject order of preference when
circumstances warrant.
B. ORDER OF PREFERENCE
The order of preference is not absolute for it
Order of preference in the grant of depends on the attendant facts and
adm inistration circumstances of each case. The selection of
(1) Surviving spouse or next of kin, or both, or an administrator lies in the sound discretion
to such person as the surviving spouse, or of the trial court. [In Re Suntay, G.R. No.
next of kin requests to have appointed, if 183053 (2010)]
competent and willing to serve.
(2) If those enumerated above be 30-DAY PERIOD MAY BE WAIVED
incompetent or unwilling, or if the Just as the order of preference is not absolute
husband or widow, or next of kin, neglects and may be disregarded for valid cause, so
for 30 days after the death of the person may the 30-day period be likewise waived
to apply for administration or to request under the permissive tone in paragraph (b) of
that administration be granted to some said rule which merely provides that said
other person, it may be granted to one or letters as an alternative, “may be granted to
more of the principal creditors, if one or more of the principal creditors.”
competent and willing to serve. [Herrera]
(3) If there is no (2), it may be granted to such
other person as the court may select. [Sec. Co-administrators may be appointed. [Matute
6, Rule 78] v. Court of Appeals, G.R. No. 26751 (1969)]
Exception
Belated claim s
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the
period previously fixed provided they are filed
within 1 month from the expiration of such
period but in no case beyond the date of entry
of the order of distribution. [Danan v.
Buencaminao, G.R. No. L-57205 (1981); Sec. 2, The period, once fixed by the courts, is
Rule 86] mandatory. [In Re the Administration of the
Estate of Pascual de Villanueva, G.R. No. L-
Notice to creditors to be published; 18403 (1961)]
Affidavit of publication
Executor/administrator shall cause Statute of non-claims supersedes statute of
publication of notice for 3 weeks successively limitations when it comes to debts of
in a newspaper of general circulation in the deceased persons. [Sikat v. Vda. De Villanueva,
province, and its posting in 4 public places in G.R. No. L-35925 (1932)]
the province, and in 2 public places in the
municipality, where the decedent last resided. Exceptions:
[Sec. 3, Rule 86] (1) When set forth as counterclaims in any
action that the executor/administrator
Printed copy of the published notice shall be may bring against the claimants [Sec. 5,
filed in court within 10 days after its Rule 86]
publication accompanied with affidavit (2) Belated claims [Sec. 2, Rule 86]
setting forth the dates of first and last
publication and name of newspaper where it Quasi-contracts and contingent claims are
was printed. [Sec. 4, Rule 86] included in claims that should be filed under
Rule 86 Sec. 5. [Metropolitan Bank & Trust Co.,
Significance of Notice v. Absolute Management Corp., G.R. No.
Publication of notice is constructive notice to 170498 (2013)]
creditors and, thus, a creditor would not be
permitted to file a claim beyond the period Contingent Claim
fixed in the notice on the bare ground that he One which by its nature, is necessarily
had no knowledge of the administration dependent upon an uncertain event for
proceedings. [Villanueva v. PNB, G.R. No. L- existence or validity, which may or may not
18403 (1963)] develop into an enforceable claim. [Buan v.
Laya, G.R. No. L-7593 (1957)].
Statute of non-claim s
General Rule: Claim must be filed within W hen Allowed
the time fixed by the notice otherwise they (1) When it becomes absolute;
are barred forever. [Sec. 5, Rule 86] (2) Presented to the court or
executor/administrator within 2 years
Purpose: to settle the estate with dispatch, from the time limited for other creditors to
so that the residue may be delivered to the present their claims; and
persons entitled thereto without their being (3) Not disputed by executor/administrator
afterwards called upon to respond in actions If disputed:
for claims. [Rio y Compania v. Maslog, G.R. It may be proved and allowed or
No. L-12302 (1959), citing Tan Se Guan v. Ga disallowed by the court as the facts may
Siu San, 47 Phil. 96] warrant [Sec. 5, Rule 88]
Claims Covered (Exclusive) Mutual claims may be set off against each
(1) Claims for money against the decedent other in such action. [Sec. 5, Rule 88]
arising from contract
- Express or implied Effect if a debtor obtains a favorable
- Due or not judgm ent against the estate: the
- Contingent or not amount shall be considered the true balance
(2) Claims for funeral expenses against the estate, as though the claim had
(3) Expenses for the last sickness been presented directly before the court in
(4) Judgment for money against the decedent. the administration proceedings [Sec. 5, Rule
[Sec. 5, Rule 86] 88]
The presentation of a money claim may be judge, the original shall be exhibited,
waived. [Ignacio v. Pampanga Bus Co., Inc., unless it be lost or destroyed, in which
G.R. No. L-18936 (1967)] case the claimant must accompany his
claim with affidavit or affidavits containing
If obligation solidary - file claim against a copy or particular description of the
decedent as if he is the only debtor instrument and stating its loss or
If obligation joint - claim confined to the destruction.
portion belonging to the decedent [Sec. 6, (2) When the claim is due - it must be
Rule 86] supported by affidavit stating the amount
justly due, that no payments have been
ALTERNATIVE REMEDIES OF A MORTGAGE made thereon which are not credited, and
CREDITOR UPON DEATH OF DEBTOR that there are no offsets to the same, to
(1) Waive the security and claim the entire debt the knowledge of the affiant.
from the estate as an ordinary claim – (3) If the claim is not due, or is
creditor is deemed to have abandoned the contingent, when filed – it must also be
mortgage and he cannot thereafter file a supported by affidavits stating the
foreclosure suit if he fails to recover his particulars thereof.
money claim against the estate (4) When the affidavit is m ade by a
(2) Foreclose mortgage judicially and prove any person other than the claimant, he
deficiency as an ordinary claim – suit must set forth therein the reason why it is
should be against the executor or not made by the claimant.
administrator as party defendant; creditor
may obtain deficiency judgment if he fails Answer by executor/administrator
to fully recover his claim Shall be filed within 15 days after copy of
(3) Rely solely on the mortgage and foreclose it claim has been served upon him. Executor or
before it is barred by prescription without administrator may interpose any
right to claim for deficiency – includes counterclaim . Said counterclaim is
extrajudicial foreclosure of sale and its regarded as com pulsory, as the failure to
exercise precludes one from recovery of file the same shall bar the claim forever. [Sec.
any balance of debt against the estate and 10, Rule 86]
frees the estate from further liability [Sec.
7, Rule 86] Judgment of court approving or disapproving
a claim shall be appealable as in ordinary
Case law provides that these remedies are cases. [Sec. 13, Rule 86; Rule 109]
distinct, independent, and m utually
exclusive remedies that can be B. CLAIM OF EXECUTOR OR
alternatively pursued by the mortgage
creditor for satisfaction of his credit in case
ADMINISTRATOR AGAINST AN
the mortgagor dies. [Festin at 79] ESTATE
Instances when court may make persons and is not inconsistent with the
further orders for distribution of provisions of the will [Sec. 4, Rule 89]
assets
(1) If whole of the debts not paid on first Real property may, upon order, be sold,
distribution; and mortgaged, encumbered to pay debts
(2) If the whole assets not distributed, or when:
(3) Other assets afterwards come to the (1) Personal estate is insufficient to pay the
hands of executor/administrator. [Sec. 13, debts
Rule 88] (2) Sale of personal estate may injure the
business of persons interested in the
Creditors to be Paid in Accordance estate
W ith Terms of Order (3) Property appropriated by testator in his
When an order is made for the distribution of will is insufficient to pay debts [Sec. 2,
assets among creditors, the executor or Rule 89]
administrator shall, as soon as the time of
payment arrives, pay the creditors the W rit of Execution
amounts of their claims, or the dividend General Rule: The probate court does not
thereon, in accordance with the terms of such have the power to issue writs of execution. A
order. [Sec. 14, Rule 88] writ of execution is not the proper procedure
for the payment of debts and expenses of
Time for paying debts and legacies administration. The proper procedure is for
the court to order the sale of personal estate
General Rule: Not exceeding 1 year in the or the sale of mortgaged of real property of
first instance the deceased and all debts or expenses of
administration should be paid out of the
Exception: Court may extend the period, proceeds of the sale or mortgage. [Aldamiz v.
after hearing and notice, on the following Judge of CFI-Mindoro, G.R. No. L-2360
conditions: (1949)]
(1) Extension must not exceed 6 months for a
single extension; and Exceptions:
(2) The whole period allowed shall not exceed (1) To satisfy the distributive shares of
2 years. devisees, legatees, and heirs in possession
[Sec. 15, Rule 88] of the decedent’s assets.
(2) To enforce payment of expenses of the
Grounds for Extension partition.
(1) Original executor/administrator dies (3) To satisfy the costs when a person is cited
(2) New administrator appointed for examination in probate proceedings
[Festin]
REQUISITES
(1) Executor/administrator must apply. Proper procedure for payment of
(2) Notice of the time and place of hearing. debts
(3) Court must hear the application. (1) Motion of administrator for sale;
(4) Extension not to exceed 6 months beyond (2) Written notice to all heirs, legatees,
the time which the court might have devisees residing in the Philippines;
allowed to such original executor or (3) Court orders sale of personal property or
administrator sale or mortgage of real property;
(4) Proceeds of such sale shall be used to
Personal property may, upon order, be pay debts and expenses.
sold:
(1) To pay debts, expenses, legacies [Sec. 1,
Rule 89]
(2) If it appears necessary for the preservation
of the property [Sec. 1, Rule 89]
(3) If sale will be beneficial to the heirs,
devisees, legatees and other interested
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Situation Restriction
granted if any person W ho may claim on the bond: Such bond
interested in the estate shall be for the security of the creditors, as
gives a bond, in a sum well as of the executor or administrator, and
to be fixed by the court may be prosecuted for the benefit of either.
[Sec. 3, Rule 89] [Sec. 3, Rule 89]
- Personalty not
exhausted; sale of real Regulations for granting authority to
If sale of personal
property may be done sell, mortgage or otherwise encumber
estate may injure
in lieu of personal estate
the business or
property of estate if it (1) The executor/administrator shall file a
such other
clearly appears that written petition setting forth the
interests of those
such sale etc., would be following:
interested in the
beneficial to persons
estate and where (a) Debts due from the deceased, the
interested
testator has not expenses for administration, the
- No authority to sell,
otherwise made legacies;
mortgage, or otherwise
sufficient (b) Value of the personal estate;
encumber real or
provision for (c) Situation of the estate to be sold,
personal estate shall be
payment of debts, mortgaged, encumbered; and
granted if any person
expenses and (d) Such other facts showing sale etc., is
interested in the estate
legacies [Sec. 2, necessary or beneficial;
gives a bond, in a sum
Rule 89] (2) The court will fix a time and place for
to be fixed by the court
[Sec. 3, Rule 89] hearing such petition and cause notice
If sale is beneficial to be given personally or by mail to
Authorized if not
to interested persons interested, and publication if
inconsistent with
persons, although deem proper;
provisions of the will and
not necessary to (3) The court may require
proceeds of the sale shall
pay debts, executor/administrator to give additional
be assigned to persons
expenses, or bond conditioned on accounting for
entitled to the estate in
legacies [Sec. 4, proceeds of sale etc.;
the proper proportions
Rule 89] (4) The court may authorize sale to be public
To pay for debts, or private;
expenses or (5) If estate is to be sold at auction, the mode
legacies of estate
of giving notice shall be governed by
of deceased in
provisions concerning notice of execution
foreign country
[Sec. 5, Rule 89]
sale;
Conveyance would not be (6) Certified copy of the order of the court,
If deceased was in plus deed of the executor or administrator
authorized if assets in the
his lifetime under for real estate sold, mortgaged, or
hands of the executor or
contract, binding encumbered shall be registered in registry
administrator will be
in law, to deed of deeds where property is located [Sec. 7,
reduced as to prevent
real property or Rule 89]
creditor from receiving
interest therein
debt or diminish his
[Sec. 8, Rule 89]
dividend Deed for sale, m ortgaged or
Where deceased encumbrance
held real property The deed executed by the executor or
in trust for administrator shall be valid as of executed by
another person deceased in his lifetime [Sec. 7-8, Rule 89]
[Sec. 9, Rule 89]
W hen does a probate court lose Escheat proceedings must be initiated by the
jurisdiction of an estate under Government through the Solicitor General.
adm inistration? [Sec. 1, Rule 91]
The probate court loses jurisdiction of an
estate under administration only after The Court must fix a date and place for
payment of all debts, and the remaining hearing, which shall not be more than 6
estate delivered to the heirs entitled to months after the entry of the order
receive the same. [Guilas v. Judge of the CFI of
Pampanga, G.R. No. L-26695 (1972)] Procedure
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(a) Personal property and the income of (9) To render to the court for its approval an
the real property of the ward accounting of the property:
(b) If (a) is not sufficient, real property of (a) One year from his appointment
the ward upon obtaining an order for (b) Every year thereafter, and
its sale or encumbrance. [Sec. 2, Rule (c) As often as may be required. [Secs. 7-8,
96] Rule 96]
(2) To settle all accounts of his ward [Sec.
3, Rule 96] Reimbursement of Reasonable
(3) To demand, sue for, receive all debts Expenses
due him, or, with the approval of the court, The court may authorize reimbursement to
compound for the same and give the guardian, other than a parent, of
discharges to the debtor on receiving a fair reasonable expenses incurred in the
and just dividend of the property and execution of his trust, and compensation for
effects [Sec. 3, Rule 96] services. [Sec. 8, Rule 96]
(4) To appear for and represent the ward
in all actions and special proceedings, Payment of Compensation
unless another person is appointed for Court may order payment of reasonable
that purpose [Sec. 3, Rule 96] compensation not exceeding 15% of the net
(5) To manage the property of the ward income of the ward. [Sec. 8, Rule 96]
frugally and without waste, and apply the
income and profits thereon, insofar as may Embezzlem ent, Concealm ent, or
be necessary, to the comfortable and Conveyance of W ard’s Properties
suitable maintenance of the ward. If such
income and profits be insufficient for that Upon complaint by the:
purpose, to sell or encumber the real or (1) The guardian or ward, or
personal property, upon being authorized (2) Any person having actual or prospective
by the court to do so [Sec. 4, Rule 96] interest in the property of the ward;
(6) To consent to a partition of real or The court may cite the suspected person
personal property owned by the ward to appear for exam ination and make
jointly or in common with others, upon such orders for the security of the estate. [Sec.
authority granted by the court, 6, Rule 96]
(a) After hearing
(b) Notice to relatives of the ward, and General Rule: Purpose of the proceeding is
(c) A careful investigation as to the to secure evidence from persons suspected of
necessity and propriety of the proposed embezzling, concealing or conveying any
action. [Sec. 5, Rule 96] property of the ward so as to enable the
(7) To submit to the court a verified guardian to institute the appropriate action
inventory of the property of the ward: to obtain the possession of and secure title to
(a) Within three months: said property. The court can neither
(i) after his appointment determine ownership of the property claimed
(ii) after the discovery, succession or to belong to the ward nor order its delivery.
acquisition of property of the ward [Cui v. Piccio, G.R. L-5131 (1952)]
not included in the inventory
(b) Annually, and Exception: Court may direct delivery of
(c) Whenever required upon the property to the guardian only in extreme
application of an interested person. cases, where the right or title of the ward is
[Sec. 7, Rule 96] clear and indisputable or where his title
(8) To report to the court any property thereto has already been judicially decided.
of the ward not included in the [Cui v. Piccio, G.R. L-5131 (1952)]
inventory which is discovered, or
succeeded to, or acquired by the ward Selling and Encum bering the Property
within 3 months after such discovery, of the W ard
succession, or acquisition [Sec. 7, Rule 96] Court may order that personal or real
property or any part thereof be sold,
XIII. Adoption
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Annexes
Decree of Adoption
The underlying rationale is not the illegality a. Threat of killing their families if they
of the restraint but the right of custody. tried to escape
[Tijing v. CA, G.R. No. 125901 (2001)] b. Failure of the military to protect
them from abduction
W ho may issue the writ c. Failure of the military to conduct
(1) The SC, CA, and RTC have concurrent effective investigation [Secretary of
jurisdiction to issue WHC [Sec. 2, Rule Justice v. Manalo]
102]
(2) Family courts have jurisdiction to hear NATURE
petitions for custody of minors and the Not a suit between private parties, but an
issuance of the writ in relation to custody inquisition by the government, at the
of minors [Sec. 20, AM 03-04-04-SC, Re: suggestion and instance of an individual, but
Proposed Rule on Custody of Minors and still in the name and capacity of the sovereign.
Writ of Habeas Corpus in Relation to There can be no judgment entered against
Custody of Minors] anybody since there is no real plaintiff and
defendant. [Alimpos v. CA, 106 SCRA 159
Temporary release may constitute (1981)]
restraint
(a) Where a person continued to be Proceedings in habeas corpus are separate
unlawfully denied one or more of his and distinct from the main case from which
constitutional rights the proceedings spring.
(b) Where there is present denial of due
process The question whether one shall be
(c) Where the restraint is not merely imprisoned is always distinct from the
involuntary but appear to be unnecessary question of whether the individual shall be
(d) Where a deprivation of freedom originally convicted or acquitted of the charge on which
valid has in light of subsequent he is tried, and therefore these questions are
developments become arbitrary. separate, and may be decided in different
[Moncupa v. Enrile, G.R. No. L-63345 courts [Herrera, citing 4 Cranch, 75, 101]
(1986)]
The writ of habeas corpus is not designed to
General Rule: Release of detained person, interrupt the orderly administration of the
whether permanent or temporary, makes the laws by a competent court acting within the
petition for habeas corpus moot. limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint.
Exceptions: [People v. Valte, G.R. No. L-18760 (1922)]
(1) Doctrine of Constructive Restraint
– Restraints attached to release which Proceedings on habeas corpus to obtain
precludes freedom of action, in which release from custody under final judgment
case the Court can still inquire into the being in the nature of collateral attack, the
nature of the involuntary restraint writ deals only with such radical defects as
render the proceeding or judgment
The essential object and purpose of the absolutely void, and cannot have the effect of
writ of habeas corpus is to inquire into all appeal, writ of error or certiorari, for the
manner of involuntary restraint. Any purpose of reviewing mere error and
restraint which will preclude freedom of irregularities in the proceedings. [People v.
action is sufficient. [Villavicencio v Lukban Valte, G.R. No. L-18760 (1922)]
(1919)]
It is a prerogative writ which does not issue as
(2) Violation of freedom from threat by the a matter of right but in the sound discretion
apparent threat to life, liberty and of the court. [Mangila v. Judge Pangilinan,
security of their person from the following G.R. No. 160739 (2013)]
facts:
trial, the petitioner shall be allowed to (2) Hold Departure Order – the minor
present his evidence ex parte. The Court child shall not be brought out of the
shall then render judgment on the basis of country without prior order from the court
the pleadings and the evidence thus while the petition is pending.
presented. [Sec. 9] - The Court, motu proprio or upon
application under oath, may issue ex
Provisional Order awarding custody parte a hold departure order,
After an answer has been filed or after addressed to the Bureau of
expiration of the period to file it, the court Immigration and Deportation (BID),
may issue a provisional order awarding directing it not to allow the departure
custody of the minor. As far as practicable, of the minor from the Philippines
the following order of preference shall without court permission.
be observed in the award of custody: - The Family Court issuing the hold
(1) Both parents jointly; departure order shall furnish the DFA
(2) Either parent taking into account all and the BID of the DOJ a copy of the
relevant considerations, especially the hold departure order within 24 hours
choice of the minor over seven years of age from its issuance.
and of sufficient discernment, unless the - The court may recall the hold
parent chosen is unfit; departure order motu proprio or upon
(3) The grandparent, or if there are several verified motion of any of the parties
grandparents, the grandparent chosen by after summary hearing. [Sec. 16]
the minor over 7 years of age and of
sufficient discernment, unless (3) Protection Order (PO) - court may
grandparent chosen is unfit or issue a PO requiring any person:
disqualified; (a) To stay away from the home, school,
(4) The eldest brother or sister over 21 years of business, or place of employment of
age, unless unfit or disqualified; the minor, other parent or any other
(5) The actual custodian of the minor over 21 party, or from any other specific place;
years of age, unless unfit or disqualified; (b) To cease and desist from harassing,
(6) Any other person or institution the court intimidating, or threatening such minor
may deem suitable. [Sec. 13] or the other parent or any person to
whom custody of the minor is awarded;
In awarding custody, the court shall consider (c) To refrain from acts or omission that
the best interests of the minor and shall create an unreasonable risk to minor;
give paramount consideration to his material (d) To permit a parent, or a party entitled
and moral welfare. [Sec. 14] to visitation by a court order or a
separation agreement, to visit the
Interim Reliefs minor at stated periods;
(e) To permit a designated party to enter
(1) Temporary visitation rights - court the residence during a specified period
shall provide in its order awarding of time in order to take personal
provisional custody appropriate visitation belongings not contested in a
rights to the non-custodial parent or proceeding pending with the Family
parents. Court;
- Unless the court finds said parent or (f) To comply with such other orders as
parents unfit or disqualified. are necessary for the protection of the
- The temporary custodian shall give the minor. [Sec. 17]
court and non-custodial parent or
parents at least 5 days' notice of any Judgment
plan to change the residence of the Court shall render judgment awarding the
minor or take him out of his residence custody of the minor to the proper party
for more than 3 days. [Sec. 15] considering the best interests of the minor.
If both parties are unfit to have the care and found, the writ is enforceable within the
custody of the minor, the court may designate judicial region where the Family Court
either the paternal or maternal grandparent belongs.
of the minor, or his oldest brother or sister, or
any reputable person to take charge of such If filed with the CA or the SC, or with any of its
minor, or commit him to any suitable home. members, the writ shall be enforceable
anywhere in the Philippines.
Court may order either or both parents to give
an amount necessary for the support, If the presiding judge of the Family Court is
maintenance and education of the minor, absent, then the petition may be filed with a
irrespective of custodianship. regular court, provided that the regular court
shall refer the case to the regular court as
The court may also issue any order that is just soon as the presiding judge returns to duty.
and reasonable permitting the parent who is
deprived of the care and custody of the minor If there are no Family Courts in the area, then
to visit or have temporary custody. [Sec. 18] the petition may be filed with the regular
courts.
Appeal
Appeal from the decision shall be allowed, The writ is returnable to the Family Court, or
unless the appellant has filed a motion for to any regular court within the judicial region
reconsideration or new trial within 15 days where the petitioner resides or where the
from notice of judgment. minor may be found, for hearing and decision
on the merits.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within Upon return of the writ, the court shall decide
15 days from notice of the denial of the the issue on custody of minors. [Sec. 20]
motion for reconsideration or new trial and
serving a copy on the adverse parties. [Sec. The best interest of the child prevails over any
19] agreement on custody. Any such agreement
is void for being contrary to Article 213 of the
WRIT OF HABEAS CORPUS IN RELATION TO Family Code. In this case, the child was below
CUSTODY OF MINORS seven years when such agreement was
executed. But since the child had in the
A verified petition for a writ of habeas meantime turned 15, it is now the best
corpus involving custody of minors is interest of the child which becomes the
filed with the Family Court of the province or standard for custody. [Dacasin v. Dacasin, G.R.
city where the petitioner resides, or where the No. 168785 (2010)]
minor may be found, or with the CA or the SC.
XV. Writ of Amparo The writ applies only to the right to life,
liberty and security of persons and not
(A.M. 07-9-12-SC) property.
- A change of name granted by the court [Ang Chay v. Republic, G.R. No. L-28507
affects only a petitioner. A separate (1970)]
petition for change of name must be filed (6) Intersexuality is a valid ground for change
for his/her spouse and children. [Secan of name and change of entry of sex in the
Kok v. Republic, G.R. No. L-27621 (1973)] civil registry. Where the person is
biologically or naturally intersex the
JURISDICTIONAL REQUIREMENTS determining factor in his gender
An alien may petition for change of name but classification would be what the
he must be domiciled in the Philippines. [Ong individual, having reached the age of
Huan Tin v. Republic, G.R. No. L-20997 majority, with good reason, thinks of his
(1967)] sex. Sexual development in cases of
intersex persons makes the gender
Verification is a formal, not a jurisdictional, classification at birth inconclusive. It is at
requirement. The lack of verification is not a maturity that the gender of such persons
ground for dismissing the petition. However, is fixed. [People v. Cagandahan, G.R. No.
before setting the petition for hearing, the 166676 (2008)]
court should have required the petitioner to
have the petition verified. [Oshito v. Republic, WHEN NOT PROPER
G.R. No. L-21180 (1967)] When what is sought to be changed relates to
status.
All aliases of the applicant must be set forth
in the petition’s title. Such defect is fatal, Rule 103 cannot be resorted to for expediency
even if said aliases are contained in the body if the petition substantially seeks to change
of the petition. [Go Chiu Beng v. Republic, G.R. one’s status from legitimacy to illegitimacy.
No. L-29574 (1972)] [Republic v. Coseteng-Magpayo, G.R. No.
189476 (2011)]
Failure to implead the local civil registrar as
well as all persons who have or claim any Legal separation is not a ground for the
interest did not render the petition fatally female spouse to apply for a change of name
defective. Cagandahan furnished the local under Rule 103. [Laperal v. Republic, G.R. No.
civil registrar a copy of the petition, the order L-18008 (1962)]
to publish, and all pleadings, orders or
processes in the course of the proceedings. A person’s first name cannot be changed on
There was therefore substantial compliance the ground of sex reassignment. RA 9048
of the provisions of Rules 103 and 108 of the does not sanction a change of first name on
Rules of Court. [People v. Cagandahan, G.R. the ground of sex reassignment. Before a
No. 166676 (2008)] person can legally change his given name, he
must present proper or reasonable cause or
GROUNDS FOR CHANGE OF NAME any compelling reason justifying such change.
[Republic v. Hernandez (1996)] In addition, he must show that he will be
prejudiced by the use of his true and official
Valid Grounds for Change of Nam e name. Silverio failed to show, or even allege,
(1) The name is ridiculous, tainted with any prejudice that he might suffer as a result
dishonor or extremely difficult to write or of using his true and official name. Rather
pronounce. than avoiding confusion, changing
(2) Change results as a legal consequence of petitioner’s first name may only create grave
legitimation complications in the civil registry and the
(3) The change will avoid confusion. public interest. [Silverio v. Republic, G.R. No.
(4) A sincere desire to adopt a Filipino name 184689 (2007)]
to erase signs of former alienage [Uy v.
Republic, G.R. No. L-22712 (1965)]
(5) Having continuously used and been No law allows the change of entry in the birth
known since childhood by a Filipino name, certificate as to sex on the ground of sex
having been unaware of alien parentage reassignment. RA 9048 only allows
A. ENTRIES SUBJECT TO
CANCELLATION OR CORRECTION IN
RELATION TO R.A. 9048
RULE 108
Substantial changes in entries in the civil
registry
Entries:
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from
the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Sec. 2, Rule 108]
Termination of administration:
B. WHO MAY FILE; WHEN TO FILE Trusteeship or administration of the property
of the absentee shall cease upon order of
PETITION FOR APPOINTMENT OF the court if:
REPRESENTATIVE [PAR] (1) Absentee appears personally or through
an agent;
W hen filed: (2) Absentee’s death is proved and heirs
To provisionally represent absentee when a appear;
person: (3) Third person appears, showing that he
(1) Disappears from his domicile, his acquired title over the property of the
whereabouts being unknown; and absentee.
(2) Has not left an agent to administer his
property or the power conferred upon the Effects of Reappearance
agent has expired. [Sec. 1, Rule 107] If the absentee appears, or without appearing
his existence is proved, he shall recover his
W ho may file property in the condition in which it may be
(1) Any interested party found, and the price of any property that may
(2) Relative have been alienated or the property acquired
(3) Friend [Sec. 1, Rule 107] therewith; but he cannot claim either fruits or
rents. [Art. 392, NCC]
PETITION FOR DECLARATION OF ABSENCE
AND APPOINTMENT OF TRUSTEE OR The subsequent marriage referred to in the
ADMINISTRATOR [PDA] preceding Article shall be automatically
terminated by the recording of the affidavit of
W hen filed: reappearance of the absent spouse, unless
(1) After 2 years: there is a judgment annulling the previous
(a) From the disappearance of and without marriage or declaring it void ab initio. [Art. 42,
any news from the absentee or FC]
(b) Since the receipt of the last news about
him.
(2) After 5 years:
Notwithstanding a pending
controversy/appeal in estate settlement
proceedings, the court may permit that the
estate’s parts which are not affected by the
Legend:
WHC – Writ of Habeas Corpus WA – Writ of Amparo
WD – Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD – Rules on Habeas Data SC – Supreme Court
CA - Court of Appeals SB – Sandiganbayan
RTC – Regional Trial Court CoC – Clerk of Court
REMEDIAL LAW
CRIMINAL
PROCEDURE
133289 (1999), citing Arula v. Espino, G.R. very issue in the motion to quash a
No. L-28949 (1969)]. warrant of arrest [Miranda v. Tuliao,
G.R. No. 158763 (2006)];
Voluntary appearance of the accused is (2) Giving bail.
accomplished by:
(1) Filing pleadings seeking affirmative relief, B. REQUISITES FOR EXERCISE OF
Except: In case of special appearance to CRIMINAL JURISDICTION
challenge the jurisdiction of the court over
the person [Garcia v. Sandiganbayan, G.R.
(1) Subject matter jurisdiction, that is,
Nos. 170122 & 171381 (2009)], e.g.
whether or not the court has jurisdiction
(a) a motion to quash a complaint on the
over the offense by virtue of the imposable
ground of lack of jurisdiction over the
penalty and its nature;
person of the accused because failure
(2) Jurisdiction over the person of the
to file would be a waiver of the defense
accused;
of lack of jurisdiction over the person,
(3) Territorial jurisdiction, which refers to
or
venue or the place where the case is to be
(b) a motion to quash the warrant of arrest
tried.
because it is the very legality of the
court process forcing the submission of
the person of the accused that is the
II. Prosecution of
C.2. MILITARY COURTS
General rule: Ordinary courts will have
Offenses
jurisdiction over cases involving members of
the armed forces, and other persons subject A. CRIMINAL ACTIONS; HOW
to military law, regardless of who the co- INSTITUTED
accused or victims are.
A.1. IN GENERAL
Exception: When the offense is service- The institution of a criminal action generally
oriented, it will be tried by the court martial; depends upon whether the offense is one
Provided, that the President may, in the which requires a preliminary investigation or
interest of justice, order or direct, at any time not.
before arraignment, that any such crimes or
offenses be tried by the proper civil courts. A criminal action is commenced by the filing
of a complaint or information. The complaint
D. WHEN INJUNCTION MAY BE may be filed either with the MTC, when
ISSUED TO RESTRAIN CRIMINAL allowed, or with a public prosecutor for
purposes of conducting a preliminary
PROSECUTION investigation. [Sec. 1, (Rule 110]
General rule: The prosecution of a criminal A.2. OFFENSES REQUIRING PRELIMINARY
case may not be enjoined by INVESTIGATION
prohibition/injunction because public interest Offenses which require preliminary
requires that criminal acts be immediately investigation are those where the penalty
investigated and prosecuted for the prescribed by law is at least 4 years, 2
protection of society [Domingo v. months and 1 day [Sec. 1, Rule 112].
Sandiganbayan, G.R. No. 109376 (2000)].
The criminal action is instituted by filing the
Exceptions [Brocka v. Enrile, G.R. No. complaint with the appropriate officer for
69863-65 (1990)]: preliminary investigation [Sec. 1(a), Rule 110].
(1) When necessary in the protection of the
constitutional rights of the accused; A.3. OTHER OFFENSES
(2) When necessary for the orderly For all other offenses, or in offenses
administration of justice or to avoid cognizable by inferior courts (MTCs or
oppression or multiplicity of suits; MCTCs), the complaint or information is filed
(3) Where there is a prejudicial question directly with said courts or the complaint is
which is sub judice; filed with the fiscal [Sec. 1(b), Rule 110].
(4) Where acts of the officer are without or in
excess of authority; A.4. IN METROPOLITAN MANILA AND
(5) When the prosecution is under an invalid OTHER CITIES
law or statute; In Metropolitan Manila and other chartered
(6) When double jeopardy is apparent; cities, the complaint shall be filed with the
(7) When court has no jurisdiction over the office of the public prosecutor unless
offense; otherwise provided in their charters [Sec. 1(b),
(8) When it is a case of persecution rather Rule 110].
than prosecution;
(9) Where the charges are manifestly false A.5. EFFECT OF INSTITUTION ON
and motivated by vengeance; PRESCRIPTIVE PERIOD
(10) Where there is no prima facie case and a The institution of a criminal action shall
motion to quash on that ground has been interrupt the running of the period of
denied; prescription of the offense charged unless
(11) Where preliminary injunction has been otherwise provided in special laws [Sec. 1,
issued by the SC to prevent the Rule 110].
threatened unlawful arrest of petitioner.
PAGE 285 OF 425
UP LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW
There is no more distinction between cases For Private Crimes [Sec. 5, Rule 110]
under the RPC and those covered by special Private crimes which may only be prosecuted
laws with respect to the interruption of the by a complaint filed by the private offended
period of prescription. [People v. Pangilinan, party [Sec. 5, Rule 110]
G.R. No. 152662 (2012)] Crime Who May File Conditions
Adultery and Offended (1) Must
SUSPENSION OF PRESCRIPTIVE PERIODS concubinage spouse include
IN CASES FALLING UNDER THE both
AUTHORITY OF THE LUPON guilty
While the dispute is under mediation, parties
conciliation or arbitration, the prescriptive (2)Must not
periods for offenses and causes of action have
under existing laws shall be interrupted upon consented
filing of the com plaint with the to the
Punong Barangay. The prescriptive offense
periods shall resume upon receipt by the (3) Must not
complainant of the complaint or the have
certificate of repudiation or of the certification pardoned
to file action issued by the Lupon or Pangkat the
Secretary. Such interruption however shall not offenders
exceed sixty (60) days from the filing of the Seduction, (1) Offended The
complaint with the punong barangay [Sec. abduction, party – offender
410[c], RA 7160 (The Local Government Code acts of includes must not
of 1991)]. lasciviousnes minors, have been
s except if pardoned
B. WHO MAY FILE; CRIMES THAT incompetent by any of (1)
CANNOT BE PROSECUTED DE or incapable to (4) in the
OFICIO (2) Parents preceding
General rule: All criminal actions (3) Grandparent column
commenced by a complaint or information (4) Guardian
shall be prosecuted under the direction and (5) State
control of the prosecutor [Sec. 5, Rule 110]. Defamation, Offended party
which
B.1. WHO MAY FILE COMPLAINT OR consists of
INFORMATION imputation of
For Non-Private Crimes any of the
Persons authorized to file a com plaint [Sec. foregoing
3, Rule 110]: offenses
(1) The offended party
(2) Any peace officer B.2. EVENTS SUBSEQUENT TO FILING
(3) Other public officer charged with the
enforcement of the law violated B.2.A. DEATH OF OFFENDED PARTY
Death after filing the complaint would not
Persons authorized to file an inform ation deprive the court of jurisdiction.
[Sec. 4, Rule 110]:
(1) City or provincial prosecutor and their The State shall initiate the action on behalf of
assistants; and the offended party in case of his/her
(2) Duly appointed special prosecutors death/incapacity and he/she has no known
parents/grandparents/guardians.
The test for sufficiency of the complaint or Specific acts of accused do not have to be
information is whether the crime is described described in detail in the information, as it is
in intelligible terms with such particularity as enough that the offense be described with
to apprise the accused with reasonable sufficient particularity to make sure the
certainty of the offense charged [Lazarte v. accused fully understands what he is being
Sandiganbayan, G.R. No. 180122 (2009)]. charged with [Guy v. People, G.R. No. 166794-
96 (2009)].
An accused is deemed to have waived his
right to assail the sufficiency of the D.3 CAUSE OF THE ACCUSATION
information when he voluntarily entered a The acts or omissions complained of as
plea when arraigned and participated in the constituting the offense and the qualifying
trial [Frias v. People, G.R. No. 171437 (2007)]. and aggravating circumstances must be
stated:
Consequently, objections as to form cannot (1) In ordinary and concise language; and
be made for the first time on appeal. The (2) Not necessarily in the language used in
accused should have moved for a bill of the statute; but
particulars or for quashal of information (3) In terms sufficient to enable a person of
before arraignment, otherwise he is deemed common understanding to know what
to have waived his objections to such a defect offense is being charged as well as its
[People v. Teodoro (2009)]. qualifying and aggravating circumstances
and for the court to pronounce judgment
D.1 NAME OF THE ACCUSED [Sec. 9, Rule 110].
The complaint or information must state the
name and surname of the accused or any Qualifying and aggravating circumstances
appellation or nickname by which he has must be alleged. Otherwise, they are not to
been or is known. If his name cannot be be considered even if proven during the trial.
ascertained, he must be described under a The failure to allege such cannot be cured by
fictitious name with a statement that his true an amendment of the information after the
name is unknown. accused entered his plea. [People v. Antonio
(2002)]
If the true name of the accused is thereafter
disclosed by him or appears in some other Although aggravating circumstances cannot
manner to the court, such name shall be be appreciated for the purpose of fixing a
inserted in the complaint or information and heavier penalty, they should, however, be
record [Sec. 7, Rule 110]. considered as bases for the award of
exemplary damages [People v. Evina, G.R.
D.2 DESIGNATION OF OFFENSE Nos. 124830-31 (2003)].
The complaint or information shall:
(1) State the designation of the offense given
by the statute;
PAGE 289 OF 425
UP LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW
furnish all parties, especially the offended (2) The accused cannot be convicted of the
party, of copies of its order [Sec. 14, Rule 110]. offense charged or of any other offense
necessarily included therein;
F.2. AMENDMENT AFTER PLEA AND (3) The accused would not be placed in
DURING TRIAL double jeopardy.
operates, said court is powerless to try the Prevention Act of violation of the
case. For the rule is that one cannot be held 2012) provisions of the Act,
to answer for any crime committed by him including any
except in the jurisdiction where it was violation committed
committed [Hernandez v. Albano, G.R. No. L- by a Filipino national
19272 (1967)]. regardless of the
place of
Exceptions: com m ission [Sec.
Crime Venue 21]
Felonies under Art. 2, Proper court where In exceptional SC has the power to
RPC criminal action was circumstances to order a change of
first filed ensure a fair trial and venue or place of trial
Those committed on May be instituted impartial inquiry to avoid miscarriage
a railroad train, and tried in the court of justice [Sec. 5(4),
aircraft, or any other of any municipality or Art. VII, Constitution]
public or private territory where such
vehicle in the court of train, aircraft, or For transitory/continuing offenses, the courts
its trip other vehicle passed of the territories where the essential
during such trip, ingredients of the crime took place have
including place of concurrent jurisdiction. The first court taking
departure and arrival cognizance of the case will exclude the others
Those committed on May be instituted [People v. Grospe, G.R. No. L-74053-54
board a vessel in the and tried in the (1988)].
course of its voyage proper court of the
first port of entry or H. INTERVENTION OF OFFENDED
of any municipality or PARTY
territory through General rule: An offended party has the
which vessel passed, right to intervene in the prosecution of a
subject to the crime, where the civil action for recovery of
generally accepted civil liability is instituted in the criminal action
principles of
[Sec. 16, Rule 110].
international law
Piracy, which has no May be instituted NOTE: This is still subject to the control of
territorial limits anywhere [People v. the prosecutor [Phil. Rabbit Bus Lines v.
Lol-lo and Saraw, People, G.R. No. 147703 (2004)]
G.R. No. 17958
(1922)] Exceptions:
Libel May be instituted at (1) Where, from the nature of the crime and
the election of the the law defining and punishing it, no civil
offended party or liability arises in favor of a private
suing party in the offended party (e.g. treason, rebellion,
province or city, espionage and contempt);
subject to Art. 360, (2) Where, from the nature of the offense, the
RPC private offended party is entitled to civil
Cases filed under BP May be filed in the indemnity arising therefrom but he has
22 place where the waived the same or has expressly
check was reserved his right to institute a separate
dishonored or issued, civil action or he has already instituted
or in case of a cross- such action.
check, in the place of
the depositary or
collecting bank
Violations of RA RTCs have
10175 (Cybercrime jurisdiction over any
The court shall order the legal E.3. WHERE TO FILE PETITION FOR
representatives to appear and be substituted SUSPENSION
within 30 days from notice. (1) Office of the prosecutor (in the PI stage);
(2) Court conducting the PI; or
E. PREJUDICIAL QUESTION (3) Court where criminal action has been filed
for trial, at any time before the
E.1. ELEMENTS prosecution rests [Sec. 6, Rule 111].
A prejudicial question is that which arises in a
case the resolution of which is a logical NOTE: The Rules preclude a motu proprio
antecedent of the issue involved suspension by the judge of the civil action, it
therein, and the cognizance of which pertains must be by petition of the defendant. [Yap v.
to another tribunal. [People v. Consing, G.R. Paras, G.R. No. 101236 (1992)].
No. 148193 (2003)]
F. RULE ON FILING FEES IN CIVIL
Elements of a prejudicial question: ACTION DEEMED INSTITUTED WITH
(1) The previously instituted civil action
involves an issue similar or intimately THE CRIMINAL ACTION
related to the issue raised in the Filing fees apply when damages are being
subsequent criminal action; and claimed by the offended party, to be paid
(2) The resolution of such issue determines upon filing of the criminal action.
whether or not the criminal action may
proceed [Sec. 7, Rule 111]. General rule: The actual damages claimed
or recovered by the offended party are not
A civil action may be considered prejudicial included in the computation of the filing fees
when the following concur: [Sec. 1, Rule 111].
(1) The civil case involves facts intimately
related to those on which the criminal When the amount of damages, other than
prosecution would be based; actual, is specified in the complaint or
(2) In the resolution of the issue/s raised in information filed in court, then the
the civil action, the guilt/innocence of the corresponding filing fees shall be paid by the
accused would necessarily be determined; offended party upon the filing thereof in court
(3) Jurisdiction to try the action is lodged in for trial.
another tribunal [Prado v. People, G.R. No.
L-37652 (1984)]; In any other case (i.e., when the amount of
(4) The action is instituted prior to the damages is not so alleged in the complaint or
institution of the criminal action [Pimentel information filed in court), the corresponding
v. Pimentel, G.R. No. 172060 (2010)]. filing fees need not be paid and shall simply
constitute a first lien on the judgment, except
Ratio: The rule seeks to avoid two conflicting on an award for actual damages [General v.
decisions in the civil case and in the criminal Claravall, G.R. No. 96724 (1991)].
case [Sy Thiong Shiou vs Sy Chim, G.R. No.
174168 (2009)]. Exceptions: In criminal actions for
violation of BP 22, the amount of the
E.2. EFFECT check involved shall be considered as the
General rule: Where both a civil and a actual damages for which no separate civil
criminal case arising from the same facts are action is allowed. In estafa cases, the filing
filed in court, the criminal case takes fees shall be paid based on the amount
precedence [Sec. 2, Rule 111]. involved (AM 04-2-04).
Reason: One who faces a probable death the province or city/municipality where he
sentence has a particularly strong temptation is held [Sec. 17, Rule 114].
to flee. NOTE: Where the grant of bail is a matter of
This reason does not hold where the accused discretion, or the accused seeks to be
has been established without objection to be released on recognizance, the application
minor who by law cannot be sentenced to may only be filed in the court where the case
death. is pending, on trial, or appeal.
H.2.A. APPLICATION BY BONDSMEN The court shall resolve the objections as early
Upon application of the bondsmen with due as practicable but not later than the start of
notice to the prosecutor, bail may be the trial of the case.
cancelled upon: J. HOLD/ALLOW DEPARTURE
(1) Surrender of the accused; or ORDER AND BUREAU OF
(2) Proof of his death. [Sec. 22(1), Rule 114]
IMMIGRATION WATCHLIST
The accused may be prohibited from leaving
H.2.B. AUTOMATIC CANCELLATION the country during the pendency of his case
(1) Upon acquittal of the accused [People v. Uy Tuising, G.R. No. 42118-20
(2) Upon dismissal of the case (1935); Manotoc v. CA, G.R. No. L-62100
(3) Upon execution of judgment of conviction (1986)]. If the accused released on bail
[Sec. 22(2), Rule 114]. attempts to depart from the Philippines
without the permission of the court where his
I. APPLICATION NOT A BAR TO case is pending, he may be re-arrested
without warrant [Sec. 23, Rule 114].
OBJECTIONS ON ILLEGAL ARREST,
LACK OF OR IRREGULAR A hold-departure order may be issued
PRELIMINARY INVESTIGATION only in criminal cases within the exclusive
Bail is no longer a waiver of these objections jurisdiction of the RTCs [SC Circ. No. 39-97].
[Sec. 26, Rule 114; Leviste v. Alameda, G.R. No.
182677 (2011)]. SC Circular 39-97 deals only with criminal
cases pending in the RTC. As to those cases
Thus, provided that the proper objections pending in the MTC as well as those under
are tim ely raised (i.e., before accused preliminary investigation, the DOJ
enters a plea), an application or an admission promulgated DOJ Circular No. 41 governing
to bail shall not bar the accused from the issuance of HDO, Watchlist Orders, and
challenging or questioning the: Allow Departure Orders.
(1) Validity of his arrest;
(2) Legality of the arrest warrant;
(3) Regularity of preliminary investigation;
(3) At the promulgation of judgment except presentation of the evidence for the
when the conviction is for a light offense. defense was due, he appears by himself
[Sec. 6, Rule 120] alone because of the inexcusable absence
of his counsel [Sayson v. People, G.R. No.
The right to be present at trial is deemed L-51745 (1988)];
waived when: (4) Violation of this right entitles the accused
(1) The accused is absent without just cause to new trial [People v. Serzo, G.R. No.
at the trial of which he had notice; or 118435 (1997)]. The right to counsel may
(2) The accused under custody escapes, until be waived but to insure that the waiver is
custody over him is regained. voluntary and intelligent, the waiver must
REQUIREMENTS OF WAIVER: be in writing and in the presence of the
(1) Existence of the right; counsel of the accused [People v. Del
(2) Knowledge of the existence thereof; Castillo, G.R. No. 153254 (2004)]. It must
(3) Intention to relinquish which much be also not be contrary to law, public order,
shown clearly and convincingly; and public policy, morals or good customs;
(4) Where the Constitution or law provides, it (5) Even a person under investigation for an
must be with the assistance of counsel to offense shall the right to have a
be valid. “competent and independent counsel
preferably of his own choice.” Included in
Effects of waiver of right to appear by this right is the right to be informed of his
the accused: right to counsel [Sec. 12(1), Art. III,
(1) Waiver of the right to present evidence Constitution; Sec. 2(b) RA 7438].
and cross-examine witnesses; During arraignment, the court has the
(2) Prosecution can present evidence if affirmative duty to inform the accused of his
accused fails to appear; and right to counsel and to provide him with one
(3) The court can decide without accused’s in case he cannot afford it. The court must act
evidence. on its own volition, unless the right is waived
by the accused. During trial, it is the accused
C.2. TRIAL IN ABSENTIA who must assert his right to counsel.
Requisites:
(1) Prior arraignment; C.4. RIGHT TO DEFEND IN PERSON
(2) Proper notice of the trial; The accused may be allowed to defend
(3) Failure to appear is unjustifiable [Parada v. himself in person when it sufficiently appears
Veneracion, AM No. RTJ-96-1353 (1997), to the court that he can properly protect his
citing Sec. 14(2), Art. 3, Constitution]. rights without the assistance of counsel [Sec.
1(c), Rule 115].
An escapee who has been duly tried in
absentia waives his right to present evidence D. RIGHT TO TESTIFY AS WITNESS
on his own behalf and to confront and cross- IN HIS BEHALF
examine witnesses who testified against him
[Gimenez v. Nazareno, G.R. No. L-37933 This is subject to cross-examination on any
(1988)]. matter covered by his direct examination [Sec.
1(d), Rule 115].
C.3. RIGHT TO COUNSEL
(1) It means reasonably effective legal General rule: Silence will not, in any
assistance [Gideon v. Wainright (1963)]; manner, prejudice him.
(2) It is absolute and may be invoked at all
times, even on appeal [Telan v. CA, G.R. Exception: Unfavorable inference is drawn
No. 95026 (1991)]; when:
(3) Duty to appoint counsel de oficio is (1) The prosecution has already established a
mandatory only at the time of prima facie case, the accused must
arraignment, especially when the present proof to overturn the evidence
accused has proceeded with the
arraignment and the trial with a counsel
of his choice but, when the time for the
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The constitutional guaranty, that no person However, either party may utilize as part of its
shall be compelled in any criminal case to be evidence the testimony of a witness who is
a witness against himself, is limited to a deceased, out of or cannot with due diligence
prohibition against compulsory testimonial be found in the Philippines, unavailable or
self-incrimination. The corollary to the otherwise unable to testify, given in another
proposition is that, an ocular inspection of the case or proceeding, judicial or administrative,
body of the accused is permissible [Villafor vs. provided they involve the same parties and
Summers, G.R. No. 16444 (1920)]. subject matter and the adverse party had the
opportunity to cross-examine him [Sec. 1(f),
The right is applicable to one who is Rule 115].
compelled to produce a document, and one
who is compelled to furnish a specimen of his This right is waived by non-appearance.
handwriting, for in both cases, the witness is [Carredo v. People, G.R. No. 77542 (1990)].
required to furnish evidence against himself
[Beltran v. Samson, G.R. No. 32035 (1929)]. The right does not apply in a preliminary
investigation. The parties may, however,
An accused “occupies a different tier of submit to the investigating officers questions
protection from an ordinary witness.” He is which may be asked to the party or witness
entitled: concerned [Sec. 3(e), Rule 112].
(1) To be exempt from being a witness
against himself; and Identification by a witness of the accused is
(2) To testify as witness in his own behalf. inadmissible if the accused had no
opportunity to confront witness [People v.
But if he offers himself as a witness he may Lavarias, G.R. No. L-24339 (1968)].
be cross-examined as any other witness;
however, his neglect or refusal to be a G. RIGHT TO COMPULSORY
witness shall not in any manner prejudice or PROCESS
be used against him [People v. Judge Ayson,
G.R. No. 85215 (1989)]. This right may be invoked by the accused to
secure the attendance of witnesses and the
Thus, the right may be waived by the failure production of evidence in his behalf.
to timely assert the right, that is, by
answering an incrim inating question If a subpoena is issued and the witness failed
[Beltran v. Samson, G.R. No. 32025 (1929)] to appear, the court should order the arrest of
when the accused testifies in his own behalf the witness if necessary [People v. Montejo,
and is cross-examined on matters covered by G.R. No. L-24154 (1967)].
the direct examination [Sec. 1(f), Rule 115].
The questions on cross examination should H. RIGHT TO SPEEDY, IMPARTIAL
be on matters related to his direct
examination [People v. Judge Ayson, G.R. No.
AND PUBLIC TRIAL
85215 (1989)].
In determining whether or not the right to
speedy disposition of cases has been violated,
this Court has laid down the following
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Exception: Sec. 30, Rule 130 allows the the person under investigation fully
admission of a conspirator but there must be understands the nature and the consequence
a prior establishment of a conspiracy by of his extrajudicial confession in relation to
evidence other than the confession. his constitutional rights. [Lumanog v. People,
[Salapuddin v. CA, G.R. No. 184681 (2013)] G.R. No. 182555 (2010)].
J.1. RIGHT TO BE ASSISTED BY COUNSEL The assisting counsel may be any lawyer,
AT ALL TIMES except those:
Waiver of the right to counsel must be made (1) Directly affected by the case;
with the assistance of counsel [Sec. 1(1), Art. (2) Charged with conducting preliminary
III, Constitution]. investigation;
(3) Charged with the prosecution of crimes.
This applies specifically in the following [Sec. 3, RA 7438].
instances:
(1) Signing of the written custodial report; J.2. RIGHT TO BE ALLOWED VISITS
(2) Signing of the written extra-judicial A person under custodial investigation has a
confession. right to be allowed visits by and conferences
(3) Signing of the waiver to the provisions of with:
Art. 125, RPC. (1) Any member of his immediate family,
which includes his or her spouse, fiancé or
For a valid extrajudicial confession made by a fiancée, parent or child, brother or sister,
person arrested, detained or under custodial grandparent or grandchild, uncle or aunt,
investigation, the following must concur: nephew or niece, and guardian or ward;
(1) It shall be in writing and signed by such (2) Any medical doctor; or
person; and (3) Priest or religious minister, chosen by him
(2) It must be signed in the presence of his or by any member of his immediate family
counsel or, in the latter’s absence, upon a or by his counsel, or by any national NGO
valid waiver. duly accredited by the Commission on
Human Rights or by any international
In the event of a valid waiver, it must be NGO duly accredited by the Office of the
signed in the presence of any of the parents, President.
elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, J.3. CONSEQUENCES OF VIOLATION OF
district school supervisor, or priest or minister CUSTODIAL RIGHTS
of the gospel as chosen by him.
J.3.A. FAILURE TO INFORM
If he cannot afford to have his own counsel, The arresting public officer or employee, or
he must be provided with a competent and any investigating officer, shall suffer a fine of
independent counsel by the investigating P6,000 or a penalty of imprisonment of not
officer. less than 8 years but not more than 10 years,
or both.
The modifier com petent and
independent in the 1987 Constitution is not The investigating officer who has been
empty rhetoric. It stresses the need to accord previously convicted of a similar offense shall
the accused, under the uniquely stressful suffer the penalty of perpetual absolute
conditions of a custodial investigation, an disqualification [Sec. 4, 1st par., RA 7438].
informed judgment on the choices explained
to him by a diligent and capable lawyer. This J.3.B. OBSTRUCTION, PREVENTION OR
requires that the lawyer be present and able PROHIBITION OF RIGHT TO VISITS AND
to advise and assist his client from the time CONFERENCES
the confessant answers the first question Any person guilty thereof shall suffer the
asked by the investigating officer until the penalty of imprisonment of not less than 4
signing of the extrajudicial confession. years nor more than 6 years and a fine of
Moreover, the lawyer should ascertain that P4,000.00 [Sec. 4, 2nd par., RA 7438].
the confession is made voluntarily and that
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It is the stage where the issues are joined and A.2. PROCEDURE OF ARRAIGNMENT
without which the proceedings cannot The Court shall issue an order directing
advance further or, if held, will otherwise be the public prosecutor to submit the
void. [People v. Albert, G.R. No. 114001 (1995)].
1 record of the PI to the branch COC for
the latter to attach the same to the
Rationale: The importance of arraignment record of the case.
is based on the constitutional right of the
accused to be informed. It is at this stage that The court shall inform the accused of
the accused, for the first time, is given the his right to counsel and ask him if he
opportunity to know the precise charge that desires to have one. Unless the accused
confronts him. [Kummer v. People, G.R. No. 2 is allowed to defend himself in person
174461 (2013)] or has employed counsel of his choice,
the court must assign a counsel de
PLEA oficio to defend him.
Pertains to the matter which the accused, on (1) If the accused pleads not guilty,
his arraignment, alleges in answer to the either:
charge against him. (a) He raises an affirmative defense,
that is, he admits the charge
A.1. DUTY OF THE COURT BEFORE but raises exempting or
ARRAIGNMENT justifying circumstances, in
The court shall: which case the order of trial is
(1) Inform the accused of his right to counsel; reversed;
(2) Ask him if he desires to have one; and (b) He raises a negative defense,
(3) Must assign a counsel de oficio to defend that is, he denies the charge, in
him, unless the accused: which case regular trial
(a) Is allowed to defend himself in person; 3 proceeds;
or (2) If the accused pleads guilty:
(b) Has employed a counsel of his choice (a) For a non-capital offense, the
[Sec. 6, Rule 116]. court will promulgate a
judgment of conviction;
Before arraignment and plea, the accused (b) For a capital offense, the
may avail of any of the following: prosecution is still required to
(1) Bill of particulars to enable him to prove guilt beyond reasonable
properly plead and prepare for trial; doubt;
(2) Suspension of arraignment; upon motion, (3) If the accused does not enter any
he may ask for suspension of arraignment plea, a plea of not guilty is entered
to pursue a petition for review before the by the court.
DOJ Secretary under Sec. 11, Rule 116, for
a period of suspension shall not exceed
The time of the pendency of a motion to in the offense charged with the conformity of
quash or for a bill of particulars or other the trial prosecutor alone [Sec. 1(f), Rule 116;
causes justifying suspension of the AM No. 03-1-09-SC Part B(2)].
arraignment shall be excluded in computing
the period [Sec. 1(g), Rule 116]. In case of failure of accused to appear despite
due notice, there is no arraignment in
A.2.A. HOW MADE absentia [Nolasco v. Enrile (1985)]. The
(1) In open court where the complaint or presence of the accused is not only a personal
information has been filed or assigned for right but also a public duty, irrespective of the
trial; gravity of the offense and the rank of the
(2) By the judge or clerk of court; court.
(3) By furnishing the accused with a copy of
the complaint or information; There can be no trial in absentia without first
(4) Reading it in a language or dialect known arraigning the accused; otherwise, the
to the accused; judgment is null and void.
(5) Asking the accused whether he pleads
guilty or not guilty. A.2.C. SPECIFIC RULES
(6) The accused must be present and must (1) Trial in absentia may be conducted only
personally enter his plea. after valid arraignment.
(7) Both arraignment and plea shall be made (2) Accused must personally appear during
on record but failure to enter of record arraignment and enter his plea; counsel
shall not affect the validity of the cannot enter plea for the accused.
proceedings [Sec. 1, Rule 116]. (3) Accused is presumed to have been validly
arraigned in the absence of proof to the
A.2.B. WHEN HELD contrary.
General rule: The accused should be (4) Generally, judgment is void if accused has
arraigned within 30 days from the date the not been validly arraigned.
court acquires jurisdiction over his person. (5) If accused went into trial without being
arraigned, subsequent arraignment will
Exceptions: When the law provides for cure the error provided that the accused
another period, arraignment should be held was able to present evidence and cross
within said period, as in the following cases: examine the witnesses of the prosecution
(1) When an accused is under preventive during trial.
detention, his case should be raffled
within 3 days from filing and accused If an information is amended in substance
shall be arraigned within 10 days from which changes the nature of the offense (not
receipt by the judge of the records of the merely as to form), arraignment on the
case [RA 8493 (Speedy Trial Act)]; amended information is mandatory
(2) Where the complainant is about to depart [Teehankee v. Madayag, G.R. No. 103102
from the Philippines with no definite date (1992)].
of return, the accused should be
arraigned without delay [RA 4908]. The need for arraignment is imperative in an
amended information or complaint. This,
Presence of the offended party: however, pertains only to substantial and not
The private offended party shall be required to formal amendments. [Kummer v. People,
to appear in the arraignment for the purpose G.R. No. 174461 (2013)]
of:
(1) Plea bargaining; B. WHEN A PLEA OF NOT GUILTY
(2) Determination of civil liability; and SHOULD BE ENTERED
(3) Other matters requiring his presence
(1) When the accused so pleaded;
In case of failure of the offended party to
(2) When he refuses to plead;
appear despite due notice, the court may
(3) When he makes a conditional or qualified
allow the accused to enter a plea of guilty to
plea of guilt [Sec. 1(c), Rule 116];
a lesser offense which is necessarily included
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(4) When the plea is indefinite or ambiguous; C.3. AFTER TRIAL HAS BEGUN
(5) When he pleads guilty but presents After the prosecution has rested its case, a
exculpatory evidence [Sec. 1(d), Rule 116]. change of plea to a lesser offense may be
granted by the judge, with the approval of the
Plea of guilty is mitigating if it is made before prosecutor and the offended party if the
prosecution starts to present evidence. prosecution does not have sufficient evidence
to establish the guilt of the accused for the
Plea of not guilty should be entered: crime charged. The judge cannot on its own
(1) Where the plea of guilty was compelled by grant the change of plea.
violence or intimidation
(2) When the accused did not fully D. ACCUSED PLEADS GUILTY TO
understand the meaning and CAPITAL OFFENSE; DUTY OF THE
consequences of his plea
(3) Where the information is insufficient to
COURT
sustain conviction of the offense charged
Conditions that the trial court must observe
(4) Where the information does not charge an
to obviate an improvident plea of guilty by
offense, any conviction thereunder being
the accused:
void
(1) Conduct a searching inquiry into the
(5) Where the court has no jurisdiction
voluntariness and full comprehension of
the consequences of the pleas;
C. WHEN ACCUSED MAY ENTER A (2) Require prosecution to present evidence
PLEA OF GUILTY TO A LESSER to prove the guilt and precise degree of
OFFENSE culpability of the accused;
(3) Ask the accused if he desires to present
Requisites: evidence in behalf and allow him to do so
(1) The lesser offense is necessarily included if he desires [Sec. 3, Rule 116].
in the offense charged;
(2) The plea must be with the consent of NOTE: A plea of guilty to a capital offense
both the offended party and the does not result to an immediate rendering of
prosecutor, except when the offended judgment.
party fails to appear despite due notice;
(3) The penalty for the lesser offense is not E. SEARCHING INQUIRY
more than two degrees lower than the
imposable penalty for the crime charged. The procedure in Sec. 3, Rule 116, when the
accused pleads guilty to a capital offense, is
C.1. DURING ARRAIGNMENT mandatory.
At arraignment, the accused, with the
consent of the offended party and prosecutor, The plea must be clear, definite and
may be allowed by the trial court to plead unconditional. It must be based on a free and
guilty to a lesser offense which is necessarily informed judgment.
included in the offense charged. [Sec. 2, Rule
116] The judge must ask whether the accused was
assisted by counsel during custodial
C.2. AFTER ARRAIGNMENT BUT BEFORE investigation and PI; ask questions on age,
TRIAL educational attainment and socio-economic
After arraignment but before trial, the status; and ask the defense counsel whether
accused may still be allowed to plead guilty or not he conferred with the accused [People v.
to said lesser offense after withdrawing his Nadera, G.R. Nos. 181384-87 (2000)].
plea of not guilty. No amendment of the
complaint or information is necessary [Sec. 2, Rationale: This is to enjoin courts to
Rule 116]. proceed with more care where the possible
punishment is in its severest form and to
avoid improvident pleas of guilt [People v.
Samontanez, G.R. No. 134530 (2000)].
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Form and content NOTE: Although the rule is that grounds not
(1) In writing; asserted in the motion to quash are waived,
(2) Signed by the accused or his counsel; and the following objections are not subject to
(3) Distinctly specify the factual and legal waiver:
grounds [Sec. 2, Rule 117]. (1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction
A. WHEN FILED over the offense charged
(3) Criminal action or liability has been
General Rule: At any time before entering extinguished
his plea, the accused may move to quash the (4) Double jeopardy
complaint or information [Sec. 1, Rule 117].
B.1. FACTS CHARGED DO NOT
Exception: When the grounds relied upon CONSTITUTE AN OFFENSE
the motion are: An information which does not charge an
(1) Failure to charge an offense offense or does not allege essential elements
(2) Lack of jurisdiction over the offense of a crime is void.
charged
(3) Extinction of the offense or penalty The test is whether or not the facts alleged, if
(4) Double jeopardy hypothetically admitted, would establish the
essential elements of the offense, as defined
In cases covered by the Rules on Summary by law without considering matters aliunde
Procedure, MTQ is allowed only if made on [People v. Romualdez, G.R. No. 166510
the grounds of lack of jurisdiction or failure to (2008)].
comply with barangay conciliation
proceedings [Sec. 19, Rules on Summary That the missing element may be proved
Procedure]. during the trial or that the prosecution has
presented evidence to establish the same
B. GROUNDS cannot have the effect of validating the void
information or of proving an offense which
In general does not exist [People v. Asuncion, G.R. No.
The following grounds for MTQ are exclusive: 80066 (1988)].
(1) Facts charged do not constitute an
offense; The defect is not cured by a failure to move to
(2) Court trying the case has no jurisdiction quash or by a plea of guilty [Suy Sui v. People,
over the offense charged; G.R. No. L-5278 (1953)].
(3) Court trying the case has no jurisdiction
over the person of the accused; Instead of dismissing, however, the court
(4) Officer who filed the information had no should give the prosecution an opportunity to
authority to do so; amend the information.
(5) The information does not conform
substantially to the prescribed form; Should the prosecutor fail to make the
(6) More than one offense is charged, except amendment or should the information suffer
when a single punishment for various from the same defect despite amendment,
offenses is prescribed by law; the MTQ shall be granted [Sec. 4, Rule 117].
(7) Criminal action or liability has been
extinguished; B.2. COURT HAS NO JURISDICTION OVER
(8) Averments which, if true, would constitute THE OFFENSE CHARGED
a legal excuse or justification; In a criminal prosecution, the place where the
(9) Accused has been previously convicted or offense was committed not only determines
acquitted of the offense charged, or the venue, but is an essential element of
case against him was dismissed or jurisdiction [Sec. 15, Rule 110; Lopez v. City
Judge, G.R. No. L-25795 (1966)].
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Lack of authority of the officer is not cured by B.7. CRIMINAL ACTION OR LIABILITY HAS
silence, acquiescence, express consent or BEEN EXTINGUISHED
even by amendment. When criminal liability is extinguished:
(1) Death of the accused, but liability for
B.5. COMPLAINT OR INFORMATION DOES pecuniary penalties is extinguished only if
NOT CONFORM SUBSTANTIALLY TO THE death occurs before final judgment;
PRESCRIBED FORM (2) Service of sentence, which must be by
The formal and substantial requirements are virtue of a final judgment and in the form
provided for in Secs. 6-12, Rule 110. prescribed by law;
(3) Amnesty;
(4) Absolute pardon;
(5) Prescription of the crime;
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the accused. The time-bar under the new rule C. MOTION TO QUASH AND
was fixed for the benefit of the State and the DEMURRER DISTINGUISHED
accused, and not for the accused only [People
Motion to Demurrer to
v. Lacson, G.R. No. 149453 (2003)].
quash evidence
The following are conditions sine qua non for When Filed before Filed after the
the application of the time-bar rule: filed entering plea prosecution has
(1) The prosecution, with the express rested its case
conformity of the accused, or the accused Basis for Does not go into Based upon the
moves for the provisional (sin perjucio) grant or the merits of the inadequacy of the
dismissal of the case; or both the denial case evidence adduced
prosecution and the accused move for a by the prosecution
provisional dismissal of the case [Sec. 8, Grounds Grounds are Ground is
Rule 117]; stated in Rule “insufficiency of
(2) The offended party is notified of the 117 evidence” to
motion for the provisional dismissal of the convict
case Neces- Does not May be filed either
(3) The court issues an order granting the sity of require a prior with leave or
motion and dismissing the case leave leave of court without leave of
provisionally; court
(4) The public prosecutor is served with a Effect of Grant does not Grant is deemed
copy of the order of provisional dismissal grant necessarily an acquittal and
of the case [People v. Lacson, G.R. No. follow a would preclude
149453 (2003)]. dismissal (Court the filing of
may order the another
filing of a new information or
A case may be revived by:
complaint or appeal by the
(1) Refiling of the information; information) prosecution
(2) Filing of a new information for the same
offense or one necessarily included in the Remedy If the court, in The order denying
original offense charged. denying the the motion for
motion to quash leave to file a
acts with grave demurrer “shall
General rule: Upon revival of the case, abuse of not be reviewable
there is no need for a new PI. discretion, then by appeal or by
certiorari or certiorari before
Exceptions: prohibition lies. judgment”
(1) If the original witnesses have recanted If the court denies
their testimonials or have died; the demurrer to
(2) If the accused is charged under a new evidence filed with
criminal complaint for the same offense; leave of court, the
(3) If the original charge is upgraded; accused may
adduce evidence
(4) If the criminal liability is upgraded from in his defense.
accessory to principal.
When the
demurrer is filed
without leave, the
accused waives
the right to
present evidence
and submits the
case for judgment
[Section 23, Rule
119]
D.1. FILING ANOTHER COMPLAINT OR Order denying MTQ Order granting MTQ
INFORMATION Interlocutory Final Order
General rule: Court may order that another
Not appealable absent Immediately
complaint or information be filed [Sec. 5,
a showing of GAD. If appealable but
Rule 117) there is GAD, then file subject to rules on
petition for certiorari double jeopardy
Exception: If MTQ was based on the
following: Does not dispose of the Disposes of the case
(1) Criminal action or liability has been case upon its merits upon its merits
extinguished; Proper remedy: appeal Proper remedy:
(2) Double jeopardy. after the trial appeal the order
Consequence: Consequence:
D.2. DISCHARGE OF THE ACCUSED Arraignment Amend information
General rule: If in custody, the accused if possible
shall not be discharged unless admitted to
bail [Sec. 5, Rule 117]. The order granting the Note: The remedy for an order denying a
MTQ must state either release of the accused MTQ is to go to trial, without prejudice to
or cancellation of his bond. reiterating the special defenses invoked in
their MTQ [Serana v. Sandiganbayan (2008)].
Exception: When there is no order to file However, if the court in denying the motion to
another complaint/information or, if there is quash acts without or in excess of jurisdiction
one, when no new information is filed within or with grave abuse of discretion, then
the time specified in the order or within such certiorari or prohibition lies [Lazarte v.
further time as the court may allow for good Sandiganbayan (2009); Javier v.
cause, the accused shall be discharged. Sandiganbayan (2009)].
Exception to the exception: The accused Exception to the rule that sustaining
will not be discharged if he is in custody for the m otion is not a bar to another
another charge. prosecution
General rule: Grant of the MTQ will not be
D.3. REMEDIES OF THE PROSECUTION a bar to another prosecution for the same
General rule: The prosecution may amend offense [Sec. 6, Rule 117].
the information to correct the defects if the
TC makes the order, and thereafter prosecute Exception: It will bar another prosecution
on the basis of the amended information [Sec. when the ground for the quashal is either:
4, Rule 117]. (1) The criminal action or liability has been
extinguished; or
Exception: Prosecution is precluded where (2) The accused has been previously
the ground for quashal would bar another convicted, or in jeopardy of being
prosecution for the same offense. convicted, or acquitted of the offense
charged.
The prosecution may appeal from the order of
quashal to the appellate court.
X. Pre-Trial Period
General rule: The court shall order a pre-
Application of Judicial Affidavit Rule trial conference after arraignment and within
Under Sec. 9, AM 12-8-8-SC: 30 days from the time the court acquires
(1) This Judicial Affidavit Rule shall apply to jurisdiction over the person of the accused.
all criminal actions:
(a) Where the maximum of the imposable Exception: A shorter period may be
penalty does not exceed six years; provided by special laws or SC circulars.
(b) Where the accused agrees to the use of
judicial affidavits, irrespective of the Things considered
penalty involved; or (1) Plea bargaining;
(c) With respect to the civil aspect of the (2) Stipulation of facts;
actions, whatever the penalties (3) Marking for identification of evidence;
involved are. (4) Waiver of objections to admissibility of
evidence;
(2) The prosecution shall submit the judicial (5) Modification of the order of trial if accused
affidavits of its witnesses not later than admits the charge but interposes a lawful
five days before the pre-trial, serving defense (reverse trial);
copies if the same upon the accused. The (6) Other matters that will promote a fair and
complainant or public prosecutor shall expeditious trial of the civil and criminal
attach to the affidavits such documentary aspects of the case [Sec. 1, Rule 118].
or object evidence as he may have,
marking them as Exhibits A, B, C, and so Role of the judge
on. No further judicial affidavit, During the pre-trial, the judge shall be the
documentary, or object evidence shall be one to ask questions on issues raised therein
admitted at the trial. and all questions must be directed to him to
(3) If the accused desires to be heard on his avoid hostilities between the parties [AM 03-
defense after receipt of the judicial 1-09-SC].
affidavits of the prosecution, he shall have
the option to submit his judicial affidavit Stipulation of facts
as well as those of his witnesses to the This is no longer prohibited in criminal cases
court within ten days from receipt of such [People v. Hernandez, G.R. No. 108028
affidavits and serve a copy of each on the (1996)].
public and private prosecutor, including
his documentary and object evidence However, in a case of rape with the allegation
previously marked as Exhibits 1, 2, 3, and that the victim is below 12 years of age which
so on. These affidavits shall serve as direct qualifies said crime and increases its penalty
testimonies of the accused and his to death, nothing short of proof beyond
witnesses when they appear before the reasonable doubt of every fact necessary to
court to testify. constitute the elements of the crime must be
established. Circumstances that qualify a
A. NATURE AND OBJECTIVE OF crime and increases its penalty to death
PRE-TRIAL cannot be the subject of stipulation [People v.
Sitao, G.R. No. 146790 (2002)].
Pre-trial is mandatory in all criminal cases. Its
main objective is to achieve an expeditious Marking for identification of evidence
resolution of the case. Proffer of exhibits is not allowed. It ought to
be done at the time a party closes the
Coverage presentation of evidence.
The court shall order pre-trial in all criminal
cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.
Conviction of the accused against whom (b) Without leave of court [Sec. 23, Rule
discharged state witness testified is not 119].
required.
Motion for leave to file demurrer
Subsequent amendment of the information (1) It must specifically state its grounds.
does not affect discharge [People v. Taruc, (2) It must be filed within a non-extendible
G.R. No. L-14010 (1962)]. period of 5 days after the prosecution rests
(i.e. after the court shall have ruled on the
NOTES prosecution’s formal offer). Prosecution
(1) The evidence adduced in support of the may then oppose within a non-extendible
discharge shall automatically form part period of 5 days from receipt.
of the trial. (3) If leave of court is granted, the demurrer
(2) If the discharge is not granted, the must be filed within a non-extendible
affidavit of the accused cannot be used by period of 10 days from notice. Prosecution
the prosecution. may oppose within a similar period [Sec.
23, Rule 119].
F. DEMURRER TO EVIDENCE
A dem urrer to evidence is defined as “an Effect granting dem urrer
objection or exception by one of the parties in The court dismisses the action on the ground
an action at law, to the effect that the of insufficiency of evidence [Sec. 23, Rule 119].
evidence which his adversary produced is This amounts to acquittal of the accused.
insufficient in point of law (whether true or
not) to make out his case or sustain the issue” Sufficient evidence for frustrating a
[Pasag v. Parocha, G.R. No. 155483 (2007), demurrer is evidence that proves:
citing Black’s Law Dictionary]. a. Commission; and
b. Precise degree of participation [Gutib v. CA,
General rule: An order granting the G.R. No. 131209 (1999)].
accused’s demurrer to evidence amounts to
an acquittal. Effect of denial of motion for leave to
Exception: When there is a finding that file dem urrer
there was grave abuse of discretion on the (1) Accused may choose between:
part of the trial court in dismissing a criminal (a) Filing the demurrer even without leave;
case by granting the accused’s demurrer to or
evidence [Hon. Mupas v. People, G.R. No. (b) Adducing evidence for his defense;
189365 (2011)]. (2) Order denying the motion for leave or
order denying the demurrer itself, is not
The order granting the demurrer is not reviewable by appeal or by certiorari
appealable but may be reviewed via certiorari before judgment [Sec. 23, Rule 119];
under Rule 65 [People v. Sandiganbayan, (3) It is interlocutory, but it may be assigned
Marcos (2012)]. as error and reviewed in the appeal that
may be taken from the decision on the
Ratio: This is to prevent the filing of merits [Cruz v. People, G.R. No. 121422
demurrer based on frivolous and flimsy (1999)].
grounds.
How initiated
(1) By the court motu proprio, after giving the
prosecution the opportunity to be heard;
or
(2) Upon demurrer to evidence filed by the
accused:
(a) With leave of court;
(3) The penalty imposed upon the accused; (1) The accused can be convicted of an
(4) The penalty should not be imposed in the offense only when it is both charged and
alternative. There should be no doubt as proven.
to the offense committed and the penalty (2) The mere fact that the evidence presented
for it; would indicate that a lesser offense
(5) The civil liability or damages caused by his outside the court’s jurisdiction was
wrongful act/omission to be recovered committed does not deprive the court of
from the accused by the offended party, if its jurisdiction, which had vested in it
there is any, unless the enforcement of the under the allegations in the information.
civil liability by a separate civil action has
been reserved/waived [Sec. 2, Rule 120]. Exception to the exception: Where there
are facts that supervened after the filing of
Proof beyond reasonable doubt the information which change the nature of
It is that degree of proof which produces the offense.
conviction in an unprejudiced mind [People v.
Bacalzo, G.R. No. 89811 (1991)]. W hen an offense includes or is
included in another
FOR TWO OR MORE OFFENSES (1) The offense charged necessarily includes
Where accused fails to object to two or more the offense proved when some of the
offenses charged in a single information or essential elements/ingredients of the
complaint before trial, the court may: former, as alleged in the
(1) Convict him of as many offenses as are complaint/information, constitute the
charged and proved, except when one of latter.
the offenses has been a necessary means (2) An offense charged is necessarily included
for committing the other offense and in the offense proved when the essential
where both have been the result of a ingredients of the former constitute or
single act; and form part of those constituting the latter
(2) Impose on him the penalty for each [Sec. 5, Rule 120].
offense, setting out separately the findings (3) The effect is that the accused may be
of fact and law in each offense [Sec. 3, convicted of:
Rule 120], subject to the three-fold rule on (4) The offense proved which is included in
the service of penalty. the offense charged; or
(5) The offense charged which is included in
VARIANCE BETWEEN ALLEGATION AND the offense proved [Sec. 4, Rule 120].
PROOF
General rule: The defendant can be The right to be informed of the charges has
convicted only of the crime with which he is not been violated because where an accused
charged. is charged with a specific crime, he is duly
informed also of lesser crimes/offenses
However, minor variance between the included therein [People v. Villamar (1998)].
information and the evidence cannot be
ground for acquittal, such as when the Where a complex crime is charged and the
variance: evidence fails to support the charge as to one
(1) Does not alter the nature of the offense; of the component offenses, the accused can
(2) Does not determine or qualify the crime be convicted of the one which is proven.
or penalty. [Sayson v. People, G.R. No. L-
51745 (1988)] ACQUITTAL
The judgment of conviction shall state
Exception: He can be convicted of an whether:
offense proved provided it is included in the (1) The evidence of the prosecution absolutely
charge, or of an offense charged which is failed to prove the guilt of the accused; or
included in that which is proved [Sec. 4, Rule (2) Merely failed to prove his guilt beyond
120]. reasonable doubt.
Requisites:
The evidence:
(1) Was discovered after the trial;
(2) Could not have been discovered and
produced at the trial even with the
exercise of reasonable diligence [US v.
Pico (1982)];
(3) Burden of proving this is on the accused.
[US v. Torrente (1922)];
(4) Is material, not merely cumulative/
corroborative/impeaching; and
(5) Is of such weight that it would probably variance with the health officer’s report at
change the judgment if admitted [Jose v. trial, that its contents raised doubts to the
CA (1997)]. guilt of the accused.
General rule: The procedure to be observed court’s notice that the evidence is already
in the MeTC/MTC/MCTC shall be the same as attached to the record [Sec. 3, Rule 124].
that in the RTC.
BRIEF FOR THE APPELLEE
Exceptions: Appellee shall file seven copies of his brief
(1) Where a particular provision applies only with the clerk of court, accompanied by proof
to either of said courts; of service of two copies on the appellant.
(2) Criminal cases governed by the Revised
Rules on Summary Procedure [Sec. 1, Rule It shall be filed within 30 days from receipt of
123]. the appellant’s brief [Sec. 4, Rule 124].
F.6. DISMISSAL OF APPEAL FOR recaptured two hours after, the SC said
ABANDONMENT OR FAILURE TO circumstances were not sufficient to justify
PROSECUTE; GROUNDS dismissal of the appeal [People v. Valencia
(1949)];
APPELLANT FAILS TO FILE HIS BRIEF (2) If there was absolutely no evidence
WITHIN THE PRESCRIBED TIME against the accused as found by the
The CA may, upon motion of the appellee or appellate court, he should be acquitted in
motu proprio and with notice to the appellant order to prevent an injustice by
in either case, dismiss the appeal if the technicalities [People v. Buenaventura
appellant fails to file his brief with the time (1994)];
prescribed, except where the appellant is (3) In case of automatic review [People v.
represented by a counsel de oficio. Cornelio, G.R. No. L-1289 (1971)].
If failure to file brief on time is the ground, F.7. PROMPT DISPOSITION OF APPEAL
appellant must be given notice to give him Appeals of accused who are under detention
opportunity to reason out why his appeal are given precedence in their disposition over
should not be dismissed. other appeals.
The accused need not be present in court
However, dismissal is proper despite lack of during the hearing of the appeal [Sec. 9, Rule
notice: 124].
(1) If appellant has filed a MFR or motion to
set aside the order dismissing the appeal, REVERSAL OR MODIFICATION OF
in which he stated the reason why he JUDGMENT ON APPEAL
failed to file his brief on time and the General rule: No judgment shall be
appellate court denied the motion after reversed or modified.
considering reason [Baradi v. People, G.R.
No. L-2658 (1948)]; Exception: When the CA, after an
(2) If appeal was dismissed without notice but examination of the record and of the parties’
appellant took no steps to have the appeal evidence, is of the opinion that error was
reinstated. Such action amounts to committed and such error injuriously affected
abandonment [Salvador v. Reyes, G.R. No. the appellant’s substantial rights [Sec. 10,
L-2606 (1949)]. Rule 124].
Likewise, when accused flees after the case G. THE COURT OF APPEALS
has been submitted for decision, he is
deemed to have waived his right to appeal G.1. SCOPE OF THE CA’S JUDGMENT
[People v. Ang Gioc, G.R. No. L-48547 (1941)]. The CA may:
(1) Reverse/affirm/modify the judgment;
However, the appeal will not be dismissed (2) Increase/reduce the penalty imposed by
despite escape: the TC;
(1) In one exceptional case, the appellant (3) Remand the case to the RTC for new trial
took advantage of a mass jailbreak or retrial;
(because, according to his counsel de (4) Dismiss the case [Sec. 11, Rule 124].
oficio he was innocent and wanted to
elude an unjust punishment) but was
When the accused appeals from the sentence G.4. POST-CA JUDGMENT
of the TC, he waives the constitutional
safeguard against double jeopardy and CERTIFICATION OR APPEAL OF CASES TO
throws the whole case open to the review of THE SC
the appellate court, which is then called upon (1) If the CA finds that death penalty should
to render such judgment as law and justice be imposed, it shall render judgment but
dictate, WON favorable to the accused and refrain from making an entry of judgment.
WON made the subject of assignment of It shall then certify the case and elevate its
errors [Ko Bu Lin v. CA, G.R. No. L-57170 entire record to the SC for review. The
(1982)]. accused does not have to do anything.
(2) If the judgment also imposes a lesser
G.2. CA’S POWER TO RECEIVE EVIDENCE penalty for offenses committed on the
The CA has power to try cases and conduct same occasion or which arose from the
hearings, receive evidence and perform any same occurrence that gave rise to the
and all acts necessary to resolve factual more severe offense for which death is
issues in cases: imposed, and the accused appeals, the
(1) Falling within its original jurisdiction; appeal shall be automatically included in
(2) Involving claims for damages arising from the case certified for review in the SC
provisional remedies; (3) If the CA imposes reclusion perpetua, life
(3) Where the court grants a new trial based imprisonment or a lesser penalty:
only on the ground of newly-discovered (4) It shall render and enter judgment
evidence. imposing such penalty.
(5) Appeal here is not automatic. The accused
CA’s trials and hearings must be continuous has to file a notice of appeal with the CA
and completed within three months, unless [Sec. 113, Rule 124].
extended by the Chief Justice [Sec. 12, Rule
124]. JUDGMENT TRANSMITTED AND FILED IN
THE TC
G.3. QUORUM IN THE CA When the CA’s entry of judgment is issued, a
(1) Three CA Justices constitute a quorum for certified true copy of the judgment shall be
the sessions of a division; attached to the original record. These shall
(2) The unanimous vote of the three Justices be remanded to the clerk of the court from
of a division is necessary for the which the appeal was taken [Sec. 17, Rule
pronouncement of a judgment or final 124].
resolution;
(3) Decision is reached through a consultation This copy of the entry serves as the formal
before the writing of the opinion by a notice to the court from which the appeal was
member of the division; taken of the disposition of the case in the
(4) If there is lack of unanimity, the Presiding appellate court, so that the judgment may be
Justice shall direct the CA raffle executed and/or placed or noted in the
committee to designate two additional proper file.
Justices to sit temporarily with them. They
shall then form a special division of five MOTION FOR NEW TRIAL DURING THE
members; PENDENCY OF APPEAL
(5) The concurrence of a majority of that (1) Appellant may file MNT on the ground of
special division is necessary for the newly discovered evidence material to his
pronouncement of a judgment or final defense any time:
resolution; (a) After the appeal from the lower court
(6) Designation of the additional Justices has been perfected; but
shall be made strictly by raffle and (b) Before the CA judgment convicting him
rotation among all other CA Justices [Sec. becomes final;
11, BP 129]. (2) The motion shall conform to Sec. 4, Rule
121 [Sec. 14, Rule 124];
death penalty, the appeal with respect to (4) Where appeal was not considered as the
the others, though punished with a lesser appropriate remedy.
penalty, is to the SC [Sec. 3, Rule 122];
(c) The penalty of reclusion perpetua or death H.4. REVIEW OF CA DECISIONS
is imposed on some of the defendants The procedure for the review by the SC of CA
and a lesser penalty on the other co- decisions on criminal shall be the same as in
defendants, on account of their varying civil cases [Sec. 2, Rule 125].
degree of participation in the commission
of the offense or due to the presence of General rule: The appellate jurisdiction of
modifying circumstances, in which case the SC in cases brought to it from the CA is
the decision on the non-life convicts is limited to reviewing and revising the errors of
directly appealable to the SC [People v. law incurred by the latter. The CA’s findings
Carino (2002)]. of fact are final. If an appeal in the SC
involves questions of facts, the SC has no
In these cases, the SC reviews not only errors jurisdiction and should dismiss appeal [Guico
of law but also the findings of fact by the TC. v. Mayuga, G.R. Nos. L-45274-5 (1936)].
As to the co-accused who did not appeal, the Dismissal of case upon filing of demurrer by
judgment of the TC insofar as it relates to him the accused was held to be final even though
becomes final and the appellate court has no based on erroneous interpretation of the law.
power to interfere with it [Salvatierra v. CA, Hence, an appeal therefrom by the
G.R. No. 107797 (1996)]. prosecution would constitute double jeopardy
[People v. Sandiganbayan, G.R. No. 174504
Exception: Insofar as the judgment of the (2011), citing People v. Nieto, 103 Phil. 1133]
appellate court is favorable and applicable to
those who did not appeal or who withdrew Where the TC has jurisdiction but mistakenly
his appeal [People v. Gandia, G.R. No. 175332 dismisses the complaint/information on the
(2008)]. ground of lack of it, the order of dismissal is
unappealable [People v. Duran, G.R. No. L-
The appeal of the offended party from the 13334 (1960)].
civil aspect shall not affect the criminal
aspect of the judgment or order appealed An appeal by the People will not lie if the
from [Sec. 11, Rule 122]. purpose is to correct the penalty imposed by
the trial court or to include in a judgment a
penalty erroneously omitted [People v. Paet,
G.R. No. L-9551 (1956)].
the person or in the place ordered to be require that the property seized be delivered
searched, in which case a direction may be to him. The judge shall see to it that delivery
inserted that it be served at any time of the has been complied with.
day or night [Sec. 9, Rule 126].
The return on the search warrant shall be
A search warrant violates Sec. 9, Rule 126 if filed and kept by the custodian of the log
the time for making the search is left blank, book on search warrants who shall enter
thus enabling the officers to conduct the therein the date of the return, the result, and
search in the evening of the appointed search, other actions of the judge [Sec. 12, Rule 126].
causing untold conveniences to the person
searched. The court which issued the search warrant
acquires jurisdiction over the items seized
Where a search is to be made during the under the said warrant. Goods seized lawfully
night time, the authority for executing the on the basis of the said warrant or its
same at that time should appear in the accepted exceptions are in custodia legis.
directive on the face of the search warrant Only that court which issued the warrant may
[Asian Surety v. Herrera, G.R. No. L-25232 order the release or disposition thereof. The
(1973)]. jurisdiction, custody and control of the court
over the items seized cannot be interfered
E. POST-SERVICE with. Custody lasts until the institution of the
appropriate criminal action with the proper
E.1. RECEIPT OF PROPERTY SEIZED court [Tenorio v. CA, G.R. No. 110604 (2003)].
If the lawful occupant is present: the
officer seizing the property under the search F. PROBABLE CAUSE
warrant must give a detailed receipt for the
same to the lawful occupant of the premises F.1. PROBABLE CAUSE IN SEARCH
in whose presence the search and seizure WARRANTS
were made. Probable cause means such facts and
circumstances which would lead a reasonably
If the lawful occupant is not present: discreet and prudent man to believe that an
the officer seizing the property under the offense has been committed, and that
search warrant must, in the presence of at objects sought in connection with the
least two witnesses of sufficient age and offense are in the place sought to be
discretion residing in the same locality, leave searched [Santos v. Pryce Gases Inc., G.R.
a receipt in the place in which he found the No. 165122 (2007)].
seized property [Sec. 11, Rule 126].
This probable cause must be shown to be
E.2. DELIVERY AND INVENTORY OF within the personal knowledge of the
PROPERTY complainant or the witnesses he may
The officer must forthwith deliver the produce and not based on mere hearsay. The
property seized to the judge who issued the probable cause must refer only to one specific
warrant, together with a true inventory offense [Roan v. Gonzales, G.R. No. 71410
thereof duly verified under oath. (1986)].
Ten days after issuance of the search warrant, Note: Probable cause to arrest does not
the issuing judge shall ascertain if the return necessarily involve a probable cause to
has been made, and if none, shall summon search and vice-versa.
the person to whom the warrant was issued
and require him to explain why no return was F.2. PERSONAL EXAMINATION BY JUDGE
made. OF THE APPLICANT AND WITNESSES
Aside from the requirements mandated by
If the return has been made, the judge shall Sec. 4, Rule 126, the Rules require the judge
ascertain whether Sec. 11, Rule 126, on giving to comply with a specific procedure in the
or receipts, has been complied with and shall conduct of the examination of the
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Where a police officer observes unusual General rule: The Tariff and Customs Code
conduct, which leads him reasonably to does not require a warrant for such searches.
conclude in the light of his experience that
criminal activity may be afoot, and that a Exception: In the search of a dwelling house,
person with whom he is dealing may be a search warrant is required.
General rule: Goods seized by virtue of an It may also result in civil liability for:
illegal warrant must be returned. (1) Violation of rights and liberties [Art. 32(9),
Civil Code];
Exception: If possession of the things seized (2) Malicious prosecution and acts referred to
is prohibited by law, they should not be Art. 32 [Art. 2218, Civil Code].
returned [Castro v. Pabalan, G.R. No. L-
Malice or bad faith is not required.
28642 (1976)].
Not only official actions, but all persons who are
Where the accused obtained goods from responsible for the violation are liable for
another through payment of bouncing checks damages [MHP Garments v. CA, G.R. No. 86720
and thereafter sold said goods to a buyer in (1994)].
good faith, but said goods were taken from
the purchaser with the use of a search H.4. WAIVER OF IMMUNITY AGAINST
warrant although the criminal case for estafa UNREASONABLE SEARCH AND SEIZURE
against the accused was still pending, the The constitutional immunity against
goods should be returned to the buyer. The unreasonable searches and seizure is a
buyer is entitled to possession of goods until personal right that may be waived
restitution is ordered by the court in the expressly/impliedly only by the person whose
criminal case [Yu v. Honrado, G.R. No. 50025 right is being invaded or one who is expressly
(1980)]. authorized to do so in his behalf [Pasion v.
Locsin, G.R. No. L-45950 (1938)].
MOTION TO SUPPRESS EVIDENCE
This refers to a motion to suppress as Requisites:
evidence the objects illegally taken pursuant (1) It must appear that the right exists;
to the exclusionary rule, which states that any (2) That the person involved had knowledge,
evidence obtained through unreasonable (actual or constructive) of the existence of
such right;
searches and seizures shall be inadmissible
(3) That the person had an actual intention to
for any purpose in any proceeding.
relinquish the right.
FLOWCHART:
SEARCH WARRANT PROCESS
FLOWCHART:
POST-ARREST PROCEDURE FOR WARRANTLESS ARRESTS
REMEDIAL LAW
EVIDENCE
NOTE: The Best Evidence Rule is a rule of [Secs. 35-37, Rule 132]
exclusion and it is not the same as the Form When objection made
classification that refers to the best evidence Testimonial Objection to the
to prove a fact in issue. evidence qualification of the
witness must be made at
For ex the time he is called to the
EXAMPLE: The failure to present a single stand, which is when the offer
official receipt to prove payment is contrary to of testimonial evidence is
the rule that a receipt, which is a written and made (orally)
signed acknowledgment that money and
goods have been delivered, is the best Objections to parts of
evidence of the fact of payment testim ony should be raised
although not exclusive. [Vitarich v. Losin, when the objectionable
G.R. 181560 (2010)] question is asked or after the
answer was given if the
POSITIVE AND NEGATIVE EVIDENCE objectionable feature became
apparent by reason of such
Positive Evidence Negative Evidence answer (also orally)
Witness affirms Witness states he/she did Object or Either:
that a fact did or not see or know of the real evidence (1) At the time it is
did not occur occurrence of a fact presented in ocular
inspection or
demonstration, or
F. ADMISSIBILITY OF EVIDENCE (2) When it is formally
offered
Admissibility of evidence refers to the
Documentary At the time it is formally
question of whether or not the circumstance
evidence offered
(or evidence) is to be considered at all. On the
other hand, the probative value of evidence
RELEVANCE OF EVIDENCE AND
refers to the question of whether or not it
COLLATERAL MATTERS
proves an issue. [PNOC Shipping and
Transport Corporation v. CA, G.R. No. 107518
Relevancy
(1998)]
Evidence is relevant when it has “such a
relation to the fact in issue as to induce belief
REQUISITES FOR ADMISSIBILITY
in its existence or non-existence”. [Sec. 4,
(1) Relevant to the issue; and
Rule 128] e.g., Evidence as to the age of a
(2) Competent i.e. not excluded by law or the
person who has been raped is relevant in a
ROC. [Sec. 3, Rule 128]
situation where the age would qualify the
offence to statutory rape
THE IMPORTANCE OF OFFER AND
OBJECTION IN RELATION TO ADMISSIBILITY
Determinable by the rules of logic and human
Admissibility is determined at the time the
experience.
evidence is offered to the court. Therefore,
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UP LAW BOC EVIDENCE REMEDIAL LAW
A party will have the burden of evidence should be against the party with the burden
only (i.e., will have to be a proponent) if there of proof. [Rivera v. CA, GR No. 115625 (1998);
is any factum probandum (whether Marubeni v. Lirag, GR No. 130998, (2001)]
evidentiary or otherwise) that the adverse
party has already established (whether by law, In criminal cases, the equipoise rule provides
rule, or by virtue of evidence that he has that where the evidence is evenly balanced,
presented) that he (the potential proponent) the constitutional presumption of innocence
has to overcome. That factum probandum tilts the scales in favor of the accused.
may, but does not have to be, nor is limited to [Malana v. People, G.R. No. 173612, (2008)]
a "prima facie presumption." Likewise, a
party will not have any burden of evidence at H. PRESUMPTIONS
all if the adverse party has not established
any factum probandum in the first place [Prof.
Avena]. Conclusive Disputable
Inferences which the Satisfactory if
In both civil and criminal cases, the burden of law makes so uncontradicted, but
evidence lies with the party who asserts an peremptory that it will may be contradicted
affirmative allegation. [Regalado] not allow them to be and overcome by
overturned by any other evidence. [Sec.
EXAMPLE: In a case for collection of a sum contrary proof however 3, Rule 131]
of money, if the defendant asserts that she strong [Datalift Movers
has paid, then she has the burden of proving v. Belgravia Realty,
that she had, not on the creditor that she had G.R. No. 144268
not. While the creditor had needed to prove (2006)]
the existence of a debt, the burden shifts to
the debtor because she alleged an affirmative
CONCLUSIVE PRESUMPTIONS UNDER THE
defense, which admits the creditor’s
RULES [Sec. 2, Rule 131]:
allegation. [Vitarich v. Losin, G.R. No. 181560
(1) A party is not permitted falsify a thing if:
(2010)]
(a) By his own declaration, act or omission;
(b) He intentionally and deliberately led
BURDEN OF PROOF AND BURDEN OF
another to believe a particular thing is
EVIDENCE
true;
Burden of (c) To act upon such belief; and
Burden of Evidence
Proof (d) The litigation arises out of such
Does not shift Shifts from party to party declaration act or omission.
throughout depending upon the (2) A tenant is not permitted to deny the title
the trial exigencies of the case in the of his landlord at the time of the
course of the trial” commencement of the relation of landlord
Generally Generally determined by the and tenant between them.
determined by developments at the trial, or
the pleadings by the provisions of These conclusive presumptions are based
filed by the substantive law or procedural upon the doctrine of estoppel in pais under
party rules which may relieve the the Civil Code. [Regalado]
party from presenting
evidence on the fact alleged Once a contract of lease is shown to exist
(presumptions, judicial notice between the parties, the lessee cannot by any
and admissions) proof, however strong, overturn the
conclusive presumption that the lessor has a
valid title to or a better right of possession to
EQUIPOISE RULE OR EQUIPOISE DOCTRINE the subject premises than the lessee. [Santos
The doctrine refers to the situation where the v. National Statistics Office., G.R. No. 171129,
evidence of the parties are evenly balanced or (2011)]
there is doubt on which side the evidence
preponderates. In this case, the decision
What a tenant is estopped from denying is issue raised in a dispute submitted for
the title of his landlord at the time of the arbitration were laid before arbitrators
commencement of the landlord-tenant and passed upon by them;
relation. If the title asserted is one that is (16) Private transactions have been fair
alleged to have been acquired subsequent to and regular;
the commencement of that relation, the (17) Ordinary course of business has been
presumption will not apply. Hence, the tenant followed;
may show that the landlord's title has expired (18) There was a sufficient consideration
or been conveyed to another or himself; and for a contract;
he is not estopped to deny a claim for rent, if (19) Negotiable instrument was given or
he has been ousted or evicted by title indorsed for a sufficient consideration;
paramount. [Ermitaño v Paglas, G.R. No. (20) An indorsement of negotiable
174436 (2013)] instrument was made before the
instrument was overdue and at the place
DISPUTABLE PRESUMPTIONS UNDER THE where the instrument is dated;
RULES [Sec. 3, Rule 131] (21) A writing is truly dated;
(1) Person is innocent of a crime or wrong; (22) Letter duly directed and mailed was
(2) Unlawful act is done with an unlawful received in the regular course of the mail;
intent; (23) Presumptions concerning absence:
(3) Person intends the ordinary consequences (a) Ordinary but continued absence of:
of his voluntary act; (i) 7 years, it being unknown WON
(4) Person takes ordinary care of his concerns; the absentee still lives, he is
(5) Evidence willfully suppressed would be considered dead for all purposes,
adverse if produced; except for those of succession
(6) Money paid by one to another was due to (ii) 10 years—the absentee shall be
the latter; considered dead for the purpose
(7) Thing delivered by one to another of opening his succession; but if
belonged to the latter; he disappeared after the age of
(8) Obligation delivered up to the debtor has 75 years, an absence of 5 years
been paid; shall be sufficient to open his
(9) Prior rents or installments had been paid succession
when a receipt for the later ones is (iii) 4 consecutive years—the spouse
produced; present may contract a
(10) A person found in possession of a subsequent marriage if s/he has
thing taken in the doing of a recent a well-founded belief that the
wrongful act is the taker and doer of the absent spouse is already dead;
whole act; otherwise, that things which a but where there is danger of
person possesses or exercises acts of death, an absence of only 2 years
ownership over are owned by him; shall be sufficient for remarriage
(11)Person in possession of an order on (b) Qualified absence
himself for the payment of the money or (i) A person on board a vessel lost
the delivery of anything has paid the during a sea voyage, or an
money or delivered the thing accordingly; aircraft which is missing, who
(12) Person acting in public office was has not been heard of for 4 years
regularly appointed or elected to it; since the loss of the vessel or
(13) Official duty has been regularly aircraft
performed; (ii) A member of the armed forces
(14) A court or judge acting as such, who has taken part in armed
whether in the Philippines or elsewhere, hostilities, and has been missing
was acting in the lawful exercise of for 4 years
jurisdiction; (iii) A person who has been in danger
(15) All the matters within an issue raised of death under other
in a case were laid before the court and circumstances and whose
passed upon by it; all matters within an
existence has not been known for (30) A thing once proved to exist
4 years continues as long as is usual with things of
(24) Acquiescence resulted from a belief the nature;
that the thing Persons acting as co- (31) The law has been obeyed;
partners have entered into a contract of (32) A printed/published book, purporting
co-partnership; to be printed/published by public
(25) A man and woman deporting authority, was so printed/published;
themselves as husband and wife have (33) A printed/published book, purporting
entered into a lawful contract of marriage; to contain reports of cases adjudged in
(26) Property acquired by a man and a tribunals of the country where the book is
woman who are capacitated to marry each published, contains correct reports of such
other and who live exclusively with each cases;
other as husband and wife without the (34) A trustee or other person whose duty
benefit of marriage or under a void it was to convey real property to a
marriage, has been obtained by their joint particular person has actually conveyed it
efforts, work or industry; to him when such presumption is
(27) In cases of cohabitation by a man and necessary to perfect the title of such
a woman who are not capacitated to person or his successor in interest;
marry each other and who have acquired (35) Presumptions regarding survivorship:
property through their actual joint (Applicable for all purposes except
contribution of money, property or succession)
industry, such contributions and their (a) When 2 persons perish in the same
corresponding shares including joint calamity,
deposits of money and evidences of credit (b) and it is not shown who died first,
are equal; (c) and there are no particular
(28) Presumptions governing children of circumstances from which it can be
women who contracted another marriage inferred,
within 300 days after termination of her (d) the survivorship is determined from the
former marriage (in the absence of proof probabilities resulting from the
to the contrary): acquiesced in was strength and the age of the sexes:
conformable to the law/fact; Person presumed
(29) Things have happened according to Situation
to have survived
the ordinary course of nature and ordinary
Both < 15 y/o The older
nature habits of life;
Both < 60 y/o The younger
When Child was One < 15 y/o, The one < 15
Presumption
Born the other > 60 y/o
Before 180 days Considered to have been Both > 15 and < 60 y/o, of The male
after the conceived during the different sexes
solemnization of former marriage, Both > 15 and <60 y/o, of The older
the subsequent provided it be born within the same sex
marriage 300 days after the
termination of the former One < 15 or > 60 y/o, and The one between
marriage the other between those those ages
ages
After 180 days Considered to have been
following the conceived during the (36) As between 2 or more persons called
celebration of the subsequent marriage, to succeed each other: If there is a doubt
subsequent even though it be born as to which of them died first, whoever
marriage within the 300 days after alleges the death of one prior to the
the termination of the other, shall prove the same. In the
former marriage. absence of proof, they shall be
considered to have died at the same time.
When there is gross disregard of the It does not mean such a degree of proof
procedural safeguards set forth in Republic excluding possibility of error and producing
Act No. 9165 (Comprehensive Dangerous absolute certainty. Only moral certainty is
Drugs Act of 2002), serious uncertainty is required – that degree of proof which
generated as to the identity of the seized produces conviction in an unprejudiced mind.
items that the prosecution presented in [Sec. 2, Rule 133]
evidence. Such doubt cannot be remedied by
merely invoking the presumption of regularity The burden is on the prosecution to prove
guilt beyond reasonable doubt, NOT on the
accused to prove his/her innocence. [Boac v they are supported by substantial evidence.
People, G.R. No. 180597, (2008)] [Tan Brothers Corp. v. Escudero, G.R. No.
188711 (2013)]
The prosecution must not rely on the
weakness of the evidence of the defense. J.4. CLEAR AND CONVINCING EVIDENCE
[Ubales v People, G.R. No. 175692, (2008);
People v. Hu, G.R. No. 182232, (2008)] The standard of proof required in granting or
denying bail in extradition cases is “clear and
J.2. PREPONDERANCE OF EVIDENCE convincing evidence” that the potential
Applicable quantum of evidence in civil cases extradee is not a flight risk and will abide
[Sec. 1, Rule 133] with all the orders and process of the
extradition court. [Government of Hongkong
Means that the evidence adduced by one side Special Administrative Region v. Olalia, Jr.,
is, as a whole, superior to or has greater G.R. No. 153675, (2007)]
weight than that of the other. [Habagat Grill v.
DMC-Urban Property Developer, Inc., G.R. No. It must be added that the defenses of denial
155110, (2005); Bank of the Philippine Islands and improper motive can only prosper when
v. Reyes, G.R. No. 157177, (2008)] substantiated by clear and convincing
evidence. [People v. Colentava, G.R. No.
In determining preponderance of evidence, 190348 (2015)]
the court may consider:
(1) All the facts and circumstances of the It is used for overturning disputable
case; presumptions, such as the presumption of
(2) The witnesses’ manner of testifying, their regularity in the performance of official duties
intelligence, their means and opportunity [Portuguez v. People, G.R. No. 194499, (2015)]
of knowing the facts to which they testify, or the existence of a valuable consideration.
the nature of the facts to which they testify, [Tolentino v. Sps. Jerera, G.R. No. 179874
the probability or improbability of their (2015)]
testimony, their interest or want of interest,
and also their personal credibility so far as NOTE, however: The addressee's “direct
the same may legitimately appear upon denial” of receipt of mail alleged to have
the trial; been mailed to it defeats the presumption in
(3) Number of witnesses (although Sec. 3(v), Rule 131 and shifts the burden upon
preponderance is not necessarily with the the party favored by the presumption to prove
number of witnesses). [Sec. 1, Rule 133] that the mailed letter was indeed received by
the addressee. [Commissioner of Internal
J.3. SUBSTANTIAL EVIDENCE Revenue v. Metro Star, G.R. No. 185371 (2010)]
Degree of evidence required in cases filed
before adm inistrative or quasi-judicial It is also the standard of proof for invoking
bodies. [Sec. 5, Rule 133] the justifying circumstance of self-defense for
the defense and proving the aggravating
Also applies to petitions under the Rule on circumstance of treachery for the prosecution
the Writ of Amparo. [Sec. 17, Rule on the Writ [People v. Casas, G.R. No. 212565 (2015)] The
of Amparo] former is because having admitted the killing
SUBSTANTIAL EVIDENCE requires the accused to rely on the strength of
That amount of relevant evidence which a his own evidence, not on the weakness of the
reasonable mind might accept as adequate Prosecution’s, which, even if it were weak,
to justify a conclusion. [Sec. 5, Rule 133] could not be disbelieved in view of his
admission. [People v. Mediado, G.R. No.
SUBSTANTIAL EVIDENCE RULE 169871 (2011)]
Factual findings, especially when affirmed by
the Court of Appeals, are accorded not only Intermediate in character – lower than proof
great respect but also finality, and are beyond reasonable doubt, but higher than
deemed binding upon this Court so long as preponderance of evidence
PAGE 369 OF 425
UP LAW BOC EVIDENCE REMEDIAL LAW
II. Judicial Notice and Rules of Court [Riano citing Siena Realty v.
Gal-lang, G.R. No. 145169]
Judicial Admissions The Management Contract entered into by
A. What Need Not be Proved petitioner and the PPA is clearly not among
B. Matters of Judicial Notice the matters which the courts can take judicial
C. Judicial Admissions notice of. It cannot be considered an official
D. Judicial Notice of Foreign Laws, Law act of the executive department. The PPA
of Nations and Municipal Ordinance was only performing a proprietary function
when it entered into a Management Contract
A. WHAT NEED NOT BE PROVED with petitioner. As such, judicial notice
cannot be applied. [Asian Terminals v.
(1) Facts of Judicial Notice Malayan Insurance, G.R. No. 171406 (2011)]
(2) Judicial Admissions
(3) Conclusive Presumptions The RTC declared that the discrepancy arose
from the fact that Barrio Catmon was
NOTE: Evidence is also not required when previously part of Barrio Tinajeros. The RTC
the issue is purely a question of law. has authority to declare so because this is a
matter subject of mandatory judicial notice.
B. MATTERS OF JUDICIAL NOTICE Geographical divisions are among matters
that courts should take judicial notice of. [B.E.
JUDICIAL NOTICE San Diego, Inc. v. CA, G.R. No. 159230 (2010)]
Judicial notice is the cognizance of certain
facts that judges may properly take and act B.2. WHEN DISCRETIONARY
on without proof because these facts are (1) Matters of public knowledge;
already known to them. Put differently, it is (2) Matters capable of unquestionable
the assumption by a court of a fact without demonstration; and
need of further traditional evidentiary (3) Matters ought to be known to judges
support. The principle is based on because of their judicial functions. [Sec. 2,
convenience and expediency in securing and Rule 129]
introducing evidence on matters which are
not ordinarily capable of dispute and are REQUISITES
not bona fide disputed. [Republic v. For the court to take judicial notice, three
Sandiganbayan, G.R. No. 166859, (2011)) material requisites should be present:
(a) The matter must be one of common and
B.1. W HEN MANDATORY general knowledge;
(b) It must be well and authoritatively settled
(1) Existence and territorial extent of states;
and not doubtful or uncertain;
(2) Their political history, forms of (c) It must be known to be within the limits of
government, and symbols of nationality; the jurisdiction of the court. [State
(3) Law of nations;
Prosecutors v, Muro, A.M. No. RTJ-92-876
(4) Admiralty and maritime courts of the (1994)]
world and their seals;
(5) Political constitution and history of the Judicial notice is not judicial knowledge. The
Philippines;
mere personal knowledge of the judge is not
(6) Official acts of the legislative, executive the judicial knowledge of the court, and he is
and judicial departments of the
not authorized to make his individual
Philippines; knowledge of a fact, not generally or
(7) Laws of nature; professionally known, the basis of his action.
(8) Measure of time; and
Judicial cognizance is taken only of those
(9) Geographical divisions. [Sec. 1, Rule 129] matters which are "commonly" known. [State
Prosecutors v, Muro, A.M. No. RTJ-92-876
NOTE: It would be error for the court not to (1994)]
take judicial notice of an amendment to the
on the current cause before the court. stationed in the foreign country in
[Tiburcio v. PHHC, G.R. No. L-13479, which the record is kept, and
(1959)] authenticated by the seal of his office.
Courts cannot take judicial notice that Unwritten foreign law may be proved
vehicular accidents cause whiplash injuries. through Sec. 46, Rule 130—
[Dela Llana v Biong, G.R. No. 182356 (2013)] Published treatise, periodical or pamphlet on
a subject of history, law, science or art is
The classification of the land is obviously admissible as tending to prove the truth of a
essential to the valuation of the property. The matter stated therein if:
parties should thus have been given the (1) The court takes judicial notice, or
opportunity to present evidence on the nature (2) A witness expert in the subject testifies,
of the property before the lower court took that the writer of the statement in the
judicial notice of the commercial nature of a treatise, periodical or pamphlet is
portion of the subject landholdings. [LBP v. recognized in his profession or calling as
Honeycomb Farms, G.R. No. 166259 (2012)] expert in the subject.
C. JUDICIAL ADMISSIONS
There are averments made in pleadings
To be a judicial admission, the same: which are not deemed admissions even if the
(1) Must be made by a party to the case; adverse party fails to make a specific denial
(2) Must be made in the course of the of the same like immaterial allegations [Sec.
proceedings in the same case; and 11, Rule 8], conclusions, non-ultimate facts in
NOTE: As regards judicial admissions the pleading [Sec. 1, Rule 8] as well as the
made in the trial of another case, the amount of liquidated damages [Sec. 11, Rule
same would be considered an extrajudicial 8]. [Riano]
admission for the purpose of the other
proceeding where such admission is Although an admission made during the pre-
offered. [Riano] trial is deemed to have been made in the
(3) May be verbal or written. [Sec. 4, Rule 129] course of the judicial proceeding and is
necessarily a judicial admission, an
Judicial admissions may be— adm ission m ade by the accused in the
(1) Made in: pre-trial of a crim inal case is not
(a) Pleadings filed by the parties necessarily admissible against him. To be
• This does not include pleadings admissible, it must comply with the
superseded by an amendment. Sec. conditions set forth under Sec. 2, Rule 118:
8, Rule 10 provides that “[a]n (1) Reduced in writing, and
amended pleading supersedes the (2) Signed by the accused and counsel.
pleading that it amends. However, [Riano]
adm issions in superseded
pleadings may be received in However, in the civil case instituted with the
evidence against the pleader.” criminal case, such admission will be
Admissions in superseded pleadings admissible against any other party.
have to be “received in evidence”
precisely because they become NOTE: The theory of adoptive
extra-judicial in nature the moment adm ission has been adopted by the court in
the pleading containing them are this jurisdiction. An adoptive admission is a
superseded by virtue of amendment. party’s reaction to a statement or action by
(b) Stipulations of facts by the parties in a another person when it is reasonable to treat
pre-trial conference [People v. the party’s reaction as an admission of
Hernandez, G.R. No. 108028, (1996)] something stated or implied by the other
(c) The course of the trial either by verbal person. The basis for admissibility of
or written manifestations or admissions made vicariously is that arising
stipulations from the ratification or adoption by the party
(d) Other stages of judicial proceedings of the statements which the other person had
(e) Motions [Republic v. de Guzman, G.R. made. In the Angara Diary, Estrada’s
No. 175021 (2011), where allegations options started to dwindle when the armed
made in a motion to dismiss were forces withdrew its support. Thus, Executive
considered to be, among others Secretary Angara had to ask Senate
requiring denial by the adverse party President Pimentel to advise petitioner to
and absence of such led to the consider the option of dignified exit or
application of Sec. 4, Rule 129] resignation. Estrada did not object to the
(2) Obtained through: suggested option but simply said he could
(a) Depositions never leave the country. His silence on this
(b) Written interrogatories and other related suggestions can be taken
(c) Request for admissions as an admission by him. [Estrada v. Desierto,
NOTE: Admissions made by a party G.R. Nos. 146710-15 (2001)]
pursuant to a request for admission is
for the purpose of the pending action JUDICIAL PROCEEDING [Sec. 3, Rule 1]
only. [Sec. 3, Rule 26] (1) Civil – includes special civil actions
[Regalado; See also Civil Procedure Rules] (2) Criminal
(2) A showing that the operator of the A witness can testify to those facts which
recording device is competent he/she knows of his/her personal knowledge
(3) Establishment of the authenticity and [Sec. 36, Rule 130]
correctness of recording
(4) A showing that no changes, deletions, or C. CATEGORIES OF OBJECT
additions have been made on the EVIDENCE
recordings
(5) A showing of the manner of preservation C.1. THE “THING ITSELF”
of the recording
Unique Objects that have E.g., a
(6) Identification of speakers
objects readily caliber 45
(7) A showing that the testimony elicited was
identifiable marks pistol by
voluntarily made without any kind of
virtue of its
inducement. [Torralba v. People, G.R. No.
serial
153699 (2005))
number
RELEVANT Objects Objects with no E.g., a
made unique typical
GENERAL RULE: When an object is unique characteristic but kitchen
relevant to the fact in issue, it may be are made readily knife with
exhibited to, examined or viewed by the court. identifiable identifying
[Sec. 1, Rule 130] marks
placed on it
EXCEPTIONS: Court may refuse exhibition by the
of object evidence and rely on testimonial witness
evidence alone if— Non- Objects with no E.g.,
(1) Exhibition is contrary to public policy, unique identifying marks narcotic
morals or decency; objects and cannot be substances
(2) It would result in delays, inconvenience, marked
unnecessary expenses, out of proportion
to the evidentiary value of such object; C.2. DEMONSTRATIVE EVIDENCE
[People v. Tavera, G.R. No. L-23172 (1925)] Not the actual thing, rather it represents or
(3) Evidence would be confusing or “demonstrates” the real thing, e.g.,
misleading. photographs, motion pictures and recordings
(4) The testimonial or documentary evidence [Riano]
already presented clearly portrays the
object in question as to render a view Audio, photographic and video evidence of
thereof unnecessary events, acts or transactions shall be
admissible provided it shall be:
COMPETENT (1) shown, presented or displayed to the
court, and
Evidence Must be Authenticated (2) identified, explained or authenticated
To authenticate the object is to show that (a) by the person who made the recording,
the object is the very thing that is either the or
subject matter of the lawsuit or the very one (b) by some other person competent to
involved to prove an issue in the case. testify on the accuracy thereof [Sec. 1,
Rule 11, Rules on Electronic Evidence]
Authentication Must be Made by
Competent W itness
To authenticate the object, the witness must C.3. EPHEMERAL ELECTRONIC
have the capacity to identify the object as the COMMUNICATIONS
very thing involved in the litigation. Refers to telephone conversations, text
messages, chatroom sessions, streaming
audio, streaming video, and other electronic
forms of communication the evidence of
(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]
C.1. APPLICABILITY
the circumstances relevant to its execution. C.3. EXCEPTIONS [SEC. 3, RULE 130]
[People v Tandoy, G.R. No. 80505, (1990))
WHEN THE ORIGINAL HAS BEEN LOST OR
The Best Evidence Rule applies only when the DESTROYED, OR CANNOT BE PRODUCED
terms of a writing are in issue. When the IN COURT, WITHOUT BAD FAITH ON THE
evidence sought to be introduced concerns OFFEROR’S PART
external facts, such as the existence, Proponent must prove due execution or
execution or delivery of the writing, without existence, and the cause of the loss,
reference to its terms, the Best Evidence Rule destruction or unavailability of the original
cannot be invoked. In such a case, secondary [Sec. 5, Rule 130] and reasonable diligence
evidence may be admitted even without and good faith in the search for/attempt to
accounting for the original. produce the original [Tan v. CA, G.R. No. L-
56866 (1985))
The Best Evidence Rule was not applicable
because the terms of the deed of sale with ALL duplicates or counterparts must be
right to repurchase were not the issue. [Heirs accounted for before using copies [De Vera v.
of Prodon v., Heirs of Alvarez, G.R. No. 170604 Aguilar, GR. No. 83377 (1993)]
(2013)]
Due execution of the document should be
Affidavits and depositions are considered as proved through the testimony of either:
not being the best evidence, hence not (a) the person or persons who executed it;
admissible if the affiants or deponents are (b) the person before whom its execution was
available as witnesses. [Regalado citing 4 acknowledged; or
Martin, op cit., p. 82] (c) any person who was present and saw it
executed and delivered, or who, after its
C.2. ORIGINAL DOCUMENT execution and delivery, saw it and
recognized the signatures, or by a person
(1) A document, the contents of which is the to whom the parties to the instruments
subject of inquiry had previously confessed the execution
(2) All such copies executed at or about the thereof. [Director of Lands v. CA, G.R. No.
same time, and with identical contents L-29575 (1971))
NOTE: Carbon copies are deemed
duplicate originals. [People v Tan, G.R. No. W hat to present instead (in order)
(1959); Skunac v. Sylianteng, G.R. No. (a) By a copy
205879 (2014)) (b) By a recital of its contents in some
The picture images of the ballots, as authentic document
scanned and recorded by the PCOS, are (c) By the testimony of witnesses [Rule 130,
likewise ‘official ballots’ that faithfully Sec. 5]
capture in electronic form the votes cast
by the voter, as defined by Sec. 2(3) of RA WHEN THE ORIGINAL IS IN THE CUSTODY
9369. As such, the printouts thereof are OR UNDER THE CONTROL OF THE PARTY
the functional equivalent of the paper AGAINST WHOM IT IS OFFERED, AND THE
ballots filled out by the voters and, thus, LATTER FAILS TO PRODUCE IT AFTER
may be used for purposes of revision of REASONABLE NOTICE
votes in an electoral protest. [Vinzons-
Chato v. House of Representatives Electoral W hat to present instead
Tribunal, G.R. No. 199149, (2013]] Same as when lost, destroyed, or cannot be
(3) All such entries made and repeated in the produced in court [Sec. 6, Rule 130]
regular course of business, at/near the
time of the transaction [Sec. 4, Rule 130] WHEN THE ORIGINAL CONSISTS OF
NUMEROUS ACCOUNTS OR OTHER
DOCUMENTS WHICH CANNOT BE
EXAMINED IN COURT WITHOUT GREAT
LOSS OF TIME, AND THE FACT SOUNDS TO
PAGE 379 OF 425
UP LAW BOC EVIDENCE REMEDIAL LAW
(3) Which is received, recorded, transmitted, (c) Whether the electronic document was
stored, processed, retrieved or produced recorded or stored in the usual and
electronically. ordinary course of business by a person
(4) It includes digitally signed documents and who is not a party to the proceedings
any print-out or output, readable by sight and who did not act under the control
or other means, which accurately reflects of the party using it [Sec. 2, Rule 7]
the electronic data message or electronic (4) The familiarity of the witness or the person
document. who made the entry with the
communication and information system;
For purposes of these Rules, the term (5) The nature and quality of the information
“electronic document” may be used which went into the communication and
interchangeably with electronic data information system upon which the
message”. [Sec. 1(h), REE] electronic data message or electronic
document was based; or
ELECTRONIC DATA MESSAGE (6) Other factors which the court may
Information generated, sent, received or consider as affecting the accuracy or
stored by electronic, optical or similar means. integrity of the electronic document or
[Sec. 1(g), REE] electronic data message.
burden of proving its authenticity. [Sec. 1, (6) Abovementioned facts shown by the
Rule 5] testimony of the custodian or other
qualified witnesses [Sec. 1, Rule 8]
Before any private electronic document can
be offered as authentic is received in evidence, The presumption provided above m ay
its authenticity must be proved by any of the be overcom e by evidence of—
following manner: (1) Untrustworthiness of the source of
(1) By evidence that it had been digitally information
signed by the person purported to have (2) Untrustworthiness of the method of the
signed the same; preparation, transmission or storage
(2) By evidence that other appropriate thereof
security procedures or devices as may be (3) Untrustworthiness of the circumstances of
authorized by the Supreme Court or by the preparation, transmission or storage
law for authentication of electronic thereof [Sec. 2, Rule 8]
documents were applied to the document;
or AUDIO, PHOTOGRAPHIC, VIDEO AND
(3) By other evidence showing its integrity EPHEMERAL EVIDENCE
and reliability to the satisfaction of the Refers to telephone conversations, text
judge. [Sec. 2, Rule 5] messages, chatroom sessions, streaming
audio, streaming video, and other electronic
Of electronic signatures [Sec. 2, Rule 6] forms of communication the evidence of
(1) By evidence that a method or process was which is not recorded or retained. [Sec. 1(k),
utilized to establish a digital signature Rule 2]
and verify the same;
(2) By any other means provided by law; or Admissibility of Ephemeral Evidence
(3) By any other means satisfactory to the Audio, video and similar evidence, to be
judge admissible shall be—
(1) shown, presented or displayed to the court
BUSINESS RECORDS AS EXCEPTION TO and
THE HEARSAY RULE (2) identified, explained or authenticated by
What Constitute Business Records: Records the person who made the recording or by
of any business, institution, association, some other person competent to testify on
profession, occupation, and calling of every the accuracy thereof [Sec. 1, Rule 11]
kind, whether or not conducted for profit, or
for legitimate purposes [Sec. 1(b), Rule 2] Ephemeral electronic communications shall
be proven by the testimony of a person who
Requisites to an exception to the rule was a party to the same or has personal
on hearsay evidence knowledge thereof. In the absence or
A memorandum, report, record, or data unavailability of such witnesses, other
compilation of acts, events, conditions, competent evidence may be admitted. [Sec.
opinions or diagnosis: 2, Rule 11]
(1) Made by electronic, optical or other similar
means If ephemeral electronic communication and
(2) Made at or near the time of or from recording of telephone conversation under
transmission or supply of information Sec. 2, Rule 11 of the REE are recorded or
(3) Made by a person with knowledge thereof embodied in an electronic document, then
(4) Kept in the regular course or conduct of a the provisions of Rule 5 (“Authentication of
business activity, Electronic Documents”) shall apply.
(5) Such was the regular practice to make the
memorandum, report, record, or data E. PAROL EVIDENCE RULE
compilation by electronic, optical or
similar means Parol evidence
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or
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as a witness for the party presenting him or [Icutanim v. Hernandez, G.R. No. L-1709, June
her. [AFP Retirement and Separation Benefits 8, 1948]
System v. Republic, G.R. No. 188956 (2013)]
CREDIBILITY NOT REVIEWABLE
W hen determined Credibility of a witness is a question of fact,
Qualification of a witness is determined at the which is not reviewable by the Supreme Court
time the said witness are produced for [Addenbrook v. People, G.R. No. L-22995
examination or at the taking of their (1967])
depositions.
TWO KINDS OF INCOMPETENCY TO TESTIFY
With respect to children of tender years, [Herrera]
competence at the time of the occurrence is Absolute Partial
also taken into account. Forbidden to testify
only on certain
In case person is convicted of a crime matters specified
under Secs. 22-23,
GENERAL RULE: Not disqualified Forbidden to testify
Rule 130 due to
on any matter
interest or
EXCEPTION: Otherwise provided by law, relationship, or to
e.g. under Art. 821 of the Civil Code, a person privileges of the
convicted of any of the following crimes parties
cannot be a witness to a will:
(a) Falsification of documents, COMPETENCY PRESUMED
(b) Perjury; or A person who takes the witness stand is
(c) False testimony presumed to possess the qualifications of a
witness. His competence may be questioned
B. COMPETENCY VERSUS by the other party by interposing an objection.
CREDIBILITY [Herrera]
BY REASON OF MENTAL INCAPACITY [Sec. They may give evidence by signs, or through an
interpreter or in writing, and such testimony,
21(a), Rule 130]
through an interpreter, is not hearsay. But sign
language must be capable of verification. [People
Requisites
v. Hayag, GR No. L-38635 (1980))
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his CHILD WITNESS
production for examination [Riano] The competency of a child witness is determined
by his capacity for observation, recollection and
BY REASON OF IMMATURITY [Sec. 21(b), communication. [People v. Mendoza, G.R. No.
113791 (1996))
Rule 130]
Requisites
C.2. BY REASON OF MARRIAGE
Also known Martial Disqualification Rule or
(1) Mental maturity of the witness (child) must
Spousal Immunity
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception REQUISITES [Sec. 22, Rule 130]
truthfully. [Riano] (1) Marriage is valid and existing as of the time of
the offer of testimony.
CONCEPTS (2) That the spouse for or against whom the
testimony is offered is a party to the case;
(3) That the case is not one against the other.
When incapacity matters for
[Herrera]
disqualification
Incapacity must occur at the time the witness
perceives the event. EXCEPTIONS: [Sec. 22, Rule 130]
Spouse may testify for or against the other even
without the consent of the latter—
Presumption of sanity [Herrera]
(1) In a civil case by one against the other; or
(2) In a criminal case for a crime committed by
GENERAL RULE: The law presumes that every
one against the other or the latter's direct
person is of sound mind, in the absence of proof to
descendants/ascendants.
the contrary. [Art. 800, Civil Code]
EXCEPTION: if the witness is a lawful inmate of RATIONALE [Alvarez v. Ramirez, G.R. No.
an asylum for the insane. [Herrera citing Torres v. 143439 (2005)]
Lopez (1926)] (1) There is identity of interests between husband
and wife;
A mental retardate is not therefore, per se, (2) If one were to testify for or against the other,
disqualified from being a witness. As long as his there is a consequent danger of perjury;
senses can perceive facts and if he can convey his (3) Policy of the law is to guard the security and
perceptions in court, he can be a witness. [People confidence of private life, and to prevent
v. Española, G.R. No. 119308 (1997), citing People v. domestic disunion and unhappiness; and
Salomon, G.R. No. 96848 (1994)] (4) Where there is want of domestic tranquility,
there is danger of punishing one spouse
Unsound mind through the hostile testimony of the other.
(1) Includes any mental aberration
(organic/functional), induced by DURATION
drugs/hypnosis The privilege lasts only during the marriage and
(2) Not disqualified as long as the witness can terminates upon divorce or annulment or death.
convey ideas by words/signs [Herrera]
against the spouse’s testifying to any facts (1) The survivor may testify against the estate of
affecting the other however these facts may have the deceased where the latter was guilty of
been acquired. [Herrera] fraud which fraud was established by evidence
other than the testimony of the survivor. [Ong
WAIVER OF DISQUALIFICATION Chua v. Carr, G.R. No. L-29512 (1929))
If a spouse imputed the conviction to the other. (2) He may also testify where he was the one sued
by the decedent’s estate since the action then
SPOUSES AS CO-ACCUSED is not against the estate. [Tongco v. Vianzon,
The other cannot be called as an adverse party G.R. No. 27498 (1927))
witness under this Rule. (3) He may likewise testify where the estate had
filed a counterclaim against him or where the
C.3. BY REASON OF DEATH OR INSANITY estate cross-examined him as to matters
OF ADVERSE PARTY (ALSO KNOWN AS occurring during the lifetime of the deceased.
[Goñi v. CA, G.R. No. L-27434 (1986)]
“DEAD MAN’S STATUTE” OR
(4) No application to a mere witness
“SURVIVORSHIP RULE”) (5) No application to nominal parties, officers and
Also known as Dead Man’s Statute or stockholders against corporations
Survivorship Rule (6) Cannot be used in a negative testimony
(7) If the defendant did not object
REQUISITES [Sec. 23, Rule 130] (8) When the party cross-examines the witness
(1) Defendant is the executor or administrator or a (9) Where the purpose of the oral testimony is to
representative of the deceased or of the person prove a lesser claim than what might be
of unsound mind; warranted by clear written evidence, to avoid
(2) Suit is upon a claim by the plaintiff against the prejudice to the estate of the deceased [Icard v.
estate of said deceased or person of unsound Marasigan, G.R. No. L-47442 (1941)]
mind; (10) Agent of the deceased as to transactions or
(3) Witness is the plaintiff, or an assignor of that communications with the deceased or
party, or a person in whose behalf the case is incompetent person which were made with
prosecuted; and an agent of such person in cases in which the
(4) Subject of the testimony is as to any matter of agent is still alive and competent to testify
fact occurring before the death of such [Goñi v. CA, G.R. No. L-27434 (1986)]
deceased person or before such person
became of unsound mind. What the Dead Man’s Statute proscribes is the
admission of testimonial evidence upon a claim
APPLICABILITY which arose before the death of the deceased.
This rule is applied only to civil cases. The incompetency is confined to the giving of
testimony. [Sanson v. CA, G.R. No. 127745
It is still applicable even if the property has (2003)]
already been judicially adjudicated to the heirs
regardless whether the deceased died before or C.4. BY REASON OF PRIVILEGED
after the suit. COMMUNICATIONS
RATIONALE PRIVILEGE
To close lips of the plaintiff when death has closed A privilege is a rule of law that, to protect a
the lips of the defendant in order to discourage particular relationship or interest, either permits a
perjury and protect the estate from fictitious witness to refrain from giving testimony he
claims. otherwise could be compelled to give, or permits
someone usually one of the parties, to prevent the
SCOPE witness from revealing certain information.
[Herrera]
Facts favorable to the deceased are not
prohibited HUSBAND AND WIFE [Sec. 24(a), Rule 130]
The rule does not operate to exclude testimony Also known as marital privilege
favorable to the deceased because the rule seeks
to protect his interests. [Herrera, citing Go Chi Gun Rationale
v. Co Cho, G.R. No. (L-13342 (1962), which cited Confidential nature of the privilege; to preserve
Jones on Evidence] marital and domestic relations.
W hen the Dead Man’s statute is not
applicable
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To allow the disclosure during discovery children or other direct descendants (filial
procedure of the hospital records would be to privilege).
allow access to evidence that is inadmissible
without the patient’s consent. Disclosing them EXCEPTIONS: [Art. 215, Family Code]
would be the equivalent of compelling the Descendant may be compelled to give his
physician to testify on privileged matters he testimony in a criminal case when—
gained while dealing with the patient, without the (1) [against parent or grandparent] The
latter’s prior consent. [Chan v. Chan, G.R. No. testimony is indispensable in a crime
179786 (2013)] committed against said descendant; or
(2) [against parent] In a crime committed by
PRIEST AND PENITENT [Sec. 24(d), Rule 130] one parent against the other.
Requisites Applicability
(1) Priest or minister must be duly ordained in the The rule is applied to both civil and criminal cases.
sect in which he belongs [Herrera]
(2) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in The privilege cannot apply between stepmothers
the course of discipline of the sect or and stepchildren because the rule applies only to
denomination of the priest. direct ascendants and descendants, a family tie
(3) Confession or advice was confidential and connected by a common ancestry. A stepdaughter
penitential in character. has no common ancestry by her stepmother. [Lee
v. CA, G.R. No. 177861 (2010)]
PUBLIC OFFICERS [Sec. 24(e), Rule 130]
A child can waive the filial privilege and choose to
Requisites testify against his father. The rule refers to a
(1) Communication was made to the public officer privilege not to testify, which can be invoked or
in official confidence; and waived like other privileges. [People v. Invencion y
(2) Public interest would suffer by the disclosure Soriano, G.R. No. 131636 (2003)]
of such communication.
OTHER PRIVILEGED COMMUNICATION NOT
Elements of “presidential IN THE RULES OF COURT
communications privilege”
(1) Must relate to a “quintessential and non- Newsman’s Privilege [RA 53, as amended by
delegable presidential power;” RA 1477]
(2) Must be authored or “solicited and received”
by a close advisor of the President or the GENERAL RULE: Publisher, editor or duly
President himself; and accredited reporter cannot be compelled to reveal
(3) Privilege may be overcome by a showing of the source of any news report or information
adequate need such that the information related in confidence
sought “likely contains important evidence”
and by the unavailability of the information EXCEPTION: Court/House/Committee in
elsewhere. [Neri v. Senate, G.R. No. 180643 Congress finds that such revelation is demanded
(2008)] by security of the State
or officers or employees of the Department of answer to the fact of his previous final
Health or to the courts when relevant in any conviction for an offense.
judicial proceeding under this Act, any
information acquired under authority Board of
Food Inspection and Board of Food and Drug, or ONE-DAY EXAMINATION OF WITNESS RULE
concerning any method or process which as a [AM 03-1-09-SC]
trade secret is entitled to protection. [Secs. 9, 11 (f) A witness has to be fully examined in one (1) day
and 12, RA 3720] only. It shall be strictly adhered to subject to the
courts' discretion during trial on whether or not to
TRIPS Agreement extend the direct and/or cross-examination for
Undisclosed information or trade secrets are justifiable reasons.
considered privileged communication.
D.2. ORDER OF EXAMINATION OF AN
It is protected information if it complies with 3
requisites: INDIVIDUAL WITNESS
(1) A secret in a sense that it is not generally
known among or readily accessible to persons DIRECT EXAMINATION [Sec. 5, Rule 132]
within the circles that normally deal with the Examination-in-chief of a witness by the party
kind of info in question, presenting him, on the facts relevant to the issue.
(2) Has commercial value because it is a secret;
(3) Has been subject to reasonable steps, under The purpose is to elicit facts about the client’s
the circumstances by the person lawfully in cause of action or defense.
control of the information, to keep it a secret.
[Art. 39] CROSS-EXAMINATION [Sec. 6, Rule 132]
Examination of the witness by the adverse party
Electronic Document as Privileged after said witness has given testimony on direct
Communication examination.
The confidential character of a privileged
communication is not solely on the ground that it The purpose is to test the witness’s accuracy and
is in the form of an electronic document. [Sec. 3, truthfulness, and freedom from interest or bias, or
Rule 3, Rules on Electronic Evidence] the reverse, and to elicit all important facts
bearing upon the issue.
D. EXAMINATION OF A WITNESS
Matters covered
Any matters stated in the direct examination, or
D.1. RIGHTS AND OBLIGATIONS OF A
connected therewith
WITNESS [SEC. 3, RULE 132]
Right to cross-examination
OBLIGATION Cross-examination is the most reliable and
To answer questions, although his answer may effective way known of testing the credibility and
tend to establish a claim against him. accuracy of testimony. This is an essential
element of due process. [Herrera, citing Alford v.
RIGHTS US (1931)]
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or The right to cross-examine under the constitution
insulting demeanor is superior to technical rules on evidence. [Herrera,
(2) Not to be detained longer than the interests of citing People v. Valero (1982)]
justice require
(3) Not to be examined except only as to matters Partial cross-examination is sufficient where
pertinent to the issue the witness was cross-examined on material
(4) Not to give an answer which will tend to points, and full cross-examination was not due to
subject him to a penalty for an offense unless prosecutors’ fault but that of the defense who
otherwise provided by law, e.g., Sec. 8, RA repeatedly moved for postponement, direct
1379 and other immunity statutes which grant examination cannot be thrown off the case.
the witness immunity from criminal [Herrera, citing People v. Caparas, 102 SCRA 782]
prosecution for offenses admitted
(5) Not to give an answer which will tend to Effect of denial of right to cross-examine
degrade his reputation, unless it to be the very Most courts require that the testimony given on
fact at issue or to a fact from which the fact in direct examination be stricken off – provided the
issue would be presumed. But a witness must
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unavailability of the witness is through no fault of (2) Leading Questions – These are questions
the party seeking to cross-examine. [Herrera] that suggest to the witness the answer, which
the examining party desires.
Cross-examination must be completed or finished.
When cross-examination is not and cannot be LEADING QUESTIONS
done or completed due to causes attributable to
the party offering the witness, the uncompleted GENERAL RULE: Leading questions are not
testimony is thereby rendered incompetent. allowed.
[Herrera, citing Ortigas, Jr. v. Lufthansa German
Airlines (1975)] EXCEPTIONS:
(1) On cross examination;
RE-DIRECT EXAMINATION [Sec. 7, Rule 132] (2) On preliminary matters;
Examination of a witness by the counsel who (3) When there is a difficulty is getting direct and
conducted the direct examination after the cross intelligible answers from a witness who is
examination. ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
The purpose is for the witness to explain or (4) On an unwilling or hostile witness;
supplement his answers given during the cross- (a) Adverse interest;
examination. (b) Unjustified reluctance to testify;
(c) His having misled the party into calling him
Matters covered to the witness stand.
Those stated in the cross-examination, and (5) On a witness who is an adverse party or an
matters not dealt with, if allowed by the Court officer/director or managing agent of a
public/private corporation or of a
RE-CROSS-EXAMINATION [Sec. 8, Rule 132] partnership/association which is an adverse
Examination conducted by adverse party upon party.
conclusion of the re-direct examination.
Test of leading questions: By putting the
Matters covered words or though in the witness’ mind to be echoed
Those stated in his re-direct examination, and back, the examiner is in effect the one testifying,
also on such other matters as may be allowed by not the witness. [Herrera, citing Escato v Pineda,
the court in its discretion. CA 53 OG 7742]
solidum for the whole [Jaucian v. Querol, G.R. No. conspiracy is shown by evidence other than such
L-11307 (1918)]. act or declaration. [People v. Cachuela, G.R. No.
191752 (2013)]
A mere community of interests between several
persons is not sufficient to make the admissions of Existence of the conspiracy may be inferred from
one admissible against all. [Herrera] acts of the accused. [People v. Belen, G.R. No. L-
13895 (1963))
Just like in partnership and agency, the interest
must be a subsisting one unless for the admission Applies only to extra-judicial statements, not to
to be admissible. [Herrera] testimony given on the stand. [People v. Serrano,
G.R. No. L-7973 (1959)]
Admission by Privies [Sec. 31, Rule 130]
As regards extrajudicial admissions after
Privies termination of conspiracy, before trial
Persons who are partakers or have an interest in
any action or thing, or any relation to another GENERAL RULE: Not admissible
[Riano, citing Black’s Law Dictionary]
EXCEPTIONS:
It denotes the idea of succession, not only be right (1) Made in the presence of the co-conspirator
of heirship and testamentary legacy, but also that who expressly/impliedly agreed (tacit
of succession by singular title, derived from acts admission)
inter vivos, and for special purposes. (example: (2) Facts in admission are confirmed in the
assignee of a credit and one subrogated to it are independent extrajudicial confessions made by
privies.) [Alpuerto v. Perez Pastor and Roa, G.R. No. the co-conspirators after apprehension
L-12794 (1918)] (interlocking admissions)
(3) As a circumstance to determine credibility of
Requisites for Admissibility witness
(1) There must be an act, declaration or an (4) Circumstantial evidence to show the
omission by a predecessor-in-interest; probability of the latter’s participation
(2) Act, declaration or omission must have [Regalado]
occurred while he was holding (not after) the
title to the property; and Doctrine of interlocking confessions:
(3) Act, declaration or omission must be in [People v. Molleda, G.R. No. L-34248 (1978)]
relation to the property. Extrajudicial statements of co-accused may be
taken as circumstantial evidence against
Former owner of Real Estate the person implicated to show the
It is necessary that the admission of the former probability of the latter’s actual
owner of a property has been made while he holds participation, provided that the statements are
title to the property in order that such admission made by several accused are:
may be binding upon the present owner. [Herrera, (1) Made without collusion
citing Gevero v. IAC, (1990)] (2) Identical with each other in their essential
details;
Exception to Res Inter Alios Acta (3) Corroborated by other evidence on record
Branch 1: Co-Conspirator’s Admission
[Sec. 30, Rule 130] Applicable to extrajudicial statements
The evidence adduced in court by the conspirators
Requisites for admissibility as witnesses are not declarations of conspirators,
(1) Act or declaration must relate to the but direct testimony to the acts to which they
conspiracy; testify. This is applicable only when it is sought to
(2) It must have been made during the existence introduce extrajudicial declarations and
of the conspiracy; and statements of the co-conspirators. [Herrera, citing
(3) Conspiracy must be shown by evidence other People v. Vizcarra, (1982)]
than such act/declaration.
Similar acts previously done
An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30, GENERAL RULE: Evidence that one did or did
Rule 130. This provision states that the act or not do a certain thing at one time is not
declaration of a conspirator relating to the admissible to prove that he did or did not do the
conspiracy, and during its existence, may be given same or similar thing at another time. (2nd Branch
in evidence against the co-conspirator after the of res inter alios acta rule) [Sec. 34, Rule 130]
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E.3. OTHER FORMS OF ADMISSIONS If the accused admits having committed the act in
question but alleges a justification therefore, the
ADMISSION BY SILENCE [Sec. 32, Rule 130] same is merely an admission. [Ladiana v. People,
G.R. No. 144293 (2002))
Requisites for Admissibility
When silence is deemed an admission: [People v. Any confession, including a re-enactment, without
Paragsa, G.R. No. L-44060 (1978)] admonition of the right to silence and to counsel,
(1) Person heard or understood the statement; and without counsel chosen by the accused is
(2) That he was at a liberty to make a denial; inadmissible in evidence. [People v. Yip Wai Ming,
(3) That the statement was about a matter G.R. No. 120959 (1996))
affecting his rights or in which he was
interested and which naturally calls for a [T]he basic test for the validity of a confession is –
response; was it voluntarily and freely made. The term
(4) That the facts were within his knowledge; and "voluntary" means that the accused speaks of his
free will and accord, without inducement of any
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kind, and with a full and complete knowledge of Repeated failure to cross-examine is an implied
the nature and consequences of the confession, waiver [Savory Luncheonette v. Lakas ng
and when the speaking is so free from influences Manggagawang Pilipino, G.R. No. L-38964 (1975)]
affecting the will of the accused, at the time the
confession was made, that it renders it admissible F.2. MEANING OF HEARSAY
in evidence against him. Plainly, the admissibility It is an out-of-court statement which is offered by
of a confession in evidence hinges on its the witness in court to prove the truth of the
voluntariness.[People v. Satorre, G.R. No. 133858 matters asserted by the statement.
(2003)]
It is any evidence, whether oral or documentary, if
Effect of Extrajudicial Confession of Guilt its probative value is not based on personal
knowledge of witness but on knowledge of some
GENERAL RULE: An extrajudicial confession other person not on witness stand [Regalado]
made by an accused is not a sufficient ground for
conviction. [Sec. 3, Rule 133] ELEMENTS
(1) Declarant is out of court
EXCEPTION: When corroborated by evidence of (2) Out of court declaration is offered as proof of
the actual commission of a particular crime its contents
(corpus delicti). [Sec. 3, Rule 133] (3) Absence of opportunity for cross-examination
whether or not the evidentiary foundations for the Can be made any time, Must have been made
introduction where met. [Riano] even during trial; ante litem motam;
Admissible only against Admissible even against
Dying declarations are admissible in favor of the the admitter; and 3rd persons; and
defendant as well as against him. [US v. Antipolo, Admissible as an
Admissible not as an
37 Phil. 726 (1918)) exception to the hearsay
exception to any rule
rule
DECLARATION AGAINST INTEREST Made against one’s
Made against one’s
claim or defense,
pecuniary or moral
although not moral or
Requisites for Admissibility interest
pecuniary interest
(1) Declarant is dead or unable to testify;
Primary evidence Secondary evidence
(2) Declaration relates to a fact against the
interest of the declarant;
(3) At the time he made said declaration, ACT OR DECLARATION ABOUT PEDIGREE
declarant was aware that the same was
contrary to his interest; and Requisites for Admissibility
(4) Declarant had no motive to falsify and (1) Declarant is dead or unable to testify;
believed such declaration to be true [Sec. 38, (2) The pedigree is in issue or is relevant thereto;
Rule 130] [Herrera]
(3) Declarant must be related by birth or marriage
Inability to testify means that the person is dead, to the person whose pedigree is in issue;
mentally incapacitated or physically incompetent. (4) Declaration was made before the controversy;
Mere absence from the jurisdiction does not make and
him ipso facto unavailable. [Fuentes v. CA, G.R. (5) Relationship between the declarant and the
No. 111692 (1996)] person whose pedigree is in question must be
shown by evidence other than such declaration.
Declaration against interest made by the [Sec. 39, Rule 130]
deceased, or by one unable to testify, is
admissible even against the declarant’s Pedigree includes
successors-in-interest or even against third (1) Relationship;
persons [Sec. 38, Rule 130] (2) Family genealogy;
(3) Birth;
Actual or real interest (4) Marriage;
It is essential that at the time of the statement, (5) Death;
the declarant’s interest affected thereby should be (6) Dates when these facts occurred;
actual, real or apparent, not merely contingent, (7) Places where these facts occurred;
future or, conditional; otherwise the declaration (8) Names of relatives; and
would not in reality be against interest. (example: (9) Facts of family history intimately connected
declarations regarding a declarant’s inheritance with pedigree. [Sec. 39, Rule 130]
are not admissible because these are future
interests) [Herrera] “Proof other than declaration”
(1) Statements of matters of interest to persons (1) Affidavit in the Rules of Summary Procedure -
engaged in an occupation; [Herrera] shall not be considered as competent evidence
(2) Such statements are contained in a list; for the party presenting the affidavit, but the
(3) Compilation is published for use by persons adverse party may utilize the same for
engaged in that occupation; and any admissible purpose [Sec. 14, Rules on
(4) It is generally used and relied upon by them. Summary Procedure]
(2) Examination of a child witness
Need of preliminary proof of
trustworthiness G. OPINION RULE
There should be requirements of preliminary proof Opinion is an inference or conclusion drawn from
of trustworthiness before such lists are rendered facts observed.
admissible. Some proof must be shown how or in
what manner it was made up, where the GENERAL RULE: The opinion of witness is not
information it contained was obtained, or whether admissible [Sec. 48, Rule 130]
the quotation of prices made were derived from
actual sales or otherwise. [Herrera] EXCEPTIONS
(1) Expert witness [Sec. 49, Rule 130]
LEARNED TREATISES (2) Ordinary witness [Sec. 50, Rule 130]
H. CHARACTER EVIDENCE This is usually offered in rape cases and where the
accused invokes the defense of self-defense.
GENERAL RULE: [Sec. 51, Rule 130]
Character evidence is not admissible. In rape cases, the character of a woman may be
relevant and admissible on the question of the
EXCEPTIONS: presence or absence of her consent. While in
(1) Criminal cases [Sec. 51(a), Rule 130] homicide and assault cases, it may be used as
(2) Civil case [Sec. 51(b), Rule 130] evidence of the victim’s character for turbulence
(3) In the case provided for in Sec. 14, Rule 132. and violence warranting the response of the
accused. [Herrera]
CHARACTER EVIDENCE
Character evidence must be limited to the traits
The aggregate of the moral qualities which
and characteristics involved in the type of offense
belong to and distinguish an individual charged. Thus:
person; the general result of one’s - on a charge of rape : character for chastity
distinguishing attributes. - on a charge of assault: character for
[Herrera citing Black’s Law Dictionary, pg. 834] peaceableness or violence
- on a charge of embezzlement : character
Character distinguished from for honesty. [CSC v. Belagan, G.R. No. 132164
reputation (2004)]
Character is what a man is and depends on
attributes he possesses. It signifies reality. H.2. CIVIL CASES
Moral character is admissible only when pertinent
Reputation is what he is supposed to be in to the issue of character involved in the case. [Sec.
51(b), Rule 130]
what people say he is, it depends on
attributes which others believe one to Evidence of the witness’ good character is not
possess. It signifies what is accepted to be admissible until such character has been
reality at present. [Herrera, citing Black’s Law impeached. [Sec. 14, Rule 130]
Dictionary]
I. RULE ON EXAMINATION OF A
H.1. CRIMINAL CASES
(1) Accused – May prove his good moral
CHILD WITNESS [AM NO. 004-07-
character, which is pertinent to the moral trait SC]
involved in the offense charged. A statement made by a child describing any act or
(2) Prosecution – May not prove the bad moral attempted act of child abuse, not otherwise
character of the accused, except in rebuttal. admissible under the hearsay rule, maybe
(3) Offended Party – His/her good or bad admitted in evidence in any criminal or non-
moral character may be proved if it tends to criminal proceeding subject to the following rules:
establish in any reasonable degree the (1) Before such hearsay statement may be
probability or improbability of the offense admitted, its proponent shall make known to
charged. the adverse party the intention to offer such
statement and its particulars to provide him a
Good moral character of accused fair opportunity to object. If the child is
The purpose of presenting evidence of good moral available, the court shall, upon motion of the
character is to prove the improbability of his doing adverse party, require the child to be present
the act charged. The accused may prove his good at the presentation of the hearsay statement
moral character only if it is pertinent to the moral for cross-examination by the adverse part.
trait involved in the offense charged. [Herrera] When the child is unavailable, the fact of such
circumstance must be proved by the
Bad moral character of accused in proponent.
rebuttal (2) In ruling on the admissibility of such hearsay
Unless and until the accused gives evidence of his statement, the court shall consider the time,
good moral character the prosecution may not content and circumstances thereof which
introduce evidence of his bad character. [Herrera, provide sufficient indicia of reliability. It shall
citing People v. Rabanes, G.R. No. 93709 (1992)] consider the following factors:
(a) Whether there is a motive to lie;
Good or bad moral character of offended (b) The general character of the declarant
party child;
(c) Whether more than one person heard the I.3. COMPETENCY OF CHILD WITNESS
statement;
(d) Whether the statement was spontaneous; PRESUMPTION OF COMPETENCE
(e) The timing of the statement and the Every child is presumed qualified to be a witness.
relationship between the declarant child To rebut the presumption of competence enjoyed
and witness; by a child, the burden of proof lies on the party
(f) Cross-examination could not show the lack challenging his competence. [Sec. 6(b)]
of knowledge of the declaration child;
(g) The possibility of faulty recollection of the REQUISITES FOR COMPETENCY [People v.
declarant of child is remote; and Mendoza, G.R. No. 113791. (1996)]
(h) The circumstances surrounding the (1) Capacity of observation;
statement are such that there is no reason (2) Capacity of recollection; and
to suppose the declarant child (3) Capacity of communication.
misrepresented the involvement of the
accused. When the court finds that substantial doubt exists
(3) The child witness shall be considered regarding the ability of the child to
unavailable under the following situations: perceive/remember/communicate, distinguish
(a) Is deceased, suffers from physical infirmity, truth from falsehood, or appreciate the duty to tell
lack of memory, mental illness, or will be the truth in court, a competency exam shall be
exposed to severe psychological injury; or conducted.
(b) Is absent from the hearing and the
proponent of his statement has been The age of the child by itself is not a sufficient
unable to procure his attendance by basis for a competency examination. [Sec. 6(a)]
process or other reasonable means.
The court has the duty of continuously assessing
When the child witness is unavailable, his hearsay the competence of the child throughout his
testimony shall be admitted only if corroborated testimony. [Sec. 6(f)]
by other admissible evidence.
I.4. EXAMINATION OF A CHILD WITNESS
I.1. APPLICABILITY OF THE RULE (1) In open court [Sec. 11]
Shall apply in all criminal proceedings and non-
(2) Alternative Modes
criminal proceedings involving child witnesses.
(a) Live-Link TV Testimony, in Criminal Cases
[Sec. 1]
where Child is a Victim or a Witness [Sec.
25]
The ROC provisions on deposition, conditional
(i) If there is a substantial likelihood
examination of witnesses and evidence shall be
that the child would suffer trauma
applied suppletorily. [Sec. 32]
from testifying in the presence of the
accused, his counsel or the
I.2. MEANING OF “CHILD WITNESS” [SEC. prosecutor.
4(A)] (ii) Trauma must be of a kind which
(1) Any person who at the time of giving testimony would impair the completeness or
is less than 18 years; truthfulness of the child’s testimony.
(2) In child abuse cases a child includes one over (b) Videotaped Deposition of a Child Witness
18 years, [Sec. 27]
(a) But is found by the court as: (i) If the court finds that the child will
(i) Unable to fully take care of himself, not be able to testify in open court at
or trial, it shall issue an order that the
(ii) Protect himself from abuse, neglect, deposition of the child be taken and
cruelty, exploitation, or preserved by videotape.
discrimination (ii) The rights of the accused during trial,
(b) Because of a physical or mental disability especially the right to counsel and to
or condition. confront and cross-examine the
child, shall not be violated during
Child witnesses may testify in a narrative form the deposition.
and leading questions may be allowed by the trial
court in all stages of the examination if the same LIVE-LINK TV TESTIMONY OF A CHILD
will further the interest of justice. [People v. Santos, WITNESS [Sec. 25]
G.R. No. 172322 (2006)] Live-link television testimony, in criminal cases
where the child is a victim or a witness
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The court may order that the testimony of the shown to be the statement of the child and
child be taken by live-link television if there is a not the product of improper suggestion;
substantial likelihood that the child would suffer (c) the videotape and audiotape machine or
trauma from testifying in the presence of the device was capable of recording testimony;
accused, his counsel or the prosecutor. (d) the person operating the device was
competent to operate it;
The trauma must be of a kind which would impair (e) the videotape or audiotape is authentic and
the completeness/truthfulness of the child’s correct; and
testimony. (f) it has been duly preserved.
If it is necessary for the child to identify the The individual conducting the interview of the
accused at trial, the court may allow the child to child shall be available at trial for examination by
enter the courtroom for the limited purpose of any party. Before the videotape or audiotape is
identifying the accused, or the court may allow the offered in evidence, all parties shall be afforded
child to identify the accused by observing the an opportunity to view or listen to it and shall be
image of the latter on a television monitor. furnished a copy of a written transcript of the
proceedings.
VIDEOTAPED DEPOSITION OF A CHILD
WITNESS [Sec. 27] The fact that an investigative interview is not
If the court finds that the child will not be able to videotaped or audiotaped as required by this
testify in open court at trial, it shall issue an order section shall not by itself constitute a basis to
that the deposition of the child be taken and exclude from evidence out-of-court statements or
preserved by videotape. testimony of the child. It may, however, be
considered in determining the reliability of the
The rights of the accused during trial, especially statements of the child describing abuse.
the right to counsel and to confront and cross-
examine the child, shall not be violated during the I.5. HEARSAY EXCEPTION IN CHILD ABUSE
deposition. CASES [SEC. 28]
Proponent of hearsay statement shall make
ADMISSIBILITY OF VIDEOTAPED AND known to the adverse party the intention to offer
AUDIOTAPED IN-DEPTH INVESTIGATIVE OR such statement and its particulars.
DISCLOSURE INTERVIEWS IN CHILD ABUSE
CASES [Sec. 29] If the child is available, court shall require the
child to be present at the presentation of the
Requisites for admissibility: hearsay statement for cross-examination by the
(1) The child witness is unable to testify in court adverse party.
on grounds and under conditions established
under section 28 (c) which are: If unavailable, the fact of unavailability must be
(a) Is deceased, suffers from physical infirmity, proved by the proponent and his hearsay
lack of memory, mental illness, or will be testimony must be corroborated by other
exposed to severe psychological injury; or admissible evidence.
(b) Is absent from the hearing and the
proponent of his statement has been I.6. SEXUAL ABUSE SHIELD RULE
unable to procure his attendance by
process or other reasonable means. GENERAL RULE: [Sec. 30(a)]
(2) The interview of the child was conducted by The following are inadmissible in any criminal
duly trained members of a multi-disciplinary proceeding involving alleged child sexual abuse:
team or representatives of law enforcement or (1) Evidence offered to prove that the alleged
child protective services in situations where victim engaged in other sexual behavior;
child abuse is suspected so as to determine (2) Evidence offered to prove the sexual
whether child abuse occurred. predisposition of the alleged victim.
(3) The party offering the videotape or audiotape
must prove that: EXCEPTION: [Sec. 30(b)] Evidence of specific
(a) the videotape or audiotape discloses the instances of sexual behavior by the alleged victim
identity of all individuals present and at all to prove that a person other than the accused was
times includes their images and voices; the source of semen, injury or other physical
(b) the statement was not made in response to evidence.
questioning calculated to lead the child to
make a particular statement or is clearly PROTECTIVE ORDERS
The reason for sustaining or overruling an Other cases when motion to strike is
objection need not be stated. However, if the proper
objection is based on two or more grounds, a (1) When the answer of the witness is
ruling sustaining the objection on one or some of unresponsive;
them must specify the ground/s relied upon. (2) When the witness becomes unavailable for
cross-examination through no fault of the
Reservation of a ruling by the court on an cross-examining party;
objection to the admissibility of evidence, without (3) When the testimony is allowed conditionally
subsequently excluding the same, amounts to a and the condition for its admissibility was not
denial of an objection. [People v. Tavera, G.R. No. fulfilled; [Riano]
L-23172 (1925)) (4) Where evidence has been properly received,
and its effect has been destroyed by other
POR LO QUE PUEDO VALER PRINCIPLE evidence, or its admissibility has afterward
The Supreme Court encourages the admission or become apparent; [Herrera]
borderline evidence for whatever it is worth or por
lo que puedo valer. [Prats & Co. v. Phoenix Motion to strike out should specify
Insurance, 52 Phil. 807 (1930)) objection
A motion to strike out should specify the objection
NO EXPRESS RULING NEEDED as well as the portion of the evidence which is
The trial court need not make an express ruling objected to. [Herrera]
admitting the exhibits if there is no objection
interposed to their admission. [Herrera, citing Boix F. TENDER OF EXCLUDED
v. Rivera, CA Rep. 2d 104] EVIDENCE [SEC. 40, RULE 132]
The procedure in Section 40 is known as offer of
The ruling of the court is required only when there proof or tender of excluded evidence and is made
is an objection to a question or to the admission of for purposes of appeal. If an adverse judgment is
an exhibit. [Herrera] eventually rendered against the offeror, he may in
his appeal assign as error the rejection of the
The ruling on an objection must be given excluded evidence. The appellate court will better
immediately after an objection is made. However, understand and appreciate the assignment of
objections based on irrelevancy and immateriality error if the evidence involved is included in the
need no specification or explanation. Relevancy or record of the case [Cruz-Arevalo v. Querubin-
materiality of evidence is a matter of logic, since it Layosa, AM No. RTJ-06-2005 (2006)]
is determined simply by ascertaining its logical
connection to a fact in issue in the case. [Cruz- If an exhibit sought to be presented in evidence is
Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005 rejected, the party producing it should ask the
(2006)] courts permission to have the exhibit attached to
the record. Any evidence that a party desires to
E. STRIKING OUT AN ANSWER [SEC. submit for the consideration of [a higher] court
39, RULE 132] must be formally offered by him otherwise it is
excluded and rejected and cannot even be taken
MOTION TO STRIKE cognizance of on appeal. [Catacutan v. People,
A motion to strike out goes to admissibility G.R. No. 175991 (2011)]
and not to weight; evidence should not be
Before tender of excluded evidence is made, the
stricken out because of its little probative evidence must have been formally offered before
value. [Herrera] the court. And before formal offer of evidence is
made, the evidence must have been identified and
(1) Court may sustain an objection and order the presented before the court [Yu v. CA, G.R. No.
answer given to be stricken off the record if: 154115 (2005)]
(a) witness answers the question before the
adverse party had the opportunity to object, Documents marked as exhibits during the hearing
and but which were not formally offered in evidence
(b) such objection is found to be meritorious. cannot be considered as evidence nor shall they
(2) The court may also, upon motion, order the have evidentiary value. [Vda. De Flores v.
striking out of answers, which are Workmen’s Compensation Commission, G.R. No.
(a) incompetent, L-43316 (1977)]
(b) irrelevant or
(c) otherwise improper.
Rationale
(1) to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the evidence
or testimony; and
(2) even if he is not convinced to reverse his earlier
ruling, the tender is made to create and
preserve a record for appeal [Riano]
REMEDIAL LAW
RULES OF
PROCEDURE FOR
ENVIRONMENTAL
CASES
(2) the applicant will suffer grave injustice The judge shall exert best efforts to persuade
and irreparable injury [Sec. 8, Rule 2] the parties to arrive at a settlement of the
dispute. The judge may issue a consent
B.2. PERIOD OF EFFECTIVITY decree approving the agreement between the
Seventy-two (72) hours from date of parties in accordance with law, morals, public
receipt of the TEPO by the party or person order and public policy to protect the right of
enjoined [Sec. 8, Rule 2] the people to a balanced and healthful
ecology.
B.3. DUTY OF COURT
The court where the case is assigned shall Evidence not presented during the pre-trial,
periodically monitor the existence of acts that except newly-discovered evidence, shall be
are the subject matter of the TEPO even if deemed waived. [Sec. 5, Rule 3]
issued by the executive judge, and may lift
the same at any time as circumstances may CONSENT DECREE
warrant. [Sec. 8, Rule 2] A judicially-approved settlement between
concerned parties based on public interest
The judge shall report any action taken on a and public policy to protect and preserve the
TEPO, EPO, TRO or a preliminary injunction, environment. [Sec. 4(b), Rule 1]
including its modification and dissolution, to
the Supreme Court, through the Office of the E. PROHIBITED PLEADINGS AND
Court Administrator, within ten days from the MOTIONS
action taken. [Sec. 11, Rule 2]
(2) the payment of attorney’s fees, costs of The court may, by itself or through the
suit and other litigation expenses appropriate government agency, monitor the
execution of the judgment and require the
The court may also require the violator party concerned to submit written reports on
(1) to submit a program of rehabilitation or a quarterly basis or sooner as may be
restoration of the environment, the costs necessary, detailing the progress of the
of which shall be borne by the violator or execution and satisfaction of the judgment.
(2) to contribute to a special trust fund for The other party may, at its option, submit its
that purpose subject to the control of the comments or observations on the execution
court [Sec. 1, Rule 5] of the judgment. [Sec. 3, Rule 5]
A.4. PROCEDURE
Filing of verified Petition with Certificate
Against Forum Shopping
↓
Issuance of Writ of Kalikasan within 3 days
from filing of petition
↓
Service of the Writ
↓
Filing of a verified Return within a non-
extendible period of ten [10] days after
service of the writ
↓
Hearing [Court may call for preliminary
conference]
↓
Judgment
(2) When an offense has just been committed, the search warrant within five days from
and he has probable cause to believe date of seizure or in case of warrantless
based on personal knowledge of facts or arrest, submit within five days from date of
circumstances that the person to be seizure, the inventory report, compliance
arrested has committed it. report, photographs, representative
samples and other pertinent documents to
Individuals deputized by the proper the public prosecutor for appropriate
government agency who are enforcing action.
environmental laws shall enjoy the (3) Sale Upon Motion. Upon motion by any
presumption of regularity under Sec. 3(m), interested party, the court may direct the
Rule 131 of the Rules of Court when effecting auction sale of seized items, equipment,
arrests for violations of environmental laws. paraphernalia, tools or instruments of the
[Sec. 1, Rule 11] crime. The court shall, after hearing, fix
the minimum bid price based on the
D. STRATEGIC LAWSUIT AGAINST recommendation of the concerned
government agency. The sheriff shall
PUBLIC PARTICIPATION [SLAPP] conduct the auction. The auction sale
shall be with notice to the accused, the
The manner by which to allege that a criminal person from whom the items were seized,
action is a SLAPP is through a motion to or the owner thereof and the concerned
dismiss rather than a motion to quash. A government agency. The notice of auction
motion to dismiss allows the action to be shall be posted in three conspicuous
challenged as a SLAPP, while a motion to places in the city or municipality where the
quash is directed at the Information. items, equipment, paraphernalia, tools or
instruments of the crime were seized.
Moreover, granting a motion to dismiss bars (4) Disposition of Proceeds. The
the refiling of a SLAPP in accordance with the proceeds shall be held in trust and
law of the case. In contrast, the grant of a deposited with the government depository
motion to quash does not bar the filing of a bank for disposition according to the
subsequent Information. [Annotation to the judgment. [Sec. 2, Rule 12]
Rules of Procedure for Environmental Cases,
Supreme Court Sub-Committee] F. BAIL
E. PROCEDURE IN THE CUSTODY WRITTEN UNDERTAKING BY ACCUSED
AND DISPOSITION OF SEIZED (1) To appear before the court that issued the
ITEMS warrant of arrest for arraignment
purposes on the date scheduled, and if the
accused fails to appear without
The applicable rules and regulations of the justification on the date of arraignment,
concerned government agency shall be accused waives the reading of the
followed. information and authorizes the court to
enter a plea of not guilty on behalf of the
In the absence of such rules and regulations, accused and to set the case for trial;
the following procedure shall be observed: (2) To appear whenever required by the court
(1) Inventory. The apprehending officer where the case is pending; and
having initial custody and control of the (3) To waive the right of the accused to be
seized items, equipment, paraphernalia, present at the trial, and upon failure of the
conveyances and instruments shall accused to appear without justification
physically inventory and whenever and despite due notice, the trial may
practicable, photograph the same in the proceed in absentia. [Sec. 2, Rule 13]
presence of the person from whom such
items were seized. If the court grants bail, the court may issue a
(2) Return. The apprehending officer shall hold-departure order in appropriate cases.
submit to the issuing court the return of [Sec. 1, Rule 13]
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Where the prosecution and offended party or The constitutional right of the people to a
concerned government agency agree to the balanced and healthful ecology shall be
plea offered by the accused, the court shall: given the benefit of the doubt. [Sec. 1, Rule
(1) Issue an order which contains the plea- 20]
bargaining arrived at; STANDARDS FOR APPLICATION
(2) Proceed to receive evidence on the civil (1) Threats to human life or health;
aspect of the case, if any; and (2) Inequity to present or future generations;
(3) Render and promulgate judgment of (3) Prejudice to the environment without
conviction, including the civil liability for legal consideration of the environmental
damages. [Sec. 2, Rule 15] rights of those affected. [Sec. 2, Rule 20]